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

CHAPTER 1 GENERAL PROVISIONS

Sec.

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

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

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

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

JUDICIAL DECISIONS

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

44-1-1. "Property" defined.

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

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

    (Code 1933, § 85-101.)

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

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

JUDICIAL DECISIONS

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

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

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JUDICIAL DECISIONS

ANALYSIS

General Consideration

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

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

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

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

Real Estate

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fixtures

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Airspace

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

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

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

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

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

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

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

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

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

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

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JUDICIAL DECISIONS

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

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

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

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

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

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

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

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

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

44-1-4. "Estate" defined.

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

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

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

JUDICIAL DECISIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

44-1-5. "Title" defined.

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

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

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

JUDICIAL DECISIONS

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

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

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

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

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

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

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

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

JUDICIAL DECISIONS

ANALYSIS

General Consideration

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trade and Domestic Fixtures

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

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

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

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

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

Intention of Parties

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

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

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

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

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

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

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

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

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

Machinery

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

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

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

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

44-1-7. Possession of personalty.

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

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

JUDICIAL DECISIONS

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

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

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

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

JUDICIAL DECISIONS

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

RESEARCH REFERENCES

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

C.J.S. - 3B C.J.S., Animals, § 8, 10.

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

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

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

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

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

JUDICIAL DECISIONS

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

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

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

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

RESEARCH REFERENCES

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

C.J.S. - 3B C.J.S., Animals, § 6.

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

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

44-1-12. What constitutes perfect title.

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

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

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

JUDICIAL DECISIONS

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JUDICIAL DECISIONS

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

Construction with Abandoned Motor Vehicle Act. - The Department of Public Safety is not authorized to establish maximum rates for the removal and storage of motor vehicles pursuant to the Abandoned Motor Vehicle Act, O.C.G.A. § 40-11-11 et seq., beyond the department's regulatory authority as set forth in O.C.G.A. § 44-1-13 . 2019 Op. Att'y Gen. No. 19-1.

Limitation on authority. - O.C.G.A. § 44-1-13 does not provide any authority to the Department of Public Safety to regulate or otherwise implement rules with regard to abandoned vehicles (unless also trespassing) or any vehicles on public property or public rights of way. 2019 Op. Att'y Gen. No. 19-1.

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

JUDICIAL DECISIONS

Circumstantial evidence insufficient to show a tree-planting company's knowledge of a well. - In a widow's claim against a tree-planting company for the company's failure to report an abandoned well as required by O.C.G.A. § 44-1-14 , allegedly resulting in her husband's death when he drove over the well in a four-wheeler, summary judgment was proper because the widow's circumstantial evidence that the company was aware of the well could not overcome the company's direct evidence that the company did not know about the well. Handberry v. Manning Forestry Servs., LLC, 353 Ga. App. 150 , 836 S.E.2d 545 (2019).

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

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

RESEARCH REFERENCES

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

C.J.S. - 11 C.J.S., Boundaries, § 17.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAPTER 2 RECORDATION AND REGISTRATION OF DEEDS AND OTHER INSTRUMENTS

Article 1

Recording.

Part 1

R ECORDING OF DEEDS AND OTHER REAL PROPERTY TRANSACTIONS .

Part 2

U NIFORM REAL PROPERTY ELECTRONIC RECORDING .

Article 2

Land Registration.

Part 1

I N GENERAL .

Part 2

P ROCEEDINGS TO REGISTER .

Part 3

E XAMINERS .

Part 4

R EGISTERS AND REGISTRATION .

Part 5

C ONVEYANCE, TRANSFER, AND DESCENT .

Part 6

A SSURANCE FUND .

Part 7

F EES .

Part 8

F ORMS .

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

Title insurance, § 33-7-8 .

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

For application of this chapter in 2020, see Executive Order 03.31.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2 020-executive-orders.

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

JUDICIAL DECISIONS

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

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

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

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

RESEARCH REFERENCES

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

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

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

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

ARTICLE 1 RECORDING

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

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

JUDICIAL DECISIONS

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

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

Constructive notice. - Chapter 7 trustee, as a bona fide purchaser for value, could not take the property at issue free of the creditor's security deed as to the debtor wife's interest in the property because the recording of the security deed provided constructive notice to the trustee of the creditor's interest in the property. Pettie v. RBC Mortg. Co. (In re Jackson), Bankr. (Bankr. N.D. Ga. Sept. 17, 2019).

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

OPINIONS OF THE ATTORNEY GENERAL

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PART 1 R ECORDING OF DEEDS AND OTHER REAL PROPERTY TRANSACTIONS

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

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

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

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

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

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

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

JUDICIAL DECISIONS

ANALYSIS

General Consideration

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

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

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

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

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

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

Applicability

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

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

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

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

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

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

Where and When Deeds Recorded

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

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

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

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

Priority of Deeds from Same Vendor
1. In General

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Notice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Vendor

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

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

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

4. Bona Fide Purchaser

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

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

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

Unrecorded Deed

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

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

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

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

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

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

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

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

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

Other Instruments
1. Power of Attorney

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

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

2. Bill of Sale

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

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

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

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

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

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

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JUDICIAL DECISIONS

ANALYSIS

General Consideration

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

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

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

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

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

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

Applicability

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Docket

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

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

Priorities
1. In General

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Construction of Section as to Deeds

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

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

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

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

3. Notice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Constructive notice. - Chapter 7 trustee, as a bona fide purchaser for value, could not take the property at issue free of the creditor's security deed as to debtor wife's interest in the property because the recording of the security deed provided constructive notice to the trustee of the creditor's interest in the property. Pettie v. RBC Mortg. Co. (In re Jackson), Bankr. (Bankr. N.D. Ga. Sept. 17, 2019).

4. Filing

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

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

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

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

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

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

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

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

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

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

Parties to Instrument

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

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JUDICIAL DECISIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RESEARCH REFERENCES

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

C.J.S. - 26A C.J.S., Deeds, § 158.

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

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

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

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

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

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

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

JUDICIAL DECISIONS

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

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

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

JUDICIAL DECISIONS

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

RESEARCH REFERENCES

C.J.S. - 26A C.J.S., Deeds, § 424.

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

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

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

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

JUDICIAL DECISIONS

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

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

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

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

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

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

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

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

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

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

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

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

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

(Ga. L. 1960, p. 858, § 1.)

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

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

(Ga. L. 1958, p. 413, § 1.)

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

OPINIONS OF THE ATTORNEY GENERAL

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

RESEARCH REFERENCES

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

C.J.S. - 76 C.J.S., Records, § 11.

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

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

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

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

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

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

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

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

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions rendered prior to the enactment of Art. 9, T. 11, are included in the annotations for this Code section.

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

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

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

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

RESEARCH REFERENCES

C.J.S. - 76 C.J.S., Records, § 11.

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

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

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

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

(Ga. L. 1943, p. 577, § 1.)

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

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

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

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

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

JUDICIAL DECISIONS

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

RESEARCH REFERENCES

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

C.J.S. - 26A C.J.S., Deeds, § 159.

44-2-14. Requirements for recordation.

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

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

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

JUDICIAL DECISIONS

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

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

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

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

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

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

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

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

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

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

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

JUDICIAL DECISIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

JUDICIAL DECISIONS

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

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

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

RESEARCH REFERENCES

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

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

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

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

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

JUDICIAL DECISIONS

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

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

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

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

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

JUDICIAL DECISIONS

Acknowledgement language remains. - Remedial statute continues to track the language of the pre-2015 recording statute and, therefore, the acknowledgment language remains. This does not mean that the remedial statute is now inapplicable to security deeds that were acknowledged but remain defective under the revised recording statute. Scarver v. Pingora Loan Servicing, LLC (In re Lindstrom), 608 Bankr. 283 (Bankr. N.D. Ga. 2019).

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

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

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

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

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

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

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

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

Because the closing attorney was not a subscribing witness, the affidavit failed to substantially comply with the remedial statute to cure the defect in the security deed. It followed that the security deed, as recorded, did not provide constructive notice to subsequent bona fide purchasers and the trustee could therefore avoid the security deed pursuant to 11 U.S.C. § 544(a)(3) and recover the property or the property's value from the defendants pursuant to 11 U.S.C. § 550. Scarver v. Pingora Loan Servicing, LLC (In re Lindstrom), 608 Bankr. 283 (Bankr. N.D. Ga. 2019).

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

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

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

RESEARCH REFERENCES

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

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

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

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

JUDICIAL DECISIONS

Swearing to genuineness of handwriting of person executing not required. - Original Acts from which this statute was codified required not only that the third person therein referred to should swear to the genuineness of the handwriting of the subscribing witnesses, but the third person was required also to swear to the genuineness of the handwriting of the person executing the instrument. The omission of this latter requisite in these present provisions of a positive statute may be fairly attributable to oversight rather than to a deliberate purpose to repeal the law; however, the effect is a repeal. McVicker v. Conkle, 96 Ga. 584 , 24 S.E. 23 (1895) (see O.C.G.A. § 44-2-19 ).

Affidavit asserting witness did not sign deed raises jury issue. - When an affiant asserts plainly that, to the affiant's knowledge, the affiant's mother did not sign the deed in question, the affidavit alone raises an issue for a jury to determine as to the genuineness of the deed. Mathews v. Brown, 235 Ga. 454 , 219 S.E.2d 701 (1975).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 99.

44-2-20. Recorded affidavits relating to land as notice of facts cited therein; filing and recording.

  1. Recorded affidavits shall be notice of the facts therein recited, whether taken at the time of a conveyance of land or not, where such affidavits show:
    1. The relationship of parties or other persons to conveyances of land;
    2. The relationship of any parties to any conveyance with other parties whose names are shown in the chain of title to lands;
    3. The age or ages of any person or persons connected with the chain of title;
    4. Whether the land embraced in any conveyance or any part of such land or right therein has been in the actual possession of any party or parties connected with the chain of title;
    5. The payment of debts of an unadministered estate;
    6. The fact or date of death of any person connected with such title;
    7. Where such affidavits relate to the identity of parties whose names may be shown differently in chains of title;
    8. Where such affidavits show the ownership or adverse possession of lands or that other persons have not owned such lands nor been in possession of same; or
    9. Where such affidavits state any other fact or circumstance affecting title to land or any right, title, interest in, or lien or encumbrance upon land.

      Any such affidavits may be made by any person, whether connected with the chain of title or not.

  2. Reserved.
  3. Affidavits referred to in subsection (a) of this Code section shall be filed by the clerk of the superior court of the county where the land is located and shall contain a caption referring to the current owner and to a deed or other recorded instrument in the chain of title of the affected land. The clerk of the superior court shall record such affidavits, shall enter on the deed or other recorded instrument so referred to the book and page number on which such affidavit may be recorded, and shall index same in the name of the purported owner as shown by such caption in both grantor and grantee indexes in deed records as conveyances of lands are recorded and indexed; and the clerk shall receive the same compensation therefor as for recording deeds to lands.

    (Ga. L. 1955, p. 614, §§ 1-3; Ga. L. 1982, p. 3, § 44; Ga. L. 2011, p. 99, § 77/HB 24.)

The 2011 amendment, effective January 1, 2013, substituted "Reserved" for the former provisions of subsection (b), which read: "(b) In any litigation over any of the lands referred to and described in any of the affidavits referred to in subsection (a) of this Code section in any court in this state or in any proceedings in any such court involving the title to such lands wherein the facts recited in such affidavits may be material, the affidavits or certified copies of the record thereof shall be admissible in evidence and there shall be a rebuttable presumption that the statements in said affidavits are true. The affidavits or certified copies thereof shall only be admissible as evidence in the event the parties making the affidavits are deceased; they are nonresidents of the state; their residences are unknown to the parties offering the affidavits; or they are too old, infirm, or sick to attend court."; and, in subsection (c), substituted "subsection (a)" for "subsections (a) and (b)" in the first sentence and substituted "the clerk" for "he" near the end of the last sentence. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews. - For article, "Some Rescission Problems in Truth-In-Lending, as Viewed From Georgia," see 7 Ga. St. B. J. 315 (1971). For article, "Evidence," see 27 Ga. St. U. L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 1 (2011).

JUDICIAL DECISIONS

Statute will be strictly construed by the court. Dollar v. Thompson, 212 Ga. 831 , 96 S.E.2d 493 (1957) (see O.C.G.A. § 44-2-20 ).

Contents of affidavit. - Properly recorded affidavit "shall" contain a caption showing the information enumerated in this statute. This is made mandatory by the use of the word "shall," rather than permissive language. Dollar v. Thompson, 212 Ga. 831 , 96 S.E.2d 493 (1957) (see O.C.G.A. § 44-2-20 ).

Although affidavit gave proper statutory notice to the corporations as to the identity of the property owner, referred to the county grantor-grantee index, was properly witnessed and notarized, and contained other proper information, it did not settle the question of the identity of the property owner's heirs; thus, since a question of fact remained as to whether the affidavit afforded the corporations with actual or constructive notice as to a claim by the property owner's excluded spouse, the trial court should not have granted summary judgment to the corporations as to the claim of the one relative. Bowman v. Century Funding, Ltd., 277 Ga. App. 540 , 627 S.E.2d 73 (2006).

Affidavit cancelled. - Trial court properly granted a renter summary judgment and removed an affidavit asserting adverse possession filed by the owner of the first floor of a building with regard to a 1,350 square foot space on the second floor of the building as the renter established that title was acquired via a quit claim deed, that the renter changed the door at the base of the stairwell and had sole access to the second floor space, as well as posted no trespassing signs. The owner of the first floor failed to establish a continuous, exclusive, and uninterrupted possession of the space based on sporadic repairs made to the roof of the entire building. MEA Family Invs., LP v. Adams, 284 Ga. 407 , 667 S.E.2d 609 (2008).

Recorded affidavits not conveyances. - O.C.G.A. §§ 14-5-46 and 14-5-47 were not applicable to a national church's action to quiet title in property held by a local church because there was no deed of conveyance to the trustees of the local church; two recorded title affidavits executed by lifetime attendees of the local church, one 79 years old and the other 80, asserted there had never been a question concerning the church's right of ownership of the property, but recorded affidavits relating to land were not conveyances or a legal proceeding by which one could attack the title to realty or cure a defect in the title, O.C.G.A. § 44-2-20 . Kemp v. Neal, 288 Ga. 324 , 704 S.E.2d 175 (2010).

Affidavit not part of property's chain of title. - With respect to the issue of whether a Chapter 7 trustee was a bona fide purchaser under 11 U.S.C. § 544 of the debtor husband's interest, the fact that a corrective deed was cross-indexed with a special warranty deed did not pull the corrective deed into the property's chain of title. A bank's analogy to recordable affidavits under Georgia law was inapposite because, setting aside that the statute applied specifically to affidavits containing particular information, nothing in that statute stated that cross-indexing a recordable affidavit made the affidavit part of a property's chain of title. Bank of Am., N.A. v. Adams (In re Adams), 583 Bankr. 541 (Bankr. N.D. Ga. 2018).

Affidavit admissible only if affiant unavailable. - Affidavits shall be admissible only when the person making the affidavit is not available as a witness for stated reasons. Dollar v. Thompson, 212 Ga. 831 , 96 S.E.2d 493 (1957).

Affidavits describing relationship of parties and other facts affecting title to property. - Because the allegations in the affidavits of title simply described either the relationship of the parties or other objective facts or circumstances affecting title to the property and nearly all of those allegations were asserted or confirmed by the property owner either in the property owner's answer to the bank's complaint, the property owner's counterclaim, or the property owner's brief on appeal, the trial court did not abuse the court's discretion in effectively granting the motion to quash the subpoena for the bank's counsel and in refusing to allow the property owner to question the bank's counsel. Cronan v. JP Morgan Chase Bank, N.A., 336 Ga. App. 201 , 784 S.E.2d 57 (2016).

Cited in Parker v. Adamson, 109 Ga. App. 172 , 135 S.E.2d 487 (1964); Jones v. Van Vleck, 224 Ga. 796 , 164 S.E.2d 724 (1968); Crane v. Gaddis, 224 Ga. 804 , 164 S.E.2d 844 (1968); Minor v. Ray, 122 Ga. App. 531 , 177 S.E.2d 842 (1970).

RESEARCH REFERENCES

ALR. - Necessity of showing authority or qualification of affiant in affidavit made in behalf of corporation, 3 A.L.R. 132 .

44-2-21. Recording instrument executed out of state; attestation and acknowledgment; validity of attestation by officer who appears to have no jurisdiction to attest the instrument.

  1. To authorize the recording of a deed to realty or personalty executed outside this state, the deed must be attested by or acknowledged before:
    1. A consul or vice-consul of the United States, whose certificate under his official seal shall be evidence of the fact;
    2. A judge of a court of record in the state or county where executed, with a certificate of the clerk under the seal of such court of the genuineness of the signature of such judge;
    3. A clerk of a court of record under the seal of the court; or
    4. A notary public or justice of the peace of the county or city of the state or the state and the county, city, or country where executed, with his seal of office attached; if such notary public or justice of the peace has no seal, then his official character shall be certified by a clerk of any court of record in the county, city, or country of the residence of such notary or justice of the peace.
  2. A deed to realty must be attested by two witnesses, one of whom may be one of the officials named in subsection (a) of this Code section.
  3. Wherever any deed to realty or personalty executed outside this state appears by its caption to have been executed in one state and county and the official attesting witness appears to be an official of another state or county, which official would not have jurisdiction to witness such deed in the state and county named in the caption, the deed, notwithstanding the caption, shall be conclusively considered and construed to have been attested by the officer in the state and county in which he had authority to act.
  4. This Code section shall not apply to transactions covered by Article 9 of Title 11.

    (Ga. L. 1895, p. 73, § 1; Civil Code 1895, § 3621; Ga. L. 1900, p. 52, § 1; Civil Code 1910, § 4203; Ga. L. 1912, p. 71, § 1; Ga. L. 1924, p. 58, § 1; Code 1933, § 29-409; Ga. L. 1951, p. 261, § 1; Ga. L. 1962, p. 156, § 1; Ga. L. 1982, p. 3, § 44.)

Cross references. - General provision that no seal is required for notary's attestation of deeds, § 45-17-6 .

Law reviews. - For comment discussing the legal effect of concurrent leases under both common law and statutory law in Georgia, see 6 Ga. St. B.J. 320 (1970).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Notarial seal is required for effective recording. The absence of the seal renders the recording a nullity. However, unrecorded security deeds remain valid against the persons executing the deeds. Ivey v. Transouth Fin. Corp., 566 F.2d 1023 (5th Cir. 1978).

Priority of unrecorded deed of bargain and sale. - Unrecorded deed of bargain and sale is postponed only to later bona fide purchasers for value without notice. Ivey v. Transouth Fin. Corp., 566 F.2d 1023 (5th Cir. 1978).

Admissibility of unrecorded instruments. - Unrecorded deeds or mortgages may be introduced in evidence upon sufficient proof of execution. Ivey v. Transouth Fin. Corp., 566 F.2d 1023 (5th Cir. 1978).

Fraudulent deed was facially regular and operated to release security interest. - A 2003 warranty deed that operated to release a prior lender's security interest in the property was not a forgery but was signed by someone fraudulently assuming the authority of an officer of the prior lender and was regular on the deed's face. Therefore, a subsequent lender that foreclosed on the property and purchased the property at the foreclosure sale was a bona fide purchaser for value entitled to take the property free of the prior lender's security interest. Deutsche Bank Nat'l Trust Co. v. JP Morgan Chase Bank, N.A., 307 Ga. App. 307 , 704 S.E.2d 823 (2010).

Cited in Hagan v. Hagan, 165 Ga. 364 , 141 S.E. 54 (1927); Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939); Mack Trucks, Inc. v. Ryder Truck Rental, Inc., 110 Ga. App. 68 , 137 S.E.2d 718 (1964).

Decisions Prior to Art. 9, T. 11

Editor's notes. - All of the following notes were taken from cases decided prior to the effective date of Art. 9, T. 11, January 1, 1964. See § 11-10-101 .

On the history of this statute, see Crummey & Hamilton v. Bentley, 114 Ga. 746 , 40 S.E. 765 (1902); Durrence v. Northern Nat'l Bank, 117 Ga. 385 , 43 S.E. 726 (1903); McTyre v. Stearns, 142 Ga. 850 , 83 S.E. 955 (1914) (see O.C.G.A. § 44-2-21 ).

Former Civil Code 1895, §§ 5060 and 5062 (see O.C.G.A. § 9-10-113 ) did not repeal former Civil Code 1895, § 3621 (see O.C.G.A. § 44-2-21 ). Simpson v. Wicker, 120 Ga. 418 , 47 S.E. 965 , 1 Ann. Cas. 542 (1904).

Purpose. - Requirement of this statute is merely a provision for admission of paper to record. Balchin v. Jones, 10 Ga. App. 434 , 73 S.E. 613 (1912) (see O.C.G.A. § 44-2-21 ).

"Attestation" and "subscribed" construed. - Attestation is witnessing actual execution of paper, and subscribing one's name as witness to fact. Gilliam v. Burgess, 169 Ga. 705 , 151 S.E. 652 (1930).

What is intended as signature constitutes signing. - Exactly what constitutes a signing has never been reduced to a judicial formula. The principle is that whatever the testator or grantor is shown to have intended as the grantor's signature is a valid signing, no matter how imperfect, unfinished, fantastical, illegible, or even false the separate characters or symbols the grantor used might be when critically judged. Gilliam v. Burgess, 169 Ga. 705 , 151 S.E. 652 (1930).

Consul's attestation must be done at consulate. - It is clear that it was not intended that a consul could act in relation to the matter of attesting deeds at any other place than that at which the laws of the United States authorize the consul to perform such acts. Therefore, if a consul of the United States attests a deed at any place other than the consulate, such attestation would not be sufficient to authorize the record of the deed. McCandless v. Yorkshire Guarantee & Sec. Corp., 101 Ga. 180 , 28 S.E. 663 (1897). See also, Long v. Powell, 120 Ga. 621 , 48 S.E. 185 (1904).

Certificate evidences fact of execution and attestation of deed. - Words in subsection (a)(1) would seem to contemplate a certificate in every instance as evidence not merely of the fact that the person purporting to be the attesting officer is such an officer, but of the whole complex fact of execution and attestation of the deed, including the identity and official character of the attesting witness. McTyre v. Stearns, 142 Ga. 850 , 83 S.E. 955 (1914) (see O.C.G.A. § 44-2-21 ).

Acknowledgement when deed executed out of state. - When a deed to realty in this state is executed out of the state, a judge of a court of record of the venue of the execution may take an acknowledgment thereof. Cunningham v. Barker, 109 Ga. 613 , 35 S.E. 53 (1900).

Clerk's certificate under court's seal is prima facie evidence of judicial authority. Ford v. Nesmith, 117 Ga. 210 , 43 S.E. 483 (1903).

For illustration of procedure of acknowledgement before clerk, see Ford v. Nesmith, 117 Ga. 210 , 43 S.E. 483 (1903).

Effect of lack of seal or certificate on out-of-state bill of sale. - Bill of sale executed out of this state, probated before a notary public, is not entitled to record in Georgia when the seal of the notary is not attached, and when the official character of the notary is not certified by a clerk of the court of record in the county or city of the residence of the notary. Southeastern Equip. Co. v. Peoples Ins. & Fin. Co., 105 Ga. App. 539 , 125 S.E.2d 114 (1962).

Clerk's certificate referring to power under which notary holds appointment not required. - This statute does not require the certificate of the clerk to contain any statement with reference to the power under which the notary holds the notary's appointment. Durrence v. Northern Nat'l Bank, 117 Ga. 385 , 43 S.E. 726 (1903) (see O.C.G.A. § 44-2-21 ).

Requirement of two witnesses not satisfied. - Attestation of deed to realty solely by notary does not satisfy requirement of this statute for two witnesses. Kimbrell v. Thomas, 139 Ga. 146 , 76 S.E. 1024 (1912) (see O.C.G.A. § 44-2-21 ).

Presumption that deed executed within attesting officer's jurisdiction. - Every presumption which the law may indulge may be invoked in favor of the inference that the deed was executed within the attesting official's jurisdiction since the deed does not bear evidence to the contrary. Glover v. Cox, 137 Ga. 684 , 73 S.E. 1068 , 1913B Ann. Cas. 191 (1912). See also In re Williams, 224 F. 984 (S.D. Ga. 1915).

OPINIONS OF THE ATTORNEY GENERAL

Word "seal" is reflective of standard mode of notarization at time of statute's original enactment. 1975 Op. Att'y Gen. No. U75-53 (see O.C.G.A. § 44-2-21 ).

Rubber stamp qualifies as "seal". - Deeds executed in states allowing notaries public to use a rubber stamp in indelible ink, in lieu of a raised seal, qualify for recordation in Georgia. 1975 Op. Att'y Gen. No. U75-53.

44-2-22. Legal effect of good record title for 40 years.

A prima-facie case shall be made out in actions respecting title to land upon showing good record title for a period of 40 years, and it shall not be necessary under such circumstances to prove title to the original grant from the state.

(Ga. L. 1953, Jan.-Feb. Sess., p. 63, § 1.)

Law reviews. - For article surveying real property law, see 34 Mercer L. Rev. 255 (1982). For note advocating land registration similar to the Torrens system and criticizing the 1952 amendments to Art. 2 of this chapter, as well as view that that article is solely a means to clear title, see 6 Mercer L. Rev. 320 (1955).

JUDICIAL DECISIONS

Section constitutes major change in rules of evidence in cases involving title to land. Shippen v. Cloer, 213 Ga. 172 , 97 S.E.2d 563 (1957) (see O.C.G.A. § 44-2-22 ).

Section not sole means of proving ownership. - In an ejectment action by a landowner against a sign company, the landowner was not required to show record title for 40 years to prove ownership of the property; O.C.G.A. § 44-2-22 does not provide the sole means by which a party may prove ownership of land, but merely supplies an evidentiary shortcut to proving ownership of land when two parties make adverse claims to the land. Outdoor Sys. v. Woodson, 221 Ga. App. 901 , 473 S.E.2d 204 (1996).

Proving ownership prior to passage of statute. - Prior to enactment of this statute, when a plaintiff in ejectment relied upon a record or paper title to prove ownership, it was necessary, in order to make out a prima facie case, to prove a regular chain of title from the state, or from some grantor in possession, or from a common source from which the grantor and the defendant claimed. Shippen v. Cloer, 213 Ga. 172 , 97 S.E.2d 563 (1957) (see O.C.G.A. § 44-2-22 ).

Effect of recital in deed of source of title. - Although a recital in a deed that the parties making the deed were heirs at law of a former owner is not evidence of the fact recited, except as against parties to the deed and their privies, it may be sufficient to show prima facie good title in the grantee. Herrington v. Church of Lord Jesus Christ, 222 Ga. 542 , 150 S.E.2d 805 (1966).

Defenses to ejectment action survive section's enactment. - Defendant in ejectment action may assert defenses which the defendant could assert prior to section's enactment; after the plaintiff has established plaintiff's prima facie case by showing a good record title for 40 years, the burden of proceeding is upon the defendant, who must introduce evidence to rebut the plaintiff's prima facie case; otherwise the plaintiff's evidence will demand a verdict in plaintiff's favor. Shippen v. Cloer, 213 Ga. 172 , 97 S.E.2d 563 (1957) (see O.C.G.A. § 44-2-22 ).

Statute is merely a rule of evidence under which the plaintiff in ejectment can make a prima facie case; the statute did not change the fundamental rules governing the ownership of property, and the statute does not deprive the defendant in ejectment of any defenses which the defendant could have asserted prior to the enactment of this statute. Costello v. Styles, 227 Ga. 650 , 182 S.E.2d 427 (1971) (see O.C.G.A. § 44-2-22 ).

Legal title in third person. - Defendant, except when some special relationship between defendant and the plaintiff forbids it, may defeat a recovery by showing, beyond all controversy, legal title in a third person, without connecting defendant with that title, provided the title so shown was subsisted at the date of the commencement of the action and was paramount to the plaintiff's. Shippen v. Cloer, 213 Ga. 172 , 97 S.E.2d 563 (1957).

Ripening of prescriptive title in another. - When the plaintiff made out a prima facie case when the plaintiff introduced in evidence the plaintiff's chain of title, such a title, like any other title to land, may be lost by the subsequent ripening of a prescriptive title thereto in another. Hearn v. Leverette, 213 Ga. 286 , 99 S.E.2d 147 (1957).

When both parties in action apparently have good title, legal title determined by other evidence. - When the plaintiff and the defendant in an ejectment action each appear to have good record title for 40 years from separate sources, other evidence must be resorted to in order to determine the owner of the legal title. Costello v. Styles, 227 Ga. 650 , 182 S.E.2d 427 (1971).

Deed referencing a plat with certain description established boundary. - In a boundary dispute, pursuant to O.C.G.A. § 44-2-22 , a landowner established a prima facie case upon showing good record title for a period of 40 years: the landowner's 1956 deed referenced a survey plat that described the boundary with certain metes and bounds and measurements, while the neighbors' 1936 deed provided insufficient means to determine the boundary. Mathews v. Cloud, 294 Ga. 415 , 754 S.E.2d 70 (2014).

Ejectment petition properly denied. - When an original property owner, in the owner's ejectment petition, did not present any testimony or documentary evidence that the grantor had title to the property purportedly conveyed by the quitclaim deed, the owner failed to make out a prima-facie case based on good record title for a period of 40 years. Brooks v. Green, 277 Ga. 722 , 594 S.E.2d 629 (2004).

Cited in Finney v. Green, 211 Ga. 143 , 84 S.E.2d 28 (1954); Seal v. Aldredge, 100 Ga. App. 458 , 111 S.E.2d 769 (1959); John Doe v. Roe, 234 Ga. 127 , 214 S.E.2d 880 (1975).

44-2-23. When deed serves as evidence; effect of affidavit alleging forgery.

Reserved. Repealed by Ga. L. 2011, p. 99, § 78/HB 24, effective January 1, 2013.

Editor's notes. - This Code section was based on Laws 1812, Cobb's 1851 Digest, p. 167; Laws 1827, Cobb's 1851 Digest, p. 172; Laws 1841, Cobb's 1851 Digest, p. 178; Ga. L. 1855-56, p. 143, § 1; Code 1863, § 2674; Code 1868, § 2670; Code 1873, § 2712; Code 1882, § 2712; Civil Code 1895, § 3628; Civil Code 1910, § 4210; Code 1933, § 29-415. For present provisions, see § 24-8-803 .

Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

44-2-24. Withdrawal of affidavit of forgery upon loss of deed by affiant.

Where an affidavit of forgery has been filed to the plaintiff's deed, and the deed has been turned over to the defendant or his counsel in order to procure evidence upon the issue of forgery, and such deed is destroyed or lost by the defendant or his counsel or for any cause is not returned to the plaintiff, the judge trying the case shall strike the affidavit of forgery and withdraw the issue from the jury until the deed is produced. The same rule shall apply when the plaintiff files an affidavit of forgery as to the deed of the defendant.

(Ga. L. 1887, p. 60, §§ 1, 2; Civil Code 1895, § 3629; Civil Code 1910, § 4211; Code 1933, § 29-416.)

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 164, 167, 168.

ALR. - Forgery as affecting registration under Torrens Act, 68 A.L.R. 357 .

Forged deed or bond for title as constituting color of title, 68 A.L.R.2d 452.

Procuring signature by fraud as forgery, 11 A.L.R.3d 1074.

44-2-25. Recording techniques; copies of plats.

All decrees, deeds, mortgages, or other instruments affecting the title to land shall be recorded by the clerk of superior court in such a manner so as to provide a permanent record of such instruments. It shall be lawful to make a copy or copies of any plats, blueprints, or other copies of plats that are already of record in the clerk's office. These copies shall serve all purposes and shall be as authentic as the originals.

(Ga. L. 1929, p. 321, § 1; Code 1933, § 29-420; Ga. L. 1950, p. 413, § 1; Ga. L. 2016, p. 193, § 4/HB 1004.)

The 2016 amendment, effective January 1, 2017, substituted the present provisions of this Code section for the former provisions, which read: "All decrees, deeds, mortgages, or other instruments affecting the title to land shall be recorded by the clerk of the superior court by the use of printing, typewriting, handwriting in ink, photostating, or photographing, which record shall be clear, legible, and permanent. The record may be made by any one or more of such methods. It shall be lawful to make a photostatic copy or copies of any plats, blueprints, or other copies of plats that are already of record in the clerk's office. These copies or photostatic copies thereof shall serve all purposes and shall be as authentic as the originals."

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 270.

C.J.S. - 26A C.J.S., Deeds, §§ 161, 162. 76 C.J.S., Records, § 3 et seq.

ALR. - Fraudulent misrepresentation or concealment by a contracting party concerning title to property or other subjects which are matters of public record, 33 A.L.R. 853 ; 56 A.L.R. 1217 .

Duty of vendor as to abstract of title, 52 A.L.R. 1460 .

44-2-26. Recording of plat or copy of plat - When and where authorized; duty of clerk.

The owner of real property or of any interest therein or any holder of a lien thereon may file a plat of the property in the office of the clerk of superior court of the county in which the property or any part thereof is located. It shall be the duty of the clerk to record and index any plat that conforms with Code Section 15-6-67.

(Ga. L. 1937, p. 746, § 1; Ga. L. 2012, p. 173, § 1-34/HB 665; Ga. L. 2016, p. 193, § 5/HB 1004.)

The 2012 amendment, effective July 1, 2012, substituted "digital" for "photostatic" twice in this Code section, and added "that conforms with Code Section 15-6-67" at the end of the last sentence.

The 2016 amendment, effective January 1, 2017, in the first sentence, substituted "may file a plat of the property in the office of the clerk of superior court" for "may have a plat of the property or a blueprint, tracing, digital copy, or other copy of a plat of the property recorded and indexed in the office of the clerk of the superior court", and deleted "or any blueprint, tracing, digital copy, or other copy of the plat" following "any plat" in the second sentence.

JUDICIAL DECISIONS

Unofficial plat is admissible in evidence if proven to be correct. Mickle v. Moore, 188 Ga. 444 , 4 S.E.2d 217 (1939).

Description in lease prevails over that in plat. - When a lease describes the premises by metes and bounds, such a description will prevail over that of an attached sketch or plat when they differ in describing the premises. Duke v. Wilder, 212 Ga. 26 , 90 S.E.2d 12 (1955).

Cited in Conyers v. Fulton County, 117 Ga. App. 649 , 161 S.E.2d 347 (1968).

OPINIONS OF THE ATTORNEY GENERAL

Plats reduced in size. - Clerks of superior courts may accept for recording plats which have been reduced in size if the plats comply with the requirements of O.C.G.A. § 44-2-26 . 1989 Op. Att'y Gen. No. U89-4.

Photocopies of plats. - Clerks of superior courts are not authorized under O.C.G.A. §§ 15-6-67 to 15-6-69 to record photocopies of plats, although such a recording will not affect or invalidate any legal description or legal instrument based on such plat. 1989 Op. Att'y Gen. No. U89-4.

44-2-27. Recording of plat - When deemed recorded.

When any plat is filed by the clerk of superior court, such filing shall be deemed a recording of the plat.

(Ga. L. 1937, p. 746, § 2; Ga. L. 2016, p. 193, § 6/HB 1004.)

The 2016 amendment, effective January 1, 2017, substituted the present provisions of this Code section for the former provisions, which read: "When any plat or any blueprint, tracing, photostatic copy, or other copy of the plat is securely pasted or fastened in the book provided by the clerk for that purpose, such pasting or fastening shall be deemed a recording of the plat."

44-2-28. Recording of plat or copy of plat - Incorporation by reference.

When any deed, mortgage, or other instrument conveying an interest in or creating a lien on real property refers to the boundaries, metes, courses, or distances of the real estate delineated or shown on any plat of the property or on any blueprint, tracing, photostatic or digital copy, or other copy of the plat which has been recorded as authorized in Code Section 44-2-26 and when the deed, mortgage, or other instrument states the office, book, and page of recordation of the plat or of the blueprint, tracing, photostatic or digital copy, or other copy of the plat, the reference shall be equivalent to setting forth in the deed, mortgage, or other instrument the boundaries, metes, courses, or distances of the real estate as may be delineated or shown on the plat or on the blueprint, tracing, photostatic or digital copy, or other copy thereof.

(Ga. L. 1937, p. 746, § 3; Ga. L. 1982, p. 3, § 44; Ga. L. 2016, p. 193, § 7/HB 1004.)

The 2016 amendment, effective January 1, 2017, inserted "or digital" throughout this Code section.

JUDICIAL DECISIONS

Contract referring to plat must identify tract sold. - Contract to sell part of a larger tract shown on the plat referred to must identify the part to be sold. McMichael Realty & Ins. Agency, Inc. v. Tysinger, 155 Ga. App. 131 , 270 S.E.2d 88 (1980).

Cited in Five Dee Ranch Corp. v. Federal Land Bank, 148 Ga. App. 734 , 252 S.E.2d 662 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Plat may be referred to in conveyance to aid in description of the property conveyed; such a plat need not be recorded to be utilized to aid in description; it is required that the plat be identified as the one referred to, and evidence of the plat's correctness shown; if these basic requirements are met, the court may even correct errors and deficiencies in the plat to develop a description of the property conveyed. 1973 Op. Att'y Gen. No. U73-19.

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 38 et seq, 50.

C.J.S. - 26A C.J.S., Deeds, § 53 et seq.

ALR. - Rights as between grantees in severalty of lots or parts of same tract, where actual measurements vary from those given in deeds or indicated on the map or plat, 97 A.L.R. 1227 .

Conveyance of lot with reference to map or plat as giving purchaser rights in indicated streets, alleys, or areas not abutting his lot, 7 A.L.R.2d 607.

44-2-29. Recording of plat or copy of plat - Ratification of record made prior to statutory authorization; effect of incorporation by reference of plat prior to authorization.

Any plats or any blueprints, tracings, photostatic copies, or other copies of plats recorded prior to March 29, 1937, in the manner described in Code Section 44-2-26 are declared to have been duly recorded; and the reference in any deed, mortgage, or other instrument executed prior to March 29, 1937, to the boundaries, metes, courses, or distances of the real estate delineated or shown on any plat or on any blueprint, tracing, photostatic copy, or other copy of a plat recorded prior to March 29, 1937, in the manner described in Code Section 44-2-26 shall have the same effect as if the boundaries, metes, courses, or distances of the real estate were specifically set forth in the deed, mortgage, or other instrument.

(Ga. L. 1937, p. 746, § 5.)

JUDICIAL DECISIONS

Cited in Conyers v. Fulton County, 117 Ga. App. 649 , 161 S.E.2d 347 (1968).

RESEARCH REFERENCES

C.J.S. - 26A C.J.S., Deeds, § 54 et seq.

44-2-30. Filing and recording of notice of settlement.

  1. Any party, or his or her legal representative, to a settlement which will convey legal or equitable title to real estate or any interest therein or create any lien thereon by way of a deed to secure debt, mortgage, or other instrument may file an instrument to be designated a "notice of settlement" with the clerk of the superior court of the county in which the real estate is situated. The notice of settlement shall be filed, permanently recorded, and indexed by the clerk of the superior court in the same manner as real estate records of the county. The clerk of the superior court shall transmit such information regarding notices of settlement as required by the Georgia Superior Court Clerks' Cooperative Authority for inclusion in the state-wide uniform automated information system for real and personal property records, as provided for by Code Sections 15-6-97 and 15-6-98. The clerk of the superior court shall charge a fee for the filing and recording of the notice of settlement as is required for filing other instruments pertaining to real estate as set forth in division (f)(1)(A)(i) of Code Section 15-6-77.
  2. The notice of settlement provided for in subsection (a) of this Code section shall be signed by said party or legal representative and shall set forth the names of the parties to the settlement and a description of the real estate. If the notice is executed by any one other than an attorney at law of this state, the execution shall be acknowledged or proved in the manner provided by law for the acknowledgment or proof of deeds.
  3. After the filing of a notice of settlement, any person claiming title to, an interest in, or a lien upon the real estate described in the notice through any party in the notice shall be deemed to have acquired said title, interest, or lien with knowledge of the anticipated settlement and shall be subject to the terms, conditions, and provisions of the deed or mortgage between the parties filed within the period provided by subsection (e) of this Code section.
  4. The form of the notice of settlement shall be substantially as follows:

    This form must be executed by a party or legal representative. If the notice is executed by anyone other than an attorney at law in Georgia, it must be executed and acknowledged or proved in the same manner as a deed.

    NOTICE is hereby given of a contract, agreement, and mortgage and commitment between the parties hereto.

  5. The notice of settlement shall be effective for 30 days from the date of filing; provided, however, that the notice of settlement shall be allowed to be renewed by a second filing for one additional 30 day period. Any lien filed during said 30 days shall attach to the premises described in the notice immediately upon the expiration of the 30 days, provided that the premises have not been conveyed and notwithstanding the filing of a subsequent notice of settlement. (Code 1981, § 44-2-30 , enacted by Ga. L. 2006, p. 649, § 1/HB 1282; Ga. L. 2007, p. 47, § 44/SB 103.)

"NOTICE OF REAL ESTATE SETTLEMENT

Name(s) and address(es) __________________ __________________ __________________ __________________ Seller(s) -and- Name(s) and address(es) __________________ __________________ Notice __________________ of __________________ Settlement Buyer(s) -and- Name(s) and address(es) __________________ __________________ __________________ __________________ Mortgagee(s)

The lands to be affected are described as follows:

All that certain tract or parcel of lands and premises situate lying and being in the ______________ of ______________, County of ______________ and State of Georgia, commonly known as ______________ and more particularly described as follows: Tax map reference County of ______________ Block No. ____ Lot No. ____ Block ____ Prepared by: ____________________________ Name ____________________________ ____________________________ Address ____________________________ Telephone Number"

PART 2 U NIFORM REAL PROPERTY ELECTRONIC RECORDING

Effective date. - This part became effective May 5, 2009.

Cross references. - Electronic records and signatures, § 10-12-1 et seq.

Filing documents by electronic means, § 15-10-53 .

44-2-35. Short title.

This part shall be known and may be cited as the "Uniform Real Property Electronic Recording Act."

(Code 1981, § 44-2-35 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

44-2-36. Definitions.

As used in this part, the term:

  1. "Authority" means the Georgia Superior Court Clerks' Cooperative Authority established pursuant to Code Section 15-6-94.
  2. "Document" means information that is:
    1. Inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; and
    2. Eligible to be recorded in the land records maintained by the clerk of superior court.
  3. "Electronic" means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
  4. "Electronic document" means a document that is received by the clerk of superior court in an electronic form.
  5. "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document.
  6. "Paper document" means a document that is received by the clerk of superior court that is not electronic.
  7. "Person" means an individual, corporation, business trust, estate, trust partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
  8. "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. (Code 1981, § 44-2-36 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

44-2-37. Electronic documents treated as original; electronic signatures acceptable.

  1. An electronic document prepared and filed in compliance with this part shall satisfy any requirement as a condition for recording that a document be an original, on paper or another tangible medium, or in writing.
  2. An electronic signature shall satisfy any requirement as a condition for recording that a document be signed.
  3. A requirement that a document or a signature associated with a document be notarized, acknowledged, verified, witnessed, or made under oath is satisfied if the electronic signature of the person authorized to perform that act, and all other information required to be included by other applicable law, is attached to or logically associated with the document or signature. A physical or electronic image of a stamp, impression, or seal need not accompany an electronic signature. (Code 1981, § 44-2-37 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

44-2-38. Role of clerk of court.

A clerk of superior court:

  1. Who implements any of the functions listed in this Code section shall do so in compliance with standards established by the authority;
  2. May receive, index, store, archive, and transmit electronic documents;
  3. May provide for access to, and search and retrieval of, documents and information by electronic means;
  4. Who accepts electronic documents for recording shall continue to accept for filing paper documents as authorized by state law and shall record both electronic documents and paper documents in the same manner as provided for by law;
  5. For archival purposes, may convert into electronic form paper documents accepted for recording;
  6. May convert into electronic form historical documents recorded on paper;
  7. May accept electronically any fee or other moneys that the clerk of superior court is authorized to collect; and
  8. May agree with other officials of a state or a political subdivision thereof, or of the United States, on procedures or processes to electronically facilitate satisfaction of prior approvals and conditions precedent to recording and on the electronic payment of statutorily required fees and other moneys. (Code 1981, § 44-2-38 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

44-2-39. Adoption of rules and regulations; standardization.

  1. The authority shall adopt rules and regulations and any standardized forms necessary to implement this part.
  2. To promote uniform standards and practices and compatibility of technology used within offices of clerks of superior court in this state and recording offices in other states that have enacted or may enact provisions substantially similar to those contained within this part, the authority shall consider when adopting, amending, and repealing its rules and regulations and any standardized forms:
    1. Standards and practices of other jurisdictions;
    2. The most recent standards promulgated by national standard-setting bodies, such as the Property Records Industry Association;
    3. The views of interested persons and governmental officials and entities;
    4. The needs of counties of varying size, population, and resources; and
    5. Standards that ensure that electronic documents are accurate, authentic, adequately preserved, and resistant to tampering. (Code 1981, § 44-2-39 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

44-2-39.1. Promotion of uniformity.

In applying and construing this part, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact substantially similar provisions.

(Code 1981, § 44-2-39.1 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

44-2-39.2. Construction with federal law.

The provisions of this part modify, limit, and supersede the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but shall not modify, limit, or supersede Section 101(c) of that federal act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that federal act, 15 U.S.C. Section 7003(b).

(Code 1981, § 44-2-39.2 , enacted by Ga. L. 2009, p. 695, § 1/HB 127.)

ARTICLE 2 LAND REGISTRATION

Law reviews. - For note advocating land registration similar to the Torrens system and criticizing the 1952 amendments to The Land Registration Act as well as view that the Act is solely a means to clear title, see 6 Mercer L. Rev. 320 (1955).

JUDICIAL DECISIONS

Constitutionality. - Requirements for land registration is not violative of the constitutional provision which declares that no law or ordinance shall pass which refers to more than one subject matter. Nor would the fact that the penal provision is unconstitutional render the entire Act void. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921).

Rules of law applicable. - In proving such title as will entitle an applicant to registration and a decree in the applicant's favor, the same rules of law apply as in suits for the recovery of possession of land by ejectment or statutory complaint for land. Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938), later appeal, 195 Ga. 317 , 24 S.E.2d 292 (1943).

PART 1 I N GENERAL

JUDICIAL DECISIONS

Purpose of chapter. - Ultimate goal of any complaint brought under the Georgia Land Registration Law is to determine conclusively the question of title. Gordon v. Georgia Kraft Co., 217 Ga. 500 , 123 S.E.2d 540 (1962).

Persons not affected. - Upon a proper construction of the Georgia Land Registration Law, its provisions do not apply to a person who is not made a party to proceedings instituted thereunder, and as to whom there is no compliance with the statute as to service or notice. Couey v. Talalah Estates Corp., 183 Ga. 442 , 188 S.E. 822 (1936).

Evidence required to register title. - Applicant seeking to register applicant's title may rely upon what is shown in the preliminary report without introducing in evidence the conveyances specified therein. Asbury v. McCall, 192 Ga. 102 , 14 S.E.2d 715 (1941), later appeal, 202 Ga. 154 , 42 S.E.2d 370 (1947).

Where plat admissible in evidence. - In proceeding under the Georgia Registration Law, plat is admissible in evidence where one who made the plat testifies to the plat's correctness, even if one testifies that in making the plat one examined the deeds of record and numerous other plats some of which were not in evidence, and the plat did not show on the plat's face the angles at which the lines were run. Henrietta Egleston Mem. Hosp. v. Groover, 202 Ga. 327 , 43 S.E.2d 246 (1947).

Cited in Cole v. Ogg, 180 Ga. 343 , 179 S.E. 116 (1935); Burgess v. Simmons, 191 Ga. 322 , 12 S.E.2d 323 (1940); Beasley v. Burt, 201 Ga. 144 , 39 S.E.2d 51 (1946); Manning v. Simmons, 207 Ga. 304 , 61 S.E.2d 150 (1950); James v. Florida Realty & Fin. Corp., 208 Ga. 652 , 68 S.E.2d 601 (1952); Hicks v. Simpson, 229 Ga. 214 , 190 S.E.2d 73 (1972).

OPINIONS OF THE ATTORNEY GENERAL

Effect of unrecorded written leases and contracts for oil leases. - When oil companies or operators secure from the true owner of land a written contract of lease, such a contract is binding between the parties and cannot be set aside by the owner at will, even if the lease was not registered. Should a company obtain a written lease from the true owner of land and fail to record the lease, as deeds and mortgages are recorded, and should the true owner sell the land to a third party who does not know of the lease, the third party purchasing the land would obtain a good title to all the interest in the land including mineral rights. 1945-47 Op. Att'y Gen. p. 397.

44-2-40. Short title.

This article shall be known and may be cited as "The Land Registration Law."

(Ga. L. 1917, p. 108, § 1; Code 1933, § 60-101.)

Law reviews. - For article, "Tracing Georgia's English Common Law Equity Jurisprudential Roots: Quia Timet," see 14 The Journal of Southern Legal History 135 (2006).

JUDICIAL DECISIONS

Cited in Couey v. Talalah Estates Corp., 183 Ga. 442 , 188 S.E. 822 (1936).

44-2-41. Definitions.

As used in this article, the term:

  1. "Clerk" means the clerk of the superior court of the county where the land is located and includes his lawful deputies and any person lawfully acting as clerk under the general laws or under this article.
  2. "Court" means the superior court of the county where the land is located.
  3. "Involuntary transaction" means all transmissions of registered land or of any interest therein other than those included in paragraph (6) of this Code section and all other rights or claims, judicial proceedings, liens, charges, or encumbrances not created directly by contract with the registered owner but arising by operation of law or of equitable principles or because of dower, the exercise of the right of eminent domain, levies on delinquent taxes, or any other like matters affecting registered land or any interest therein.
  4. "Judge," "judge of the court," "judge of the superior court," "judge of the superior court of the county where the land is located" or words of similar purport mean any judge presiding in the superior court of the county where the land is located. While it is intended that as a usual matter the judge of the superior court of each circuit shall be the judge who shall act upon and sit in the various matters arising in that circuit with which the judges of such courts are charged under this article, as to such matters any judge of the superior court shall have jurisdiction to perform the functions of judge under this article. In the event the judge of the superior court of the circuit in which the transaction or matter arises is disqualified, absent from the circuit, ill, dead, or from any other cause cannot act in the matter, it shall be the duty of any other judge of the superior court to whom the matter is presented to act in the matter to the same extent as if the same arose in one of the counties of his own circuit. In any matter arising under this article, upon the request of the judge of the superior court of the circuit in which it arose, any judge of the superior court may act upon it as if it had arisen in his own circuit.
  5. "Registered land" means any estate or interest in land which shall have been registered under this article.
  6. "Voluntary transaction" means all contractual and other voluntary acts or dealings, except by will, by any registered owner of any estate or interest in land, with reference to such estate or interest and any right of homestead or exemption therein.

    (Ga. L. 1917, p. 108, § 3; Code 1933, § 60-102; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Cited in Parham v. Kennedy, 60 Ga. App. 52 , 2 S.E.2d 765 (1939).

44-2-42. Performance of clerk's and sheriff's duties by deputies; liability.

The duties required of the clerk and the sheriff by this article may be performed through their lawful deputies; but the clerk or the sheriff, as the case may be, shall be responsible for the acts of such deputies.

(Ga. L. 1917, p. 108, § 83; Code 1933, § 60-415; Ga. L. 1982, p. 3, § 44.)

44-2-43. Fraud, forgery, and theft in connection with registration of title to land; penalty.

Any person who: (1) fraudulently obtains or attempts to obtain a decree of registration of title to any land or interest therein; (2) knowingly offers in evidence any forged or fraudulent document in the course of any proceedings with regard to registered lands or any interest therein; (3) makes or utters any forged instrument of transfer or instrument of mortgage or any other paper, writing, or document used in connection with any of the proceedings required for the registration of lands or the notation of entries upon the register of titles; (4) steals or fraudulently conceals any owner's certificate, creditor's certificate, or other certificate of title provided for under this article; (5) fraudulently alters, changes, or mutilates any writing, instrument, document, record, registration, or register provided for under this article; (6) makes any false oath or affidavit with respect to any matter or thing provided for in this article; or (7) makes or knowingly uses any counterfeit of any certificate provided for by this article shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than ten years.

(Ga. L. 1917, p. 108, § 85; Code 1933, § 60-9901; Ga. L. 1982, p. 3, § 44.)

Cross references. - Forgery and fraudulent practices generally, Ch. 9, T. 16.

JUDICIAL DECISIONS

No private right of action. - Because no state court would find that a borrower's complaint stated a claim against a non-diverse foreclosure administrator, whether under O.C.G.A. § 44-2-43 (because the statute did not provide a private right of action) or common law, the administrator was properly dismissed and its citizenship properly disregarded under the doctrine of fraudulent joinder for purposes of diversity jurisdiction and removal. Restivo v. Bank of Am. Corp., F.3d (11th Cir. July 8, 2015)(Unpublished).

Cited in Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921).

RESEARCH REFERENCES

ALR. - Forged deed or bond for title as constituting color of title, 68 A.L.R.2d 452.

44-2-44. Fraudulent acts by office of clerk personnel; penalties.

Any clerk, deputy clerk, special clerk, or other person performing the duties of the office of clerk who: (1) fraudulently enters a decree of registration without authority of the court; (2) fraudulently registers any title; (3) fraudulently makes any notation or entry upon the title register; (4) fraudulently issues any certificate of title, creditor's certificate, or other instrument provided for by this article; or (5) knowingly, intentionally, and fraudulently does any act of omission or commission under color of his office in relation to the matters provided for by this article shall be guilty of a felony and shall be removed from office and be permanently disqualified from holding any public office and shall be punished by imprisonment for not less than one nor more than ten years.

(Ga. L. 1917, p. 108, § 85; Code 1933, § 60-9902; Ga. L. 1982, p. 3, § 44.)

Cross references. - Forgery and fraudulent practices generally, Ch. 9, T. 16.

JUDICIAL DECISIONS

Cited in DeKalb County Sch. Dist. v. Ga. State Bd. of Educ., 294 Ga. 349 , 751 S.E.2d 827 (2013).

44-2-45. Fraud or false entries by sheriffs and deputies; penalties.

Any sheriff, deputy sheriff, or other person performing the duties of the office of sheriff who knowingly and fraudulently makes any false entry or return in connection with any matter arising under this article or who fraudulently conspires with any person or persons to defraud any other person or persons through this article shall be guilty of a felony and shall be removed from office and be permanently disqualified from holding any public office in this state and shall be punished by imprisonment for not less than one nor more than ten years.

(Ga. L. 1917, p. 108, § 85; Code 1933, § 60-9904.)

Cross references. - Forgery and fraudulent practices generally, Ch. 9, T. 16.

44-2-46. Fraudulent acts and malpractice of examiners; penalty.

Any examiner of title who knowingly and fraudulently makes any false report to the court as to any matter relating to any title which is sought to be registered under this article, as to any matter affecting the same, or as to any other matter referred to him under this article or who fraudulently conspires with any other person or persons to use this article in defrauding any other person or persons, firm, or corporation or who is guilty of any willful malpractice in his office shall be guilty of a felony and be punished by imprisonment for not less than one nor more than ten years.

(Ga. L. 1917, p. 108, § 85; Code 1933, § 60-9903.)

Cross references. - Forgery and fraudulent practices generally, Ch. 9, T. 16.

44-2-47. Reduction of felonies under this article to misdemeanors.

The felonies provided for in this article may, in the matter of punishment, be reduced to misdemeanors in the manner prescribed in Code Section 17-10-5.

(Ga. L. 1917, p. 108, § 85; Code 1933, § 60-9905.)

PART 2 P ROCEEDINGS TO REGISTER

JUDICIAL DECISIONS

Cited in Johnson v. Henderson, 221 Ga. 327 , 144 S.E.2d 358 (1965).

RESEARCH REFERENCES

ALR. - Constitutionality of provisions of Torrens Law as to prima facie effect of the examiner's reports, 19 A.L.R. 62 .

44-2-60. Jurisdiction of superior court over matters in this article.

For the purpose of enabling all persons owning real estate within this state to have the title thereto settled and registered as prescribed by this article, the superior court of the county in which the land is located shall have exclusive original jurisdiction of all petitions and proceedings had thereupon.

(Ga. L. 1917, p. 108, § 2; Code 1933, § 60-201.)

Cross references. - Judges who may preside in the superior court of the county where the land is located, § 44-2-41 .

JUDICIAL DECISIONS

Dispossessory action held not transferable. - In a dispossessory action filed in state court, there was no evidence of the lack of a landlord-tenant relationship, and no evidence justifying a challenge to the ownership of the land so as to require transfer of the case to the superior court. Bread of Life Baptist Church v. Price, 194 Ga. App. 693 , 392 S.E.2d 15 (1990).

Cited in Setlock v. Setlock, 286 Ga. 384 , 688 S.E.2d 346 (2010).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 4.

44-2-61. Proceedings to be in rem; operation of decree.

The proceedings under any petition for the registration of land and all proceedings in the court in relation to registered land shall be proceedings in rem against the land; and the decree of the court shall operate directly on the land and shall vest and establish title thereto in accordance with this article upon all persons who are parties to said proceedings, whether by name or under the general designation of "whom it may concern."

(Ga. L. 1917, p. 108, § 4; Ga. L. 1931, p. 190, § 1; Code 1933, § 60-202; Ga. L. 1939, p. 341, § 1.)

JUDICIAL DECISIONS

Rules of law applicable. - In proving such title as will entitle an applicant to registration and a decree in the applicant's favor, the same rules of law apply as in suits for the recovery of possession of land by ejectment or statutory complaint for land. Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938), later appeal, 195 Ga. 317 , 24 S.E.2d 292 (1943).

Action not substitute for ejectment. - Relief in ejectment is not coextensive with that which may be had under the Georgia Land Registration Act. In ejectment, title can never be settled as against the world. Conversely, relief may be had in ejectment which cannot be had under the act, including possession of the premises and judgment for mesne profits. The Georgia Land Registration Act is not a substitute for ejectment or for the statutory action for land. A proceeding to register the title may be brought by a person in possession against others not in possession, contrary to the rule in ejectment. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921).

Applicant judged on strength of own application. - Every applicant for benefits under the Land Registration Act must stand on the strength of the applicant's own application, and not upon the weakness of the applicant's adversary's title. Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938), later appeal, 195 Ga. 317 , 24 S.E.2d 292 (1943).

Conclusiveness of judgment on adverse claimants. - As stated in Ga. L. 1917, p. 108, § 4 (see O.C.G.A. § 44-2-61 ), actions under the Georgia Registration Law were proceedings in rem; and judgments rendered therein, decreeing registration of title in the names of the applicants, were conclusive upon all adverse claimants, except in cases of fraud or forgery, in which cases such claimants can file appropriate proceedings to set aside decrees and certificates of registration. Rock Run Iron Co. v. Miller, 156 Ga. 136 , 118 S.E. 670 (1923).

Cited in Hancock v. Lizella Fruit Farm, 184 Ga. 73 , 190 S.E. 362 (1937); Gordon v. Georgia Kraft Co., 217 Ga. 500 , 123 S.E.2d 540 (1962).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 1, 5, 7, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 1, 2, 22.

ALR. - Necessity of actual possession to give title by adverse possession under invalid tax title, 22 A.L.R. 550 .

44-2-62. Procedure as to actions for registration; persons under disability.

Action for registration of title shall be begun by a petition to the court by the person, persons, or corporation claiming, singly or collectively, to own or to have the power of appointing or disposing of an estate in fee simple in any land whether or not subject to liens, encumbrances, or lesser estate. Minors and other persons under disability may bring and defend actions by a guardian, a guardian ad litem, a next friend, or a trustee, as the case may be.

(Ga. L. 1917, p. 108, § 5; Code 1933, § 60-203.)

JUDICIAL DECISIONS

Equity not applicable. - Proceeding under the Georgia Land Registration Act is purely statutory, not equitable. Bird v. South Ga. Indus. Co., 150 Ga. 420 , 104 S.E. 232 (1920).

Party with undivided half interest may register such interest. - Fact that one of the defendants claiming title by adverse possession owned an undivided half interest in one of four tracts involved, and the other defendants owned the other half interest, would not defeat the defendants' right to registration of such respective interests, under the terms of the Land Registration Act. Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938), later appeal, 195 Ga. 317 , 24 S.E.2d 292 (1943).

Cited in Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939); Burgess v. Simmons, 207 Ga. 291 , 61 S.E.2d 410 (1950); Turner v. Kelley, 212 Ga. 175 , 91 S.E.2d 356 (1956).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10 et seq.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 2 et seq.

44-2-63. Persons claiming less than fee; establishing title without registration.

Any person possessing lands and claiming an interest or estate less than the fee therein may have his title to such lands established under this article without the registration and transfer features provided in this article.

(Ga. L. 1917, p. 108, § 6; Code 1933, § 60-204.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 5, 18.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 2, 5.

44-2-64. Petition - Verification; contents; description of land; surveys; amendments.

The petition and amendments thereto shall be signed and sworn to by each petitioner, or, in the case of a corporation, by some officer thereof, or, in the case of a person under disability, by the person filing the petition. It shall contain a full description of the land, its valuation, and its last assessment for county taxation; shall show when, how, and from whom it was acquired, a description of the title by which he claims the land, and an abstract of title; shall state whether or not it is occupied; and shall give an account of all known liens, interests, and claims, adverse or otherwise, vested or contingent. Full names and addresses, if known, of all persons who may have any interest in the land, including adjoining owners and occupants, shall be given. The description of the land given in the petition shall be in terms which will identify the same fully and which will tend to describe the same as permanently as is reasonably practicable under all the circumstances. If the land is in a portion of the state in which land is divided into land districts and lot numbers by state survey, the petition shall state the number of the land district and the lot number or numbers in which the tract is located. Before passing a decree upon any petition for registration, the judge, on his own motion or upon the recommendation of the examiner, may require a fuller and more adequate description or one tending more permanently to identify the tract in question to be included in the petition by amendment; and if, in the discretion of the court, it shall be necessary, the judge may for that purpose require a survey of the premises to be made and the boundaries marked by permanent monuments. The acreage or other superficial contents of the tract shall be stated with approximate accuracy; and where reasonably practicable the court may require the metes and bounds to be stated.

(Ga. L. 1917, p. 108, § 7; Code 1933, § 60-207.)

Law reviews. - For survey article on local government law, see 59 Mercer L. Rev. 285 (2007).

JUDICIAL DECISIONS

Applicant's burden of proof. - It is necessary for the applicant for registration to allege and prove good title in the applicant. Rock Run Iron Co. v. Miller, 156 Ga. 136 , 118 S.E. 670 (1923); Smith v. Board of Educ., 168 Ga. 755 , 149 S.E. 136 (1929).

When the applicant for registration does not show that the applicant has a good title to the land, the applicant's petition should be denied. Gould v. Gould, 194 Ga. 132 , 21 S.E.2d 64 (1942).

Effect of judgment on landowner not named as party. - Land registration judgment, if granted, would not be binding upon an adjoining landowner who was not named and served. State v. Bruce, 231 Ga. 783 , 204 S.E.2d 106 (1974).

Incomplete petition insufficient to support findings. - When the petition and abstract failed to include certain deeds or to claim registration thereunder, and several were executed during the pendency of the suit, the findings of the examiner and the decrees of the court could not properly be based on such instruments. Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938), later appeal, 195 Ga. 317 , 24 S.E.2d 292 (1943).

Sufficiency of property description in deed. - Test as to sufficiency of the description of property contained in a deed is whether or not the description discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that the land's identification is practicable. Gould v. Gould, 194 Ga. 132 , 21 S.E.2d 64 (1942).

Deed wherein the description of the property sought to be conveyed is so vague and indefinite as to afford no means of identifying any particular tract of land is inoperative either as a conveyance of title or as color of title. Gould v. Gould, 194 Ga. 132 , 21 S.E.2d 64 (1942).

If the description is so indefinite that no particular tract of land is pointed out by the instrument itself, the description must be held so defective as to prevent the instrument from operating as a conveyance of title. Gould v. Gould, 194 Ga. 132 , 21 S.E.2d 64 (1942).

Petition which describes the tract by bounding land owners, by acreage, by courses and distances, by reference to back deeds and, finally, by reference to two plats, meets the requirements of law. Gordon v. Georgia Kraft Co., 217 Ga. 500 , 123 S.E.2d 540 (1962).

Imperfect description not invalid if land identifiable by extrinsic data. - Deed is not invalid when the description is imperfect, if the instrument refers to extrinsic data by means of which the land may be identified. Likewise an ambiguous descriptive clause may be aided by aliunde evidence. But such imperfect or ambiguous descriptions must not be confounded with a description utterly lacking in definiteness. A deed which fails to describe any particular land or to furnish any key to the confines of the land purporting to be conveyed is void. Gould v. Gould, 194 Ga. 132 , 21 S.E.2d 64 (1942).

Cited in Couey v. Talalah Estates Corp., 183 Ga. 442 , 188 S.E. 822 (1936); Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 19.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 13, 14.

44-2-65. Petition - Inclusion of separate parcels in one proceeding; individual registration of separate parts of one tract.

Any number of separate parcels of land which are claimed by the petitioner under the same general claim of title and are located in the same county may be included in the same proceeding. Any one tract may be established in several parts, each of which shall be clearly and accurately described and registered separately.

(Ga. L. 1917, p. 108, § 8; Code 1933, § 60-208.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 19.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 13, 14.

44-2-66. Petition - Persons included as defendants.

The petition shall include as defendants all persons whom it shows to have any interest, equity, or claim upon said land or upon any interest in the land whether such claim is vested or contingent and whether or not the claim is adverse to the petitioner; and the petition shall also include as defendants all other persons "whom it may concern."

(Ga. L. 1917, p. 108, § 9; Code 1933, § 60-205.)

JUDICIAL DECISIONS

Party neither named nor served not bound by decree. - When there was a known claimant of the land which the plaintiff sought to have registered who was in possession thereof at the time the proceedings were instituted, this section required that the claimant be named as a party defendant; since the claimant was not named and served as such, the claimant was not bound by the decree rendered in such proceedings. Couey v. Talalah Estates Corp., 183 Ga. 442 , 188 S.E. 822 (1936).

Cited in Turner v. Kelley, 212 Ga. 175 , 91 S.E.2d 356 (1956).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 18.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 9.

44-2-67. Issuance and service of process or summons; service by publication; notice to nonresidents; request for petition; guardians ad litem.

    1. Upon the petition being filed in the office of the clerk of the superior court in the county where the land is located, the clerk shall issue a process directed to the sheriffs of this state and their lawful deputies requiring all of the defendants named in the petition and all other persons "whom it may concern" to show cause before the court on a named day not less than 40 nor more than 50 days from the date thereof why the prayers of the petition should not be granted and why the court should not proceed to judgment in such cause. The clerk shall make the necessary copies of the petition and process for service.
    2. A copy of the petition and process shall be served in accordance with Code Section 9-11-4 upon each party who is named as a defendant in the original petition and who is a resident of this state, provided that such service shall be within 30 days from the time of issuance of process. Second originals and copies may be issued and served in the same manner provided for in Code Section 9-11-4.
    3. The clerk of the superior court shall also cause to be published for four separate weeks in the newspaper in which the advertisements of sheriff's sales in the county are advertised a notice addressed "to whom it may concern" and to each person named in the petition as a defendant who resides outside of the state or whose place of residence is unknown. The notice shall give notice of the filing of the petition by the petitioner and a description of the land which the petitioner seeks to register and shall warn such defendants to show cause why the petition should not be granted before the court on the date named in the process.
    4. Wherever the petition discloses or it otherwise becomes disclosed to the court in the progress of the proceedings that any nonresident is interested, such nonresident shall also be notified by the clerk of the court mailing to him a copy of the petition and process by registered or certified mail or statutory overnight delivery to his post office address, if known, as the same may be disclosed to the court through the petition or other proceedings in the case.
    5. The judge of the court may grant additional time for service or return of the process and may provide for service in cases not provided for in this subsection wherever the exigencies of justice may so require.
  2. Notwithstanding subsection (a) of this Code section, instead of the clerk's issuing process and making copies of the petition and process and instead of service of the petition and process being made, it shall be sufficient for the clerk to prepare and cause to be issued and served as provided in subsection (a) of this Code section a summons substantially in the following language:

    However, if the petitioner so requests and if he delivers copies of the petition to the clerk, the clerk shall attach a copy of the process to the petition and cause the same to be served as provided in subsection (a) of this Code section. Wherever in this article a requirement is made for serving on any person a copy of the petition and process, it shall be sufficient in lieu thereof to serve a copy of the summons as provided for in this subsection.

  3. Notwithstanding subsection (b) of this Code section, if any defendant named in the original petition shall through his counsel request in writing a copy of the petition from the applicant, the applicant shall provide the defendant with a copy of the petition, with all exhibits attached, within five days of the request. The time within which a defendant must file an answer or cross-action to the application shall be suspended from the date of his request for a copy of the petition until the date he receives the copy of the petition, with all exhibits attached, from the applicant.
  4. Guardians ad litem shall be appointed for infants and other persons under disability in proceedings under this article, as provided for in Title 9.

    (Ga. L. 1917, p. 108, § 10; Code 1933, § 60-209; Ga. L. 1943, p. 326, § 1; Ga. L. 1964, p. 170, § 1; Ga. L. 1982, p. 3, § 44; Ga. L. 1999, p. 81, § 44; Ga. L. 2000, p. 1589, § 3.)

"To (here list the defendants shown in the petition): Please take notice that (here name the plaintiff or plaintiffs) has filed in said court a petition seeking to register, under the provisions of the Land Registration Law, the following described lands (describe them). You are notified to show cause to the contrary, if any you have, before said court on or before the ______ day of ________________________, ________. ______________ Clerk"

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Service of the petition on resident defendants is required as in ordinary actions at law. Couey v. Talalah Estates Corp., 183 Ga. 442 , 188 S.E. 822 (1936).

Cited in Hudson v. Varn Turpentine & Cattle Co., 176 Ga. 538 , 168 S.E. 581 (1933).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10 et seq.

44-2-68. Appointment of resident agent for service on nonresident petitioner.

A nonresident petitioner shall appoint a resident agent or attorney upon whom process and notice may be served.

(Ga. L. 1917, p. 108, § 7; Code 1933, § 60-210.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10 et seq.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 11.

44-2-69. Service upon state, county, or municipality.

If the petition discloses that it involves the determination of any public right or interest of this state or of any county or municipality thereof, the process or notice, in order to affect the state, the county, or the municipality, shall be served:

  1. In the case of the state, upon the Attorney General;
  2. In the case of a county, upon the judge of the probate court or, if the judge of the probate court is disqualified, upon the clerk of the superior court; or
  3. In the case of a municipality, upon the mayor of the municipality or, if there is no mayor or if the mayor is disqualified, upon a majority of the members of the council or other governing body of the municipality.

    (Ga. L. 1917, p. 108, § 11; Code 1933, § 60-211.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10 et seq.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 9, 11.

44-2-70. Waiver or acknowledgment of service.

Any person entitled to notice or service of process under this article may waive such notice or service by a written acknowledgment of service or written waiver of service entered upon the petition or entitled in the cause and signed by such person in the presence of the judge of the superior court, the clerk of the superior court of the county, the examiner, or any other person or official authorized by law to administer oaths, to take acknowledgments, or to act as a notary public or official witness. His signature shall be attested by such officer.

(Ga. L. 1917, p. 108, § 12; Code 1933, § 60-212; Ga. L. 1945, p. 140, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 1, 11, 22.

44-2-71. Conclusive effect of evidence of service of process and notice; liability of officers for false returns or failure to publish or mail notice.

Before passing the decree authorizing the registration of land, the court shall be satisfied that the publication of notice and service of process required by this article have been made. After judgment, the entry of service by the sheriff or his deputy shall be conclusive evidence and shall not be subject to traverse nor shall any acknowledgment of service be subject to traverse. The recital of the service of process and of the giving and publishing of notices contained in the decree or final judgment in the case shall be conclusive evidence that such service, publication, and notice have been legally given; provided, however, that nothing in this Code section shall prevent any aggrieved person from having a right of action against any sheriff who shall make a false return of service, or against any clerk or examiner who shall falsely attest a waiver or acknowledgment of service, or against any clerk who shall fail to publish the notice or to mail the notice required by this article.

(Ga. L. 1917, p. 108, § 13; Code 1933, § 60-213.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 1, 11, 22.

44-2-72. Posting notice on land and buildings; ascertainment of and notice to occupants; return to court; seizure and custody of the land and attachment of jurisdiction.

  1. A notice similar to the notice published as provided in Code Section 44-2-67 shall be delivered by the clerk to the sheriff of the county or to one of his lawful deputies; and the sheriff or his lawful deputy shall, within 30 days from the date the petition is filed, post the same upon the land in some conspicuous place. If there is more than one tract of land, the clerk shall furnish enough notices to the sheriff or his deputy to allow the posting of a notice upon each tract of land included in the petition.
  2. If the land contains one or more dwelling houses or one or more buildings used as a place of business, the sheriff shall conspicuously post upon each house or building the notice provided for in subsection (a) of this Code section; and he shall state this in his return to the court.
  3. Within 30 days from the date the petition is filed, the sheriff shall go upon the land and ascertain the identities of the occupants of the land. He shall make an official return to the court stating the name and post office address of each person over 14 years of age actually occupying the premises.
  4. After receiving the sheriff's return, the clerk shall send a copy of the petition and process by registered or certified mail or statutory overnight delivery to each person occupying the land or he may require the sheriff or his deputy to serve a copy of the petition and process upon such persons. The clerk shall make an entry if he has mailed the notices or, if the sheriff has made the service of process, the sheriff shall make the return.
  5. After the sheriff or his deputy has entered upon the land, posted the notices provided for in subsections (a) and (b) of this Code section, and made his return to the court as provided in subsection (c) of this Code section, the land shall be deemed to have been seized and brought into the custody of the court for the purposes of this article; and the court's jurisdiction in rem and quasi in rem shall attach thereto for purposes of land registration proceedings under this article.
  6. The clerk shall attach to each owner's certificate of title a certified copy of the sheriff's return.

    (Ga. L. 1917, p. 108, § 14; Code 1933, § 60-214; Ga. L. 1943, p. 326, § 1; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Cited in Hudson v. Varn Turpentine & Cattle Co., 176 Ga. 538 , 168 S.E. 581 (1933).

RESEARCH REFERENCES

ALR. - What is "public place" within requirements as to posting of notices, 90 A.L.R.2d 1210.

44-2-73. Effect of notice; appearances or pleadings as waiver of service, notice, and defects.

The notices provided for and to be given under this article shall stand as personal service of process and shall be conclusive and binding on all persons so notified and on all the world. Appearances or pleadings in the case shall constitute a waiver of process and service and of notice and of any defect therein.

(Ga. L. 1917, p. 108, § 14; Code 1933, § 60-214.)

44-2-74. Service on other persons found by examiner to be entitled to notice.

If the report of the examiner discloses that persons other than those who have been notified are entitled to notice, a copy of the petition shall be served upon such persons in the same manner as other persons named as defendants in the petition are required to be served by this article; and, in addition to the copy of the petition, there shall be attached a notice from the clerk directed to such person informing him that he shall appear and show cause against the judgment being rendered in the case, if any, within ten days from the date of the service of the notice. However, nothing in this Code section shall be construed to require the giving of additional notice by publication other than the published notice provided for in this article to nonresidents or persons who, by reason of absence from the state or by reason of their whereabouts being unknown, cannot be found and served with process.

(Ga. L. 1917, p. 108, § 17; Code 1933, § 60-215.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 11.

44-2-75. Additional notice; judge's discretion.

Wherever notice is required by this article and no provision is made as to how notice shall be given or wherever, in the discretion of the judge, additional notice to that provided for in this article should be given to any particular person or persons or to the public generally, the judge may order such notice to be given and may provide the manner in which it shall be given.

(Ga. L. 1917, p. 108, § 72; Code 1933, § 60-216.)

44-2-76. Who may file objections or cross-action to petition.

Any person, whether notified or not, may become a party to the proceeding for the purpose of filing objections to the granting of the relief prayed for in the petition or any part thereof either by filing in court an answer showing that he claims some interest in the premises and stating the grounds of his objection or by filing a cross-action praying that the title to the land or some interest therein be decreed to be in him and be registered accordingly.

(Ga. L. 1917, p. 108, § 18; Code 1933, § 60-206.)

JUDICIAL DECISIONS

Objectors having no interest in the land are without authority to contest the right of the applicant to a decree of registration of title in the applicant's name. Asbury v. McCall, 202 Ga. 154 , 42 S.E.2d 370 (1947); McCook v. Council, 202 Ga. 313 , 43 S.E.2d 317 (1947).

Finding which is unexcepted to is binding. - When the final report of the examiner in a land registration case recited that the evidence did not disclose that the objectors had any interest in the land, and such finding was unexcepted to, the report became binding upon all parties to the litigation. Asbury v. McCall, 202 Ga. 154 , 42 S.E.2d 370 (1947); McCook v. Council, 202 Ga. 313 , 43 S.E.2d 317 (1947).

Finding against one contestant does not entitle other to decree. - Finding against one of two contestants, each seeking the benefits of The Land Registration Act and a decree of title, does not entitle the other to a decree in that person's favor. Thomasson v. Coleman, 176 Ga. 375 , 167 S.E. 879 (1933).

Cited in Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 18.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 9.

44-2-77. Survey of land upon order of judge or examiner; notice to adjoining landowners; protest; procedure for trying issue.

While the cause is pending before the examiner of titles or at any time before final decree, the judge, or the examiner with the approval of the judge, may require the land to be surveyed by some competent surveyor and may order durable bounds to be set and a plat thereof to be filed among the papers of the suit. Before such survey is made, all adjoining landowners shall be given at least five days' notice. The petitioner or any adjoining owner dissatisfied with the survey may file a protest with the court within ten days from the time the plat is filed; and thereupon an issue shall be made up and tried as in case of protest to the return of land processioners.

(Ga. L. 1917, p. 108, § 22; Code 1933, § 60-217.)

JUDICIAL DECISIONS

Survey by one other than court-appointed surveyor permitted. - When no survey such as provided for in this statute was ordered, but the petitioner introduced in evidence the testimony and survey of the petitioner's own surveyor, who testified as to the location of the land lines, corners, and landmarks of the property, the evidence offered was competent and not subject to the objection that the petitioner's survey did not comply with this statute. Harris v. Ernest L. Miller, Co., 213 Ga. 748 , 101 S.E.2d 715 (1958) (see O.C.G.A. § 44-2-77 ).

Although this statute calls for the use of a registered surveyor, this is directory and a court does not commit error when the court approves the services of a registered engineer, provided the court determines the engineer is equally well qualified to perform the services required of a surveyor. Smith v. Bruce, 241 Ga. 133 , 244 S.E.2d 559 (1978).

Cited in Union Bag-Camp Paper Corp. v. Coffee County Hunting & Fishing Club, 216 Ga. 44 , 114 S.E.2d 511 (1960).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 19.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 14, 15.

44-2-78. Dismissal without prejudice.

If the petitioner's title is not and cannot be made proper for registration, the petition may, at the discretion of the court or the petitioner, be dismissed without prejudice on terms to be determined by the court.

(Ga. L. 1917, p. 108, § 23; Code 1933, § 60-218.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 12.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 13.

44-2-79. Amendment or severance of petitions or other pleadings; power of court or examiner to require additional facts.

Amendments to petitions or other pleadings, including joinder, substitution, or discontinuance of parties, the severance of pleadings, and the omission or severance of any portion or parcel of the land may be ordered or allowed by the court at any time before the final decree upon terms that may be just and reasonable. The court may require facts to be stated in the petition in addition to those prescribed by this article. The examiner shall have the same powers subject to review by exception to his reports.

(Ga. L. 1917, p. 108, § 24; Code 1933, § 60-219.)

JUDICIAL DECISIONS

Cited in Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 10, 12.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 9, 11.

44-2-80. Treatment of land pending registration; appearance of person acquiring interest in land pending registration.

Pending registration, the land described in any petition may be dealt with as if no petition had been filed; but any person who shall acquire any interest in or claim against any such land shall at once appear as a petitioner or answer as a party defendant in the pleadings for registration, and such interest or claim shall be subject to the decree of the court.

(Ga. L. 1917, p. 108, § 25; Code 1933, § 60-220.)

Cross references. - Filing notice of lis pendens, § 44-14-610 .

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 18.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 9.

44-2-81. No default judgment or decree.

No decree shall be rendered by default and without the necessary facts being shown.

(Ga. L. 1917, p. 108, § 21; Code 1933, § 60-221.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 20.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 16.

44-2-82. Entry of judgment and decree; inclusion of limitations and encumbrances; decree in favor of cross-action; separate decree for each parcel.

After the record has been perfected and settled, the judge of the superior court shall proceed to decide the case; and if, upon consideration of such record, the title shall be found in the petitioner, the judge shall enter a decree to that effect ascertaining all limitations, liens, encumbrances, and the like and declaring the land entitled to registration according to his findings. Such decree shall be entered upon the minutes of the superior court and shall become a part of the records thereof. If, upon consideration of the record, the judge finds that the petitioner is not entitled to a decree declaring the land entitled to registration, he shall enter judgment accordingly. If any person shall have filed a cross-action praying for the title to be found in him, the judge may enter a decree to that effect in like manner ascertaining and declaring all limitations, liens, and the like and declaring the land entitled to registration according to his findings. If separate parcels shall be involved, the court shall render a separate decree as to each parcel; and the same shall be done where the petitioner has divided a tract into separately described parcels and has accurately described each parcel for separate registration.

(Ga. L. 1917, p. 108, § 26; Code 1933, § 60-222.)

JUDICIAL DECISIONS

Constitutionality. - This statute is not unconstitutional on the ground that the statute confers upon the judge of the superior court the right to render judgment without the verdict of a jury in a civil case other than one founded on an unconditional contract in writing where no issuable defense is filed on oath. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921) (see O.C.G.A. § 44-2-82 ).

Trial judge to inspect record and enter decree. - This statute is not intended as a modification of the other sections as to the method of ascertaining the facts, but on proper construction simply means that the trial judge shall inspect the record after the record has been "perfected and settled" by ascertainment of the facts as otherwise provided, and shall thereupon enter a decree in accordance with such record. It does not dispense with findings of fact by an examiner, as contemplated by other provisions of law, although when there is an error apparent upon the face of the examiner's report "wholly irrespective of the evidence" on which it is based, the court should correct that error by the court's judgment. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939) (see O.C.G.A. § 44-2-82 ).

Findings of fact required. - Under The Land Registration Act, there can be no registration without findings of fact in favor of the party whose title is registered. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Cited in Harris v. Ernest L. Miller Co., 213 Ga. 748 , 101 S.E.2d 715 (1958).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 20, 22.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 16.

44-2-83. Conclusiveness of decree; effect of disability on conclusiveness; recourse of persons under a disability against assurance fund.

Every decree rendered as provided in this article shall bind the land and bar all persons claiming title thereto or interest therein, shall quiet the title thereto, and shall be forever binding and conclusive upon and against all persons, including this state, whether mentioned by name in the order of publication or included under the general description "whom it may concern." It shall not be an exception to the conclusiveness of the decree that the person is a minor, is incompetent by reason of mental illness or intellectual disability, or is under any other disability; but said person may have an action against the assurance fund provided for in Part 6 of this article.

(Ga. L. 1917, p. 108, § 27; Code 1933, § 60-223; Ga. L. 2015, p. 385, § 4-8/HB 252.)

The 2015 amendment, effective July 1, 2015, in the last sentence, substituted "intellectual disability" for "retardation" and inserted "other".

Cross references. - Proceedings quia timet and proceedings to remove clouds upon titles, § 23-3-40 et seq.

Editor's notes. - Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

JUDICIAL DECISIONS

Cited in Dyal v. Watson, 174 Ga. 330 , 162 S.E. 682 (1932); Hudson v. Varn Turpentine & Cattle Co., 176 Ga. 538 , 168 S.E. 581 (1933).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 20, 22.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 16.

44-2-84. Review by Court of Appeals.

All judgments and decrees of the superior court or the judge thereof which are rendered under this article shall be subject to review by the Court of Appeals.

(Ga. L. 1917, p. 108, § 82; Code 1933, § 60-224; Ga. L. 2016, p. 883, § 3-9/HB 927.)

The 2016 amendment, effective January 1, 2017, at the end of this Code section, substituted "Court of Appeals" for "Supreme Court". See Editor's notes for applicability.

Editor's notes. - Ga. L. 2016, p. 883, § 1-1/HB 927, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Appellate Jurisdiction Reform Act of 2016.'"

Ga. L. 2016, p. 883, § 6-1/HB 927, not codified by the General Assembly, provides, in part, that: "Part III of this Act shall become effective on January 1, 2017, and shall apply to cases in which a notice of appeal or application to appeal is filed on or after such date."

Law reviews. - For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 205 (2016).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 23.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 17.

PART 3 E XAMINERS

RESEARCH REFERENCES

ALR. - Constitutionality of provisions of Torrens Law as to prima facie effect of the examiner's reports, 19 A.L.R. 62 .

44-2-100. Appointment and qualification of examiners and special examiners; filing order of appointment and affidavit.

The judge of the superior court of each judicial circuit shall appoint at least one auditor, who shall be known as the examiner, who shall discharge the duties provided for the examiner in this article but whose relation and accountability to the court shall be that of an auditor in the general practice existing in this state. The judge shall appoint as many examiners in the circuit as the public convenience may require in connection with the carrying out of this article; and the judge may, in any case, appoint a special examiner. Examiners shall hold office at the pleasure of the judge and shall be removable at any time with or without cause. Each examiner must be a competent attorney at law, be of good standing in his profession, and have at least three years' experience in the practice of law. Each examiner shall take and file in the office of the clerk of the superior court of the county of his residence, along with the order of his appointment, an oath or affidavit substantially in the form prescribed in Code Section 44-2-228.

(Ga. L. 1917, p. 108, § 15; Code 1933, § 60-301.)

Cross references. - Auditors generally, Ch. 7, T. 9.

JUDICIAL DECISIONS

Cited in Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 2.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 1, 22, 43.

44-2-101. Referral of case to examiner; preliminary report; contents; time of filing.

Upon the filing of a petition as provided in this article, the clerk shall at once notify the judge who shall refer the action to one of the general examiners or to a special examiner. It shall then become the duty of the examiner to make up a preliminary report containing an abstract of the title to the land from public records and all other evidence of a trustworthy nature that can reasonably be obtained by the examiner, which abstract shall contain:

  1. Extracts from the records and other matters referred to therein which are complete enough to enable the court to decide the questions involved;
  2. A statement of the facts relating to the possession of the lands; and
  3. The names and addresses, so far as the examiner is able to ascertain, of all persons interested in the land as well as all adjoining owners showing their several apparent or possible interests and indicating upon whom and in what manner process should be served or notices given in accordance with this article.

    The preliminary report of the examiner shall be filed in the office of the clerk of the superior court on or before the return day of the court as stated in the process unless the time for filing the report is extended by the court.

    (Ga. L. 1917, p. 108, § 16; Code 1933, § 60-302; Ga. L. 1982, p. 3, § 44; Ga. L. 2011, p. 99, § 79/HB 24.)

The 2011 amendment, effective January 1, 2013, substituted "the examiner" for "him" near the end of the introductory paragraph and deleted the former last sentence of this Code section, which read: "The report shall be prima-facie evidence of the contents thereof." See Editor's notes for applicability.

Editor's notes. - Ga. L. 2011, p. 99, § 101, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews. - For article, "Evidence," see 27 Ga. St. U. L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 1 (2011).

JUDICIAL DECISIONS

Constitutionality. - This statute is not violative of the due process clauses of the state and federal constitutions in that the preliminary examination by the examiner is ex parte and before the parties adversely interested are brought into the proceeding, or in that the preliminary report of the examiner is declared to be prima facie evidence of the contents thereof, such report not being binding upon the court or conclusive upon the parties adversely interested in the proceeding. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921); Saunders v. Staten, 152 Ga. 142 , 108 S.E. 797 (1921) (see O.C.G.A. § 44-2-101 ).

Purpose of the preliminary report is to furnish to the court and to the parties any information likely to affect the title or the possession, and so that any person interested in or likely to be interested in the result of the suit may be notified. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921).

Reliance upon preliminary report. - An applicant seeking to register the applicant's title under The Land Registration Act may rely upon what was shown in the examiner's preliminary report, without introducing in evidence the conveyances specified therein. McCall v. Asbury, 190 Ga. 493 , 9 S.E.2d 765 (1940).

Unless the words "the said report shall be prima facie evidence of the contents thereof," are read out of this statute, it must be held that when the report is put in evidence the party offering the report has offered sufficient proof of the deeds therein referred to. McCall v. Asbury, 190 Ga. 493 , 9 S.E.2d 765 (1940) (see O.C.G.A. § 44-2-101 ).

Adoption of report without transcript. - Examiner's brief of the evidence in a title registration proceeding fully complied with O.C.G.A. § 44-2-103(b) , and a trial court did not err in adopting the report without first reviewing a transcript; if a stenographic report did exist, the registrant never made timely request that the report be filed or direct the trial court's attention to evidence appearing in the report. A A OK, Ltd. v. City of Atlanta, 280 Ga. 764 , 632 S.E.2d 633 (2006).

Burden of proof of deed shifts when affidavit of forgery filed. - In order to cast on the applicant for registration the burden of proving the genuineness of a deed shown in the preliminary report of the examiner, an affidavit of forgery must be filed, pursuant to former Code 1933, § 29-415 (see O.C.G.A. § 44-2-23 ); and written objections, though verified, which aver that certain deeds were forgeries did not amount to an affidavit of forgery. McCall v. Asbury, 190 Ga. 493 , 9 S.E.2d 765 (1940).

De novo investigation and report required upon sustaining exceptions to original report. - On sustaining the exceptions to an examiner's report the case should be referred again to the same or a different examiner for a de novo investigation and report. Such is the procedure adopted by reference in The Land Registration Act; for, under the practice applying generally in cases referred to an auditor, where exceptions of fact are sustained, so as to leave no basis for a judgment or decree, the issues must ordinarily be again referred to an auditor, or submitted to a jury. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Cited in Asbury v. McCall, 192 Ga. 102 , 14 S.E.2d 715 (1941).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 8, 14, 15.

44-2-102. Hearing; final report; delay of hearing to add new parties; notice.

As soon as practicable after the return day stated in the process, the examiner shall proceed to hear evidence and make up his final report to the court. However, if it has developed from the preliminary report filed by him that persons other than those named as defendants in the original petition are entitled to service or notice, the hearing shall not begin until after ten days from the date of the service of notice upon such persons. The examiner shall give notice of the time and place of the hearing to the petitioner and to persons who have filed any pleading in the case.

(Ga. L. 1917, p. 108, § 19; Code 1933, § 60-303.)

JUDICIAL DECISIONS

Cited in Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939); Asbury v. McCall, 192 Ga. 102 , 14 S.E.2d 715 (1941).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 8, 14, 15.

44-2-103. Examiner's powers; contents, filing, and notice of examiner's report; right to jury trial, new trial, and appeal; recommitment to examiner after trial or reversal on appeal.

  1. At the time and place set for the hearing, the examiner shall, in like manner as other auditors, proceed with similar powers as to the compelling of the attendance of witnesses, the production of books and papers, and adjournment and recessing to hear all lawful evidence submitted. In addition he may make such independent examination of the title as he may deem necessary.
  2. Within 15 days after the hearing has been concluded unless for good cause the time is extended by the judge, the examiner shall file with the clerk a report of his conclusions of law and of fact setting forth the state of the title; any liens or encumbrances thereon, by whom held, and the amounts due thereon; the abstract of title to the land; any other information affecting the validity of the title; and a brief or a stenographic report of the evidence taken by him. He shall mail notice of the filing of his report to each of the parties who have appeared in the case. Any of the parties to the proceeding may file exceptions to the conclusions of law or of fact or to the general findings of the examiner within 20 days after such report is filed. The clerk shall thereupon notify the judge that the record is ready for his determination.
  3. If the petitioner or any contestant of the petitioner's right shall demand a trial by jury upon any issue of fact arising upon exceptions to the examiner's report, the court shall cause the same to be referred to a jury either at the term of court which may then be in session or at the next term of the court or at any succeeding term of the court to which the case may be continued for good and lawful reasons. It shall be the duty of the judge to expedite the hearing of the case and not to continue it unless for good cause shown or upon the consent of all parties at interest. The issue or issues of fact shall be tried before the jury, in the event jury trial is requested, upon the evidence reported by the examiner except in cases where, under law, evidence other than that reported by an auditor may be submitted to the jury on exceptions to an auditor's report. Furthermore, in cases where the examiner has reported to the court findings of fact based on his personal examination, either party may introduce additional testimony as to such facts, provided that the party will make it appear under oath that he has not been fully heard and given full opportunity to present testimony on the same matter before the examiner. The verdict of the jury upon the questions of fact shall operate to the same extent as in the case of exceptions to an auditor's report in an ordinary civil action.
  4. In all matters not otherwise provided for, the procedure upon the examiner's report and the exceptions thereto shall be in accordance with procedure prevailing as to the auditor's reports and exceptions thereto.
  5. The right to grant a new trial upon any issue submitted to a jury and the right of appeal shall be as provided for in Code Sections 5-6-37 through 5-6-44, 5-6-48, and 5-6-49.
  6. The judge may refer or recommit the record to the examiner in like manner as auditor's reports may be recommitted or he or she may on his or her own motion recommit it to the same or any other examiner for further information and report. When an exception or exceptions to the examiner's report have been sustained by the court or by verdict on the trial of an issue of fact or when the appellate court reverses the judgment of the trial court, it shall not be necessary for the trial court to recommit the case to an examiner, but the judge shall proceed to enter a decree in accordance with the law and the facts as thus established and appearing from the record; provided, however, that if the judge, in his or her discretion, is of the opinion that it is in the interests of truth and justice that a recommitment to an examiner should be made, the judge may, upon the motion of any party or on his or her own motion, order a recommitment of the whole case or any part thereof or for the taking of additional testimony upon any matter which the court deems necessary to the rendition of a true and correct decree.

    (Ga. L. 1917, p. 108, § 20; Code 1933, § 60-304; Ga. L. 1943, p. 326, § 1; Ga. L. 1992, p. 6, § 44; Ga. L. 2016, p. 883, § 3-10/HB 927.)

The 2016 amendment, effective January 1, 2017, in subsection (e), deleted "to the Supreme Court" following "right of appeal"; and, in subsection (f), in the first sentence, substituted "he or she may on his or her" for "he may on his", and, in the second sentence, substituted "When" for "Where", substituted "when the appellate court" for "where the Supreme Court", substituted "the judge may" for "he may" and inserted "or her" following "his". See Editor's notes for applicability.

Editor's notes. - Ga. L. 2016, p. 883, § 1-1/HB 927, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Appellate Jurisdiction Reform Act of 2016.'"

Ga. L. 2016, p. 883, § 6-1/HB 927, not codified by the General Assembly, provides, in part, that: "Part III of this Act shall become effective on January 1, 2017, and shall apply to cases in which a notice of appeal or application to appeal is filed on or after such date."

Law reviews. - For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 205 (2016).

JUDICIAL DECISIONS

Constitutionality. - Provisions of this statute relating to the trial by jury, upon demand, of issues of fact arising upon exceptions to the examiner's report, which is to be taken as prima facie true, and restricting the hearing to the evidence reported by the examiner, except as otherwise provided in this statute, are not unconstitutional limitations of the right of trial by jury. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921) (see O.C.G.A. § 44-2-103 ).

This statute is not violative of the due process clauses of the state and federal constitutions, upon the ground that the statute provides for the independent examination of the title by the examiner and for the submission by the examiner of a final report based upon such findings, which shall be taken as prima facie true, such report not being conclusive upon the parties nor binding upon the court until after trial by jury upon exceptions of fact filed thereto. Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921) (see O.C.G.A. § 44-2-103 ).

Equity procedure applicable. - While an action under The Land Registration Act is not a case in equity, but is a purely statutory proceeding, the statute expressly makes the procedure in equity applicable to exceptions to an examiner's report in such case. Bird v. South Ga. Indus. Co., 150 Ga. 420 , 104 S.E. 232 (1920); Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Procedure on the report of the examiner under the Georgia Land Registration Act is the same as that on the report of an auditor in an equity case. Bird v. South Ga. Indus. Co., 150 Ga. 420 , 104 S.E. 232 (1920); McCaw v. Nelson, 168 Ga. 202 , 147 S.E. 364 (1929).

Examiner's report binding on parties if not excepted to. - An examiner's report, when not excepted to within 20 days as required by this statute, becomes binding upon all parties to that proceeding and the parties are not allowed to later challenge the report. Miller v. Turner, 209 Ga. 255 , 71 S.E.2d 517 (1952) (see O.C.G.A. § 44-2-103 ).

Sole function of the jury, as expressed in The Land Registration Act, is to pass upon issues of fact raised by exceptions to the examiner's report. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Issues to be submitted to jury. - Party is entitled to have submitted to a jury certain disputed issues of fact found by the examiner upon which the examiner concluded that the other party had acquired prescriptive title and was entitled to have the land registered in that party's name. Allen v. Johns, 235 Ga. 667 , 219 S.E.2d 369 (1975).

Either party may request jury. - Either the applicant or the defendant in a land registration proceeding may insist upon a jury trial upon any material issue of fact arising out of exceptions to the examiner's report. Gordon v. Georgia Kraft Co., 217 Ga. 500 , 123 S.E.2d 540 (1962).

Provision for jury trial upon demand mandatory. - See Crowell v. Akin, 152 Ga. 126 , 108 S.E. 791 , 19 A.L.R. 51 (1921); Saunders v. Staten, 152 Ga. 142 , 108 S.E. 797 (1921).

Jury empanelment not required if there are no material issues of fact. - If an examination of the record reveals no material issues of fact and further reveals that the finding of the examiner was demanded by the evidence, then it is not error for the court, instead of empaneling a jury and directing a verdict, to render judgment in accordance with the findings of the examiner. Gordon v. Georgia Kraft Co., 217 Ga. 500 , 123 S.E.2d 540 (1962).

Failure to request jury trial not waiver. - Fact that neither party requests a trial by jury does not operate as a waiver of jury trial, except as to such issues of fact as might be raised by exceptions to the examiner's report. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

When there has been no express waiver and the parties merely fail to demand a jury trial upon issues specifically designated by the statute, the waiver is therefore only that which may be implied from such inaction, and it should not be extended beyond the plain meaning of the statute. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Effect of waiver of jury trial. - Waiver of jury trial authorizes the trial judge to act as jury only to the extent of passing upon the exceptions as a jury would otherwise have done and does not carry consent for the judge to act as trier for the purpose of making new findings of fact. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Exceptions of law and fact to be separated. - Exceptions to an examiner's report must separately classify exceptions of law and exceptions of fact, making each exception clear and distinct, specifying the errors complained of. Bird v. South Ga. Indus. Co., 150 Ga. 420 , 104 S.E. 232 (1920).

Failure to support exceptions is ground for dismissal. - Neglect of a party excepting to an examiner's report on matters of fact, or on matters of law dependent for a decision upon the evidence, to set forth, in connection with each exception of law or fact, the evidence necessary to be considered in passing thereon, or to point out the same by appropriate reference, or to attach as exhibits to one's exceptions those portions of the evidence relied on to support the exceptions, is sufficient reason in a land registration proceeding for dismissing or disapproving the exceptions of fact and for overruling or dismissing the exceptions of law. Davis v. Varn Turpentine & Cattle Co., 167 Ga. 690 , 146 S.E. 458 (1929); Morris v. James, 216 Ga. 272 , 116 S.E.2d 286 (1960).

Remand to examiner lies within the discretion of trial judge, whose decision will not be reversed when appellees fail to show that the trial court has abused this discretion. Bruce v. Rowland Hills Corp., 243 Ga. 278 , 253 S.E.2d 709 (1979).

When de novo investigation and report required. - On sustaining the exceptions to an examiner's report, the case should be referred again to the same or a different examiner for a de novo investigation and report. Holton v. Lankford, 189 Ga. 506 , 6 S.E.2d 304 (1939).

Adoption of report without transcript. - Examiner's brief of the evidence in a title registration proceeding fully complied with O.C.G.A. § 44-2-103(b) , and a trial court did not err in adopting the report without first reviewing a transcript; if a stenographic report did exist, the registrant never made timely request that the report be filed or direct the trial court's attention to evidence appearing in the report. A A OK, Ltd. v. City of Atlanta, 280 Ga. 764 , 632 S.E.2d 633 (2006).

Right to new trial. - See Rock Run Iron Co. v. Heath, 155 Ga. 95 , 116 S.E. 590 (1923).

Cited in Smith v. Board of Educ., 166 Ga. 535 , 143 S.E. 578 (1928); Reynolds v. Smith, 186 Ga. 838 , 199 S.E. 137 (1938); Burgess v. Simmons, 208 Ga. 672 , 68 S.E.2d 902 (1952); Simon Wolf Endowment Fund, Inc. v. West, 210 Ga. 172 , 78 S.E.2d 420 (1953); City of Marietta v. Glover, 225 Ga. 265 , 167 S.E.2d 649 (1969); Smith v. Bruce, 241 Ga. 133 , 244 S.E.2d 559 (1978); Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 8, 14, 15.

44-2-104. Authority to inspect pertinent records.

For the purposes of this article, every clerk of the superior court, every judge of the probate court, and every other officer in this state having charge of public records shall allow every examiner appointed by any court in this state free inspection of all the public records relating to his office and in any manner pertaining to any matter under the investigation of an examiner.

(Ga. L. 1917, p. 108, § 68; Code 1933, § 60-305; Ga. L. 1982, p. 3, § 44.)

44-2-105. Appointment of stenographer; compensation.

In any case, by consent of the parties or upon the order of the judge, the examiner may procure the services of a stenographer to report the testimony taken before him. The stenographer's compensation, unless agreed on by the parties, shall be fixed by the judge and taxed as costs.

(Ga. L. 1917, p. 108, § 71; Code 1933, § 60-306.)

PART 4 R EGISTERS AND REGISTRATION

RESEARCH REFERENCES

ALR. - Constitutionality of provisions of Torrens Law as to prima facie effect of the examiner's reports, 19 A.L.R. 62 .

Failure properly to index conveyance or mortgage of realty as affecting constructive notice, 63 A.L.R. 1057 .

44-2-120. Furnishing and maintaining register books; issuance of owner's certificate of title.

  1. The governing authority of each county shall provide the following books for the clerk of the superior court in the county:
    1. A book, to be known as the "register of decrees of title," in which the clerk shall enroll, register, and index all decrees of title;
    2. A book, to be known as the "title register" and to be prepared, printed, and ruled in substantially the manner as provided in Code Section 44-2-234, in which the clerk shall enroll, register, and index the certificate of title provided for in this part and all subsequent transfers of title and note all voluntary or involuntary transactions in any way affecting the title to said land which are authorized to be entered thereon; and
    3. Such additional books as may, from time to time, be necessary.
  2. Upon the registration of the decree and certificate of title, the clerk shall issue, under the seal of his office, an owner's certificate of title which shall be delivered to the owner or his duly authorized agent or attorney.

    (Ga. L. 1917, p. 108, § 28; Code 1933, § 60-401.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 18.

44-2-121. Signing and dating register entries and owners' certificates.

Every entry made in the register of decrees of title, in the title register, or upon the owner's certificate under any of the provisions of this article shall be signed by the clerk and dated with the year, month, day, hour, and minute accurately stated.

(Ga. L. 1917, p. 108, § 29; Code 1933, § 60-402.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 18.

44-2-122. Clerk's duties and liabilities; conclusive effect of registration entries; time for filing caveat; petition for direction.

  1. The clerk of the superior court shall determine whether any instrument, writing, record, or other matter is in proper shape for registration and shall correctly and legally make the registration, including all formal incidents thereto. The clerk shall be liable to any injured person for any failure of duty in this respect.
  2. All registrations of title and all entries and notations made by him upon the title register of transfers or of the cancellation or discharge of liens or encumbrances shall be prima facie conclusive. Unless a caveat shall be filed, as provided for in Code Section 44-2-134, seeking to set aside, modify, or otherwise affect such entry, notation, or registration, within 12 months from the date of the making of the same upon the title register, the same shall become absolutely conclusive upon all persons. This subsection shall be considered and construed as a statute of limitations against the questioning of the correctness of the clerk's action and shall be without exception on account of disabilities but shall not operate as a limitation in favor of the clerk regarding any action against him for wrongdoing or neglect of duty.
  3. In the event application is made to a clerk to have any transfer or other transaction registered or noted and he is in doubt as to whether the same should be registered, entered, or noted or is in doubt in regard to any detail thereof, either the clerk or any party at interest may petition the judge of the court for direction. After it has appeared that the parties at interest have had reasonable notice, the judge may proceed to hear the matter and to give directions and instructions to the clerk; and it shall be the duty of the clerk to follow the directions and instructions of the court.
  4. In all matters required of the clerk under this article, he shall be subject to the direction and orders of the court.

    (Ga. L. 1917, p. 108, § 59; Code 1933, § 60-413.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 173.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 42.

ALR. - Transferees entitled to protection under Torrens Act certificate of title, 42 A.L.R.2d 1387.

44-2-123. Clerk's duty to ensure proper execution of voluntary transfer; liability for damage or loss arising from registration of improperly executed transfer.

Before registering any voluntary transfer, the clerk shall satisfy himself that the same is witnessed and attested or acknowledged in accordance with law. The clerk and the sureties on his bond shall be liable for any loss or damage occasioned to any person through registration of a transfer not so executed.

(Ga. L. 1917, p. 108, § 106; Code 1933, § 60-411.)

44-2-124. Performance of duties upon disqualification, death, or disability of clerk.

If a clerk of the superior court is disqualified by reason of relationship, interest, or any other cause or in case of the death or other disability of the clerk to act in any matter arising under this article, the duties required of the clerk may be performed either by the judge of the probate court of the county or by a special clerk appointed by the judge for that purpose. The entry of the appointment of the special clerk and of the purpose for which he is appointed shall be entered and recorded upon the minutes of the court.

(Ga. L. 1917, p. 108, § 69; Code 1933, § 60-414.)

44-2-125. When recordation other than registration not required; filing instruments; admissibility of certified copies and use as evidence; recordation procedure when instrument is not in short form.

  1. Wherever a transfer, transfer as security for debt, or mortgage relating to an estate in registered land is executed in the form prescribed in this article and duly registered and noted in the register of titles and consists of nothing more than the filling in of the blanks on the prescribed form so that the entry of registration on the title register construed in connection with the prescribed form shows the full transaction, it shall not be necessary to record the transfer, security transfer, or mortgage other than by the registration in the title register. Such registration shall for all purposes take the place of recordation as to such instruments so executed. A certified copy of such registration shall be admissible in evidence on like terms and with like effect as a certified copy of a deed, mortgage, or other similar instrument. In such cases, the original instrument of transfer, together with the canceled owner's certificate, or the original instrument of transfer as security for debt, or the original mortgage, as the case may be, shall be numbered with the registration number of the title to which it relates and carefully filed away in such manner as to be of easy access and shall be preserved as a part of the records of the office of the clerk of the superior court. In case of a mortgage executed as indicated above, the clerk shall on request make a certified copy and deliver it to the mortgagee; and such certified copy shall stand for all purposes in lieu of the original and shall be original evidence to the same extent as is an original mortgage in any court.
  2. If the instrument of transfer is in the short form as indicated above, or if it contains any provisions not provided for in such form, or if it was executed for the purpose of transferring any estate or interest in the registered land in trust, upon any condition or upon any peculiar or unusual limitation, the details at variance with or additional to those provided for under the prescribed form need not be entered in full on the title register and the owner's certificate; but the clerk shall record such instrument in full on the deed book of the county in like manner as deeds to unregistered land are recorded and shall, after the general entry of the transfer on the title register and on the owner's certificate, add thereto a notation that the same is "in trust," "upon condition," or "on special terms," as the case may be, followed by the words "See deed book (or mortgage book, as the case may be) ____________ page ____________." Like procedure shall be followed in case of a transfer to secure debt or a mortgage not following the prescribed form, but in such cases the clerk shall not retain the original instrument but shall return the same to the creditor after it has been registered and recorded.

    (Ga. L. 1917, p. 108, § 38; Code 1933, § 60-403.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 3, 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 19, 28, 30.

ALR. - Right of vendee to record title where vendor to covenants to furnish abstract showing title, 7 A.L.R. 1166 .

44-2-126. Notation of lien or encumbrance on certificate of title - In general.

Any writing or instrument for the purpose of encumbering or otherwise dealing with equitable interests in registered land or tending to show a claim of lien or encumbrance thereon or right therein may be noted on the certificate of title in the title register with such effect as it may be entitled to have.

(Ga. L. 1917, p. 108, § 51; Code 1933, § 60-404.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, §§ 45, 46.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 27, 28.

44-2-127. Notation of lien or encumbrance on certificate of title - Registered encumbrances, rights, and adverse claims.

All registered encumbrances, rights, or adverse claims affecting registered estates shall continue to be noted upon every outstanding certificate of title and owner's certificate until they have been released or discharged unless they relate to only a particular portion of the property, in which case they shall be noted only upon those certificates and duplicate certificates which relate to that portion of the property.

(Ga. L. 1917, p. 108, § 39; Code 1933, § 60-405.)

44-2-128. Registration of transactions affecting unregistered land as notice.

Every voluntary or involuntary transaction which if recorded, filed, or entered in any clerk's office would affect unregistered land shall, if duly registered on the title register, be notice to all persons from the time of such registration and shall operate in accordance with law and this article upon such registered land.

(Ga. L. 1917, p. 108, § 40; Code 1933, § 60-406.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 10, 20.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 28.

ALR. - Failure properly to index conveyance or mortgage of realty as affecting constructive notice, 63 A.L.R. 1057 .

44-2-129. Registration of involuntary transactions on court's order; form.

Except as otherwise provided in this article, in cases of involuntary transactions no transfer of the title shall be registered except upon an order granted by the judge of the court in the form substantially provided in Code Section 44-2-244.

(Ga. L. 1917, p. 108, § 41; Code 1933, § 60-407.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 51.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 38.

44-2-130. Cancellation of decedent's certificate and issuance of new certificate to personal representative.

Upon the grant of letters of administration or executorship by the probate court and upon presentation of a certified copy of the letters to the clerk of the superior court together with the presentation of the owner's certificate, the clerk shall make a special entry on the certificate of title on the title register showing the presentation of the letters of administration or executorship, the name of the representative, the court and county of his appointment, and the dates of the letters and of the transfer of the title to the representative. The clerk shall thereupon cancel the certificate of title and the owner's certificate outstanding in the name of the decedent and shall issue to the administrator or the executor, as the case may be, a new owner's certificate. If the decedent was the owner of only a fractional undivided interest in the title and the outstanding certificate stood in the name of the decedent and others or if from any other cause the decedent was not the sole owner of the certificate, the outstanding certificates shall nevertheless be canceled and a new certificate registered and a new owner's certificate issued with the name of the personal representative substituted for the name of the decedent.

(Ga. L. 1917, p. 108, § 44; Code 1933, § 60-408.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 45.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 5.

44-2-131. Declaration of title by descent upon petition; service of petition and publication of notice; transfer of registered title and issuance of new certificates; rights of surviving spouse.

  1. Where the owner of registered land dies intestate and there is no administration upon the estate within 12 months from the date of his death or in the event administration shall terminate without the land being disposed of, the heirs at law of the intestate or any one or more of the persons who claim to be heirs at law of the intestate may petition the superior court of the county to have their title by descent declared as to the registered land.
  2. The petition:
    1. Shall set forth the names of all persons who are alleged to be the heirs at law and, if all are not joined, process or notice shall be served upon all those not joined;
    2. Shall be verified by the affidavit of one of the petitioners;
    3. Shall set forth in detail the name and last known address of the decedent;
    4. Shall include a statement whether he was married, single, or a widower and, if married more than once, the names of all of his wives;
    5. Shall include the names of all children and descendants of children, if any, showing in detail whether the parents of such children are living or dead;
    6. Shall show in detail how and whether the persons who are alleged to be the heirs at law are in fact the heirs at law of such decedent under the rules of inheritance;
    7. Shall give the date of the death of the decedent;
    8. Shall set forth that the decedent died leaving no will; and
    9. Shall state that in the judgment of the applicant there is no need for administration upon the estate.
  3. Upon the petition being filed, the judge shall grant an order setting the petition down to be heard at the courthouse in the county where the land is located, on some day not less than 30 days from the date of the petition, and calling on all persons to show cause before the court on that day why the persons named as heirs at law in the petition should not be so declared to be by the judgment and decree of the court. A copy of the petition and the order of the court thereon shall be published in the newspaper in which the sheriff's sales of the county are advertised in like manner as sheriff's sales are advertised.
  4. On the day named for the hearing, unless the matter is continued by order or orders of the judge to some future time, the court shall proceed to hear and determine the question together with any objections which may be filed and to adjudge and decree that the alleged decedent is dead, that there is no administration on his estate, that he left no will, and who are his heirs at law; provided, however, that if it appears that either the alleged decedent is not dead, or that there is administration upon the estate, or that an application for administration is pending, or that the decedent left a will, the petition shall be dismissed.
  5. Upon granting an order of heirship, the court shall order a transfer of the registered title from the decedent to the heirs at law; and, upon production of the owner's certificate of the decedent and the judge's order for a transfer, the clerk shall register the transfer, cancel the certificate registered in the name of the decedent, cancel the owner's certificate, and issue a new owner's certificate in the name of the persons declared to be the heirs at law.
  6. In the petition if the alleged heirs at law are of full age and under no disabilities and the same so appears to the court and if it further appears that they have voluntarily partitioned the land in kind among themselves, the court may, in connection with the order of transfer, direct that the certificate standing in the name of the decedent be canceled and that new certificates be registered and issued to each of the heirs for the particular parcel of land coming to each under the voluntary partition set forth in the petition.
  7. If the decedent has left a widow, she shall be a party to the proceedings. The court shall specifically provide what interest or estate she shall take under the decree of heirship; and, except where in the decree the land is partitioned into separate tracts, the court shall, in the decree of heirship and in the order of transfer, specifically set forth, except where the widow is the sole heir, what undivided interest each heir shall take.
  8. If the decedent is a female, the procedure shall be similar except insofar as the difference between the rights of the husband and wife upon the death of the spouse shall make changes necessary.
  9. Where the wife claims to be entitled to take possession of the estate without administration under former Code Section 53-4-2 as such existed on December 31, 1997, if applicable, or Code Sections 53-1-7 and 53-2-1, the procedure shall be substantially in the same manner.

    (Ga. L. 1917, p. 108, § 45; Code 1933, § 60-409; Ga. L. 1998, p. 128, § 44; Ga. L. 2011, p. 752, § 44/HB 142; Ga. L. 2019, p. 1056, § 44/SB 52.)

The 2011 amendment, effective May 13, 2011, part of an Act to revise, modernize, and correct the Code, substituted "former Code Section 53-4-2 as such existed on December 31, 1997, if applicable, or Code Sections 53-1-7 and 53-2-1," for "Code Section 53-4-2 of the 'Pre-1998 Probate Code,' if applicable, or Code Sections 53-1-7 and 53-2-1 of the 'Revised Probate Code of 1998,'" in subsection (i).

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, inserted "that" following "provided, however," in subsection (d).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 5.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 2.

44-2-132. Compelling production of owner's certificate for registration of involuntary transfer; cancellation of certificate upon failure to produce it; notice of cancellation.

Whenever an involuntary transfer is sought to be registered under this article and the owner's certificate is not produced so that it can be attached to the order directing a transfer, the court shall have the power to issue a subpoena for the production of documentary evidence or any other process designed to compel the production of the owner's certificate, including attachment for contempt. If, after the process issues, the owner's certificate is not produced or if it appears to the court that there is no practical means of compelling its production, the court may nevertheless grant the order of transfer but shall cause the clerk to enter a cancellation of the certificate of title on the title register and to give notice once a week for four weeks in the newspaper in which the sheriff's sales of the county are advertised that such certificate has been canceled; the cost of making the advertisement shall be deposited with the clerk before the judge shall grant the order of transfer without the production of the certificate.

(Ga. L. 1917, p. 108, § 52; Code 1933, § 60-410.)

RESEARCH REFERENCES

ALR. - Lis pendens: grounds for cancellation prior to termination of underlying action, absent claim of delay, 49 A.L.R.4th 242.

44-2-133. Procedure for obtaining duplicate of lost owner's certificate.

Whenever an owner's certificate of title is lost or destroyed, the owner or his personal representative may petition the court for the issuance of a duplicate. Notice of the petition shall be published once a week for four successive weeks in the newspaper in which the sheriff's sales of the county are published; provided, however, that the court may in any case order additional notice to be given, either by publication or otherwise, before directing the issuance of a duplicate certificate; and provided, further, that where the petition is presented by a personal representative of a deceased person claiming that the certificate was lost or destroyed while in the possession of the decedent, the notice of the petition shall be published once a week for eight successive weeks instead of the four weeks required in other cases. Upon satisfactory proof having been exhibited before it that the certificate has been lost or destroyed, the court may direct the issuance of a duplicate certificate which shall be appropriately designed and shall take the place of the original owner's certificate.

(Ga. L. 1917, p. 108, § 58; Code 1933, § 60-412.)

44-2-134. Filing caveat objecting to entry in title register; show cause hearing upon caveat.

  1. If any person at interest objects to any entry, registration, or notation made by the clerk upon the title register, he may, unless such entry, registration, or notation has become conclusive by lapse of time under Code Section 44-2-122, file with the clerk of the superior court a caveat setting forth the entry, notation, or registration to which he objects, what interest he has in the subject matter, and the ground of his objection and praying for such relief as he desires and deems appropriate under the circumstances. The clerk shall note upon the title register the fact that a caveat has been filed and by whom and to what entry, notation, or act of registration it applies.
  2. After the filing of the caveat has been noted, the matter shall be presented to the judge who shall order all persons at interest to show cause on a day named why the relief prayed for in the caveat should not be granted. Upon proof being made that due notice has been given to all parties at interest, the judge shall proceed to hear the matter and shall render a judgment of the court giving direction to the matter and may thereupon require such entry, registration, or notation to be canceled or modified and may require the outstanding certificate of title and owner's certificate to be modified accordingly. To that end the court may require the outstanding owner's certificate of title to be brought into court by subpoena for the production of documentary evidence or other process, including attachment for contempt; and, if the court finds that production of the certificate cannot be compelled, it shall provide for publication of notice of the court's action thereon for a period of time not less than once a week for four weeks in the newspaper in which the sheriff's sales of the county are advertised, the expense of making the publication to be provided for in such manner as the court shall order.

    (Ga. L. 1917, p. 108, § 60; Code 1933, § 60-416.)

JUDICIAL DECISIONS

Party to proceeding cannot go back to decree of registration. - Provisions for a caveat by any interested person objecting to any entry, notation, or registry made by the clerk, found in this statute, are not intended to and, as a matter of law cannot, authorize a party to the registration proceeding to go back to the decree of registration. Miller v. Turner, 209 Ga. 255 , 71 S.E.2d 517 (1952) (see O.C.G.A. § 44-2-134 ).

Remedies in case of fraud. - In cases of fraud, the true owner, if the owner moves within 12 months, has a summary remedy under Ga. L. 1917, p. 108, § 60 (see O.C.G.A. § 44-2-134 ), or a remedy by plenary suit under Ga. L. 1917, p. 108, § 63 (see O.C.G.A. § 44-2-137 ). After the expiration of 12 months one can only resort to such plenary suit; but the existence of summary remedy does not preclude such owner from resorting to such plenary remedy, either within or after the expiration of such 12 month period, if one asserts such plenary remedy under the statute within seven years. Rock Run Iron Co. v. Miller, 156 Ga. 136 , 118 S.E. 670 (1923).

Motion to cancel notice of lis pendens is not properly classifiable as caveat under O.C.G.A. § 44-2-134 . Jay Jenkins Co. v. Financial Planning Dynamics, Inc., 256 Ga. 39 , 343 S.E.2d 487 (1986).

Cited in Lankford v. Milhollin, 203 Ga. 491 , 47 S.E.2d 70 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 27.

44-2-135. Obtaining notations in title register.

In order to cause notations of judgments, liens, encumbrances, or special rights of any kind, other than voluntary transactions, claimed by any person against registered land to be made, the person desiring the notation shall, by himself, his agent, or his attorney, file, upon a form substantially in compliance with Code Sections 44-2-246 through 44-2-248, a request for the notation to be made setting forth the claim against the registered land; and, in case the lien or special rights relate to any other matter of record or court proceeding, he shall state the book and page where recorded and, if it relates to any special right, shall succinctly give the details of the right so claimed. In case the notation is for the purpose of protecting the lien of a judgment, the person making the application for the notation shall produce and exhibit to the clerk the execution or a certified copy of the judgment except in cases where the judgment is rendered in the superior court of the same county where the registration is made, in which event production of the execution or certified copy of the judgment shall not be required; but the clerk may act upon inspection of the original judgment on the minutes of his own court.

(Ga. L. 1917, p. 108, § 61; Code 1933, § 60-417.)

JUDICIAL DECISIONS

Cited in Lankford v. Milhollin, 203 Ga. 491 , 47 S.E.2d 70 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 39.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 27.

44-2-136. Cancellation of mortgage, lien, equity, or lis pendens; entry of cancellation on title register and certificate; procedure upon refusal to authorize cancellation.

  1. Voluntary cancellations may be made of any mortgage, certificate of indebtedness, or any lien, equity, encumbrance, lis pendens, or other similar matter relating to registered land or any interest therein and may be entered by the clerk upon the title register and the owner's certificate. The entry, notation, or registry of such cancellation may be made upon the written authority of the person for whose benefit the original registration, notation, or entry was made or upon the written authority of his personal representative or his lawful assignee, in a form substantially in compliance with that prescribed in this article, and attested by any officer authorized to attest deeds; alternatively, it may be made upon order of the judge. In case of a creditor's certificate the same shall also be surrendered and canceled. Notations of delinquent taxes or assessments may be canceled upon the production of a certificate of the proper tax officer showing that such taxes or assessments have been paid.
  2. If the holder of the mortgage, certificate of indebtedness, or any lien, equity, encumbrance, lis pendens, or other similar matter relating to the registered land or any interest therein refuses to give the requisite authority for the cancellation thereof if and when the debt has been paid or no longer exists or when it is no longer legal and equitable that the registered title should be encumbered by the same, any person adversely affected may petition the court for an involuntary cancellation of the same. In such case, the judge shall cause a rule nisi to be served upon such holder requiring him or her to show cause on a day set, which day shall be not less than 30 days from the date the rule was served, why the mortgage, certificate of indebtedness, lien, or other encumbrance on the registered title should not be canceled. The petition and rule nisi shall be served personally on such holder at least 15 days before the date set for the hearing if such service be practical; but, when it is made to appear to the court that personal service cannot be practically effected, the judge may pass an order providing how the service shall be made. In case the holder is not a resident of this state or is unknown, service by publication shall be made upon the order of the judge in the manner prescribed in Code Section 9-11-4. In case of minors and persons of unsound mind, guardians ad litem shall be appointed. If any issue of fact as to the right of the petition to have the cancellation made appears, such issue shall, upon demand of either party, be tried by jury, with right of the judge to grant a new trial. If it appears that the registered title should be freed from the encumbrance, the court shall decree accordingly and order the cancellation noted upon the certificate of title. The judge shall have power by attachment for contempt, if necessary, to compel the holder of the mortgage certificate of indebtedness or other instrument to surrender it for cancellation.

    (Ga. L. 1917, p. 108, § 62; Code 1933, § 60-418; Ga. L. 1943, p. 326, § 1; Ga. L. 2016, p. 883, § 3-11/HB 927.)

The 2016 amendment, effective January 1, 2017, in subsection (b), inserted "or her" in the second sentence, substituted "but, when" for "but, where" in the third sentence, and deleted the former last sentence, which read: "The Supreme Court shall have jurisdiction for the correction of errors in the trial court.". See Editor's notes for applicability.

Editor's notes. - Ga. L. 2016, p. 883, § 1-1/HB 927, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Appellate Jurisdiction Reform Act of 2016.'"

Ga. L. 2016, p. 883, § 6-1/HB 927, not codified by the General Assembly, provides, in part, that: "Part III of this Act shall become effective on January 1, 2017, and shall apply to cases in which a notice of appeal or application to appeal is filed on or after such date."

Law reviews. - For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 205 (2016).

JUDICIAL DECISIONS

Preservation for review on appeal. - Husband's motion on appeal for cancellation of a lis pendens entered in favor of his wife pursuant to O.C.G.A. § 44-2-136 was not considered because the propriety of the ruling by the trial court denying cancellation of the lis pendens was not enumerated as error on appeal, and the matter was not properly before the appellate court pursuant to O.C.G.A. § 5-6-34(d) . Gardner v. Gardner, 276 Ga. 189 , 576 S.E.2d 857 (2003).

Cited in Lankford v. Milhollin, 203 Ga. 491 , 47 S.E.2d 70 (1948).

RESEARCH REFERENCES

C.J.S. - 76 C.J.S., Registration of Land Titles, § 27.

44-2-137. What adverse claims affect registered land; effect of fraud or forgery; limitations on actions to set aside.

  1. Except in cases of fraud or forgery to which he is a party or to which he is a privy without valuable consideration paid in good faith, every registered owner of any estate or interest in land brought under this article shall hold the land free from any and all adverse claims, rights, or encumbrances not noted on the certificate of title in the title register except:
    1. Liens, claims, or rights arising or existing under the laws or Constitution of the United States which the laws of this state cannot require to appear of record under registry laws;
    2. Taxes and levies assessed for the current calendar year;
    3. Any lease for a term not exceeding three years under which the land is actually occupied; and
    4. Highways in public use and railroads in actual operation.
  2. No proceedings to attack or to set aside any transaction for such fraud or such forgery referred to in this Code section shall be brought or be entertained by any court unless the same is brought within seven years from the date of the transaction or of the registration to which the same relates. Nothing in this subsection shall conflict with the provisions of this article allowing attack for good cause to be made upon a registration made by the clerk at any time within 12 months from the date of such registration.

    (Ga. L. 1917, p. 108, § 63; Code 1933, § 60-419.)

JUDICIAL DECISIONS

Statute makes no provision for existing claim to be subsequently recorded. Lankford v. Milhollin, 204 Ga. 193 , 48 S.E.2d 729 (1948) (see O.C.G.A. § 44-2-137 ).

Allegations of true owner in setting aside registration of owner's lands in another. - As in cases of fraud or forgery, the decrees registering title are not conclusive upon adverse claimants. When the true owner files an equitable petition to set aside a registration of the owner's lands in the name of another, it is not incumbent upon the owner to allege that the owner was ignorant of the facts upon which the owner attacks the registration, or that the owner was prevented from making it by the fraud of the applicant, unmixed with fraud or negligence on the owner's part. Rock Run Iron Co. v. Miller, 156 Ga. 136 , 118 S.E. 670 (1923).

Fraud cannot be based upon constructive notice and there must be actual notice of existent facts, concealment of which was used in effort to defraud. Thus, failure to disclose a fact of which one has no actual notice cannot constitute fraud merely because one to whom fraud was imputed did not exercise ordinary diligence to discover facts which might have been ascertained thereby. Hudson v. Varn Turpentine & Cattle Co., 176 Ga. 538 , 168 S.E. 581 (1933).

Knowing registration under forged deed authorizes action to set aside. - Where an applicant for registration asserts title under a deed known by the applicant to be forged, and the application for registration is based on such deed, the applicant is guilty of such fraud as will authorize the true owner to institute an equitable action to set aside the certificate of registration. Rock Run Iron Co. v. Miller, 156 Ga. 136 , 118 S.E. 670 (1923).

Cited in Couey v. Talalah Estates Corp., 183 Ga. 442 , 188 S.E. 822 (1936).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 9, 20, 23.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 19, 21, 22, 24.

ALR. - Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.

Transferees entitled to protection under Torrens Act certificate of title, 42 A.L.R.2d 1387.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

44-2-138. What limitations govern actions by injured party for fraud or negligence.

Notwithstanding any other provision of this article, any injured party may bring an action against any person or officer through whose fraud or negligence he may have suffered any loss or damage arising out of any acts of omission or of commission of such person or officer in connection with the matters and things arising from this article. All such actions shall be governed by the statutes of limitation which would otherwise relate to the transaction.

(Ga. L. 1917, p. 108, § 84; Code 1933, § 60-420.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 9.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 24.

ALR. - Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

44-2-139. Registration and title certificate to run with land.

Reserved. Repealed by Ga. L. 1989, p. 563, § 1, effective April 3, 1989.

Editor's notes. - This Code section was based on Ga. L. 1917, p. 108, § 64; Code 1933, § 60-421.

44-2-140. Availability of prescription or adverse possession against registered land.

Title to or right or interest in registered land in derogation of that of the registered owner may be acquired by prescription or adverse possession.

(Ga. L. 1917, p. 108, § 66; Code 1933, § 60-423; Ga. L. 1989, p. 563, § 2.)

Law reviews. - For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 315 (1989).

JUDICIAL DECISIONS

Cited in Lankford v. Dockery, 85 Ga. App. 86 , 67 S.E.2d 800 (1951).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 20.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 25.

44-2-141. Rights, burdens, and incidents as to both registered and unregistered land; validity of transfers of title by last registered owner.

Except as otherwise specifically provided by this article, registered land and ownership therein shall be subject to the same rights, burdens, and incidents as unregistered land and may be dealt with by the owner and shall be subject to the jurisdiction of the courts in the same manner as if it had not been registered. Transfers of title made by the last registered owner as shown by the title register or said owner's representatives, heirs, or assigns and recorded in the deed records in the office of the clerk of superior court of the county in which the land is situated shall be valid transfers of title to the land so described.

(Ga. L. 1917, p. 108, § 73; Code 1933, § 60-424; Ga. L. 1952, p. 164, § 2; Ga. L. 1989, p. 563, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 20.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 19, 25.

44-2-142. Notation of change of name on register and certificate.

Any person who has any interest in registered land and whose name has been changed by marriage or other cause may, by petition to the judge of the court and upon proof of the facts, obtain an order directing the clerk to note the change of name upon the title register and upon the owner's certificate upon its being produced.

(Ga. L. 1917, p. 108, § 53; Code 1933, § 60-425.)

44-2-143. Notation of liens and lis pendens on register; effect absent notation.

No judgment, levy, or other lien except a lien for taxes for which special provision is made in this article shall be effective against registered land so as to affect any person taking a transfer thereof or obtaining any right or interest therein unless and until a notation of such judgment, levy, or lien is made upon the title register. The pendency of any action affecting the title to registered land or any interest therein shall not be held to be notice to any person other than the actual parties to such action unless a notation of the pendency of such action is made upon the title register.

(Ga. L. 1917, p. 108, § 54; Code 1933, § 60-426.)

JUDICIAL DECISIONS

Cited in Lankford v. Milhollin, 203 Ga. 491 , 47 S.E.2d 70 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, §§ 39, 46.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 22, 27.

ALR. - Lis pendens as affecting property in county or district other than that in which action is pending, 71 A.L.R. 1085 .

44-2-144. Freeing land from further registration; certificates as conclusive source of title; notation of encumbrances; when land automatically freed; registered land free of further registration; exception.

  1. The registered owner of the fee simple title to land may cause a transfer of the title to be registered to "himself, his heirs and assigns, free from further registration." Thereupon the land and the title thereto shall be free from the necessity of subsequent registration and shall, as to subsequent transactions, be exempt from this article so far as the interest of the person thus freeing it from registration and subsequent holders under him are concerned; but, as to such interest, the certificate of title and owner's certificate registered and issued on the last transfer shall stand as a conclusive source of subsequent title to the same extent as if it were a grant from the state. However, if the interest thus freed is, according to the title register, subject to liens, exceptions, encumbrances, trusts, or limitations of any kind, such liens, exceptions, encumbrances, trusts, or limitations shall not be affected but shall be noted on the owner's certificate as issued on the last transfer and shall be effective as long as they shall exist. If the fee simple is registered undividedly in the name of more than one person such as tenants in common or other like relationship of joint or common interest, it shall not be freed from registration except upon the unanimous action of the owners of the entire fee.
  2. A decree of registration rendered on or after February 15, 1952, shall operate to free the registered land from further registration unless it expressly provides that the land shall remain subject to this article.
  3. All lands heretofore registered in this state are declared to be free of further registration unless the order registering said title shall provide otherwise. The certificate of title and owner's certificate registered and issued on the last transfer shall stand as conclusive source of subsequent title. If the previously registered land has been devised, conveyed, or otherwise transferred by the last registered owner or said owner's representative, title shall vest in the party to whom the land was transferred or that party's heirs, successors, and assigns, notwithstanding the failure to have had the same transferred on the title register as provided in prior statutes; provided, however, if the land or interest freed is subject to a valid outstanding lien, exception, encumbrance, trust, or limitation according to the title register, the same shall not be affected but shall be effective as long as the same shall validly exist.

    (Ga. L. 1917, p. 108, § 65; Code 1933, § 60-422; Ga. L. 1952, p. 164, § 1; Ga. L. 1989, p. 563, § 4.)

Law reviews. - For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 315 (1989).

JUDICIAL DECISIONS

Cited in Lankford v. Dockery, 85 Ga. App. 86 , 67 S.E.2d 800 (1951).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 30.

ALR. - Transferees entitled to protection under Torrens Act certificate of title, 42 A.L.R.2d 1387.

PART 5 C ONVEYANCE, TRANSFER, AND DESCENT

44-2-160. Manner of recording deeds conveying title to registered land; validity of previous conveyances of registered land.

Deeds conveying title to all registered estates shall be recorded in the same manner as deeds conveying title to unregistered lands are recorded. All previous conveyances of interests in registered lands by the last registered owner or said owner's representatives, heirs, or assigns and recorded in the deed records in the office of the clerk of the superior court in which the land is situated shall be valid transfers of said interests. Upon request, the clerk of the superior court is authorized to note on the title register the information regarding the transfers and that the land is no longer required to be transferred on said register under this article, "The Land Registration Law."

(Ga. L. 1917, p. 108, § 30; Code 1933, § 60-501; Ga. L. 1982, p. 3, § 44; Ga. L. 1989, p. 563, § 5.)

The 1989 amendment, effective April 3, 1989, rewrote the section.

Law reviews. - For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 315 (1989).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 30.

44-2-161. Partial transfer of registered land; undivided interest; interest in particular portion; notations on register; issuance of certificates.

  1. Whenever a part of any registered land is to be transferred or conveyed, such transfer or conveyance shall be in a form substantially the same as that used for a total transfer; but it shall set forth particularly and specifically the portion of the land transferred, if it is an undivided interest, or, if it is a particular portion of the tract, it shall describe the portion accurately and definitely.
  2. In case an undivided interest is transferred, upon presentation of the transfer together with the owner's certificate of title, the clerk shall not cancel the owner's certificate so presented nor the certificate of title on the title register but shall enter a notation of the partial transfer on the certificate of title, on the title register, and on the owner's certificate; and the clerk shall also register upon the title register a certificate of title in the name of the grantee of the undivided portion of the estate so transferred and shall issue him a corresponding owner's certificate setting out the part or amount of land transferred, as the case may be.
  3. If the transfer is of a divided part of the land, the clerk shall first enter the fact of the transfer upon the certificate of title on the title register and shall cancel the certificate of title on the title register and the owner's certificate of title. Thereupon, he shall register separate new certificates of title on the title register, one in the name of the transferee for the portion of the tract conveyed to him and the other in the name of the transferor for the portion retained; and the clerk shall also issue separate new owners' certificates accordingly.
  4. The clerk shall note upon the title register and the owners' certificates the reference and cross-reference to the certificates referred to in subsections (b) and (c) of this Code section.

    (Ga. L. 1917, p. 108, § 31; Code 1933, § 60-502.)

44-2-162. Subdivision of registered land; procedure.

The owner or owners of a tract of land embraced in a certificate may divide it into smaller tracts and, upon surrender of his or their owner's certificate, cause separate certificates to be issued for the respective smaller tracts. The procedure in such cases shall be for the owner or owners to petition the judge and to attach to or include within the petition a map or plat showing the tract as registered and the subdivision for which they desire the new certificates. The judge shall examine the petition and the plat and, if he is not fully satisfied that the content of the original tract is exactly equivalent to the sum of the contents of the smaller tracts into which it is subdivided, may order a survey at the owner's expense. If and when the judge is satisfied on this subject, he shall pass an order directing the clerk to cancel the certificate of title on the record upon surrender of the outstanding owner's certificate and to issue new and separate certificates of title and owners' certificates for the smaller tracts into which the original tract is subdivided, all of which new certificates shall carry the same limitations and notations as the canceled certificate, as in the case of a transfer.

(Ga. L. 1917, p. 121, § 31; Code 1933, § 60-502; Ga. L. 1943, p. 326, § 1.)

44-2-163. Conveyance to secure debt; form; notation and registration; creditor's certificate.

The owner of any registered land who desires to convey the land as security for debt and with power of sale without foreclosure may do so by a short form of transfer substantially in the form provided in Code Section 44-2-241. The form shall be signed and properly acknowledged or attested as if it were a deed to land and shall be presented together with the owner's certificate to the clerk. The clerk shall note on the owner's certificate and on the certificate of title in the title register the name of the creditor, the amount of debt, and the date of maturity of the debt and shall show that a creditor's certificate has been issued therefor. When only a part of the registered estate is so conveyed, the clerk shall note on the book and the owner's certificate the part so conveyed. The clerk shall retain, number, and file away the instrument of transfer and shall issue and deliver to the creditor a creditor's certificate, over his hand and seal, setting out the portion so conveyed. All registered encumbrances, rights, or adverse claims affecting the estate represented thereby which are in existence at the time the creditor's certificate is issued shall be noted thereon.

(Ga. L. 1917, p. 108, § 32; Code 1933, § 60-503.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, §§ 39, 45, 49.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 27, 30, 31.

44-2-164. Assignment or negotiation of creditor's certificate; effect of transfer of indebtedness; surrender and cancellation of certificate; order of cancellation; notation.

The creditor's certificate shall be assignable or negotiable to the same extent as the note or other evidence of indebtedness secured thereby may be, but assignments or transfers of the creditor's certificate need not be noted on the title register. A transfer or assignment of the indebtedness shall operate to transfer the creditor's certificate securing the same in like manner and to the same extent as is set forth in Code Section 10-3-1, relating to the case of transfer of indebtedness secured by mortgage, unless otherwise agreed between the parties. The creditor's certificate may be surrendered and canceled at any time by the owner thereof. It shall be the creditor's duty to surrender the certificate and give an order for cancellation of the same when the debt is paid. If he refuses, he may be compelled by the court to do so and in any proper case the judge may order a cancellation on the title register. Upon presentation of an order of cancellation with the surrendered creditor's certificate or upon presentation of the judge's order directing cancellation, the clerk shall enter a notation of the same in the register of titles and on the owner's certificate of title.

(Ga. L. 1917, p. 108, § 33; Code 1933, § 60-504.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 45.

C.J.S. - 76 C.J.S., Registration of Land Titles, §§ 28, 29.

44-2-165. Sale by holder of creditor's certificate; application for transfer to purchaser; opportunity to object to transfer; order of application of sale proceeds.

If the debt secured by a creditor's certificate or any part thereof becomes due and unpaid, the holder of the creditor's certificate may, after advertising the property for sale in the manner prescribed by law for advertising sheriff's sales of land, sell the property at auction before the courthouse door of the county and sell it to the highest and best bidder for cash. The sale need not be conducted by the creditor or holder of the creditor's certificate personally but may be conducted through any agent or attorney. The holder of the certificate, his agent, or his attorney shall thereupon make an oath to the facts and apply to the judge for an order of transfer to the purchaser. The application shall be accompanied by a certified copy of the certificate of title from the title register as of the date of the sale. The judge shall cause at least five days' notice to be given to the debtor and to any persons who, according to the title register, have acquired any interest in the property subsequent to the issuance of the creditor's certificate; and, if no objections are made or if objections are made after a hearing, the judge shall grant an order of transfer with such directions for cancellation of other certificates and entries and otherwise as shall be in accordance with the justice of the case and with the spirit of this article. The proceeds of the sale shall be applied first to the payment of the costs of advertising the sale and obtaining the judge's order of transfer, then to the payment of the debt, and any remainder shall be paid to the debtor or his order.

(Ga. L. 1917, p. 108, § 35; Code 1933, § 60-505.)

44-2-166. Transfer to secure debt; notation of bond for title or to reconvey.

Nothing in this article shall prevent the owner of land from transferring his registered title as security for debt or from causing the title to be registered in the name of the creditor by transferring to the creditor as if he were an ordinary vendee of the registered title; and, if bond for title or bond to reconvey is given, it may be noted on the certificate of title on the title register and on the owner's certificate, provided it is attested or acknowledged as if it were a deed.

(Ga. L. 1917, p. 108, § 36; Code 1933, § 60-506.)

44-2-167. Validity and priority of unrecorded transfers of owner's certificate to registered lands.

Unrecorded transfers of owner's certificate to registered lands shall have the same validity as unrecorded deeds of conveyance. The validity and priority of unrecorded transfers shall be governed by Code Sections 44-2-1, 44-2-3, and 44-2-4.

(Ga. L. 1917, p. 108, § 37; Code 1933, § 60-507; Ga. L. 1989, p. 563, § 6.)

The 1989 amendment, effective April 3, 1989, rewrote the Code section.

Law reviews. - For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 315 (1989).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 10.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 30.

44-2-168. Descent of registered land as personalty.

Reserved. Repealed by Ga. L. 1989, p. 563, § 7, effective April 3, 1989.

Editor's notes. - This Code section was based on Ga. L. 1917, p. 108, § 42, and Code 1933, § 60-508.

44-2-169. Personal representative as trustee; right of personal representative to a commission; power of heirs to require transfer.

Subject to the powers, rights, and duties of administration, the personal representative of the deceased owner shall hold registered real estate as trustee for the persons beneficially entitled thereto by law. Unless otherwise entitled by law to commissions, the personal representative shall be entitled to no commissions thereon except in cases of necessary sales in the due course of administration. The heirs at law or beneficiaries entitled by law to the real estate shall have the same power of requiring a transfer of such estate as if it were personal estate.

(Ga. L. 1917, p. 108, § 43; Code 1933, § 60-509.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 144.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 36.

44-2-170. Right of personal representative to have registered land transferred to him where such land transferred to heirs before his appointment; action against heirs who have improperly appropriated land.

After a transfer of registered land has been made to the heirs at law or to the widow claiming to be the sole heir as stated in Code Section 44-2-131, a personal representative appointed at any time thereafter to administer the estate of the decedent shall not be entitled to have such registered land transferred to him for purposes of administration; but, if it appears that the heirs have appropriated to their use and ownership property which should have been appropriated to the purposes of administration, the personal representative of the decedent shall have a right of action against the heirs for the value of the property so appropriated, the judgment in such action to be molded according to the exigencies of the particular case, in accordance with the principles of equity.

(Ga. L. 1917, p. 108, § 46; Code 1933, § 60-510.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 144.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 36.

44-2-171. Procedure for ascertaining, and transfer to, heirs or beneficiaries.

  1. Whenever an administrator who has caused registered land to be transferred into his name stands ready to be discharged, if it is not necessary to sell such registered land for the purposes of administration and it should properly go to the heirs at law of the decedent, such administrator may institute a proceeding substantially similar to that prescribed in Code Section 44-2-131 for the ascertainment of the heirs at law and for an order directing the transfer of such estate from him to such heirs.
  2. If a trustee holds title to registered land and the beneficiaries of the trust are not definitely and particularly disclosed, if it becomes appropriate that they be definitely ascertained, such trustee may in like manner petition the court, upon showing that the trust has become executed, for a decree settling and ascertaining who the beneficiaries are and directing a transfer to such beneficiaries.

    (Ga. L. 1917, p. 108, § 47; Code 1933, § 60-511.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 144.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 36.

44-2-172. Transfer by clerk pursuant to judgment; production of copy of decree and order.

Wherever, as the result of a proceeding in any court, it is adjudged that a transfer of registered land should be made, such transfer may be made by the clerk upon the production of a certified copy of the decree showing in what book and page of the minutes of the court the decree is recorded and an order of the judge of the superior court of the county in which the land is located directing the transfer to be made. Once the certified copy and the order are produced, the certificate of title on the register of titles and the owner's certificate shall be canceled and new certificates shall be registered and issued accordingly. Production of the certified copy of the decree shall not be required when it is rendered in the same court as that in which the title is registered, but the clerk shall act upon the judge's order of transfer and the inspection of his own minute book.

(Ga. L. 1917, p. 108, § 49; Code 1933, § 60-513.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, §§ 112, 172, 173.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 42.

44-2-173. Petition for involuntary transfer; referral to examiner; notice; appointment of guardians ad litem; order of transfer.

Whenever it is desired to have an involuntary transfer registered, petition therefor shall be made to the judge of the court. The judge may hear the facts or, in his discretion, may refer the petition to an examiner of titles to hear and report the facts. The judge shall see to it that all parties at interest are given reasonable notice before any order of transfer is made. Whenever, in his judgment, the interests of justice so require, the judge shall cause notice of the petition to be published in the newspaper in which the sheriff's sales of the county are advertised for not less than four times in four separate weeks. Before granting an order directing the transfer, the judge shall fully satisfy himself that all parties who have or may have an interest in the matter of the transfer have been notified; that, in the case of minors or other persons under disability, guardians ad litem have been appointed to represent their interests; and that there is no valid reason why the order directing involuntary transfer should not be made. Thereupon, he shall enter a decree or judgment upon the minutes of the court, reciting the facts and stating that an order of transfer has been issued, and shall issue the order of transfer in substantially the form and manner prescribed in this article.

(Ga. L. 1917, p. 108, § 50; Code 1933, § 60-514.)

JUDICIAL DECISIONS

Cited in Taylor v. Taylor, 186 Ga. 667 , 198 S.E. 678 (1938).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 51.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 38.

44-2-174. Attack on transfers made to hinder, delay, or defraud creditors; decree voiding such transfer; entry of cancellations and transfers on register and certificate.

Nothing in this article shall prevent any transfer or other dealing with registered land from being attacked in court as having been made for the purpose of hindering, delaying, or defrauding creditors; provided, however, that, upon the trial of the case, the court having jurisdiction finds that the person taking the transfer or the apparent beneficiary of the dealing took the benefit of the same with knowledge of the fact that the intention of the transaction was to hinder, delay, or defraud creditors; and provided, further, that none of the rights of innocent parties shall be affected. If, in the proceeding, the court having jurisdiction of the case finds that any transfer or other dealing with registered land was made for the purpose of hindering, delaying, or defrauding creditors and that the rights of no innocent parties will be prejudiced by the court's judgment or decree, the court may pass such judgment or decree as will void the transfer or the effect of such other transaction as may have been made to hinder, delay, or defraud creditors. Upon the decree or judgment of the court, the judge of the superior court of the county where the land is located, upon application as provided in Code Section 44-2-173, may direct such cancellations and transfers to be entered upon the title register and upon the owner's certificate as shall be necessary to carry the decree or judgment into effect.

(Ga. L. 1917, p. 108, § 55; Code 1933, § 60-515.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, § 9.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 24.

44-2-175. Registering subsequent transfers or voluntary conveyances of land held in trust or otherwise restricted.

Whenever a writing or record is filed for the purpose of transferring registered land in trust, or upon any condition or unusual limitation expressed in the instrument, or with power given to sell, encumber, or deal with the land in any manner, no subsequent transfer or voluntary transaction purporting to be exercised under the powers given in the writing, instrument, or record shall be registered on the title register or on the owner's certificate except upon application to the court and an order of direction from the judge to the clerk as to how the subsequent transaction shall be entered.

(Ga. L. 1917, p. 108, § 56; Code 1933, § 60-516.)

44-2-176. Duty of tax officer to have delinquent taxes or assessments noted; effect of delinquencies prior to notation; liability of officer.

After December 31 of every year, it shall be the duty of every officer charged with the collection of any taxes or assessments charged upon any registered land or any interest therein which have not been paid when due to cause a notation of the fact that those taxes or assessments have not been paid to be entered upon the certificate of title on the title register along with the amount thereof. Unless such notation is made, the delinquent tax or assessment shall not affect any transfer or other dealing with the registered land; but the tax officer failing to perform such duty and his surety shall be liable for the payment of the taxes and assessments, with all lawful penalties and interest thereon, if any loss is occasioned to the state, county, municipality, or other political subdivision on account of such failure.

(Ga. L. 1917, p. 108, § 57; Code 1933, § 60-517.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 46.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 22.

PART 6 A SSURANCE FUND

JUDICIAL DECISIONS

Strictly construed. - This part is in derogation of the common law and must be strictly construed and followed. Grover v. Vintage Credit Corp., 155 Ga. App. 759 , 272 S.E.2d 732 (1980).

44-2-190. Payment into assurance fund upon original registration; determination of amount.

Upon the original registration of any land under this article, there shall be paid to the clerk as an assurance fund one-tenth of 1 percent of the value of the land to be determined by the court. The fund shall be subject to the trusts and conditions set forth in this part for the uses and purposes of this article.

(Ga. L. 1917, p. 108, § 74; Code 1933, § 60-701; Ga. L. 1982, p. 3, § 44.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-191. Separate account for assurance fund.

All money received by the clerk under Code Section 44-2-190 shall be kept in a separate account and paid promptly into the state treasury upon the special trust and condition that such moneys shall be set aside by the state treasurer in trust as a separate fund for the uses and purposes of this article, to be known as the "Land Registration Assurance Fund," which fund is appropriated to the uses and purposes set forth in this article.

(Ga. L. 1917, p. 108, § 75; Code 1933, § 60-702; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 3/SB 296.)

The 2010 amendment, effective July 1, 2010, substituted "state treasurer" for "director of the Office of Treasury and Fiscal Services" in the middle of this Code section.

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-192. Investment of fund; application of income; transfer of excess.

The moneys collected pursuant to Code Section 44-2-190, insofar as they are not required to satisfy any judgment certified against the assurance fund under Code Section 44-2-195, shall be invested by the state treasurer in state bonds or validated county or municipal bonds in trust for the uses and purposes set forth in this article until the fund amounts to the sum of $500,000.00. The income or so much thereof as may be required may be applied towards the payment of the expenses of the administration of this article and the satisfaction of any such judgment. Whenever and so long as the face value of the bonds purchased shall equal the sum of $500,000.00, other money thereafter coming into the fund together with any income not required for the purposes set forth in this Code section shall be transferred from the Land Registration Assurance Fund to the general fund.

(Ga. L. 1917, p. 108, § 76; Code 1933, § 60-703; Ga. L. 1982, p. 3, § 44; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 3/SB 296.)

The 2010 amendment, effective July 1, 2010, substituted "state treasurer" for "director of the Office of Treasury and Fiscal Services" in the middle of the first sentence.

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-193. Action against fund - Limitations; defense by Attorney General; measure of damages; tolling of limitations during disability; notice to unknown persons.

  1. Any person entitled to notice who had no actual notice of any registration under this article depriving him of any estate or interest in land and who is without remedy under this article may, within two years after accrual to him or to some person through whom he claims the right to bring such action, bring an action against the state treasurer in the superior court in the county where such land is located for the recovery out of the assurance fund of any damages to which he may be entitled by reason of any such deprivation. The state treasurer shall be served by the second original of proceedings so filed, which service shall be sufficient.
  2. The assurance fund shall be defended in such action and in any appeal by the Attorney General. The measure of damages shall be the value of the property at the time the right to bring the action first accrued; and any judgment rendered therefor shall be paid as provided in Code Section 44-2-195.
  3. If any person entitled to bring such action shall be under the disability of infancy, insanity, imprisonment, or absence from the state in the service of the state or of the United States at the time the right to bring such action first accrued, the action may be brought by him or his privies within two years after the removal of such disability.
  4. Notwithstanding subsection (a) of this Code section, all nonresidents of the state and all persons who are described in the proceedings as being unknown, or of unknown address, or as to whom it appears from the record that they could not be found so as to be served shall be considered as having had actual notice when notice has been published in accordance with this article.

    (Ga. L. 1917, p. 108, § 77; Code 1933, § 60-704; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, §§ 3, 4/SB 296.)

The 2010 amendment, effective July 1, 2010, in subsection (a), substituted "state treasurer" for "director of the Office of Treasury and Fiscal Services" in the middle of the first sentence, and substituted "state treasurer" for "director" near the beginning of the last sentence.

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-194. Action against fund - Parties defendant.

If an action contemplated by Code Section 44-2-193 is brought to recover for loss or damage arising only through the legal operation of this article, the state treasurer shall be the sole defendant. If the action is brought to recover for loss or damage arising on account of any registration made or procured through fraud, neglect, or wrongful act of any person not exercising a judicial function, both the state treasurer and such person or persons shall be made parties defendant.

(Ga. L. 1917, p. 108, § 78; Code 1933, § 60-705; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, §§ 3, 4/SB 296.)

The 2010 amendment, effective July 1, 2010, substituted "state treasurer" for "director of the Office of Treasury and Fiscal Services" near the end of the first sentence, and substituted "state treasurer" for "director" near the end of the second sentence.

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-195. Action against fund - Execution on judgment; payment from fund; liability of other defendants to plaintiff and to fund.

If judgment shall be rendered for the plaintiff in any action brought pursuant to Code Section 44-2-193, execution shall issue against any defendants other than the state treasurer. If such execution is returned unsatisfied in whole or in part or if there are no such defendants, the clerk of the court in which the judgment was rendered shall certify to the state treasurer the amount due on the judgment; and the same shall be paid by the state treasurer out of the assurance fund under the special appropriation made of the fund for such purpose. Any person other than the state treasurer against whom any such judgment may have been rendered shall remain liable therefor or for so much thereof as may be paid out of the assurance fund; and the state treasurer may bring action at any time to enforce the lien of such judgment against such person or his estate for the recovery of the amount, with interest, paid out of the assurance fund.

(Ga. L. 1917, p. 108, § 79; Code 1933, § 60-706; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, §§ 3, 4/SB 296.)

The 2010 amendment, effective July 1, 2010, substituted "state treasurer" for "director of the Office of Treasury and Fiscal Services" at the end of the first sentence and substituted "state treasurer" for "director" four times in this Code section.

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-196. Action against fund - How judgments satisfied when fund insufficient; interest.

If, at any time, the assurance fund is insufficient to satisfy any judgments certified against it as provided in Code Section 44-2-195, the unpaid amounts shall bear interest and shall be paid out of any money thereafter coming into the fund in the order in which they were accrued.

(Ga. L. 1917, p. 108, § 81; Code 1933, § 60-708.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

44-2-197. Liability of fund for registered owner's breach of trust.

The assurance fund shall not under any circumstances be liable for any loss, damage, or deprivation occasioned by a breach of trust, whether express, implied, or constructive, on the part of the registered owner of any estate or interest in land.

(Ga. L. 1917, p. 108, § 80; Code 1933, § 60-707.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 8.

C.J.S. - 76 C.J.S., Registration of Land Titles, § 41.

PART 7 F EES

44-2-210. Fees under article; deposit and payment of fees; award of costs.

  1. The fees payable under this article to the examiner of titles shall be as follows:
    1. For examining a title and making a report to the court, an examiner shall receive $1.00 per $1,000.00 or fraction thereof on the value of land, as determined by the court, not to exceed a maximum $100.00, and postage, plus $10.00; and
    2. In contested cases, for hearing the case and making a report to the court, the judge may, in his discretion, allow additional compensation but in an amount not exceeding the same fee as that allowed an auditor for reporting his findings in equity cases under subsection (a) of Code Section 9-7-22. The examiner shall not be paid extra for reporting the evidence; but when a stenographer is used by consent of the parties or order of the judge, the stenographer shall be paid his usual fee.
  2. The following fees shall be collected for the services of the sheriff under this article:
    1. For ascertaining and reporting to the courts the names and addresses of the persons actually occupying the premises described in the petition, a fee as provided in paragraph (1) of subsection (b) of Code Section 15-16-21 for each separate residence;
    2. For each service of process and notice required, a fee as provided in paragraph (1) of subsection (b) of Code Section 15-16-21; and
    3. For posting a copy of the petition upon the premises, fees as provided in paragraph (6) of subsection (b) of Code Section 15-16-21.
  3. For any other services of the clerk, the sheriff, or the surveyor which are not especially provided for in this Code section, a fee shall be fixed by the court to conform with what is usual and lawful for similar services rendered by such officer in ordinary cases.
  4. Upon filing each application for initial registration, the applicant shall pay to the clerk the fee for civil cases as provided in Code Section 15-6-77.
  5. In all contested cases and in all matters referred to the judge for his direction by any of the provisions of this article, the judge shall award the cost of the proceeding accordingly as in his discretion the justice of the case may dictate and, to that end, may assess all the costs against one of the parties or may divide the costs among the parties in such ratio as seems just.

    (Ga. L. 1917, p. 108, § 120; Code 1933, § 60-801; Ga. L. 1970, p. 497, § 11; Ga. L. 1991, p. 1324, § 8; Ga. L. 1992, p. 1311, § 3.)

PART 8 F ORMS

44-2-220. Power of judges to make general rules and forms for matters under this article; power to modify forms; uniformity of forms.

The judges of the superior courts may, from time to time, make general rules and forms for procedure relating to the subjects dealt with in this article and may modify the forms prescribed in this part. Such rules and forms shall be uniform throughout the state and shall be subject to this article and the general laws of this state.

(Ga. L. 1917, p. 108, § 70; Code 1933, § 60-601.)

44-2-221. Petition to register land.

The following is prescribed as the form of petition to be used when application is made for the original register of lands: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA ) In re petition ) Civil action of ________ ) File no. ______ ) ORIGINAL PETITION FOR REGISTRATION OF LANDS The petition of ________________ shows: The petitioner applies to have the land hereinafter described brought under the provisions of the Land Registration Law, and his title thereto confirmed and registered as provided therein, and under oath shows the following facts: 1. Full name of each applicant _____________________________________________ __________________________________________________________________________ 2. Residence of each applicant _____________________________________________ __________________________________________________________________________ 3. Post office address of each applicant ___________________________________ __________________________________________________________________________ 4. The name and address of applicant's agent or attorney upon whom process or notices may be served (not required unless applicant is a nonresident) ____ __________________________________________________________________________ 5. Full description of the lands (giving also land district and lot numbers where the land lies in that portion of the state where the lands have been surveyed by districts and numbers; and if more than one parcel is included, describe each parcel separately and distinctly). __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ containing ____________ acres. 6. What is the value thereof? $_____________________________________________ 7. At what value was it last assessed for taxes? $__________________________ 8. What interest or estate does the applicant claim therein? _______________ __________________________________________________________________________ 9. What is the value of the interest or estate claimed by the applicant? $__ 10. From whom did the applicant acquire the land? ___________________________ __________________________________________________________________________ 11. Does the applicant claim title by prescription? _________________________ (If so, set forth fully the color of title, if any, under which the prescription is claimed, and state the details of the possession by which it is claimed prescription has ripened. If the color of title consists of one or more instruments of record on the public records of the county, such instruments need not be copied or exhibited to the application otherwise than by giving the name of the grantor and the grantee, the date and nature of the instrument, and a reference to the book and page where recorded.) __________________________________________________________________________ __________________________________________________________________________ 12. Does applicant claim title by a complete chain of title from the state or other original source of title? ___________________________________________ __________________________________________________________________________ 13. Is there a true and correct abstract of applicant's title papers attached hereto? _____________________________________________________________ 14. Do you know, or have information, of any other deed, writing, document, judgment, decree, mortgage, or instrument of any kind not set forth in the abstract which relates to this land or any part thereof, or which might affect the title thereto or some interest therein? If so, state the same. ____ 15. Has the land, or any part thereof, ever been set apart as a homestead or exemption or as dower? If so, state particulars. _____________________________ __________________________________________________________________________ 16. Who is now in possession of the land? ___________________________________ __________________________________________________________________________ 17. Do you know anyone else who claims to be in possession of the land or any part thereof? If so, give name and address. ______________________________ __________________________________________________________________________ 18. Give name and address of each person occupying the land or any part thereof, and state by what right or claim of right such occupancy is held. ___ __________________________________________________________________________ 19. Give the name, residence, and address of each and every person, other than the applicants, who claim any interest, adverse or otherwise, vested or otherwise, in the land or any part thereof, stating the nature of the claim, and if any such persons are under disability of any kind, state the nature of the disability. Disability Nature of Name Residence Address (if any) Claim __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ 20. Give the name, residence, and address of the holder of every known lien, whether considered by the applicant to be valid or not. Nature of Name Residence Address Lien __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ 21. Give the names and addresses of the owners and occupants of all adjoining lands. _____________________________________________________________ __________________________________________________________________________ 22. Is the land subject to any easement, except public highways and railroads in actual operation? If so, state fully. ___________________________ __________________________________________________________________________ __________________________________________________________________________ 23. Give age of applicant. __________________________________________________ 24. Is the applicant male or female? __________; married or single? __________; widow or widower? ____________________________________________ 25. If married, give wife's (or husband's) name, and include her or him in the list of defendants. ______________________________________________________ __________________________________________________________________________ 26. The applicant names as defendants the following persons whose names have been given above: ____________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ and also all other persons "whom it may concern." Wherefore the applicant prays process and judgment accordingly. ___________________________________________________________________ Petitioner's attorney (To be sworn to by each applicant. Verification in case of a corporation may be made by any officer thereof; in case of minor or other persons under disability, by the person filing the petition in his behalf.) I do swear that I have read the foregoing petition, and have examined the schedules thereto attached, and that the same are true to the best of my knowledge and belief, and that nothing has been withheld in the answers which would in anywise affect the title to the land or any interest therein or which would disclose any person claiming an adverse interest, valid or not. I do further swear that I bona fide believe that the applicant is the true owner of the estate he seeks to have registered. ___________________________________________________________________ Petitioner Sworn to and subscribed before me, this ________ day of ________________________, ________. ________________ Notary (If more than one applicant, they may verify jointly or by separate affidavits.) EXHIBIT A (Attach abstract of title)

(Ga. L. 1917, p. 108, § 86; Code 1933, § 60-602; Ga. L. 1982, p. 3, § 44; Ga. L. 1999, p. 81, § 44.)

44-2-222. Process.

The following is prescribed as the form of process to be attached to the petition: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA To the sheriffs of said state and their lawful deputies: The respondents __________________________________________________________ and all other persons whom it may concern are required to show cause before said court, on the ________ day of ________________________, ________, (not less than 40 nor more than 50 days from date of process) why the prayers of the foregoing petition should not be granted, and why the court should not proceed to judgment in such cause. Witness the Honorable ______________, judge of said court, this the ________ day of ________________________, ________. ___________________________________________________________________ Clerk

(Ga. L. 1917, p. 108, § 87; Code 1933, § 60-603; Ga. L. 1999, p. 81, § 44.)

44-2-223. Advertisement.

The advertisement to be inserted in the newspaper in which sheriff's sales of the county are advertised for four insertions in separate weeks should be substantially in the following form: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA In re petition ) Civil action of ______ ) File no. ______ ) To whom it may concern, and to (here insert the names of all respondents, if any, who reside beyond the limits of the state, or whose place of residence is unknown): Take notice that _____________ has filed in said court a petition seeking to register the following lands under the provisions of the Land Registration Law: (Here describe lands). You are warned to show cause to the contrary, if any you have, before said court on the ________ day of ________________________, ________. This ________ day of ________________________, ________. ___________________________________________________________________ Clerk

(Ga. L. 1917, p. 108, § 88; Code 1933, § 60-604; Ga. L. 1982, p. 3, § 44; Ga. L. 1999, p. 81, § 44.)

44-2-224. Acknowledgment of service.

Acknowledgment of service may be made in the following form, provided it is entered on the petition or entitled in the action and is signed in the presence of the judge, the clerk, the examiner, or any other person or official authorized by law to administer oaths, take acknowledgments, or act as a notary public or official witness and is attested by such officer: Due and legal service of the within and foregoing petition for registration is acknowledged. Further service, process, and notice waived, this the ________ day of ________________________, ________. ____________________________________________________________________ In the presence of ______________.

(Ga. L. 1917, p. 108, § 89; Code 1933, § 60-605; Ga. L. 1945, p. 140, § 1; Ga. L. 1999, p. 81, § 44.)

44-2-225. Sheriff's return.

The sheriff's return should be made substantially in the following form and entered on or attached to the petition: STATE OF GEORGIA, ________ COUNTY I have served copies of the within petition and process, or of the summons in substitute therefor, upon the following persons at the time and in the manner stated, as follows: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ I have also gone upon the land and posted in a conspicuous place on the land described herein and upon each separate tract thereof and upon every dwelling house and every building used as a place of business upon said land, a copy of the notice as required by law, and have taken the same into the custody of the court. The following is the name and post office address of each and every person above the age of 14 years actually occupying the premises: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ This ______ day of ________________________, ________. ___________________________________________________________________ Sheriff

(Ga. L. 1917, p. 108, § 90; Code 1933, § 60-606; Ga. L. 1943, p. 326, § 1; Ga. L. 1999, p. 81, § 44.)

44-2-226. Certificate of mailing; entry of such certificate on petition.

The clerk should also enter on the petition a certificate substantially in the following form: I certify that on the ________ day of ________________________, ________, I mailed to each of the following persons a copy of the within petition and process to his post office address as disclosed by the record: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ and that advertisement has been published in accordance with law, a copy of said advertisement being hereto attached. This ________ day of ________________________, ________. ___________________________________________________________________ Clerk

(Ga. L. 1917, p. 108, § 91; Code 1933, § 60-607; Ga. L. 1999, p. 81, § 44.)

44-2-227. Examiner's appointment.

A form reading substantially as follows should be used in appointing examiners: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA In re petition ) Civil action of ________ ) File no. ______ ) ORDER ____________, a competent attorney at law, of good standing in his profession and of at least three years' experience, is hereby appointed an auditor in and for the __________ Judicial Circuit, to discharge the duties of examiner as provided in the Land Registration Law. This appointment is __________ (either general or for a particular case, as the case may be). This ________ day of ________________________, ________. ___________________________________________________________________ Judge, Superior Court

(Ga. L. 1917, p. 108, § 92; Code 1933, § 60-608; Ga. L. 1999, p. 81, § 44.)

44-2-228. Oath of examiner.

The examiner is required to take the following oath, to be filed along with the order of his appointment in the office of the clerk of the superior court of his residence: "I, ____________, do swear that I will faithfully, well, and truly perform the duties of examiner under the Land Registration Law, according to law to the best of my skill and ability. _____________________________________________________________________ Sworn to and subscribed before me, this ________________________, ________. __________________"

(Ga. L. 1917, p. 108, § 93; Code 1933, § 60-609; Ga. L. 1992, p. 6, § 44; Ga. L. 1999, p. 81, § 44.)

44-2-229. Referral to examiner.

Upon the clerk's notifying the judge that a petition has been filed, the judge shall promptly refer the petition to an examiner in substantially the following form: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA ) In re petition ) Civil action of ________ ) File no. ______ ) ORDER Application having been filed to register _________________________________ ________________________________ land, it is hereby ordered that this matter be and is referred to __________________________, as examiner for proceedings in conformity with the Land Registration Law. This ________ day of ________________________, ________. ____________________________________________________________________ Judge

(Ga. L. 1917, p. 108, § 94; Code 1933, § 60-610; Ga. L. 1999, p. 81, § 44.)

44-2-230. Preliminary report of examiner; schedules.

The following is suggested as the general form of the preliminary report of an examiner: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA ) In re petition ) Civil action of ________ ) File no. ______ ) PRELIMINARY REPORT Application to register ___________________________________________________ ______________ land having been duly considered, the undersigned, as examiner, makes the following preliminary report: I have examined all records as required by the Land Registration Law. I attach an abstract of the title (Schedule A) as shown on the public records and so far as obtainable from other trustworthy sources. The names and addresses of all persons, so far as I have been able to ascertain, who have any interest in the land, are set out in Schedule B hereto, showing their several apparent or possible interests and indicating upon whom and in what manner service should be made. A like disclosure of all adjoining landowners is set out in Schedule C hereto. I find the following to be a history of the possession ___________________ ______________________________________________________________________ Special attention is called to the following matters: ______________________________________________________________________ ______________________________________________________________________ This ________ day of ________________________, ________. ___________________________________________________________________ Examiner SCHEDULE A (Attach examiner's full abstract) SCHEDULE B Names and addresses of all persons having apparent or possible interests in the land, other than applicants, and indicating upon whom and in what manner further service, if any, should be made _______________________________ ___________________________________________________________________________ ___________________________________________________________________________ SCHEDULE C Names and addresses of all adjoining owners: _____________________________ ___________________________________________________________________________ __________________________________________________________________________

(Ga. L. 1917, p. 108, § 95; Code 1933, § 60-611; Ga. L. 1999, p. 81, § 44.)

44-2-231. Final report of examiner.

The following is suggested as the general form of the examiner's final report: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA ) In re petition ) Civil action of ________ ) File no. ______ ) FINAL REPORT Application to register ___________________________________________________ ____________________________________________________________ land having been duly considered, the undersigned, as examiner, makes this his final report: The preliminary report filed by the undersigned is made a part hereof, and is correct, except as herein otherwise stated. The following proceedings have occurred before the examiner, and accompanying herewith is a brief (or a stenographic) report of the evidence taken on the hearing: ___________________________________________________________________________ ___________________________________________________________________________ In Exhibit ________, hereto, is a report of the matters ascertained by the independent examination of the examiner. My conclusions of fact are set forth in Exhibit ________ hereto annexed. My conclusions of law are set forth in Exhibit ________ hereto annexed. I find the state of the title to be as follows: __________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ I find that there are liens and encumbrances on the land as follows: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ This ________________________, ________. ____________________________________________________________________ Examiner

(Ga. L. 1917, p. 108, § 96; Code 1933, § 60-612; Ga. L. 1999, p. 81, § 44.)

44-2-232. Decrees of title.

Decrees of title should be rendered in accordance with the following form: IN THE SUPERIOR COURT OF ________ COUNTY STATE OF GEORGIA ) In re petition ) Civil action of ________ ) File no. ______ ) DECREE OF TITLE The above entitled action coming on to be heard and it appearing to the court that process has been served and notice given and publication made, all in full compliance with the Land Registration Law, and that all the requirements of said Law have been complied with, it is decreed, ordered, and adjudged that the title to the lands involved: (here describe lands) is held and owned as follows: The fee simple belongs to ________________________________________________ ___________________________________________________________________________ subject to the following limitations and conditions: ______________________ ___________________________________________________________________________ It is further ordered and decreed that said lands be and they are hereby brought under the operation and provisions of the Land Registration Law, and the title of the said ________________________________________________________ in and to the estate herein set forth above is confirmed and ordered registered; subject, however, to the following liens and encumbrances: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ and subject also to _______________________________________________________ ___________________________________________________________________________ Let this decree be entered on the minutes of this court and on the register of decrees of title of said county. In open court this ______ day of ________________________, ________. ____________________________________________________________________ Judge

(Ga. L. 1917, p. 108, § 97; Code 1933, § 60-613; Ga. L. 1999, p. 81, § 44.)

44-2-233. Book of decrees; index.

  1. It is contemplated by this article that the book known as the register of decrees of title shall be made up in the following manner:
    1. It shall be of such size that each page may contain a full copy of the decree of title;
    2. Only one decree should be entered on any page;
    3. Each page should have printed thereon the form of the decree of title as prescribed in Code Section 44-2-232 with ample spacing left in the blanks;
    4. At the bottom of the page should be the words:
  2. Even though several separate tracts may be joined in the same application, the judge should render separate decrees as to each tract; and these decrees should be separately entered and given separate registered title numbers. Every certificate of title, owner's certificate, and creditor's certificate must carry on it, in addition to its own certificate number, the registered title number of the decree under which the tract to which it pertains was registered.
  3. A part of the register of decrees of title shall be an alphabetical index thereto which the clerk shall carefully keep. Whenever a decree is entered on the register of decrees of title, the clerk shall immediately index it in the name of the person in whose favor the title is registered under proper alphabetical head, the name being followed by the registered title number. If the decree is in favor of more than one person, it shall be separately indexed under the name of each and every one of them, the name of each of said persons being shown under the proper alphabetical head.

    (Ga. L. 1917, p. 108, § 98; Code 1933, § 60-614; Ga. L. 1999, p. 81, § 44.)

"Entered and registered this ________ day of ________________________, ________, at ____: ____ ____. M. and certificate of title No. ______ issued thereon. ____________________________________________________________________ Clerk" and (5) At the top of the page and preceding the copy of the decree should be the words, "Registered Title No. ______." The first decree entered is numbered "Registered Title No. 1," the second "Registered Title No. 2," and so on in continuous, consecutive order. The registered title number of a registered tract never changes though any number of subsequent certificates may be issued thereon; therefore, the registered title number and the certificate number will usually be different.

RESEARCH REFERENCES

ALR. - Failure properly to index conveyance or mortgage of realty as affecting constructive notice, 63 A.L.R. 1057 .

44-2-234. Title register book; registered title number; index of title register.

  1. It is contemplated by this article that the title register shall be a well-bound book with pages not less than 18 inches wide. It shall be labeled on the back with the words "Title Register" followed by the name of the county. For convenience, additional labels may be used in order to show what certificates are included, for example, "Certificates 1501-2000, inclusive," or other similar information. It shall be printed and ruled in substantially the following form:   TO VIEW  FORM       (b)  The two pages facing each other on the register shall constitute the original certificate of title when the blanks are duly filled in and signed by the clerk. The first certificate of title in the book should be numbered "Certificate No. 1," the next one "Certificate No. 2," and so on, in continuous, consecutive order. If a new book is opened, the numbering therein should begin with the number next succeeding the last number in the book just completed.

    (c) In registering a certificate of title, in addition to the certificate number, the registered title number should also be inserted. The registered title number is always the same as that which appears on the decree of title, by virtue of which the land to which the certificate relates was originally registered. Therefore, every certificate of title registered in the title register shall bear a different certificate number from every other certificate of title registered therein; but all certificates of title which refer to the same registered tract, no matter how many such certificates may be issued in the course of time, shall bear the same registered title number.

    (d) The clerk shall keep an alphabetical index of the title register. This may most conveniently be kept in a separate book. Whenever a certificate of title is entered in the title register, the clerk shall insert in the index, under proper alphabetical head, the name of the person in whose favor the certificate is registered, the reference to the certificate number, and the reference to the registered title number. Whenever a certificate is entered in the name of more than one person, the name of each shall be likewise alphabetically indexed.

    (Ga. L. 1917, p. 108, § 99; Code 1933, § 60-615; Ga. L. 1999, p. 81, § 44.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 73 et seq.

C.J.S. - 76 C.J.S., Registers of Deeds, § 9 et seq.

ALR. - Right of vendee to record title where vendor to covenants to furnish abstract showing title, 7 A.L.R. 1166 .

44-2-235. Duty of clerk to enter on new certificate all entries and notations of record.

When registering a certificate of title upon a transfer, the clerk shall bring forward and appropriately enter on the new certificate of title all entries and notations appearing on the certificate from which the transfer is made, except such as shall have been canceled. In transcribing entries brought forward, the clerk will note under the column headed "Remarks" against such entries the words "Brought forward."

(Ga. L. 1917, p. 108, § 100; Code 1933, § 60-616.)

44-2-236. Certified copies of certificates of title or entries thereon.

Upon request of any person and the payment of lawful fees, the clerk shall issue a certified copy of any certificate of title or of any entry thereon in like manner as he may issue certified copies of any other public record in his office; but, whenever he does so, he shall plainly mark in large legible letters across the face of the certificate the word "copy." If a certified copy of a canceled certificate or entry is made, in addition to transcribing a copy of the entry of cancellation, the clerk shall also plainly mark the words "canceled certificate" or "canceled entry," as the case may be, across the face of the copy.

(Ga. L. 1917, p. 108, § 101; Code 1933, § 60-617.)

44-2-237. Recordation and notation of plat.

Whenever a plat of the premises which is too large or too intricate for easy transcription on the register of decrees of title or on the certificate of title is a part of the description of the lands or is used to aid description, it shall not be necessary for the clerk to copy such plat on the register of decrees of title or on the certificate of title. In lieu of copying such plat, the clerk shall record it and shall note a reference to the book and page where recorded.

(Ga. L. 1917, p. 108, § 102; Code 1933, § 60-618; Ga. L. 1981, p. 1396, § 3; Ga. L. 1992, p. 6, § 44; Ga. L. 2016, p. 193, § 8/HB 1004.)

The 2016 amendment, effective January 1, 2017, in the second sentence, deleted "in one of the public record books in his office" following "the clerk shall record it", and deleted "its existence together with" following "and shall note"; and deleted the former third sentence, which read: "If the holder of the owner's certificate desires a copy of the plat to be attached as a part of his owner's certificate, the clerk shall make a certified copy and attach it upon payment of the fee provided for in paragraph (2) of subsection (f) of Code Section 15-6-77."

44-2-238. Recordation of lengthy description - Reference on title register; effect.

Whenever, in the registering of any certificate of title or any notation or entry on the title register, it is found that the description of the premises or the portion thereof involved or any other detail in connection with the transaction is too lengthy to be transcribed in full in the proper space on the register, it shall be permissible to record the instrument, document, or writing in which such lengthy detail or description is contained on some public record book of the county and, instead of setting forth the description or other detail, as the case may be, in extenso on the title register, to state it in general terms with the reference for further particulars to the public record where recorded as follows: "For further detail, see Deed Book _____________, page _____________." Such registration shall be adequate to all intents and purposes, and the record thus made on the public record shall be considered as a part of the certificate of title contained on the title register.

(Ga. L. 1917, p. 108, § 103; Code 1933, § 60-619.)

44-2-239. Recordation of lengthy description - Notation on owner's or creditor's certificate; attaching certified copy; fee.

Whenever any of the description or details of a certificate of title on the title register are set out in full in some other record of the clerk's office with reference thereto on the title register as provided in Code Section 44-2-238, like reference shall be made on the owner's certificate and on the creditor's certificate when thereafter issued; but, if the holder of the owner's certificate or creditor's certificate shall so require, the clerk shall make a full and complete copy of the record to which reference is made, certify it as such, and attach it to the owner's certificate or the creditor's certificate, as the case may be. For making and certifying such copy of the recorded document or writing and attaching it to the owner's certificate or creditor's certificate, as the case may be, the clerk shall be paid as provided for in paragraphs (4) and (5) of subsection (g) of Code Section 15-6-77, relating to the certification of records.

(Ga. L. 1917, p. 108, § 104; Code 1933, § 60-620; Ga. L. 1981, p. 1396, § 4; Ga. L. 1992, p. 6, § 44.)

44-2-240. Owner's certificate of title.

  1. The form of the owner's certificate of title shall correspond in general with the certificate of title form except that it shall be headed with the words "Owner's Certificate of Title." It is suggested that it be prepared on paper of suitable size which shall be folded into four pages. The first page shall contain the certificate proper omitting the notations and special entries. The inner pages, pages 2 and 3, shall be ruled and written or printed, preferably the latter, in conformity with the form shown in Code Section 44-2-234 for the printing and ruling of the title register for the entry of transfers, liens, encumbrances, creditors' certificates, and other like matters, these two pages being treated for this purpose as a single sheet so that ample space will thereby be given for the crosswise extension of the entries. The back, or fourth, page shall be endorsed as follows:  OWNER'S CERTIFICATE OF TITLE     Registered Title No. _____________________________________________________     Certificate No. __________________________________________________________     Issued to ________________________________________________________________     __________________________________________________________________________  Georgia, __________________________ County         Entered and Registered (in lieu of certificate No. __________, which has been canceled).        This the ________________ day of ________________________, ________, at ____:____ ____. M.          ____________________________________________________________________ Clerk, Superior Court
  2. In case of the first issuance of the owner's certificate on the granting of a decree of registration, the words shown in parenthesis in the endorsement should be omitted.
  3. It is suggested that convenience will be served by folding the certificate in the manner of folding documents written on legal cap or foolscap paper and by writing or printing the endorsement in the style and manner in which similar endorsements are usually put on legal documents. When printed blanks are prepared for use in this connection, it is also suggested that a blank form of transfer be printed on part of the fourth page other than that part used for the endorsement. However, space should be left on the fourth page for such entries as the clerk may be required to make, from time to time, under this article such as certifying that the certificate is valid with all entries noted to date.

    (Ga. L. 1917, p. 108, § 105; Code 1933, § 60-621; Ga. L. 1982, p. 3, § 44; Ga. L. 1999, p. 81, § 44.)

44-2-241. Transfer of whole of registered estates, undivided interests, divided portions, and to secure debt, with power of sale.

The following are prescribed as the regular forms of transfer, but other forms may be used in accordance with this article: TRANSFER OF WHOLE OF REGISTERED ESTATE In consideration of _______________________________________________________ the undersigned, _________________________________________________________ hereby transfers, sells, and conveys to __________________________ his entire right, title, estate, and interest in the tract of land described in the certificate of title No. ____________, hereto attached, registered as Registered Title No. ____________ in the office of the clerk of the Superior Court of __________________________ County, Georgia. This ____________ day of ________________________, ________. ________________________________ Signed, sealed, and delivered in the presence of: __________________________________ __________________________________ TRANSFER OF UNDIVIDED INTEREST IN REGISTERED ESTATE In consideration of ________________________________, the undersigned, ______________________________________, hereby transfers, sells, and conveys to ____________________________ an undivided __________ interest in the tract of land described in the certificate of title No. ____________ hereto attached, registered as Registered Title No. _____________ in the office of the clerk of the Superior Court of __________________________ County, Georgia. This ____________ day of ________________________, ________. ________________________________ Signed, sealed, and delivered in the presence of: __________________________________ __________________________________ TRANSFER OF DIVIDED PORTION OF A REGISTERED ESTATE In consideration of ________________________________________, the undersigned hereby transfers, sells, and conveys to ______________ his entire right, title, interest, and estate in and to the following lands: __________________________________________________________________________ ________________________________________________________________________, being a divided portion of the tract of land described in the certificate of title No. ____________ hereto attached, registered as Registered Title No. _____________ in the office of the clerk of the Superior Court of __________________ County, Georgia. This ____________ day of ________________________, ________. ________________________________ Signed, sealed, and delivered in the presence of: __________________________________ __________________________________ TRANSFER TO SECURE DEBT, WITH POWER OF SALE To secure a debt payable to _______________________________________________ in the sum of ______________________________________________________________ ____________________________________________________________________________ evidenced as follows: ______________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ the undersigned hereby transfers, sells, and conveys to said _______________ __________________________________________________________________________ all the title of the undersigned in and to the tract of land described in the certificate of title No. ____________, herewith shown, registered as Registered Title No. ____________ in the office of the clerk of the Superior Court of ______________________________ County, Georgia, with power to sell the same after lawful advertisement, without foreclosure, in accordance with the provisions of the Land Registration Law, if any part of said debt is not paid at maturity. This ____________ day of ________________________, ________. ________________________________ Signed, sealed, and delivered in the presence of: __________________________________ __________________________________

(Ga. L. 1917, p. 108, § 107; Code 1933, § 60-622; Ga. L. 1999, p. 81, § 44.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1999, commas were deleted after "delivered" in 2nd, 3rd, and 4th forms.

44-2-242. Creditor's certificate; endorsement of certificate.

  1. The following is a form of the creditor's certificate referred to in this article:  CREDITOR'S CERTIFICATE  State of Georgia, ____________________ County:  Registered Title No. _____________  Certificate No. ________________        I hereby certify that the title to the estate hereinafter mentioned in the following described land lying in said county, _______________________________   ____________________________________________________________________________   is registered under the provisions of the Land Registration Law and thereby vested in ____________________________________________________________________   ____________________________________________________________________________   as security for a debt created by the holder of the owner's certificate of title to said estate, (here insert name of the holder of the owner's certificate); said debt being particularly described as follows: _____________     __________________________________________________________________________   with power conferred to sell the same after lawful advertisement, without foreclosure, in accordance with the provisions of the Land Registration Law, if any part of said debt is not paid at maturity. The estate in said land so held is as follows: __________________________________________________________   ____________________________________________________________________________   subject to the following limitations, conditions, encumbrances,  etc.,     __________________________________________________________________________   and such other as may be noted hereon.        Witness my hand and seal of office, this __________________ day of ________________________, ________, at _:_ _. M.       _______________________________________________________________________ Clerk, Superior Court, __________________ County

    (Official Seal)

  2. All uncanceled entries appearing on the certificate of title at the time the creditor's certificate is issued shall be noted and entered on the creditor's certificate.
  3. The creditor's certificate shall bear an endorsement on its back in the following form:

    (Ga. L. 1917, p. 108, § 108; Code 1933, § 60-623; Ga. L. 1999, p. 81, § 44; Ga. L. 2000, p. 136, § 44.)

CREDITOR'S CERTIFICATE

Registered Title No. _____________

Certificate No. ________________

On lands registered in the name of ________________________________________ __________________________________________________________________________ Issued to ________________________________________________________________ Georgia, __________________ County. Entered and registered this ________ day of ____________________________, ________, at _:_ _. M. ______________________________________________________________________ Clerk, Superior Court

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, a comma was deleted following "Clerk, Superior Court" at the end of subsection (c).

44-2-243. Transfer of portion or undivided interest to secure debt.

Where only a portion of the registered land or only an undivided interest is transferred to secure a debt, the instrument of transfer and the creditor's certificate may be in the same form as those prescribed in Code Sections 44-2-241 and 44-2-242 with the exception that the portion or the undivided interest shall be distinctly stated.

(Ga. L. 1917, p. 108, § 109; Code 1933, § 60-624.)

44-2-244. Judge's order of transfer.

  1. Where the judge orders a transfer to be made under any of the provisions of this article, the judge's order of transfer shall be in the following form unless the exigencies of the case require a different form:  IN THE SUPERIOR COURT OF ____________ COUNTY STATE OF GEORGIA        )    In re petition        )            Civil action   of ________        )           File no. ______        )   JUDGE'S ORDER OF TRANSFER        For good cause shown to the court, the clerk is directed to cancel the Certificate of Title No. __________, Registered Title No. __________, standing in the name of ______________________________________ on the title register and to register a certificate of title in lieu thereof, as follows: in accordance with the decree of court rendered in the action of ________________________ v. __________________________________ in __________________________ court; and transfer of title is accordingly ordered. You will enter this transfer upon the title register, noting upon the same a reference to the book and page upon which the above-recited order or decree may be found.        This order of transfer shall be effective upon the presentation of the outstanding owner's certificate, which you will cancel. * ____________________     __________________________________________________________________________     __________________________________________________________________________        This ________ day of ________________________, ________.         ______________________________________________________________________ Judge        (*If the court has not been able to require the production of the outstanding owner's certificate, the judge shall erase this sentence from the order and substitute in the blank space below it the following: "You will cause notice to be published, in accordance with the law, that the certificate is canceled.")     (b)  If the exigencies of the case require a variation from the above prescribed form, the clerk shall also record the judge's order on the minutes of the court and, under the appropriate heading in the entry of transfer on the title register, write the words "Special, See Minute Book ________, page ________." If the judge's order of transfer is made without obtaining production of the outstanding owner's certificate, the clerk, in entering the transfer, shall, under the heading "Remarks," write "Owner's certificate not produced, but canceled by publication."

    (Ga. L. 1917, p. 108, § 110; Code 1933, § 60-625; Ga. L. 1999, p. 81, § 44.)

44-2-245. Registration and recordation of mortgages.

  1. The regular form of mortgaging shall be as follows:        The undersigned ______________________________________________________ to      secure the following indebtedness ________________________________________     __________________________________________________________________________     __________________________________________________________________________     mortgages to _____________________________________________________________   the estate, title, and interest of the undersigned in and to all of the tracts of land described in the certificate of title No. ___________________,   herewith shown, registered as Registered Title No. __________ in the office of the clerk of the Superior Court of ________________________________________     County, Georgia.       ________________________________________________________________________        This ________ day of ________________________, ________.   Signed, sealed, and delivered, in the presence of:     __________________________________      __________________________________     __________________________________
  2. If only a part or undivided interest is mortgaged, the word "all" shall be stricken and a particular description of the portion or interest mortgaged shall be inserted.
  3. Mortgages executed pursuant to this Code section may be registered as regular instruments as provided in this article. Mortgages in other forms and with other provisions may be registered but shall also be recorded in accordance with the provisions of this article regulating the registration of irregular instruments.

    (Ga. L. 1917, p. 108, § 111; Code 1933, § 60-626; Ga. L. 1999, p. 81, § 44.)

44-2-246. Notation of delinquent taxes or assessments.

Delinquent taxes and assessments shall be noted on the title register when the officer charged with the collection of taxes files with the clerk a certificate substantially in the following form: NOTATION OF DELINQUENT TAXES I certify that __________________________ (state, county, or city, as the case may be) has a lien for unpaid taxes (or assessments, as the case may be) for the year ________ against the land described in certificate No. __________, Registered Title No. __________, registered in the office of the clerk of the Superior Court of ________________________ County, in the amount of $_____________. The clerk will please note the same on the title register. This ________ day of ________________________, ________. _____________________________________________________________________ Tax Collector

(Ga. L. 1917, p. 108, § 112; Code 1933, § 60-627; Ga. L. 1999, p. 81, § 44.)

44-2-247. Notation of judgment.

The regular form to be used for the notation of a judgment on the title register is as follows: NOTATION OF JUDGMENT To the clerk of the Superior Court, ____________ County, Georgia: Please note on certificate of title No. ____________, Registered Title No. ____________, a judgment issued from _________________________________________ Court of _______________________________________________________ in favor of ________________________ v. ___________________________________________ for the amount of $__________________. This ________ day of ________________________, ________. _____________________________________________________________________

(Ga. L. 1917, p. 108, § 113; Code 1933, § 60-628; Ga. L. 1999, p. 81, § 44.)

44-2-248. Notation of special right; notice of lis pendens; recordation and notation of lengthy descriptions.

  1. The regular form to be used where any person desires a notation to be made of any lien, encumbrance, or special right, other than voluntary transactions and other than those otherwise provided for in this part, is as follows:  REQUEST FOR NOTATIONS OF SPECIAL RIGHT        The undersigned ___________________________________________________________       claims against the land described in certificate No. ____________, Registered Title No. ____________, registered in the office of the clerk of the Superior Court of ________________________________ County, the following lien (encumbrance, equity, or special right, as the case may be):     __________________________________________________________________________   in proof of which reference is had to the following record or court proceeding _________________________________________________________________.        Please note the same upon the register of title accordingly.         ______________________________________________________________________     Sworn to and subscribed before me this     ________ day of ________________________, ________.     __________________
  2. The above form may be used to give notice of a lis pendens.
  3. If the description of the alleged encumbrance, equity, or special right is too lengthy to note with convenience on the blanks in the title register, the request for the notation of the same shall be recorded on the deed book of the county; and the clerk shall register only a general description of it but shall note under the appropriate column heading in the title register the reference "Special, see Deed Book ______________ page __________."

    (Ga. L. 1917, p. 108, § 114; Code 1933, § 60-629; Ga. L. 1982, p. 3, § 44; Ga. L. 1992, p. 6, § 44; Ga. L. 1999, p. 81, § 44.)

44-2-249. Cancellation of creditor's certificate.

The owner of a creditor's certificate may authorize the clerk to register the cancellation thereof by writing thereon "Canceled. The clerk will please cancel the same on the title register" and dating and signing the same in the presence of an officer authorized to attest deeds. If the person owning the creditor's certificate is not the person in whose name it was issued and if the original creditor has not endorsed it in blank, the owner signing the cancellation shall also make an affidavit that he is the owner of the creditor's certificate and entitled to cancel it. The creditor's certificate shall be surrendered to the clerk at the time of the registration of the cancellation.

(Ga. L. 1917, p. 108, § 115; Code 1933, § 60-630.)

44-2-250. Request to cancel entries.

Authority for the clerk to cancel entries of other liens, mortgages, encumbrances, special claims, and like matters may be conferred by the execution by the person in whose favor such matters exist or his personal representative of a request as follows: REQUEST TO CANCEL ENTRY To the Clerk of the Superior Court of _____________ County: You are directed to cancel the entry registered in my favor on certificate of title No. __________, Registered Title No. __________, claiming the following lien (encumbrance or special right, as the case may be) __________________________________________________________________________ This ________ day of ________________________, ________. ______________________________________________________________________

(Ga. L. 1917, p. 108, § 116; Code 1933, § 60-631; Ga. L. 1999, p. 81, § 44.)

44-2-251. Registration and notation of other voluntary transactions.

Reserved. Repealed by Ga. L. 1989, p. 563, § 8, effective April 3, 1989.

Editor's notes. - This Code section was based on Ga. L. 1917, p. 108, § 117; Code 1933, § 60-632; Ga. L. 1982, p. 3, § 44.

44-2-252. Updating entries and notations on owner's certificate; clerk's endorsement.

The holder of an uncanceled owner's certificate of title may at any time present it to the clerk and have the clerk enter on the owner's certificate all entries and notations of every kind which appear on the certificate of title which have not already been entered on the owner's certificate. The clerk shall thereupon endorse on the owner's certificate the words "Valid, with all entries noted to this date. This ________ day of ________________________, ________, at _: _ _. M." and shall officially sign the endorsement.

(Ga. L. 1917, p. 108, § 118; Code 1933, § 60-633; Ga. L. 1982, p. 3, § 44; Ga. L. 1999, p. 81, § 44.)

44-2-253. Filing cases; method of filing papers relating to registered lands.

The county governing authority shall furnish the clerk with the necessary durable filing cases. He shall carefully number and file away all papers relating to and dealing with registered lands. All the papers relating to each registered title shall be filed together and separately from the papers relating to any other registered title, in such regular consecutive numerical arrangement as to make them easily accessible at all times.

(Ga. L. 1917, p. 108, § 119; Code 1933, § 60-634.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 67.

C.J.S. - 76 C.J.S., Registers of Deeds, § 9 et seq.

CHAPTER 3 REGULATION OF SPECIALIZED LAND TRANSACTIONS

Article 1

Georgia Land Sales Act.

Article 2

Sales of Subdivided Out-of-State Lands.

Article 3

Condominiums.

Article 4

Cemeteries.

Article 5

Time-Share Projects and Programs.

Part 1

G ENERAL PROVISIONS .

Part 2

A DMINISTRATION .

Part 3

D EVELOPERS AND EXCHANGE COMPANIES .

Part 4

A DVERTISING .

Part 5

F INANCING BY DEVELOPER .

Part 6

R EGISTRATION .

Part 7

M ISCELLANEOUS .

Article 6

Property Owners' Associations.

Article 7

Specialized Land Transactions.

Cross references. - Real estate brokers and salespersons, Ch. 40, T. 43.

Law reviews. - For article, "Hazardous Waste Issues in Real Estate Transactions," see 38 Mercer L. Rev. 581 (1987).

RESEARCH REFERENCES

ALR. - Construction and effect of provision in contract for sale of realty by which purchaser agrees to take property "as is" or in its existing condition, 8 A.L.R.5th 312.

ARTICLE 1 GEORGIA LAND SALES ACT

Cross references. - Georgia Uniform Securities, Ch. 5, T. 10.

Editor's notes. - Georgia Laws 1982, p. 1431, § 1, effective November 1, 1982, substituted this article for former Article 1 of this chapter, relating to sales in this state of subdivided lands, and for former Article 2 of this chapter, relating to sales of subdivided out-of-state lands.

Law reviews. - For note on 1995 amendments of sections in this article, see 12 Ga. St. U.L. Rev. 321 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the provisions, opinions rendered under prior law and under Ga. L. 1971, p. 856 and Ga. L. 1972, p. 638, are included in the annotations for this Code section.

Sale of interest in land is sale of real property. - Contract for the sale and purchase of an interest in land is an agreement for the sale of real property. 1954-56 Op. Att'y Gen. p. 596. (decided under prior law).

Out-of-state developer. - An out-of-state developer who had filed and received approval to sell or offer to sell lands located outside the State of Georgia to Georgia residents prior to July 1, 1973, and now wishes to file a consolidation of the same property or subdivision, would be required to file under and meet the requirements of former Arts. 1 and 2 of this chapter. 1973 Op. Att'y Gen. No. 73-157 (decided under Ga. L. 1971, p. 856 and Ga. L. 1972, p. 638).

Corporation meeting the licensing requirements of this article must also qualify to do business under T. 14. 1973 Op. Att'y Gen. No. 73-140 (decided under Ga. L. 1971, p. 856 and Ga. L. 1972, p. 638).

Unless exempted by § 14-2-1501 . - Foreign corporation that is licensed under the Out of State Land Sales Act, G.L. 1971, p. 856, is not required to comply with the provisions of former Code 1933, § 22-1401(a) (see now O.C.G.A § 14-2-1501 ) if the corporation would be otherwise exempt from that section pursuant to former Code 1933, § 22-1401 (see now O.C.G.A. § 14-2-1501). 1974 Op. Att'y Gen. No. 74-49 (decided under Ga. L. 1971, p. 856 and Ga. L. 1972, p. 638).

RESEARCH REFERENCES

ALR. - Failure to procure occupational or business license or permit as affecting validity or enforceability of contract, 30 A.L.R. 834 ; 42 A.L.R. 1226 ; 118 A.L.R. 646 .

Duty of vendor as to abstract of title, 52 A.L.R. 1460 .

Constitutionality, construction, and application of statutes regulating the subdivision or development of land for sale or lease in lots or parcels, 122 A.L.R. 501 .

Effect of action as an election of remedy or choice of substantive rights in case of fraud in sale of property, 123 A.L.R. 378 .

Real estate broker's right to commission on sale, exchange, or lease of property listed without statement of price or other terms, 169 A.L.R. 380 .

Venue of damage action for breach of real-estate sales contract, 8 A.L.R.3d 489.

Variance between offer and acceptance in regard to title as affecting consummation of contract for sale of real property, 16 A.L.R.3d 1424.

Rights and liabilities of parties to executory contract for sale of land taken by eminent domain, 27 A.L.R.3d 572.

Mechanic's lien based on contract with vendor pending executory contract for sale of property as affecting purchaser's interest, 50 A.L.R.3d 944.

Enforceability, landowner, of subdivision developer's oral promise to construct or improve roads, 41 A.L.R.4th 573.

44-3-1. Short title.

This article shall be known and may be cited as the "Georgia Land Sales Act."

(Code 1981, § 44-3-1 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1990, p. 606, § 1; Ga. L. 1995, p. 993, § 1.)

JUDICIAL DECISIONS

Applicability. - Trial court properly granted summary judgment against a home buyer's claim that the sale of the property at issue failed to comply with the Georgia Land Sales Act (Act), O.C.G.A. § 44-3-1 et seq., as the property contained a house suitable for occupancy at the time of the sale; further, despite the buyer's argument that the statutory exemption under O.C.G.A. § 44-3-4(2) did not apply to residential property, giving the words of the exemption their plain and ordinary meaning, the exemption had to be read as excluding from the Act property upon which either a commercial building, an industrial building, a condominium, a shopping center, a house, or an apartment house was situated. Mancuso v. Steyaard, 280 Ga. App. 300 , 640 S.E.2d 50 (2006).

44-3-2. Definitions.

As used in this article, the term:

  1. "Agent" means any person who represents, or acts for or on behalf of, a developer in selling or leasing or offering to sell or lease any lot or lots in a subdivision but shall not include an attorney at law whose representation of another person consists of rendering legal services.
  2. "Blanket encumbrance" means:
    1. Any deed to secure debt, trust deed, mortgage, mechanic's lien, or any other lien or financial encumbrance securing or evidencing money debt and affecting subdivided land or affecting more than one lot or parcel of subdivided land; or
    2. Any agreement affecting more than one such lot or parcel by which the subdivider holds such subdivided land under an option, contract to purchase, or trust agreement; provided, however, that taxes and assessments levied by public authority are not deemed to be encumbrances within the meaning of this paragraph.
  3. "Business day" means any calendar day except Sunday or any national legal public holiday.
  4. "Common promotional plan" means a plan undertaken by a single developer or a group of developers acting in concert to offer lots for sale or lease; where such land is offered for sale by such a developer or group of developers acting in concert and, where such land is contiguous or known, designated, or advertised as a common unit or by a common name, such land shall be presumed, without regard to the number of lots covered by each individual offering, as being offered for sale or lease as part of a common promotional plan.
  5. "Conspicuous statement" means a statement in boldface and conspicuous type which shall be a type size of at least ten points. Such statement shall always be shown larger than all other nonconspicuous statements in the body of the document in which it is required.
  6. "Developer" or "subdivider" or "owner" means any person who, directly or indirectly, sells or leases, or offers to sell or lease, or advertises for sale or lease any lots in a subdivision.
  7. "Disposition" or "dispose of" means any sale, exchange, lease, assignment, award by lottery, or other transaction designed to convey an interest in a subdivision or parcel, lot, or unit thereof, if undertaken for gain or profit.
  8. "Offer" means every inducement, solicitation, or attempt to bring about a disposition.
  9. "Person" means an individual, firm, company, association, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership, unincorporated association or organization, two or more of any of the foregoing having a joint or common interest, or any other legal or commercial entity.

    (9.1) "Property report" means a written statement given to prospective purchasers by the developer or the developer's agent disclosing such information about the subdivision as required by this article.

  10. "Purchaser" means a person other than a developer or lender who acquires an interest in any lot, parcel, or unit in a subdivision.
  11. "Sale" means every sale, lease, assignment, award by lottery, solicitation, or offer to do any of the foregoing concerning a subdivision, if undertaken for gain or profit.
  12. "Subdivision" or "subdivided land" means:
    1. Any contiguous land which is divided or is proposed to be divided for the purpose of disposition into 50 or more lots, parcels, units, or interests; or
    2. Any land, whether contiguous or not, which is divided or proposed to be divided into 50 or more lots, parcels, units, or interests which are offered as a part of a common promotional plan. (Ga. L. 1971, p. 856, § 1; Ga. L. 1972, p. 638, § 1; Ga. L. 1975, p. 484, § 1; Code 1981, §§ 44-3-2 , 44-3-41; Ga. L. 1982, p. 3, § 44; Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Ga. L. 1995, p. 993, § 1.)

JUDICIAL DECISIONS

Cited in Screamer Mt. Dev., Inc. v. Garner, 234 Ga. 590 , 216 S.E.2d 801 (1975) (decided under Ga. L. 1971, p. 856, § 1).

RESEARCH REFERENCES

Am. Jur. 2d. - 64 Am. Jur. 2d, Public Securities and Obligations, §§ 2, 3. 66 Am. Jur. 2d, Registration of Land Titles, § 5.

44-3-3. Registration statement; accompanying documents; material changes; property report; lots or parcels subject to blanket encumbrances; records subject to inspection by purchaser; copy of property report to be given to prospective purchasers; sales contract; amendments to report.

    1. It shall be unlawful for any person to offer for sale or to sell any subdivided land to any person in this state unless such offering complies with this article or is exempt under Code Section 44-3-4. Any person offering to sell any subdivided land shall provide each prospective purchaser a property report containing the following:
      1. Information about the subdivider to include the name, street address, form of organization, and telephone number of the subdivider; the state or foreign jurisdiction in which the subdivider is organized and the date of organization; a statement of authorization to do business in this state, if the subdivider is a foreign corporation; the name and address of the subdivider's resident agent; the name and address of the person to whom correspondence concerning the subdivider should be addressed; the name, address, and telephone number of the person or persons who are in charge of the subdivider's sales in this state; and a statement indicating where the subdivider's records are located;
      2. Information about the subdivided land to include the total acreage in the subdivision as a whole, including land held for future expansion; the number of lots, parcels, or tracts included in the filing; the number of acres in the filing; the size of the smallest parcel to be offered for sale; the county and state in which the land is located; the name of the nearest incorporated town; and the route and distance from the nearest incorporated town to the land;
      3. Information about the title of the subdivided land to include the name, address, and telephone number of the record titleholder;
      4. Information about any existing or contemplated future improvements to include statements of the condition of drainage control systems, streets, roads, sewage disposal facilities, sidewalks, electrical services, telephone connections, water supply, gas supply, clubhouses, golf courses, and other recreational facilities; a statement as to whether any performance bonds or other obligations have been posted with any public authority to assure the completion of any improvements; a statement as to whether the county or city wherein the land lies has agreed to accept maintenance of any improvements other than recreational facilities; a statement as to whether any contracts have been made with any public utility for the installation of any improvements; a statement as to the existence or contemplated future existence of any improvement maintenance charge; and a statement as to whether all improvements promised to purchasers are included in the sales contracts;
      5. The provisions of any zoning ordinances and regulations affecting the subdivided land and each lot or unit thereof;
      6. A statement of all existing taxes or assessments affecting the subdivided land;
      7. The terms and conditions of sales of the subdivided land and a statement which declares any sums which purchasers will be required to pay other than the actual purchase price, with interest, and any taxes or assessments validly imposed by any governmental authority;
      8. A statement which indicates whether the subdivision has been approved or disapproved for loans by any lending institutions or agencies;
      9. The names of the governmental authorities or private entities which will provide police protection, fire protection, and garbage collection;
      10. The name and address of the person who prepared the registration statement;
      11. A statement which indicates the use for which the property is offered;
      12. The estimated costs, dates of completion, and the party responsible for the construction and maintenance of all existing and proposed improvements which are referred to in connection with the offering or disposition of any interest in the subdivided land including such party's name and address;
      13. A conspicuous statement on the top two-thirds of the front cover of the property report which reads as follows:

        "YOU MAY CANCEL WITHOUT PENALTY OR OBLIGATION ANY SALES AGREEMENT WHICH YOU HAVE SIGNED WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER SIGNING ANY SALES AGREEMENT AND YOU ARE ENTITLED TO RECEIVE A REFUND. IF THIS PROPERTY REPORT WAS NOT GIVEN TO YOU BEFORE YOU SIGNED ANY SALES AGREEMENT, YOU MAY CANCEL THE SALES AGREEMENT WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER YOUR RECEIPT OF THIS PROPERTY REPORT AND YOU ARE ENTITLED TO RECEIVE A REFUND. YOU MAY NOT GIVE UP OR WAIVE THIS RIGHT TO CANCEL. IF YOU DECIDE TO CANCEL A SALES AGREEMENT, YOU MUST NOTIFY THE DEVELOPER IN WRITING WITHIN THE CANCELLATION PERIOD OF YOUR INTENT TO CANCEL BY SENDING NOTICE BY CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED, TO (insert the name and address of the developer or the developer's agent). YOUR NOTICE WILL BE EFFECTIVE ON THE DATE YOU MAIL IT."

      14. A conspicuous statement on the bottom third of the front cover of the property report which reads as follows:

        "THE PURCHASER SHOULD READ THIS DOCUMENT BEFORE SIGNING ANYTHING";

        1. Except as provided in division (ii) of this subparagraph, a conspicuous statement which reads as follows:

          "THIS IS A REAL PROPERTY TRANSACTION. YOU OR YOUR ATTORNEY SHOULD REVIEW THE DOCUMENTS RELATING TO THIS TRANSACTION ON FILE IN THE SUPERIOR COURT OF THE COUNTY WHEREIN THE PROPERTY IS LOCATED."

        2. If the subdivision is located outside the State of Georgia, then the conspicuous statement must read as follows:

          "THIS IS A REAL PROPERTY TRANSACTION. YOU OR YOUR ATTORNEY SHOULD REVIEW THE DOCUMENTS RELATING TO THIS TRANSACTION ON FILE IN THE APPROPRIATE LAND RECORDS OF THE JURISDICTION IN WHICH THE PROPERTY IS LOCATED."

    2. Every subdivider shall make available at the project location to every purchaser for inspection thereof the following documents:
      1. A legal description of the subdivided land;
      2. A general map, drawn to scale, showing the total subdivided land area and its relation to the existing streets, roads, waterways, schools, churches, shopping centers, and bus and rail transportation in the immediate vicinity and showing all lands reserved for future expansion, if any;
      3. A copy of the conveyances by which the subdivider or owner acquired title to the land, with such copy bearing the public record book and page number;
      4. A copy of all instruments presently creating liens, mortgages, encumbrances, reservations, or defects upon the use of title of the subdivided land included in the filing;
      5. A copy of the title insurance policy or an attorney's title opinion for the subdivided land, issued within 30 days of the date of submission of the registration statement;
      6. A copy of each deed restriction, if any;
      7. A copy of the purchase agreement to be employed in the sales program;
      8. A copy of the deed to be employed in the sales program;
      9. Statements from the appropriate governmental agencies approving the installation of the improvements enumerated in subparagraph (D) of paragraph (1) of this subsection, including, but not limited to, a statement of approval from the state water quality control board concerning the sewage disposal facilities and siltation;
      10. A statement which indicates how streets and other public places in the subdivided land are to be maintained;
      11. A copy of any contract or franchise with a public utility company, if any;
      12. A copy of a plat of the subdivided land approved by the appropriate specified governmental agency and recorded in the appropriate specified public record book, with such copy bearing the public record book and page number;
      13. A copy of any performance bonds or agreements with the public authorities guaranteeing completion;
      14. A phased development schedule for all improvements promised by the subdivider and not completed, showing each type of improvement and the month and year of the start of the improvement and the proposed completion;
      15. A statement by the subdivider of any additional and material facts that should be called to the attention of the purchaser;
      16. If the county or municipality in which the subdivision is located has a planning and zoning ordinance in effect, a certificate of approval or compliance from the local governing authority stating that the subdivision is in compliance with the applicable ordinance or, if the county or municipality in which the subdivision is located has no planning and zoning ordinance in effect, a certificate of approval from the appropriate regional commission; and
      17. A statement of the terms of payment.
  2. The purchaser shall be informed by the subdivider of all material changes with respect to the subdivided land.
  3. The subdivider must update the property report whenever any material change occurs.
  4. The property report shall not be used for advertising purposes unless the report is used in its entirety. No portion of the report shall be underscored, italicized, or printed in larger or heavier type than the balance of the report unless specifically required by law or by this article or such emphasis is intended to call to a prospective purchaser's attention some risk or warning not otherwise readily observable.
  5. Where lots or parcels within a subdivision are subject to a blanket encumbrance, the developer shall ensure that such blanket encumbrance contains provisions evidencing the subordination of the lien of the holder or holders of the blanket encumbrance to the rights of those persons purchasing from the subdivider or provisions evidencing that the subdivider is able to secure releases from such blanket encumbrance with respect to the property.
  6. A copy of the instruments executed in connection with the sale of parcels within a subdivision shall be kept available by the subdivider and subject to inspection by the purchaser for a period of three years. The purchaser shall be notified of any change affecting the location of the records.
    1. The subdivider shall cause a copy of the property report to be given to each prospective purchaser prior to the execution of any binding contract or agreement for the sale of any lot or parcel in a subdivision. If such a report is not given at least 48 hours prior to such execution, the purchaser may rescind the contract by written notice to the seller until midnight of the seventh day, Sundays and holidays excepted, following the signing of such contract or agreement. A receipt in duplicate shall be taken from each purchaser evidencing compliance with this provision. Any such election by the purchaser to void the contract or agreement must be made within seven days, Sundays and holidays excepted, following the signing of such contract or agreement. Receipts taken for any published report shall be kept on file for three years from the date the receipt is taken. If such a report is never given prior to or after the execution of any binding contract or agreement for sale, the purchaser may have rights exercisable under Code Section 44-3-8 in addition to the right of rescission given in this paragraph.
    2. The receipt in duplicate required by this subsection must be signed by the purchaser upon receipt of a property report and must contain the following language:

      I hereby acknowledge that I have received the property report of (insert name of subdivision) on (insert date) at (time). If I receive the property report less than 48 hours prior to signing any contract or agreement, I understand that my right to cancel that contract or agreement is midnight of the seventh day, Sundays and holidays excepted, following the signing of such contract or agreement. I understand that I must notify the developer or the developer's agent in writing within the cancellation period of my intent to cancel by sending notice by certified mail or statutory overnight delivery, return receipt requested, to (insert name and address of developer or developer's agent). Notice will be effective on the date that it is mailed.

    1. Every sales contract relating to the purchase of real property in a subdivision shall state clearly the legal description of the parcel being sold, the principal balance of the purchase price which is outstanding at the date of the sales contract after full credit has been given for the down payment, and the terms of the sales contract.
    2. Every sales contract relating to the purchase of real property in a subdivision shall provide that the purchaser shall receive a warranty deed to the property together with a copy of any purchase money deed to secure debt or purchase money mortgage as may be specified in the sales contract within not more than 180 days from the date of execution of the contract; provided, however, that, in the case of contracts to purchase dwelling units not yet completed, the warranty deed need not be delivered until 180 days after such completion.
  9. The developer must make any changes in the property report which are necessary to assure its truthfulness and accuracy at all times.
  10. When a subdivider offers additional subdivided land for sale, the subdivider shall amend the property report to include the additional subdivided land. (Ga. L. 1971, p. 856, § 8; Ga. L. 1972, p. 638, § 3; Ga. L. 1975, p. 484, §§ 2, 3, 6; Code 1981, §§ 44-3-4 , 44-3-5 , 44-3-4 8; Ga. L. 1982, p. 3, § 44; Code 1981, § 44-3-3 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1984, p. 22, § 44; Ga. L. 1986, p. 10, § 44; Ga. L. 1987, p. 3, § 44; Ga. L. 1989, p. 1317, § 6.18; Ga. L. 1990, p. 606, § 1; Ga. L. 1995, p. 993, § 1; Ga. L. 1996, p. 6, § 44; Ga. L. 2000, p. 1589, § 3; Ga. L. 2008, p. 181, § 17/HB 1216.)

The 2008 amendment, effective July 1, 2009, substituted "regional commission" for "regional development center" near the end of subparagraph (a)(2)(P).

Cross references. - Approval of proposed subdivisions by Department of Transportation, § 32-6-150 et seq.

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Certainty requirement for sales contract. - See Allen v. Youngblood, 231 Ga. 191 , 200 S.E.2d 758 (1973); Buckner v. Mallett, 245 Ga. 245 , 264 S.E.2d 182 (1980); McMichael Realty & Ins. Agency, Inc. v. Tysinger, 155 Ga. App. 131 , 270 S.E.2d 88 (1980).

Construction. - Trial court properly granted summary judgment against a home buyer's claim that the sale of the property at issue failed to comply with the Georgia Land Sales Act (Act), O.C.G.A. § 44-3-1 et seq., as the property contained a house suitable for occupancy at the time of the sale; further, despite the buyer's argument that the statutory exemption under O.C.G.A. § 44-3-4(2) did not apply to residential property, giving the words of the exemption their plain and ordinary meaning, the exemption had to be read as excluding from the Act property upon which either a commercial building, an industrial building, a condominium, a shopping center, a house, or an apartment house was situated. Mancuso v. Steyaard, 280 Ga. App. 300 , 640 S.E.2d 50 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Former law construed. - For opinions construing the Georgia Land Sales Act of 1972, see 1973 Op. Att'y Gen. No. 73-157 (annual renewal fee); 1974 Op. Att'y Gen. No. 74-60 (annual renewal fee); 1976 Op. Att'y Gen. No. 76-82 (reporting of material change and liability for payment of annual renewal fee); 1979 Op. Att'y Gen. No. 79-76 (security requirement).

RESEARCH REFERENCES

Am. Jur. 2d. - 17A Am. Jur. 2d, Contracts, § 181 et seq. 66 Am. Jur. 2d, Registration of Land Titles, § 11. 82 Am. Jur. 2d, Zoning and Planning, § 118 et seq. 69 Am. Jur. 2d, Securities Regulation - State, §§ 1 et seq., 12, 25 et seq., 77 et seq., 152. 72 Am. Jur. 2d, States, Territories, and Dependencies, § 62.

C.J.S. - 17 C.J.S., Contracts, § 66 et seq. 79 C.J.S. Supp., Securities Regulation, §§ 245 et seq., 291 et seq., 297, 298, 302, 304. 101A C.J.S., Zoning and Land Planning, § 252 et seq. 81A C.J.S., States, § 244.

ALR. - Duty of purchaser of real property to disclose to the vendor facts or prospects affecting the value of the property, 56 A.L.R. 429 .

Vendee in possession under land contract as owner of crops planted or growing at time of default, 95 A.L.R. 1127 .

Duty of vendor of real property to disclose to purchaser condition of building thereon which affects health or safety of persons using same, 141 A.L.R. 967 .

Location of land as governing venue of action for damages for fraud in sale of real property, 163 A.L.R. 1312 .

Brokers' bought and sold notes as constituting the contract between buyer and seller, 169 A.L.R. 197 .

Specific performance of contract for sale of real property as affected by provision making it conditional upon purchaser's obtaining loan, 5 A.L.R.2d 287.

Joining in instrument as ratification of or estoppel as to prior ineffective instrument affecting real property, 7 A.L.R.2d 294.

Rights as between vendor and vendee under land contract in respect of interest, 25 A.L.R.2d 951.

Sufficiency, under the statute of frauds, of description or designation of land in contract or memorandum of sale which gives right to select the tract to be conveyed, 46 A.L.R.2d 894.

Effect of failure to contract for sale or exchange of real estate to specify time for giving of possession, 56 A.L.R.2d 1272.

Venue of action for rescission or cancellation of contract relating to interests in land, 77 A.L.R.2d 1014.

Failure of vendor to comply with statute or ordinance requiring approval or recording of plat prior to conveyance of property as rendering sale void or voidable, 77 A.L.R.3d 1058.

Validity and construction of condominium bylaws or regulations placing special regulations, burdens, or restrictions on nonresident unit owners, 76 A.L.R.4th 295.

Vendor's obligation to disclose to purchaser of land presence of contamination from hazardous substances or wastes, 12 A.L.R.5th 630.

44-3-4. Exemptions from Code Section 44-3-3.

Unless the method of sale is adopted for the purpose of evasion of this article or of the federal Interstate Land Sales Full Disclosure Act, the provisions of Code Section 44-3-3 shall not apply to offers or dispositions in an interest in land:

  1. By a purchaser of any subdivision, lot, parcel, or unit thereof for his or her own account in a single or isolated transaction;
  2. On which there is a commercial or industrial building, condominium, shopping center, house, or apartment house; or as to which there is a contractual obligation on the part of the subdivider to construct such a building within two years from date of disposition; or the sale or lease of which land is restricted by zoning ordinance, covenant, or other legally enforceable means to commercial or nonresidential purposes; or the sale or lease of which land is pursuant to a plan of development for commercial or nonresidential purposes;
  3. As cemetery lots or interests;
  4. Where the plan of sale for a subdivision is to dispose of all the interests to ten or fewer persons;
  5. Where each lot, parcel, or unit being offered or disposed of in any subdivision is five acres or more in size;
  6. To any person who is engaged in the business of the construction of residential, commercial, or industrial buildings for disposition;
  7. Where at least 95 percent of the lots or parcels of such subdivision are to be sold or leased only to persons who acquire such lots or parcels for the purpose of engaging in the business of constructing residences;
  8. Made pursuant to the order of any court of this state;
  9. Made by or to any government or government agency;
  10. Made as evidence of indebtedness secured by way of any deed to secure debt, mortgage, or deed of trust of real estate;
  11. As securities or units of interest issued by an investment trust regulated under the laws of the State of Georgia;
  12. Registered under the provisions of the federal Interstate Land Sales Full Disclosure Act;
  13. Of lots, parcels, or units contained in a recorded subdivision plat, if all of the following conditions exist:
    1. Each lot, parcel, or unit is situated on an existing paved and dedicated road or street constructed to the specifications of the board of county commissioners of the county or the governing body of the municipality, which board or governing body has voluntarily agreed to accept such road or street for maintenance and, if a waiting period is required, adequate assurances have been established with the county or municipality;
    2. The subdivision has drainage structures and fill necessary to prevent flooding, which structures and fill have been approved by the board of county commissioners of the county or the governing body of the municipality;
    3. Electric power is available at or near each lot, parcel, or unit;
    4. Domestic water supply and sanitary sewage disposal meeting the requirements of the applicable governmental authority are available at or near each lot, parcel, or unit;
    5. The subdivider is at all times prepared to convey title to the purchaser by general warranty deed unencumbered by any mortgages, deeds to secure debt, or other liens; and
    6. All promised improvements and amenities are complete;
  14. Of lots, parcels, or units contained in a subdivision plat that has been accepted by the board of county commissioners and properly recorded where:
    1. Each lot, parcel, or unit is situated on a road dedicated or approved by the board of county commissioners and arrangements acceptable to the commission have been made for the permanent maintenance of such roads;
    2. All promised improvements and amenities are complete;
    3. The promotional plan of sale is directed only to bona fide residents of this state whose primary residence is or will be located in the county in which the lots are platted of record;
    4. The method of sale is by cash or deed and first mortgage or deed to secure debt with all funds escrowed in this state prior to closing. Closing shall occur within 180 days after execution of the contract for purchase, at which time the purchaser shall receive a general warranty deed unencumbered by any mortgages or other liens except the mortgage or deed to secure debt given by the purchaser; and
    5. The purchaser has inspected the property to be purchased prior to the execution of the purchase contract and has so certified in writing;
  15. Where not more than 150 lots, parcels, units, or interests are offered for sale; or
  16. Where no representations, promises, or agreements are made that any improvements or amenities will be provided in the property by the subdivider but rather that any improvements or amenities will be furnished by the purchaser. (Ga. L. 1971, p. 856, § 2; Ga. L. 1972, p. 638, § 2; Code 1981, §§ 44-3-3 , 44-3-4 2; Code 1981, § 44-3-4 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Ga. L. 1995, p. 993, § 1.)

JUDICIAL DECISIONS

Application in "single or isolated transaction." - See Screamer Mt. Dev., Inc. v. Garner, 234 Ga. 590 , 216 S.E.2d 801 (1975).

Construction. - Trial court properly granted summary judgment against a home buyer's claim that the sale of the property at issue failed to comply with the Georgia Land Sales Act (Act), O.C.G.A. § 44-3-1 et seq., as the property contained a house suitable for occupancy at the time of the sale; further, despite the buyer's argument that the statutory exemption under O.C.G.A. § 44-3-4(2) did not apply to residential property, giving the words of the exemption their plain and ordinary meaning, the exemption had to be read as excluding from the Act property upon which either a commercial building, an industrial building, a condominium, a shopping center, a house, or an apartment house was situated. Mancuso v. Steyaard, 280 Ga. App. 300 , 640 S.E.2d 50 (2006).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 15. 69 Am. Jur. 2d, Securities Regulation - State, §§ 79-85.

C.J.S. - 79 C.J.S., Securities Regulation, §§ 254, 260.

44-3-4.1. Fees and expenses of commission.

Repealed by Ga. L. 1995, p. 993, § 1, effective July 1, 1995.

Editor's notes. - This Code section was based on Code 1981, § 44-3-4.1 , enacted by Ga. L. 1990, p. 606, § 1.

44-3-5. Violations of article.

  1. It shall be unlawful for any person:
    1. To offer to sell or to sell any subdivided land in violation of any provision of this article;
    2. To offer to sell or to sell any subdivided land by means of any oral or written untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made in the light of the circumstances under which they are made not misleading, the purchaser not knowing of the untruth or omission, if such person shall not sustain the burden of proof that such person did not know and, in the exercise of reasonable care, could not have known of the untruth or omission; or
    3. To offer to sell or to sell any subdivided land by means of any property report except a property report which complies with this article unless the offer of disposition of an interest in land is exempt from the provisions of Code Section 44-3-3 pursuant to Code Section 44-3-4.
  2. It shall be unlawful for any person to make to any prospective purchaser any representation that any federal, state, county, or municipal agency, board, or commission has passed judgment in any way upon the truthfulness, completeness, or accuracy of a property report or upon the merits of such land, or has recommended or given approval to such land or transaction.
  3. It shall be unlawful for any person knowingly to cause to be made, in any document used under this article, any statement which is, at the time it is made and in light of the circumstances under which it is made, false or misleading in any material respect.
  4. It shall be unlawful for any person in connection with the offer, sale, or purchase of any subdivided land, directly or indirectly:
    1. To employ any device, scheme, or artifice to defraud; or
    2. To engage in any transaction, act, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser or seller. (Ga. L. 1971, p. 856, § 7; Code 1981, § 44-3-47; Code 1981, § 44-3-8 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1988, p. 13, § 44; Ga. L. 1989, p. 14, § 44; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-5 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, repealed former Code Section 44-3-5 , relating to stop orders with respect to registration, notice of the stop order, summary postponement or suspension pending outcome of the proceeding, when the summary postponement or suspension is effective, and vacation or modification of the stop order, and renumbered former Code Section 44-3-8 as Code Section 44-3-5 , effective July 1, 1995. Former Code Section 44-3-5 was based on Code 1981, § 44-3-5, enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1.

RESEARCH REFERENCES

C.J.S. - 79 C.J.S., Securities Regulation, § 345 et seq.

44-3-6. Order prohibiting act, practice, or transaction in violation of article; injunctive relief.

  1. Whenever it appears to the district attorney or the Attorney General, either upon complaint or otherwise, that any person has engaged in, is engaging in, or is about to engage in any act, practice, or transaction which is prohibited by this article, the district attorney or the Attorney General, or both, may in their discretion apply to any court of competent jurisdiction in this state including the Superior Court of Fulton County for an injunction restraining such person and that person's agents, employees, partners, officers, and directors from continuing such act, practice, or transaction or from doing any acts in furtherance thereof and for the appointment of a receiver or an auditor and such other and further relief as the facts may warrant.
  2. In any proceedings for an injunction, the district attorney or the Attorney General may apply for and be entitled to have issued the court's subpoena requiring:
    1. The immediate appearance of any defendant and that defendant's agents, employees, partners, officers, or directors; and
    2. The production of such documents, books, and records as may appear necessary for the hearing upon the petition for an injunction.
  3. Upon proof of any of the offenses described in this Code section, the court may grant such injunction and appoint a receiver or an auditor and issue such other orders for the protection of purchasers as the facts may warrant. (Code 1981, § 44-3-9 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1986, p. 10, § 44; Ga. L. 1990, p. 606, § 1; Ga. L. 1991, p. 94, § 44; Code 1981, § 44-3-6 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, repealed former Code Section 44-3-6 , relating to administration of article by commission and real estate commissioner and renumbered former Code Section 44-3-9 as Code Section 44-3-6 , effective July 1, 1995. Former Code Section 44-3-6 was based on Ga. L. 1971, p. 856, § 12; Ga. L. 1972, p. 638, § 12; Code 1981, §§ 44-3-23, 44-3-50; Code 1981, § 44-3-6, enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1.

OPINIONS OF THE ATTORNEY GENERAL

Liability for payment of annual renewal fee under Georgia Land Sales Act of 1972, see Op. Att'y Gen. No. 76-82.

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Securities Regulation - State, § 86 et seq. 72 Am. Jur. 2d, States, Territories, and Dependencies, § 62.

C.J.S. - 79 C.J.S., Securities Regulation, § 335 et seq. 81A C.J.S., States, § 252.

ALR. - Recovery back of money paid to unlicensed person required by law to have occupational or business license or permit to make contract, 74 A.L.R.3d 637.

44-3-7. Willful violation of article; effect on statutory or common-law right to punish violations; effect of article on Attorney General.

  1. Except as provided in subsection (b) of this Code section, any person who shall willfully violate any provision of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not more than $1,000.00 or imprisonment not to exceed 12 months, or both.
  2. Any person who shall willfully violate paragraph (2) of subsection (a) of Code Section 44-3-5 or subsection (d) of Code Section 44-3-5 shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00 or imprisonment for not less than one and not more than five years, or both.
  3. Nothing in this article shall limit any statutory or common-law right of the state to punish any person for violation of any provision of any law.
  4. Nothing in this article shall be deemed to prohibit the Attorney General from exercising any powers under Part 2 of Article 15 of Chapter 1 of Title 10 against any person. (Ga. L. 1972, p. 638, § 18; Code 1981, § 44-3-27; Code 1981, § 44-3-10 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-7 , as redesignated by Ga. L. 1995, p. 993, § 1; Ga. L. 2015, p. 1088, § 33/SB 148.)

The 2015 amendment, effective July 1, 2015, substituted "Attorney General" for "administrator appointed under Part 2 of Article 15 of Chapter 1 of Title 10" in the middle of subsection (d).

Cross references. - Revocation of licenses of real estate brokers and salesmen, § 43-40-25 .

Code Commission notes. - Pursuant to § 28-9-5 , in 1985, in subsection (d), "Part 2 of Article 15 of Chapter 1 of Title 10" was substituted for "said part" the second time that phrase appears.

Editor's notes. - Ga. L. 1995, p. 993, § 1, repealed former Code Section 44-3-7 , relating to investigations by the commission, on-site inspections and reinspections, and investigative hearings, and renumbered former Code Section 44-3-10 as Code Section 44-3-7 , effective July 1, 1995. Former Code Section 44-3-7 was based on Ga. L. 1972, p. 638, § 10; Code 1981, § 44-3-12 ; Code 1981, § 44-3-7, enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1984, p. 22, § 44; Ga. L. 1990, p. 606, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Securities Regulation - State, § 81.

C.J.S. - 79 C.J.S. Supp., Securities Regulation, §§ 275, 276.

44-3-8. Rights of buyer upon violation; persons liable for violations; limitation on actions; survival of actions; effect on statutory or common-law rights; exemption of advertisers from liability.

  1. Any person who violates any provision of Code Section 44-3-5 shall be liable to the person buying such land. Such buyer may bring an action in any court of competent jurisdiction to recover damages, even if that buyer no longer owns the land, or, upon tender of the land at any time before entry of judgment, to recover the consideration paid, or the fair value thereof at the time the consideration was paid if such consideration was not paid in cash, for the land with interest thereon at the rate of 7 percent per annum from the date of payment down to the date of repayment, together with all taxable court costs and reasonable attorney's fees.
  2. Every person who directly or indirectly controls a person liable under subsection (a) of this Code section, every general partner, executive officer, or director of such person liable under subsection (a) of this Code section, every person occupying a similar status or performing similar functions, and every person who participates in any material way in the sale is liable jointly and severally with and to the same extent as the person liable under subsection (a) of this Code section unless the person whose liability arises under the provisions of this subsection sustains the burden of proof that such person did not know and, in the exercise of reasonable care, could not have known of the existence of the facts by reason of which liability is alleged to exist. There is contribution as in the case of contract among several persons so liable.
  3. No person may bring an action under this Code section more than two years from the date of the contract for sale or sale if there is no contract for sale.
  4. Every cause of action under this article survives the death of any person who might have been a plaintiff or defendant.
  5. Nothing in this article shall limit any statutory or common-law right of any person in any court for any act involving the sale of land.
  6. The owner, publisher, licensee, or operator of any newspaper, magazine, visual or sound radio broadcasting station or network of stations, or the agents or employees of any such owner, publisher, licensee, or operator of such a newspaper, magazine, station or network of stations shall not be liable under this article for any advertising of any subdivision, lot, parcel, or unit in any subdivision carried in any such newspaper or magazine or by any such visual or sound radio broadcasting station or network of stations, nor shall any of them be liable under this article for the contents of any such advertisement, unless the owner, publisher, licensee, or operator has actual knowledge of the falsity thereof. (Ga. L. 1972, p. 638, § 20; Ga. L. 1976, p. 676, § 1; Code 1981, §§ 44-3-21, 44-3-22; Code 1981, § 44-3-11 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-8 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-8 as present Code Section 44-3-5.

JUDICIAL DECISIONS

Constitutionality of former law. - Ga. L. 1968, pp. 1364 and 1365, relating to the rights of a purchaser upon violation by a subdivider, the subdivider's agents, or employees, did not violate the constitutional provision which prevents the enactment of legislation impairing the obligations of a contract. Screamer Mt. Dev., Inc. v. Garner, 234 Ga. 590 , 216 S.E.2d 801 (1975).

Party defendant. - Insofar as the remedy sought under former Code 1933, § 84-6118 was for rescission of the purchase contract and return of moneys paid, the only logical party against whom the action might be brought was the subdivider with whom the purchaser had dealt. Elmblad v. Screamer Mt. Dev., Inc., 144 Ga. App. 146 , 240 S.E.2d 239 (1977).

RESEARCH REFERENCES

Am. Jur. 2d. - 17A Am. Jur. 2d, Contracts, § 524 et seq. 51 Am. Jur. 2d, Limitation of Actions, § 1. 69 Am. Jur. 2d, Securities Regulation - State, § 10.

C.J.S. - 17A C.J.S., Contracts, §§ 421, 422. 79 C.J.S., Securities Regulation, § 263.

ALR. - Right of vendor and purchaser respectively to possession pending performance, but before default, of executory contract sale of real estate, 28 A.L.R. 1069 .

Duty of vendor as to abstract of title, 52 A.L.R. 1460 .

Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.

What constitutes abandonment of land contract by vendee, 68 A.L.R.2d 581.

Venue of action for rescission or cancellation of contract relating to interests in land, 77 A.L.R.2d 1014.

Failure of vendor to comply with statute or ordinance requiring approval or recording of plat prior to conveyance of property as rendering sale void or voidable, 77 A.L.R.3d 1058.

Practices forbidden by state deceptive trade practice and consumer protection acts, 89 A.L.R.3d 449.

Modern status of defaulting vendee's right to recover contractual payments withheld by vendor as forfeited, 4 A.L.R.4th 993.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

44-3-8.1. Denial of application, reprimand, suspension, civil penalty, or revocation of registration.

Repealed by Ga. L. 1995, p. 993, § 1, effective July 1, 1995.

Editor's notes. - This Code section was based on Code 1981, § 44-3-8.1 , enacted by Ga. L. 1990, p. 606, § 1.

44-3-9. Venue.

Except as provided in Code Section 44-3-6, for the purposes of venue for any civil or criminal action under this article, any violation of this article or of any rule, regulation, or order promulgated under this article shall be considered to have been committed in any county in which any act was performed in furtherance of the transaction which violated the article, in the county of any violator's principal place of business, and in any county in which any violator had control or possession of any proceeds of said violation or of any books, records, documents, or other material or objects which were used in furtherance of said violation.

(Code 1981, § 44-3-12 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-9 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-9 as present Code Section 44-3-6. Former Code Section 44-3-9 related to order of commission prohibiting act, practice, or transaction in violation of article; injunctive relief; criminal proceedings; and penalty for failure to pay registration and inspection fees.

44-3-10. Business records required.

Any developer or its agents shall keep among its business records and make reasonably available for examination to a purchaser or the purchaser's agent the following:

  1. A copy of each item required in Code Section 44-3-3; and
  2. A copy of the sales agreement from each sale relating to the purchase of real property in a subdivision. (Code 1981, § 44-3-14 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-10 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-10 as present Code Section 44-3-7.

44-3-11. Certain waivers in contract void.

Any condition, stipulation, or provision binding any person who enters into a transaction subject to the provisions of this article which waives:

  1. Compliance with any provision of this article or of the rules and regulations promulgated under this article;
  2. Any rights provided by this article or by the rules and regulations promulgated under this article; or
  3. Any defenses arising under this article or under the rules and regulations promulgated under this article shall be void. (Code 1981, § 44-3-16 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-11 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-11 as present Code Section 44-3-8.

44-3-12. Burden of proof of exemption.

In any action, civil or criminal, where a defense is based upon any exemption provided for in this article, the burden of proving the existence of such exemption shall be upon the party raising such defense.

(Code 1981, § 44-3-18 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Code 1981, § 44-3-12 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-12 as present Code Section 44-3-9.

44-3-13. Application of prior law to actions, registrations, and orders prior to July 1, 1990.

Prior law exclusively governs all actions, prosecutions, or proceedings which are pending or may be initiated on the basis of facts or circumstances occurring before July 1, 1995, except that no civil actions may be maintained to enforce any liability under prior law unless brought within any period of limitation which applied when the cause of action accrued and, in any event, within two years of July 1, 1995.

(Code 1981, § 44-3-19 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1; Ga. L. 1991, p. 94, § 44; Code 1981, § 44-3-13 , as redesignated by Ga. L. 1995, p. 993, § 1.)

Editor's notes. - Ga. L. 1995, p. 993, § 1, repealed former Code Section 44-3-13 , relating to notices of opportunity for hearing; and hearings and judicial reviews in accordance with the "Georgia Administrative Procedure Act," and renumbered former Code Section 44-3-19 as Code Section 44-3-13 , effective July 1, 1995. Former Code Section 44-3-13 was based on Code 1981, § 44-3-13, enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1984, p. 22, § 44; Ga. L. 1986, p. 10, § 44; Ga. L. 1990, p. 606, § 1.

44-3-13.1 through 44-3-13.3

Repealed by Ga. L. 1995, p. 993, § 1, effective July 1, 1995.

Editor's notes. - These Code sections were based on Code 1981, § 44-3-13.1 through 44-3-13.3, enacted by Ga. L. 1990, p. 606, § 1.

44-3-14. Business records required.

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-14 as present Code Section 44-3-10.

44-3-15. Consent to service.

Repealed by Ga. L. 1995, p. 993, § 1, effective July 1, 1995.

Editor's notes. - This Code section was based on Code 1981, § 44-3-15 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1.

44-3-16. Certain waivers in contract void.

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-16 as present Code Section 44-3-11.

44-3-17. Immunity of commissioner and commission from liability and actions.

Repealed by Ga. L. 1995, p. 993, § 1, effective July 1, 1995.

Editor's notes. - This Code section was based on Code 1981, § 44-3-17 , enacted by Ga. L. 1982, p. 1431, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 606, § 1.

44-3-18. Burden of proof of exemption; effect of certificate of commission stating compliance or noncompliance with article; admissibility of copies of documents.

Editor's notes. - Ga. L. 1995, p. 993, § 1, renumbered former Code Section 44-3-18 as present Code Section 44-3-12. Former Code Section 44-3-18 related to burden of proof of exemption, effect of certificate of commission stating compliance or noncompliance with article, and admissibility of copies of documents.

44-3-19. Application of prior law to actions, registrations, and orders prior to July 1, 1990; application of Code Section 44-3-13 to review of orders not instituted by July 1, 1990.

Editor's notes. - Ga. L. 1995, p. 1260, § 1, renumbered former Code Section 44-3-19 as present Code Section 44-3-13. Former Code Section 44-3-19 related to application of prior law to actions, registrations, and orders prior to July 1, 1990, and application of former Code Section 44-3-13 to review of orders not instituted by July 1, 1990.

44-3-20 through 44-3-27.

Repealed by Ga. L. 1982, p. 1431, § 1, effective November 1, 1982.

Editor's notes. - These Code sections, pertaining to violations of this article, and regulations, appeals, applicability, and effect on the Out-of-State Land Sales Act, were based on Ga. L. 1972, p. 638, §§ 12, 14, 15, 18, 20, 22; Ga. L. 1973, p. 578, § 1; Ga. L. 1976, p. 676, § 1; and Ga. L. 1982, p. 3, § 44.

ARTICLE 2 SALES OF SUBDIVIDED OUT-OF-STATE LANDS

44-3-40 through 44-3-54.

Repealed by Ga. L. 1982, p. 1431, § 1, effective November 1, 1982.

Editor's notes. - This article was based on Ga. L. 1971, p. 856, §§ 1-15, and Ga. L. 1982, p. 3, § 44.

ARTICLE 3 CONDOMINIUMS

Code Commission notes. - The Apartment Ownership Act, Ga. L. 1963, p. 561, has not been codified in light of § 44-3-113 .

Law reviews. - For article, "Condominium and Home Owner Associations: Formation and Development," see 24 Emory L.J. 977 (1975). For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978). For article surveying real property law, see 34 Mercer L. Rev. 255 (1982). For article, "Representing Condominium Unit Purchasers," see 21 Ga. St. B.J. 6 (1984). For note comparing scope of Georgia Apartment Ownership Act, prior to enactment of Condominium Act, with condominium litigation in other jurisdictions, see 23 Mercer L. Rev. 405 (1972). For note surveying revisions to Georgia Condominium Act between 1963 and 1975 regarding expansion, disclosure, liens, and incorporation, see 24 Emory L.J. 891 (1975). For comment, "Making a Business of ‘Residential Use': The Short-Term Rental Dilemma in Common-Interest Communities," see 68 Emory L.J. 801 (2019).

RESEARCH REFERENCES

Litigation for Breach of Condominium Provisions, 31 Am. Jur. Trials 193.

Litigating Toxic Mold Cases, 91 Am. Jur. Trials 113.

Homeowners' Association Defense: Free Speech, 93 Am. Jur. Trials 293.

Condominium Construction Litigation: Community Association, 93 Am. Jur. Trials 405.

ALR. - Liability of vendor of condominiums for damage occasioned by defective condition thereof, 50 A.L.R.3d 1071.

Erection of condominium as violation of restrictive covenant forbidding erection of apartment houses, 65 A.L.R.3d 1212.

Enforceability of bylaw or other rule of condominium or cooperative association restricting occupancy by children, 100 A.L.R.3d 241.

Validity, construction, and application of statutes, or of condominium association's bylaws or regulations, restricting number of units that may be owned by single individual or entity, 39 A.L.R.4th 88.

Personal liability of owner of condominium unit to one sustaining personal injuries or property damage by condition of common areas, 39 A.L.R.4th 98.

Liability of owner of unit in condominium, recreational development, time-share property, or the like, for assessment in support of common facilities levied against and unpaid by prior owner, 39 A.L.R.4th 114.

Validity and enforceability of condominium owner's covenant to pay dues or fees to sports or recreational facility, 39 A.L.R.4th 129.

Standing to bring action relating to real property of condominium, 74 A.L.R.4th 165.

44-3-70. Short title.

This article shall be known and may be cited as the "Georgia Condominium Act."

(Ga. L. 1975, p. 609, § 1.)

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985).

JUDICIAL DECISIONS

Condominium association had no duty to remove snow and ice. - Trial court properly granted a condominium association summary judgment in a premises liability action because interpreting the condominium association documents established that the association did not have a duty to remove snow and ice from the common walkway where the resident fell. Scrocca v. Ashwood Condominium Ass'n, 326 Ga. App. 226 , 756 S.E.2d 308 (2014). For article, "Georgia Condominium Law: Beyond the Condominium Act," see 13 Ga. St. B.J. 24 (2007).

Cited in Country Greens Village One Owner's Ass'n v. Meyers, 158 Ga. App. 609 , 281 S.E.2d 346 (1981); Powers v. Jones, 185 Ga. App. 859 , 366 S.E.2d 234 (1988); Walker v. 90 Fairlie Condo. Ass'n, 290 Ga. App. 171 , 659 S.E.2d 412 (2008).

44-3-71. Definitions.

As used in this article, the term:

  1. "Additional property" means any property which may be added to an expandable condominium in accordance with the provisions of the declaration and this article.
  2. "Association" means a corporation formed for the purpose of exercising the powers of the association of any condominium created pursuant to this article.
  3. "Board of directors" or "board" means an executive and administrative body, by whatever name denominated, designated in the condominium instruments as the governing body of the association.
  4. "Common elements" means all portions of the condominium other than the units.
  5. "Common expenses" means all expenditures lawfully made or incurred by or on behalf of the association together with all funds lawfully assessed for the creation and maintenance of reserves pursuant to the provisions of the condominium instruments.
  6. "Common profits" means all income collected or accrued by or on behalf of the association other than income derived from assessments pursuant to Code Section 44-3-80.
  7. "Condominium" means the property lawfully submitted to this article by the recordation of condominium instruments pursuant to this article. No property shall be deemed to be a condominium within the meaning of this article unless undivided interests in common elements are vested in the unit owners.
  8. "Condominium instruments" means the declaration and plats and plans recorded pursuant to this article. Any exhibit, schedule, or certification accompanying a condominium instrument and recorded simultaneously therewith shall be deemed an integral part of that condominium instrument. Any amendment or certification of any condominium instrument shall, from the time of the recordation of such amendment or certification, be deemed an integral part of the affected condominium instrument so long as such amendment or certification was made in accordance with this article.
  9. "Condominium unit" means a unit, as defined in paragraph (28) of this Code section, together with the undivided interest in the common elements appertaining to that unit.
  10. "Conversion condominium" means a condominium all or part of which may be used for residential purposes, which condominium contains any building or portion thereof that at any time before the recording of the declaration was occupied wholly or partially by persons other than persons who, at the time of the recording, had contractual rights to acquire one or more units within the condominium. This paragraph shall not apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.
  11. "Convertible space" means a portion of a structure within a condominium, which portion may be converted in accordance with this article into one or more units or common elements, including, but not limited to, limited common elements.
  12. "Court" means the superior court of the county where the condominium or any part thereof is located.
  13. "Declarant" means all owners and lessees of the property who execute the declaration or on whose behalf the declaration is executed; provided, however, that the phrase "owner and lessees," as used in this Code section and in Code Sections 44-3-72 and 44-3-89, shall not include in his capacity as such any mortgagee, any lienholder, any person having an equitable interest under any contract for the sale or lease of a unit, or any lessee or tenant of a unit. From the time of the recordation of any amendment to the declaration expanding an expandable condominium, all persons who execute that amendment or on whose behalf that amendment is executed shall also come within the definition of "declarant." Any successor-in-title of any owner or lessee referred to in this paragraph who comes to stand in the same relation to the condominium as his predecessor did shall also come within such definition.
  14. "Declaration" means the recordable instrument containing those matters required by Code Section 44-3-77 and any lawful amendments thereto.
  15. "Expandable condominium" means a condominium to which additional property may be added in accordance with the declaration and this article.
  16. "Foreclosure" means, without limitation, the judicial foreclosure of a mortgage and the exercise of a power of sale contained in any mortgage.
  17. "Identifying number" means one or more letters, numbers, symbols, words, or any combination thereof that identifies only one unit in the condominium.
  18. "Leasehold condominium" means a condominium in all or any portion of which each unit owner owns an estate for years or leasehold estate in his unit or in the property on or within which that unit is situated or both. A condominium including an estate for years in property, or an interest therein, on or within which no units are situated or to be situated shall not be deemed a leasehold condominium within the meaning of this article.
  19. "Limited common element" means a portion of the common elements reserved for the exclusive use of those entitled to the use of one or more, but less than all, of the units.

    (19.1) "Master association" means an association of a master condominium.

    (19.2) "Master condominium" means a condominium in which the condominium instruments permit one or more of the units to constitute a subcondominium.

  20. "Mortgage" means a mortgage, deed to secure debt, deed of trust, or other instrument conveying a lien upon or security title to property.
  21. "Mortgagee" means the holder of a mortgage.
  22. "Officer" means an officer of the association.
  23. "Permanently assigned limited common element" means a limited common element which cannot be reassigned or which can be reassigned only with the consent of the unit owner or owners of the unit or units to which it is assigned.
  24. "Person" means a natural person, corporation, partnership, association, trust, other entity, or any combination thereof.
  25. "Property" means any real property and any interest in real property, including, without limitation, parcels of air space.
  26. "Record" means to file for record in the office of the clerk of the superior court of all counties in which the condominium or any part thereof is located.

    (26.1) "Subassociation" means an association of a subcondominium.

    (26.2) "Subcondominium" means the property consisting of a unit of an existing condominium lawfully submitted under this article by the recordation of separate condominium instruments pursuant to this article.

  27. "Submitted property" means the property lawfully submitted to this article by the recordation of condominium instruments pursuant to this article. Additional property shall be deemed to be submitted property upon the expansion of a condominium pursuant to this article.

    (27.1) "Subunit" means a unit that constitutes a portion of a subcondominium.

  28. "Unit" means a portion of the condominium intended for any type of independent ownership and use. For the purposes of this article, a convertible space shall also be deemed a unit.
  29. "Unit owner" means one or more persons, including the declarant, who own a condominium unit or, in the case of a leasehold condominium, whose leasehold interest or interests in the condominium extend for the entire balance of the unexpired term or terms.

    (Ga. L. 1975, p. 609, §§ 3, 6; Ga. L. 1980, p. 1406, § 1; Ga. L. 1982, p. 3, § 44; Ga. L. 1983, p. 3, § 33; Ga. L. 2007, p. 611, § 1/HB 383.)

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

JUDICIAL DECISIONS

"Unit owner." - Definition of "owner" in the bylaws of a condominium association as "record title holder of a unit within the condominium but shall not mean a mortgage holder" did not conflict with the definition of "unit owner", but was merely a more precise definition to facilitate the collection of assessments; thus, the vendor of a unit was liable for assessments until the deed was recorded. Casey v. North Decatur Courtyards Condominium Ass'n, 213 Ga. App. 190 , 444 S.E.2d 361 (1994).

"Common element" versus "limited common element." - External water spigots were not "limited common elements" because the spigots were not assigned as such in the condominium documents, and use of the spigots could be restricted under O.C.G.A. § 44-3-76 to enforce condominium declarations. Frantz v. Piccadilly Place Condo. Ass'n, 278 Ga. 103 , 597 S.E.2d 354 (2004).

Rooftop terrace declared common element versus limited common element. - Trial court properly granted a condominium association and the association's board summary judgment and properly declared a tenth-floor rooftop terrace a common element for all unit owners in a suit involving a dispute over the terrace because the express terms of the original declaration designated the terrace as a common element. Further, an amendment stating otherwise that was signed by a former managing member, and not the association, no longer controlled since the former managing member's control ended by the time the declarant sought to amend the declaration to assign the entire fenced area of the tenth-floor rooftop terrace as a limited common element benefitting only the penthouse unit. Walker v. 90 Fairlie Condo. Ass'n, 290 Ga. App. 171 , 659 S.E.2d 412 (2008).

Cited in Powers v. Jones, 185 Ga. App. 859 , 366 S.E.2d 234 (1988).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, §§ 1, 3.

44-3-72. Creation of condominium.

A condominium shall come into existence upon the recordation of the declaration pursuant to this article and of the plats and plans required by Code Section 44-3-83. The declaration shall be duly executed by or on behalf of all of the owners and lessees of the submitted property.

(Ga. L. 1975, p. 609, § 9.)

Law reviews. - For comment, "Proposed Legislation for Property's Twilight Zone: Time Sharing in Georgia," see 34 Mercer L. Rev. 403 (1982).

44-3-73. Sufficiency of descriptions of condominium units; description of undivided interest in common elements.

After the submission of any property to this article, no description of a condominium unit located thereon shall be deemed vague, uncertain, or otherwise insufficient if it sets forth the identifying number of that unit, the name of the condominium, the name of the county or counties in which the condominium is located, and the deed book and page number where the first page of the declaration is recorded. Any such description shall be deemed to include the undivided interest in the common elements appertaining to such unit even if such interest is not stated or referred to in the description.

(Ga. L. 1975, p. 609, § 10.)

JUDICIAL DECISIONS

Description of parking units. - Because a condominium developer had not originally provided the buyers with a legal description of parking units the buyers were buying, but after the seller built the units the buyers notified the seller of their choice of units, the application of O.C.G.A. § 44-3-73 was not warranted as it would create an incongruous result: the purchase agreement would be enforceable as to the residential unit but unenforceable as to the parking units. Park Regency Ptnrs., L.P. v. Gruber, 271 Ga. App. 66 , 608 S.E.2d 667 (2004).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 7 et seq.

C.J.S. - 52 C.J.S., Landlord and Tenant, § 412 et seq.

44-3-74. Recording condominium instruments, plats, plans, and encumbrances.

  1. The declaration and any amendments thereto shall be entitled to recordation if executed in the manner required for recording deeds to real property. All condominium instruments and any amendments and certifications thereto shall set forth the name of the condominium; the name of the county or counties in which the condominium is located; and, except for the declaration itself, the deed book and page number where the first page of the declaration is recorded or the document number assigned to the declaration upon its recordation. All condominium instruments and all amendments and certifications thereto shall be recorded in every county where any portion of the condominium is located. The recordation shall not require the approval of any county or municipal authority or official except as to the manner of execution prescribed by this Code section.
  2. The clerk of superior court shall continue to maintain any legacy condominium plat books, condominium site plan books, condominium plot plan books, or condominium floor plan books that currently exist either in their current form or in electronic format.
  3. All deeds, mortgages, liens, leases, and encumbrances of any kind affecting any condominium unit or duplicate originals thereof or copies thereof certified by the clerk of superior court in whose office the same are first recorded shall be recorded in all counties in which any part of the submitted property is located.

    (Ga. L. 1975, p. 609, § 11; Ga. L. 2016, p. 193, § 9/HB 1004; Ga. L. 2017, p. 774, § 44/HB 323.)

The 2016 amendment, effective January 1, 2017, substituted the present provisions of subsection (b) for the former provisions, which read: "In addition to the records and indexes required to be maintained by the clerk of the superior court, such clerk shall maintain one or more separate plat books, entitled 'Condominium Plat Book," in which shall be recorded all plats required to be filed pursuant to this article. In addition to such plats, there shall also be entitled to be recorded in such plat books other plats, including site plans and plot plans, prepared by a registered land surveyor and affecting any condominium; but the same shall not constitute the recording of a plat pursuant to Code Section 44-3-83 unless they comply with all requirements thereof. The record of the declaration and of any amendment thereto shall contain a reference to the plat book and page number of the plat or plats recorded in connection therewith."; deleted former subsection (c), which read: "The plans required to be recorded pursuant to Code Section 44-3-83 shall be kept by the clerk of the superior court in a separate file for each condominium and shall be indexed in the same manner as a conveyance entitled to record, numbered serially in the order of receipt, each designated 'Condominium Plans,' with the name of the condominium, and each containing a reference to the deed book and page number where the first page of the declaration is recorded or the document number assigned to the declaration upon its recordation. The record of the declaration and of any amendment thereto shall contain a reference to the file number of the plans recorded in connection therewith."; redesignated former subsection (d) as present subsection (c); and, in present subsection (c), deleted "the" following "clerk of" in the middle.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language in subsection (b).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 10.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Record of executory contracts for the sale of real estate, 26 A.L.R. 1546 .

44-3-75. Construction and validity of condominium instruments; conflicts and inconsistencies; severability.

  1. Except to the extent otherwise provided by the condominium instruments:
    1. The terms defined in Code Section 44-3-71 shall be deemed to have the meanings therein specified wherever they appear in the condominium instruments unless the context otherwise requires;
    2. To the extent that walls, floors, or ceilings are designated as the boundaries of the units or of any specified units, all doors and windows therein and all lath, wallboard, plasterboard, plaster, paneling, molding, tiles, wallpaper, paint, finished flooring, and any other materials constituting any part of the finished surfaces thereof shall be deemed a part of such units; but all other portions of such walls, floors, or ceilings shall be deemed a part of the common elements;
    3. If any chutes, flues, ducts, conduits, wires, bearing walls, bearing columns, or any other apparatus lies partially inside and partially outside of the designated boundaries of a unit, any portions thereof serving only that unit shall be deemed a part of that unit; but any portions thereof serving more than one unit or any portion of the common elements shall be deemed a part of the common elements;
    4. Subject to paragraph (3) of this subsection, all space, interior partitions, and other fixtures and improvements within the boundaries of a unit shall be deemed a part of that unit;
    5. Any shutters, awnings, window boxes, doorsteps, porches, balconies, patios, and any other apparatus designed to serve a single unit shall be deemed a limited common element appertaining to that unit exclusively; and
    6. The requirement of consent to or joinder in any act or instrument by any unit owner shall not be deemed to require the consent to or joinder in such act or instrument by any mortgagee of or the holder of any lien upon such unit owner's condominium unit except to the extent expressly required by this article.
  2. In the event that any allocation of undivided interest in the common elements, votes in the association, or liability for common expenses stated in any deed or mortgage to or of any condominium unit conflicts with the allocations thereof as set forth in the declaration, the declaration shall control.
  3. In the event of any inconsistency between this article and the provisions of any declaration, this article shall control. Unless otherwise provided in the condominium instruments, in the event of any inconsistency between the declaration and the provisions of any bylaws of the association, the declaration shall control.
  4. The condominium instruments shall be construed together and shall be deemed to incorporate one another to the extent that any requirement of this article as to the content of one would be satisfied if any other condominium instrument were incorporated therein by reference.
  5. If any provision, sentence, clause, phrase, or word of any condominium instrument or the application thereof in any circumstances is held invalid, the validity of the remainder of the condominium instrument and of the application of any such provision, sentence, clause, phrase, or word in other circumstances shall not be affected thereby.

    (Ga. L. 1975, p. 609, § 12; Ga. L. 1990, p. 227, § 1.)

JUDICIAL DECISIONS

Rooftop terrace declared common element versus limited common element. - Trial court properly granted a condominium association and the association's board summary judgment and properly declared a tenth-floor rooftop terrace a common element for all unit owners in a suit involving a dispute over the terrace because the express terms of the original declaration designated the terrace as a common element. Further, an amendment stating otherwise that was signed by a former managing member, and not the association, no longer controlled since the former managing member's control ended by the time the declarant sought to amend the declaration to assign the entire fenced area of the tenth-floor rooftop terrace as a limited common element benefitting only the penthouse unit. Walker v. 90 Fairlie Condo. Ass'n, 290 Ga. App. 171 , 659 S.E.2d 412 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 5 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Validity and construction of condominium association's regulations governing members' use of common facilities, 72 A.L.R.3d 308.

44-3-76. Compliance with condominium instruments, rules, and regulations; means of enforcement.

Every unit owner and all those entitled to occupy a unit shall comply with all lawful provisions of the condominium instruments. In addition, any unit owner and all those entitled to occupy a unit shall comply with any reasonable rules or regulations adopted by the association pursuant to the condominium instruments which have been provided to the unit owners and with the lawful provisions of bylaws of the association. Any lack of such compliance shall be grounds for an action to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, maintainable by the association or, in any proper case, by one or more aggrieved unit owners, on their own behalf or as a class action. If and to the extent provided in the condominium instruments, the association shall be empowered to impose and assess fines, and suspend temporarily voting rights and the right of use of certain of the common elements in order to enforce such compliance; provided, however, that no such suspension shall deny any unit owner or occupants access to the unit owned or occupied nor cause any hazardous or unsanitary condition to exist. If the voting right of a unit owner has been suspended, then to the extent provided in the condominium instruments, that unit owner's vote shall not count for purposes of establishing a quorum or taking any action which requires a vote of the owners under this article or the condominium instruments. Notwithstanding any other provision of this Code section, to the extent provided in the condominium instruments, water, gas, electricity, heat, and air conditioning services being provided to a unit or unit owner by the association may be terminated for failure to pay assessments and other amounts due pursuant to subsection (a) of Code Section 44-3-109, subject to the suspension standards and notice requirements imposed on the institutional providers providing such services to the condominium development, only after a final judgment or final judgments in excess of a total of $750.00 are obtained in favor of the association from a court of competent jurisdiction. The utility services shall not be required to be restored until the judgment or judgments and any reasonable utility provider charges or other reasonable costs incurred in suspending and restoring such services are paid in full. All common expenses for termination and restoration of any services pursuant to this Code section shall be an assessment and a lien against the unit.

(Ga. L. 1975, p. 609, § 13; Ga. L. 1982, p. 3, § 44; Ga. L. 1990, p. 227, § 2; Ga. L. 1994, p. 1943, § 2; Ga. L. 2004, p. 560, § 1.)

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985).

JUDICIAL DECISIONS

Exhaustion of alternative remedies not required. - Association was not required to exhaust alternative remedies as a condition precedent to the association's use of O.C.G.A. § 44-3-76 to enforce the payment of assessments. Fontaine Condominium Ass'n v. Schnacke, 230 Ga. App. 469 , 496 S.E.2d 553 (1998).

Termination of common elements to enforce assessments. - Condominium association was entitled to alter the association's declaration to allow the association to terminate water service from common elements, such as exterior spigots, if a unit owner owed a certain amount in judgment, even though the amendment affected facts retrospectively. Since a unit owner owed more than that amount, the association was granted a preliminary injunction forbidding the unit owner from using any external water spigots and forbidding any other unit owner from allowing that unit owner to use such common element spigots. Frantz v. Piccadilly Place Condo. Ass'n, 278 Ga. 103 , 597 S.E.2d 354 (2004).

Vehicle towing. - Trial court's grant of summary judgment to a condominium association and others in an action by a vehicle owner whose vehicle was towed from the common areas of the condominium complex was proper as the association had authority under the association's declaration as well as pursuant to O.C.G.A. § 44-3-76 to impose rules and regulations regarding the towing of vehicles, there was no showing that the association's rules were selectively enforced, and the notice requirements prior to the towing were complied with by the association. King v. Chism, 279 Ga. App. 712 , 632 S.E.2d 463 (2006).

Cited in First Fed. Sav. Bank v. Eaglewood Court Condominium Ass'n, 186 Ga. App. 605 , 367 S.E.2d 876 (1988); Spratt v. Henderson Mill Condominium Ass'n, 224 Ga. App. 761 , 481 S.E.2d 879 (1997).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 5 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Validity and construction of condominium association's regulations governing members' use of common facilities, 72 A.L.R.3d 308.

Standing to bring action relating to real property of condominium, 74 A.L.R.4th 165.

Validity and construction of regulations of governing body of condominium or cooperative apartment pertaining to parking, 60 A.L.R.5th 647.

44-3-77. Contents of declaration.

  1. The declaration for every condominium shall contain the following:
    1. The name of the condominium, which name shall include the word "condominium" or be followed by the words "a condominium";
    2. The name of the county or counties in which the condominium is located;
    3. A legal description by metes and bounds of the submitted property, including any horizontal, upper and lower, boundaries as well as the vertical, lateral, boundaries;
    4. A description or delineation of the boundaries of the units, including any horizontal, upper and lower, boundaries as well as the vertical, lateral, boundaries;
    5. A description or delineation of any limited common elements showing or designating the unit or units to which each is assigned;
    6. A description or delineation of all common elements which may subsequently be assigned as limited common elements together with a statement that they may be so assigned and a description of the method whereby any such assignments shall be made in accordance with Code Section 44-3-82;
    7. The allocation to each unit of an undivided interest in the common elements in accordance with Code Section 44-3-78;
    8. The allocation to each unit of a number of votes in the association in accordance with Code Section 44-3-79;
    9. The allocation to each unit of a share of the liability for common expenses in accordance with Code Section 44-3-80;
    10. Any limitations or restrictions on the powers of the association and the board of directors;
    11. The name and address of the attorney or other person who prepared the declaration;
    12. A statement of any and all restrictions on the general use of the condominium or a statement that there are no such restrictions; and
    13. Such other matters not inconsistent with this article as the declarant deems appropriate.
  2. If the condominium is an expandable condominium, the declaration shall also contain the following:
    1. The explicit reservation of an option or options to expand the condominium;
    2. A time limit or date not exceeding seven years from the recording of the declaration upon which all options to expand the condominium shall expire together with a statement of any circumstances which will terminate any such option prior to the expiration of the time limit so specified; provided, however, that, if the condominium instruments so provide, the unit owners of units to which two-thirds of the votes in the association appertain, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant, may consent to the extension of any such option within one year prior to the date upon which the option would otherwise have expired;
    3. A statement of any other limitations on the option or options or a statement that there are no such limitations;
    4. A legal description by metes and bounds of the additional property, including any horizontal, upper and lower, boundaries as well as the vertical, lateral, boundaries;
    5. A statement as to whether portions of the additional property may be added to the condominium at different times, together with any limitations fixing the boundaries of those portions by legal descriptions setting forth the metes and bounds thereof or regulating the order in which they may be added to the condominium, or a statement that there are no such limitations;
    6. A statement of any limitations as to the location of any improvements that may be made on any portions of the additional property or a statement that there are no such limitations;
    7. A statement of the maximum number of units that may be created on the additional property. If portions of the additional property may be added to the condominium and the boundaries of those portions are fixed in accordance with paragraph (5) of this subsection, the declaration shall also state the maximum number of units that may be created on each such portion added to the condominium. If portions of the additional property may be added to the condominium and the boundaries of those portions are not fixed in accordance with paragraph (5) of this subsection, then the declaration shall also state the maximum average number of units per acre that may be created on any such portion added to the condominium;
    8. With regard to the additional property, a statement of whether any units may be created therein that may not be restricted exclusively to residential use and, if so, a statement of the maximum extent thereof or a limitation as to the extent of such nonresidential use;
    9. A statement of the extent to which any structures erected on any portion of the additional property added to the condominium will be compatible with structures on the submitted property in terms of quality of construction, the principal materials to be used, and architectural style or a statement that no assurances are made in those regards;
    10. A description of all other improvements that will be made on any portion of the additional property added to the condominium, or a statement of any limitations as to what other improvements may be made thereon, or a statement that no assurances are made in that regard;
    11. A statement that any units created on any portion of the additional property added to the condominium will be substantially identical to the units on the submitted property, or a statement of any limitations as to what types of units may be created thereon, or a statement that no assurances are made in that regard;
    12. A description of the declarant's reserved right, if any, to create limited common elements within any portion of the additional property or to designate common elements therein which may subsequently be assigned as limited common elements, in terms of the types, sizes, and maximum number of such limited common elements within each such portion, or a statement that no limitations are placed on that right; and
    13. A statement of a formula, ratio, or other method whereby, upon the expansion of any expandable condominium, there shall be reallocated among the units the undivided interests in the common elements, the votes in the association, and the liability for common expenses.

      Plats or plans may be recorded with the declaration of any amendment thereto and identified therein to supplement or provide information required to be furnished pursuant to this subsection; and provided, further, that paragraph (8) of this subsection need not be complied with if none of the units on the submitted property are restricted exclusively to residential use.

  3. If the condominium contains any convertible space, the declaration shall also contain a statement of a formula, ratio, or other method whereby, upon the conversion of all or any portion of a convertible space, there shall be allocated among the units created therefrom such undivided interest in the common elements, such number of votes in the association, and such liability for common expenses as previously pertained to such convertible space.
  4. If the condominium is a leasehold condominium, with respect to any ground lease, other lease, or other instrument creating the estate for years, the expiration or termination of which may terminate or reduce the condominium, the declaration shall set forth the county or counties wherein the same are recorded and the deed book and page number where the first page of each such lease or other instrument is recorded. The declaration shall also contain the following:
    1. The date upon which such leasehold or estate for years is due to expire;
    2. A statement of whether any property will be owned by the unit owners in fee simple and, if so, a legal description by metes and bounds of any such property. With respect to any improvements owned by the unit owners in fee simple, the declaration shall contain a statement of any rights the unit owners shall have to remove the improvements after the expiration or termination of the leasehold or estate for years involved or a statement that they shall have no such rights;
    3. A statement of the name and address of the person or persons to whom payments of rent must be made by the unit owners unless such rent is collected from the unit owners as a part of the common expenses; and
    4. A statement of the share of liability for payments under any such lease or other instrument which are chargeable against each unit.
  5. Whenever this Code section requires a legal description by metes and bounds of submitted property or additional property, such requirement shall be deemed to include a requirement of a legally sufficient description of any easements that are submitted to this article or that may be added to the condominium, as the case may be. In the case of any such easement, the declaration shall contain the following:
    1. A description of the permitted use or uses;
    2. If the benefit of the easement does not inure to all units and their lawful occupants, a statement of the relevant restrictions and limitations on utilization; and
    3. If any person other than those entitled to occupy any unit may use the easement, a statement of the rights of others to such use.

      Notwithstanding any other provision of this subsection, the foregoing requirements may be satisfied by attaching a true copy of any such easement to the declaration.

  6. Whenever this Code section requires a legal description by metes and bounds of submitted property or additional property, such requirement shall be deemed to include a separate legal description by metes and bounds of all property in which the unit owners collectively shall or may be tenants in common or joint tenants with any other persons. No units shall be situated on any such property, however, and the declaration shall describe the nature of the unit owners' estate therein. No such property shall be shown on the same plat or plats showing other portions of the condominium but shall be shown instead on separate plats unless such property is specifically shown and labeled as being owned subject to such a tenancy.
  7. Wherever this article requires a statement of a method for allocation or reallocation of undivided interests in the common elements, votes in the association, and the liability for common expenses, such method shall be so related to the physical characteristics of the units affected or otherwise so stated as to enable any person to determine the interest, vote, or share in such matters pertaining to any particular unit upon such allocation or reallocation. Certain spaces within the units, including, without limitation, attic, basement, and garage space, may but need not be omitted from such calculation or partially discounted by the use of a ratio so long as the same basis of calculation is employed for all units in the condominium. In the event that the declaration allocates or provides for the allocation to any unit of a different share of undivided interests in common elements than is allocated for liability for common expenses, such difference shall be based upon a good faith estimate of the declarant regarding the approximate relative maintenance or other costs occasioning such disparity, and the basis of such determination shall be stated in the declaration; provided, however, that no unit owner or other person may require any reallocation on account of any disparity between actual costs and the determination reflected in the declaration. Subject to the foregoing sentence of this subsection, nothing contained in this article shall be construed to require that the proportions of undivided interest in the common elements, of votes in the association, or of liability for common expenses assigned and allocated to each unit be equal, it being intended that such proportions may be independent.

    (Ga. L. 1975, p. 609, § 14; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Amendment to declaration binding. - An amendment to a declaration of condominium stating that 30 units were to be built on Phase IV of the development was a binding restriction that prevented a buyer from building more than 30 units on Phase IV; both the amendment and the relevant plat had been properly recorded, and thus the buyer knew of the 30-unit restriction and knew that buyers of completed units in Phases I, II, and III and the condominium association had relied upon that restriction. Waterfront, LLP v. River Oaks Condo. Ass'n, 287 Ga. App. 442 , 651 S.E.2d 481 (2007), cert. denied, 2008 Ga. LEXIS 78 (Ga. 2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 7 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

44-3-78. Allocation - Interests in common elements.

  1. The declaration shall allocate to each unit depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83 an undivided interest in the common elements. Such allocation may be by percentage, fraction, formula, or any other method which indicates the relative undivided interests in the common elements. If an equal undivided interest in the common elements is allocated to each unit, the declaration may merely so state.
  2. All of the undivided interests in the common elements shall be allocated to the units created by the declaration and shall be subject to reallocation as provided in this article.
  3. If the undivided interests allocated are other than equal, the undivided interest allocated to each unit shall be reflected by a table or provision in the declaration or by an exhibit or schedule accompanying the declaration and recorded simultaneously therewith identifying the units, listing them serially or grouping them together in the case of units to which identical undivided interests are allocated, and setting forth the fraction, percentage, or other statement of undivided interest in the common elements allocated thereto.
  4. Except to the extent otherwise expressly provided by this article, the undivided interest in the common elements allocated to any unit shall not be altered; and any purported transfer, encumbrance, or other disposition of that interest without the unit to which it pertains shall be void.
  5. The common elements shall not be subject to any action for partition except as provided in Code Sections 44-3-98 and 44-3-99.
  6. No undivided interest in the common elements shall be allocated to any unit unless such unit is depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83.

    (Ga. L. 1975, p. 609, § 15.)

JUDICIAL DECISIONS

Combining parking units with residential units held proper. - Condominium declaration properly allocated interests in the common elements under O.C.G.A. § 44-3-78(a) , and the votes in the condominium association under O.C.G.A. § 44-3-79(a) , by combining parking units with residential units, because no provision of the Georgia Condominium Act, O.C.G.A. § 44-3-70 et seq., requires parking units to have voting rights or to have an interest in the common elements that is independent of or separate from the rights and interests of residential units or service units. Park Regency Ptnrs., L.P. v. Gruber, 271 Ga. App. 66 , 608 S.E.2d 667 (2004).

Rooftop terrace declared common element versus limited common element. - Trial court properly granted a condominium association and the association's board summary judgment and properly declared a tenth-floor rooftop terrace a common element for all unit owners in a suit involving a dispute over the terrace because the express terms of the original declaration designated the terrace as a common element. Further, an amendment stating otherwise that was signed by a former managing member, and not the association, no longer controlled since the former managing member's control ended by the time the declarant sought to amend the declaration to assign the entire fenced area of the tenth-floor rooftop terrace as a limited common element benefitting only the penthouse unit. Walker v. 90 Fairlie Condo. Ass'n, 290 Ga. App. 171 , 659 S.E.2d 412 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 29 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Proper party plaintiff in action for injury to common areas of condominium development, 69 A.L.R.3d 1148.

Validity and construction of condominium association's regulations governing members' use of common facilities, 72 A.L.R.3d 308.

44-3-79. Allocation - Votes in association; how votes cast; majority vote requirements.

  1. The declaration shall allocate a number of votes in the association to each unit depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83. The allocation of such votes may be by percentage, fraction, formula, or any other method which indicates the relative voting power allocated to each unit. If an equal vote is allocated to each unit, the declaration may merely so state. All of the votes in the association shall be allocated among the units depicted on such plats or plans and shall be subject to reallocation as provided in this article.
  2. Since a unit owner may be more than one person, if only one of those persons is present at a meeting of the association or is voting by proxy, ballot, or written consent, that person shall be entitled to cast the votes pertaining to that unit. However, if more than one of those persons is present or executes a proxy, ballot, or written consent, the vote pertaining to that unit shall be cast only in accordance with their unanimous agreement unless the condominium instruments expressly provide otherwise; and such consent shall be conclusively presumed if any one of them purports to cast the votes pertaining to that unit without protest being made immediately by any of the others to the person presiding over the meeting or vote.
  3. The votes pertaining to any unit may, and, in the case of any unit owner not a natural person or persons, shall, be cast pursuant to a proxy or proxies duly executed by or on behalf of the unit owner or, in cases where the unit owner is more than one person, by or on behalf of the joint owners of the unit. No such proxy shall be revocable except as provided in Code Section 14-2-722 or 14-3-724 or by written notice delivered to the association by the unit owner or by any joint owners of a unit. Any proxy shall be void if it is not dated or if it purports to be revocable without such notice.
  4. Except in the case of any condominium of which no part is restricted exclusively to residential use, if 50 percent or more of the votes in the association pertain to 25 percent or less of the condominium units, then in any case where a majority vote is required by the condominium instruments or by this article the requirement for such a majority shall be deemed to include, in addition to the specified majority of the votes, assent by the unit owners of a like majority of the condominium units.
  5. Anything in this Code section to the contrary notwithstanding, no votes in the association shall be deemed to pertain to any condominium unit during such time as the unit owner thereof is the association nor shall any vote be allocated to any condominium unit unless the condominium unit is depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83. Except to the extent otherwise expressly provided or permitted by this article, the votes allocated to any condominium unit shall not be altered.

    (Ga. L. 1975, p. 609, § 16; Ga. L. 1982, p. 3, § 44; Ga. L. 2004, p. 560, § 2.)

JUDICIAL DECISIONS

Combining parking units with residential units held proper. - Condominium declaration properly allocated interests in the common elements under O.C.G.A. § 44-3-78(a) , and the votes in the condominium association under O.C.G.A. § 44-3-79(a) , by combining parking units with residential units, because no provision of the Georgia Condominium Act, O.C.G.A. § 44-3-70 et seq., requires parking units to have voting rights or to have an interest in the common elements that is independent of or separate from the rights and interests of residential units or service units. Park Regency Ptnrs., L.P. v. Gruber, 271 Ga. App. 66 , 608 S.E.2d 667 (2004).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 24 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

44-3-80. Allocation of and liability for common expenses; how assessments made.

  1. Except to the extent that the condominium instruments provide otherwise, any common expenses associated with the maintenance, repair, renovation, restoration, or replacement of any limited common element shall be specially assessed against the condominium unit to which that limited common element was assigned at the time the expenses were made or incurred; however, if any limited common element was assigned at that time to more than one unit, the common expenses shall be specifically assessed against each condominium unit equally so that the total of the special assessments equals the total of the expenses.
  2. To the extent that the condominium instruments expressly so provide:
    1. Any other common expenses benefiting less than all of the units shall be specially assessed equitably among all of the condominium units so benefited;
    2. Any other common expenses occasioned by the conduct of less than all of those entitled to occupy all of the units or by the licensees or invitees of any such unit or units shall be specially assessed against the condominium unit or units, the conduct of any occupant, licensee, or invitee of which occasioned any such common expenses;
    3. Any other common expenses significantly disproportionately benefiting all of the units shall be assessed equitably among all of the condominium units; and
    4. Other than for limited common elements expressly designated as such in the condominium instruments and assigned to fewer than all units, nothing contained in paragraph (1) or (3) of this subsection shall permit an association to specially or disproportionately allocate common expenses for periodic maintenance, repair, and replacement of any portion of the common elements or the units which the association has the obligation to maintain, repair, or replace.
  3. The amount of all common expenses not specially assessed pursuant to subsection (a) or (b) of this Code section, less the amount of all undistributed and unreserved common profits, shall be assessed against the condominium units in accordance with the allocation of liability for common expenses set forth in the declaration. The allocation may be by percentage, fraction, formula, or any other method which indicates the relative liabilities for common expenses. If an equal liability for common expenses is allocated to each unit, the declaration may merely so state. The entire liability for common expenses shall be allocated among the units depicted on plats or plans that comply with subsections (a) and (b) of Code Section 44-3-83 and shall be subject to reallocation as provided in this article. Except to the extent otherwise expressly provided or permitted by this article, the allocations of the liability shall not be altered; provided, however, that no reallocation shall affect any assessment or installation thereof becoming due and payable prior to reallocation. The assessments shall be made by the association annually or more often if the condominium instruments so provide and shall be payable in the manner determined by the association. Notwithstanding any unequal allocation of liabilities for common expenses pursuant to this subsection, this provision shall not preclude the association from levying charges equally among units for services or items provided to owners upon request, or which provide proportionate or uniform benefit to the units, including, but not limited to, uniform charges for pool keys or other common element entry devices.
    1. The declarant shall pay for all common expenses until the first common expense assessment is due from any unit owner. Thereafter, no unit owner other than the association shall be exempted from any liability for any assessment under this Code section or under any condominium instrument for any reason whatsoever, including, without limitation, abandonment, nonuse, or waiver of the use or enjoyment of his or her unit or any part of the common elements.
    2. Notwithstanding paragraph (1) of this subsection, if authorized by the declaration, a declarant who is offering units for sale may elect to be excused from payment of assessments assessed pursuant to subsection (c) of this Code section against those unsold and unoccupied units for a stated period of time after the original declaration is recorded, not to exceed 24 months after the date the original declaration is recorded; provided, however, that as to assessments assessed pursuant to subsection (c) of this Code section, the declarant must pay common expenses incurred during such period which exceed the amounts assessed against other unit owners in the same condominium. During any period in which the declarant is excused from payment of assessments assessed pursuant to subsection (c) of this Code section:
      1. No capital contributions, start-up funds, initiation fees, or contributions to capital reserve accounts which are receivable from unit purchasers or unit owners and payable to the association at closing may be used for payment of common expenses;
      2. No portion of the payment of assessments collected from owners intended to be utilized for reserves for deferred maintenance, reserves for depreciation, or other reserves, as shown on the operating budget for the condominium, may be used for payment of common expenses; and
      3. No prepayments of assessments made by owners shall be used for the payment of common expenses prior to the time the assessments would otherwise be due.
    3. If during the period that the declarant is excused from payment of assessments as provided in paragraph (2) of this subsection common expenses are incurred resulting from a casualty which is not covered by proceeds from insurance maintained by the association, such common expenses shall be assessed against all unit owners owning units on the date of such casualty, and their respective successors and assigns, including the declarant with respect to units owned by the declarant. In the event of such an assessment, all units shall be assessed in accordance with the allocation of the liability for common expenses set forth in the declaration as provided in subsection (c) of this Code section.
    4. During any such time as the declarant has the right to control the association pursuant to Code Section 44-3-101, any capital contributions, start-up funds, initiation fees, or contributions to capital reserve accounts which are receivable from unit purchasers or unit owners and payable to the association at closing and any portion of the payment of assessments collected from owners intended to be utilized for reserves for deferred maintenance, reserves for depreciation, or other reserves, as shown on the operating budget for the condominium, shall be deposited into one or more separate reserve accounts and shall not be used to pay for any common expenses, without the agreement of the unit owners of units to which two-thirds of the votes in the association pertain, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant. No waiver of the right of any unit owner to grant or withhold consent to such agreement shall be valid.
  5. Unless otherwise provided in the condominium instruments and except as provided in subsection (f) of this Code section, the grantee in a conveyance of a condominium unit shall be jointly and severally liable with the grantor thereof for all unpaid assessments against the latter up to the time of the conveyance without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee therefor; provided, however, that, if the grantor or grantee shall request a statement from the association as provided in Code Section 44-3-109, such grantee and his successors, successors-in-title, and assigns shall not be liable for nor shall the condominium unit conveyed be subject to a lien for any unpaid assessments against such grantor in excess of any amount set forth in the statement.
  6. In the event that the holder of a first priority mortgage or a secondary purchase money mortgage of record, provided that neither the grantee nor any successor grantee on the secondary purchase money mortgage is the seller of the unit, or any other person acquires title to any condominium unit as a result of foreclosure of any such mortgage, such holder or other person and successors, successors-in-title, and assigns shall not be liable for nor shall the condominium unit be subject to a lien for any assessment under this Code section or under any condominium instrument chargeable to the condominium unit on account of any period prior to the acquisition of title; provided, however, that the unpaid share of an assessment or assessments shall be deemed to be common expenses collectable from all of the unit owners, including such holder or other person and successors, successors-in-title, and assigns.
  7. A condominium instrument recorded on or after July 1, 2015, shall not authorize the board of directors to impose:
    1. Except as provided in subsections (a) and (b) of this Code section and subsections (a) and (b) of Code Section 44-3-109, a special assessment fee per unit in excess of one-sixth of the annual common expense assessment for the unit levied pursuant to subsection (c) of this Code section per fiscal year without the approval of a majority of the unit owners; or
    2. A monthly maintenance fee increase in excess of the percentage equal to the annual rate of inflation as measured by the Consumer Price Index for All Urban Consumers for the immediately preceding 12 month period may be disapproved by unit owners holding a majority of the association vote.

      (Ga. L. 1975, p. 609, § 17; Ga. L. 1990, p. 227, § 3; Ga. L. 1994, p. 1943, §§ 3, 4; Ga. L. 2004, p. 560, § 3; Ga. L. 2007, p. 611, § 2/HB 383; Ga. L. 2015, p. 889, § 1/HB 245.)

The 2015 amendment, effective July 1, 2015, substituted "July 1, 2015" for "July 1, 1990" in subsection (g); and substituted "one sixth of the annual common expense assessment for the unit levied pursuant to subsection (c) of this Code section" for "an average of $200.00" in the middle of paragraph (g)(1).

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985).

JUDICIAL DECISIONS

Liability of unit owner for assessment. - Language of subsection (d) of O.C.G.A. § 44-3-80 is plain and susceptible of only one interpretation, that there is no legal justification for a condominium owner to fail to pay valid condominium assessments; this reflects a clear choice by the legislature that the owner's obligation to pay assessments be absolute and a condominium unit owner involved in a dispute with the condominium association about the association's services and operations may not exert leverage in that controversy by withholding payment but must seek another remedy. Forest Villas Condominium Ass'n v. Camerio, 205 Ga. App. 617 , 422 S.E.2d 884 (1992).

Condominium association's property manager's affidavit, in which the manager testified that the manager was familiar with the billing processes of the association and the association's records and that the manager's affidavit was on personal knowledge, was sufficient to support summary judgment for the association in the association's action against an owner for assessments and fees. Because the declaration provided for attorney's fees, an award of attorney's fees was mandated under O.C.G.A. § 44-3-109(b)(3), although the association did not ask for the fees. Ellington v. Gallery Condo. Ass'n, 313 Ga. App. 424 , 721 S.E.2d 631 (2011).

Tax deed purchaser obligated to pay condominium assocation assessments. - Trial court erred in denying the condominium association's motion for summary judgment finding that the association was not entitled to collect unpaid condominium association assessments from the tax deed purchaser that had accrued during the pendency of the litigation because, under O.C.G.A. § 44-3-80 , the purchaser was obligated to pay condominium association assessments that accrued after the tax sale, even during the period before it could foreclose on the right of redemption, and even if it was involved in an ongoing dispute with the association. Northlake Manor Condo. Ass'n v. Harvest Assets, LLC, 345 Ga. App. 575 , 812 S.E.2d 658 (2018).

Common expenses. - Plaintiff condominium association could not assess against defendant owner's unit, as common expenses under O.C.G.A. § 44-3-80(b)(2), legal fees and interest in connection with enforcing restraining orders against a former occupant since the occupant had moved before those expenses were incurred. One Buckhead Loop Condo. Ass'n v. Pew, F.3d (11th Cir. July 5, 2012)(Unpublished).

Collective owners of a condominium unit are liable for the unit's portion of the total assessment levied on all units, not just to the extent of their individual ownership; thus, an owner of a one percent interest in a unit was jointly and severally liable for all assessments levied while the person was a co-owner. Chattahoochee Chase Condominium Ass'n v. Ruben, 221 Ga. App. 724 , 472 S.E.2d 520 (1996).

While O.C.G.A. § 44-3-80 provides a mechanism to impose a special assessment to the extent that the condominium instruments expressly so provide, when none of the condominium instruments provided for a special assessment against some but not all of the unit owners, general assessments were not invalid, and the trial court erred in denying the condominium association's motion for summary judgment. Atlanta Georgetown Condominium Ass'n v. Chaplin, 235 Ga. App. 460 , 509 S.E.2d 729 (1998).

Liability of foreclosing mortgagee. - While a foreclosing mortgagee is clearly not liable nor is its property interest subject to a lien for any assessment, it is obligated to pay a pro rata amount of that "unpaid share" which becomes a part of the common expenses, but the condominium association would not be entitled to recover from the foreclosing mortgagee a pro rata share of the elements enumerated in O.C.G.A. § 44-3-109(b) because those elements arise only from the lien which results from the failure to make a timely payment of assessments. First Fed. Sav. Bank v. Eaglewood Court Condominium Ass'n, 186 Ga. App. 605 , 367 S.E.2d 876 , cert. denied, 186 Ga. App. 918 , 367 S.E.2d 876 (1988).

Liability of secondary purchase-money mortgagee. - Even though a secondary purchase-money mortgagee did not sell the condominium unit directly to the debtor who eventually failed to pay the mortgage or condominium fees and assessments, the association's lien was superior to the mortgage, and the mortgagee, as the seller of the unit, was liable for preforeclosure fees and assessments. Dunhill Condominium Ass'n v. Gregory, 228 Ga. App. 494 , 492 S.E.2d 242 (1997).

Characterization of payments as other than assessments. - Condominium association may not sidestep the clear dictates of O.C.G.A. § 44-3-80 by merely characterizing payments asked for as something other than condominium assessments. The expenditures, whatever called, are the type of payments covered by the statute. Accordingly, the trial court concluded that the association's complaint was preempted by O.C.G.A. § 44-3-80 and granted defendant's motion to dismiss with prejudice. Kingsmill Village Condominium Ass'n v. Homebanc Fed. Sav. Bank, 204 Ga. App. 900 , 420 S.E.2d 771 (1992).

Procedural fairness. - When a condominium's board of directors determined that owners received a benefit from the services of a contractor in attempting to maintain certain occupancy rates, and no evidence was submitted showing the board's decision was procedurally unfair, unreasonable, or made in bad faith, the trial court erred in denying the condominium association's motion for summary judgment. Atlanta Georgetown Condominium Ass'n v. Chaplin, 235 Ga. App. 460 , 509 S.E.2d 729 (1998).

Assessment of litigation fees and costs. - Trial court did not err in dismissing the condominium association's counterclaim seeking to collect on an assessment of litigation fees and costs against two former association members who had unsuccessfully sued the association as the former members' lawsuit did not result solely from the former members' conduct without reference also to the conduct of the association because the former members' claims were based on the conduct of the association with respect to its response to and management of various mold and moisture issues. City Heights Condo. Ass'n v. Bombara, 337 Ga. App. 679 , 788 S.E.2d 563 (2016).

Trial court did not err in dismissing the condominium association's counterclaim seeking to collect on an assessment of litigation fees and costs against two former association members who had unsuccessfully sued the association because the association had already obtained a judgment for the money to which the assoication was entitled to as a result of having to defend against a claim the trial court determined lacked substantial justification; and the former members' remaining claims, while not ultimately successful, were sufficiently justified that the trial court did not penalize the former members for bringing the claims. City Heights Condo. Ass'n v. Bombara, 337 Ga. App. 679 , 788 S.E.2d 563 (2016).

Cited in Casey v. North Decatur Courtyards Condominium Ass'n, 213 Ga. App. 190 , 444 S.E.2d 361 (1994).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 29 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Proper party plaintiff in action for injury to common areas of condominium development, 69 A.L.R.3d 1148.

Expenses for which condominium association may assess unit owners, 77 A.L.R.3d 1290.

44-3-81. Reallocation of interests in common elements, votes, and liability for common expenses.

  1. Interests in the common elements shall not be allocated to any units to be created within any additional property until plats or plans depicting the same are recorded pursuant to subsection (c) of Code Section 44-3-83. Upon the submission of any additional property, the declarant shall execute and record an amendment to the declaration reallocating undivided interests in the common elements, votes in the association, and liabilities for common expenses in the manner provided in the declaration.
  2. If all of a convertible space is converted into common elements, including, without limitation, limited common elements, the undivided interest in the common elements pertaining to such convertible space shall then pertain to the remaining units and shall be allocated among them in proportion to their undivided interests in the common elements. In the case of the conversion of all or any portion of any convertible space into one or more units or common elements, including, without limitation, limited common elements, the undivided interests in the common elements, the votes in the association, and the liability for common expenses shall be reallocated in the manner provided in the declaration. The declarant shall immediately prepare, execute, and record an amendment to the declaration effecting the reallocation of undivided interests produced thereby.
  3. In the case of a leasehold condominium, upon the expiration or termination of any leasehold or estate for years with respect to any land upon or within which any unit exists, every such unit together with all common elements located upon or within such leasehold or estate for years shall be deemed to have been withdrawn from the condominium unless the declaration provides for the termination of the condominium in such event. The undivided interest in the common elements pertaining to any unit thereby withdrawn from the condominium shall then pertain to the remaining units and shall be allocated among them in proportion to their undivided interests in the common elements. The association shall immediately prepare, execute, and record an amendment to the declaration effecting the reallocation of undivided interests produced thereby. In the case of the reduction of a condominium on account of the expiration or termination of a leasehold or estate for years, all votes attributable to any unit located upon such property immediately prior to such reduction shall thereby be eliminated; in addition, the liability for common expenses pertaining to any such unit shall be allocated to the remaining units in proportion to their relative liabilities for common expenses.

    (Ga. L. 1975, p. 609, § 18.)

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Condominiums and Cooperative Apartments, § 32 et seq. 23 Am. Jur. 2d, Deeds, § 221 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Validity and construction of condominium association's regulations governing members' use of common facilities, 72 A.L.R.3d 308.

44-3-82. Assignments and reassignments of limited common elements.

  1. All assignments and reassignments of limited common elements shall be made or provided for in the condominium instruments. No limited common element shall be assigned or reassigned except in accordance with this article. No amendment to any condominium instrument shall alter any rights or obligations with respect to any limited common element without the consent of all unit owners whose use of the limited common element is or may be directly affected by the assignment or reassignment, as evidenced by their execution of the amendment, except to the extent that the condominium instruments expressly provided otherwise prior to or simultaneously with the first assignment of the limited common element.
  2. Unless expressly prohibited by the condominium instruments, a limited common element may be reassigned upon written application to the association by the owners of units to which the limited common element appertains and the owners of units to which the limited common element is being reassigned. The association shall immediately prepare and execute an amendment to the declaration reassigning all rights and obligations with respect to the limited common element involved. Such amendment shall be delivered immediately to the owners of the units to which the limited common element appertains and the owners of units to which the limited common element is being reassigned and upon payment by them of all reasonable costs for the preparation, execution, and recordation thereof. The amendment shall become effective when the association and the owners of the units to which the limited common element appertains and the owners of units to which the limited common element is being reassigned have executed and recorded the same. No vote of the unit owners shall be necessary for the amendment provided in this Code section to be executed by the association.
  3. A common element not previously assigned as a limited common element shall be so assigned only pursuant to the declaration.  The amendment to the declaration making such an assignment shall be prepared and executed by the association.  The amendment shall be delivered to the unit owner or owners to whose unit the assignment is being made upon payment by them of all reasonable costs for the preparation, execution, and recordation thereof.  The amendment shall become effective after execution by the association and such unit owner or owners and recordation, and the recordation thereof shall be conclusive evidence that the method prescribed pursuant to the declaration was adhered to.  Unless otherwise required by the condominium instruments, no vote of the unit owners shall be necessary for the amendment provided in this Code section to be executed by the association.

    (Ga. L. 1975, p. 609, § 19; Ga. L. 1990, p. 227, § 4; Ga. L. 1994, p. 1943, § 5.)

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985).

JUDICIAL DECISIONS

Defining "common element" versus "limited common element." - External water spigots were not "limited common elements" because the spigots were not assigned as such in the condominium documents as required by O.C.G.A. § 44-3-82 . Since the spigots were not "limited common elements," use of the spigots could be restricted under O.C.G.A. § 44-3-76 to enforce condominium declarations. Frantz v. Piccadilly Place Condo. Ass'n, 278 Ga. 103 , 597 S.E.2d 354 (2004).

Rooftop terrace declared common element versus limited common element. - Trial court properly granted a condominium association and the association's board summary judgment and properly declared a tenth-floor rooftop terrace a common element for all unit owners in a suit involving a dispute over the terrace because the express terms of the original declaration designated the terrace as a common element. Further, an amendment stating otherwise that was signed by a former managing member, and not the association, no longer controlled since the former managing member's control ended by the time the declarant sought to amend the declaration to assign the entire fenced area of the tenth-floor rooftop terrace as a limited common element benefitting only the penthouse unit. Walker v. 90 Fairlie Condo. Ass'n, 290 Ga. App. 171 , 659 S.E.2d 412 (2008).

Exclusive use of courtyard. - Under O.C.G.A. § 44-3-82(a) , a title insurer could be found to have insured an exclusive interest in a condominium courtyard by the owners of Unit 5 only if the condominium declaration assigned the courtyard to Unit 5 as a limited common element; as the declaration did not do so, the title policy did not insure the unit owners for an exclusive interest in the courtyard. Anderson v. Commonwealth Land Title Ins. Co., 284 Ga. App. 572 , 644 S.E.2d 414 (2007).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments, §§ 1 et seq., 9 et seq. 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 29 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 6A C.J.S., Assignments, §§ 1 et seq., 123 et seq. 51C C.J.S., Landlord and Tenant, § 232.

44-3-83. Recording of plats and plans; contents; completion of structural improvements; certification by registered architect or engineer.

  1. Prior to the first conveyance of a condominium unit, there shall be recorded one or more plats of survey showing the location and dimensions of the submitted property; the location and dimensions of all structural improvements located on any portion of the submitted property; the intended location and dimensions of all contemplated structural improvements committed to be provided by the declaration on any portion of the submitted property; and, to the extent feasible, the location and dimensions of all easements appurtenant to the submitted property or otherwise submitted to this article as part of the common elements. With respect to all such structural improvements, the plats shall indicate which, if any, have not been begun by use of the phrase "NOT YET BEGUN." No structural improvement which contains or constitutes all or part of any unit or units and which is located on any portion of the submitted property shall be commenced on any portion of the submitted property after the recording of the plats. The declarant shall complete all structural improvements depicted on the plats, subject only to such limitations, if any, as may be expressly stated in the declaration with respect to those labeled "NOT YET BEGUN" on the plats, provided that, within six months after written notice from the association, the declarant shall be obligated to complete within a reasonable time every structural improvement actually commenced on the submitted property, notwithstanding any provision of the declaration, unless the declarant removes within a reasonable time all portions of any such structural improvement and restores the surface of the land affected thereby to substantially the same condition as that which existed prior to commencement of any such structural improvement; and provided, further, that nothing contained in this sentence shall exempt the declarant from any contractual liability to complete any such structural improvement. If the submitted property consists of noncontiguous parcels, the plats shall indicate the approximate distances between such parcels unless such information is disclosed in the declaration. If, with respect to any portion or portions, but less than all, of the submitted property, the unit owners are to own only a leasehold or estate for years, the plats shall show the location and dimensions of any such portion or portions and shall label each such portion by use of the phrase "LEASED LAND." To the extent feasible, the plats shall show all easements to which the submitted property or any portion thereof is subject. The plats shall also show all encroachments by or on any operation of the submitted property. In the case of any units which have vertical boundaries lying wholly or partially outside of structures for which plans pursuant to subsection (b) of this Code section are recorded, the plats shall show the location and dimensions of the vertical boundaries to the extent that they are not shown on the plans; and the units or portions thereof thus depicted shall bear their identifying numbers. Each plat shall be certified as to its accuracy and compliance with this subsection by a registered land surveyor. The specification within this subsection of items that shall be shown on the plats shall not be construed to mean that the plats shall not also show all other items customarily shown or required by law to be shown for land title surveys.
  2. There shall be recorded prior to the first conveyance of a condominium unit:
    1. Plans which have been prepared, signed, and sealed by a registered architect or registered engineer of every structure which contains or constitutes all or part of any unit or units located on or within any portion of the submitted property, which plans shall show:
      1. The location and dimensions of the exterior walls and roof of such structures;
      2. The walls, partitions, floors, and ceilings as constitute the horizontal boundaries, if any, and the vertical boundaries of each unit, including convertible space, to the extent that such boundaries lie within or coincide with the boundaries of such structures; and
      3. The identifying numbers of all units or portions thereof depicted on the plans; and
    2. A certification by such architect or engineer to the effect that he has visited the site and viewed the property and that, to the best of his knowledge, information, and belief:
      1. The exterior walls and roof of each structure are in place as shown on the plans; and
      2. Such walls, partitions, floors, and ceilings, to the extent shown on said plans, as constitute the horizontal boundaries, if any, and the vertical boundaries of each unit, including convertible space, have been sufficiently constructed so as to establish clearly the physical boundaries of such unit.

        In addition, each convertible space depicted in the plans shall be labeled as such by use of the phrase "CONVERTIBLE SPACE." Unless the condominium instruments expressly provide otherwise, it shall be presumed that, in the case of any unit not wholly contained within or constituting one or more of the structures, the horizontal boundaries extend, in the case of each unit, at the same elevation with regard to any part of such unit lying outside of such structures, subject to the following exception: in the case of any unit which does not lie over any other unit other than basement units, it shall be presumed that the lower horizontal boundary, if any, of that unit lies at the level of the ground with regard to any part of that unit lying outside of the structures. This subsection shall apply to any condominium created on or after July 1, 1980, or to the expansion of any such condominium.

        1. The foundation, structural members, exterior walls, and roof of each such structure are complete and in place as shown on the plans;
        2. The walls, partitions, floors, and ceilings, to the extent shown on the plans, as constituting or coinciding with the vertical and horizontal boundaries of each unit, including convertible space, within each such structure, are sufficiently complete and in place to establish clearly the physical boundaries of such unit and that such physical boundaries are as shown on the plans; and
        3. Each such structure, to the extent of its stage of completion at that time, is constructed substantially in accordance with such plans.

          The plans shall show the location and dimensions of the horizontal boundaries, if any, and the vertical boundaries of each unit to the extent that such boundaries lie within or coincide with the boundaries of such structures, and the units, or portions thereof, thus depicted shall bear their identifying numbers. In addition, each convertible space depicted in the plans shall be labeled as such by use of the phrase "CONVERTIBLE SPACE." Unless the condominium instruments expressly provide otherwise, it shall be presumed that, in the case of any unit not wholly contained within or constituting one or more of the structures, the horizontal boundaries extend, in the case of each unit, at the same elevation with regard to any part of such unit lying outside of such structures, subject to the following exception: in the case of any unit which does not lie over any other unit other than basement units, it shall be presumed that the lower horizontal boundary, if any, of that unit lies at the level of the ground with regard to any part of that unit lying outside of the structures. This subsection shall apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.

    (b.1) There shall be recorded prior to the first conveyance of a condominium unit plans of every structure which contains or constitutes all or part of any unit or units located on or within any portion of the submitted property and a certification by a registered architect or registered engineer to the effect that he has visited the site and viewed the property and that, to the best of his knowledge, information, and belief:

  3. Prior to the first conveyance of a condominium unit located on any portion of any additional property being or having been added to an expandable condominium, there shall be recorded new plats of survey conforming to the requirements of subsection (a) of this Code section and, with regard to any structures on the property being or having been added, plans conforming to the requirements of subsection (b) of this Code section or certifications, conforming to the certification requirements of subsection (b) of this Code section, of plans previously recorded pursuant to Code Section 44-3-84.
  4. When converting all or any portion of any convertible space into one or more units or limited common elements, the declarant shall record, with regard to the structure or portion thereof constituting that convertible space, plans showing the location and dimensions of the horizontal boundaries, if any, and the vertical boundaries of each unit formed out of such space. The plans shall be certified by a registered architect or registered engineer in accordance with the certification requirements of subsection (b) of this Code section.
  5. When any portion of the submitted property is withdrawn, there shall be recorded a plat or plats showing the portion of the submitted property withdrawn and the remaining submitted property, which plat or plats shall be certified as provided in subsection (a) of this Code section.

    (Ga. L. 1975, p. 609, § 20; Ga. L. 1980, p. 1406, § 3; Ga. L. 1982, p. 3, § 44; Ga. L. 1983, p. 3, § 33; Ga. L. 1984, p. 22, § 44.)

JUDICIAL DECISIONS

Applicability. - There was no merit to a condominium development buyer's argument that the third amendment to the declaration of condominium, which restricted building on Phase IV of the development to 30 units, was a nullity because it did not comply with O.C.G.A. § 44-3-83 ; the requirements of § 44-3-83 had to be met prior to the first conveyance of a unit, and as there was no evidence of any attempted conveyance of any of the proposed units in Phase IV, the buyer's contention was premature. Waterfront, LLP v. River Oaks Condo. Ass'n, 287 Ga. App. 442 , 651 S.E.2d 481 (2007), cert. denied, 2008 Ga. LEXIS 78 (Ga. 2008).

Subsequent use not misappropriation. - Subsequent use of architect's design plans by owners was authorized by the terms of their contract with the architects and was not a misappropriation. Wright v. Tidmore, 208 Ga. App. 150 , 430 S.E.2d 72 (1993).

Adaptation of plans not misappropriation. - Adaptation of plans in order to satisfy the requirements of subsection (b) of O.C.G.A. § 44-3-83 were minimal, and in no way plagiarized the mental labors of architects making the plans. Wright v. Tidmore, 208 Ga. App. 150 , 430 S.E.2d 72 (1993).

44-3-84. Use of previously recorded plans in lieu of new plans.

Plans previously recorded pursuant to subsection (b) of Code Section 44-3-77 may be used in lieu of new plans to satisfy in whole or in part the requirements of Code Section 44-3-89 if certifications thereof are recorded by the declarant in accordance with subsection (c) of Code Section 44-3-83.

(Ga. L. 1975, p. 609, § 21.)

44-3-85. Liability for failure to follow plats or plans; easements; liability for damage.

  1. The purpose of this Code section is to protect the unit owners, except in cases of willful and intentional misconduct by them or their agents or employees, and not to relieve the declarant or any contractor, subcontractor, or materialman of any liability which any of them may have by reason of any failure to adhere to the plats or plans.
  2. To the extent that any unit or common element encroaches on any other unit or common element, whether by reason of any deviation from the plats or plans in the construction, repair, renovation, restoration, or repair of any improvement or by reason of the settling or shifting of any land or improvement, a valid easement for such encroachment shall exist.
  3. The declarant and his duly authorized agents, representatives, and employees shall have an easement for the maintenance of sales offices and model units on the submitted property so long as the declarant owns any condominium unit primarily for the purpose of sale.
  4. Subject to any restrictions and limitations which the condominium instruments may specify, the declarant shall have a transferable easement on and over the common elements for the purpose of making improvements contemplated by the condominium instruments on the submitted property and any additional property and for the purpose of doing all things reasonably necessary and proper in connection therewith.
  5. This Code section shall not be construed so as to prohibit the reservation to the declarant of other easements by means of the condominium instruments or otherwise.
  6. To the extent that damage is inflicted on any part of the condominium by the declarant or by any contractor, subcontractor, or materialman utilizing the easements reserved by the condominium instruments to the declarant or created by this Code section, the declarant together with the person or persons causing the damage shall be jointly and severally liable for the prompt repair thereof and for the restoration of the same to a condition compatible with the remainder of the condominium.

    (Ga. L. 1975, p. 609, § 22; Ga. L. 1982, p. 3, § 44.)

44-3-86. Leasehold condominiums; lessor's rights and powers; owner's rights and powers; liens; performance of covenants.

  1. As used in this Code section, the term "lessor" means any lessor, sublessor, or grantor of an estate for years.
  2. In the case of any leasehold condominium:
    1. After the recording of the declaration, no lessor who executed the declaration and no successor-in-interest to the lessor shall have any right or power to terminate all or any part of the leasehold interest of any unit owner so long as the condominium shall exist;
    2. In the event that any such lessor shall acquire title to or any other interest in any unit by any method whatsoever, the undivided interest thereby acquired by the lessor in the common elements shall not be merged with the lessor's underlying interest in the submitted property; but the two estates shall remain separate and divided so long as the condominium shall exist;
    3. If provided for in the condominium instruments, the obligation of each unit owner to pay rents and any other amounts under any lease from any lessor shall be secured by a lien upon the condominium unit of the unit owner. The lien shall be prior to all other liens and encumbrances on that condominium unit except liens for ad valorem taxes; and any other lien or encumbrance which the condominium instruments provide shall be superior thereto. The lien shall secure all costs incurred, including, without limitation, reasonable attorney's fees, in connection with the foreclosure thereof and may be foreclosed by action, judgment, and foreclosure in the same manner as is provided for any other lien for the improvement of real property;
    4. Unless otherwise provided in the condominium instruments and except as provided in paragraph (5) of this Code section, no unit owner shall be obligated to pay any amount in excess of the rents due and payable under any lease multiplied by the percentage or other proportion of the unit owner's liability for the rents as set forth in the declaration;
    5. Unless otherwise provided in the condominium instruments, no lessor shall be entitled to require performance by any unit owner of any covenant of any such lease in any form other than by the payment of money by the unit owner; provided, however, that, in the event of any default under any lease other than default in the payment of money, the lessor shall be entitled to perform any defaulted covenant and charge all reasonable costs incurred in connection with performance, including, without limitation, reasonable attorney's fees, against the unit owners in proportion to their liability for the rents, which costs shall be considered rent for purposes of the lien provided for in paragraph (3) of this Code section; and
    6. Except as limited in this Code section, in the condominium instruments, or by law, any lessor shall have all rights and powers provided by law or by his lease.

      (Ga. L. 1975, p. 609, § 23; Ga. L. 1982, p. 3, § 44.)

44-3-87. Conversion condominiums; notice; offer to convey; time periods; rights of tenant.

  1. The declarant of a conversion condominium shall deliver notice of the conversion to each tenant in possession of a unit which is subject to this article. The notice must be delivered at least 120 days before the declarant will require the tenant to vacate the unit. The notice must set forth generally the rights of tenants under this Code section. The tenant may not be required by the declarant to vacate the unit at any time during the 120 day period except by reason of nonpayment of rent, waste, or conduct which disturbs other tenants' peaceful enjoyment of the premises, and the terms of the tenancy may not be altered during said period; provided, however, that any notice which, under the terms of such tenancy, is required to be given to prevent the automatic renewal or extension of the term of such tenancy may be given during said period. Failure of the declarant to give notice as required by this Code section shall constitute a defense to an action by the declarant for possession initiated less than 120 days after proper delivery of such a notice.
  2. Within 60 days after delivery of the notice described in subsection (a) of this Code section, the declarant shall deliver to the tenant an offer to convey the unit to the tenant at a specified price and on specified terms. If the tenant fails to deliver to the declarant acceptance of the offer within 60 days after delivery of the offer to the tenant, the declarant may not offer to convey the unit, during the 120 days following the date on which delivery is made of the offer to convey to the tenant, at a price or on terms more favorable to the offeree than the price or terms offered to the tenant, without first delivering the same offer to the tenant, who shall have at least ten days within which to deliver to the declarant acceptance of such offer.
  3. Notices and offers required or permitted to be delivered to a tenant by subsections (a) and (b) of this Code section may be hand delivered to the tenant, hand delivered to the unit, or posted in the United States mail, postage prepaid, or sent by statutory overnight delivery, addressed to the tenant at the address of the unit. Acceptances permitted to be delivered to a declarant by subsection (b) of this Code section may be hand delivered to the declarant, hand delivered to an authorized representative of the declarant, or posted in the United States mail, postage prepaid, addressed to the declarant at the address specified in the offer made by the declarant. Any notices, offers, or acceptances sent by registered or certified mail or statutory overnight delivery, return receipt requested, shall be presumed conclusively to have been delivered when posted in the United States mail or delivered to the commercial delivery company, postage and fees prepaid, addressed as provided in this subsection, in which event the postmark date or date of receipt by the commercial delivery company of any such registered or certified mail or statutory overnight delivery or any receipt related thereto shall be the date of delivery for purposes of this Code section.
  4. Subsections (a) and (b) of this Code section shall not apply to any unit in a conversion condominium if the boundaries of the unit do not substantially conform to the boundaries of the unit before conversion. Subsections (a) and (b) of this Code section shall apply only to tenants who are not in default under valid and subsisting leases with the declarant or a predecessor in title of the declarant and who are in possession of and are actually occupying for residential purposes units within the conversion condominium both at the time of recording of the declaration and at the time the notice provided for in subsection (a) of this Code section are delivered.
  5. Prior to or simultaneously with delivery of the offer of sale of a unit to a tenant as provided in subsection (b) of this Code section, the declarant shall deliver to the tenant the items required to be furnished to a prospective purchaser by subsection (b) of Code Section 44-3-111.
  6. If a declarant conveys a unit to a purchaser in violation of subsection (b) of this Code section, recordation of the deed conveying the unit shall extinguish any right a tenant may have under subsection (b) of this Code section to purchase the unit but shall not affect any rights of any person to recover damages from the declarant for a violation of subsection (b) of this Code section.
  7. If the notice of conversion should specify a date by which the unit must be vacated, the notice will also constitute demand for possession pursuant to Code Section 44-7-50.
  8. Nothing in this Code section permits termination of a lease by a declarant in violation of its terms.
  9. The rights and obligations of the declarant and the tenant during any period of extended occupancy by the tenant pursuant to subsection (a) of this Code section shall be the same as the rights and obligations of said persons prior to any such period of extended occupancy.
  10. This Code section shall not apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.

    (Ga. L. 1980, p. 1406, § 4; Ga. L. 1982, p. 3, § 44; Ga. L. 1983, p. 3, § 33; Ga. L. 2000, p. 1589, § 11.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Code Commission notes. - Pursuant to § 28-9-5 , in 1988, a comma was inserted following "representative of the declarant" near the end of the second sentence of subsection (c).

RESEARCH REFERENCES

ALR. - Validity and construction of law regulating conversion of rental housing to condominiums, 21 A.L.R.4th 1083.

44-3-88. Conversion of convertible spaces; amendment to declaration effecting conversion; reallocation of sums assessed prior to conversion; treatment of convertible space not converted.

  1. With the consent of the mortgagees thereof, the declarant may convert all or any portion of any convertible space into one or more units or common elements, including, without limitation, limited common elements, subject to any restrictions and limitations which the condominium instruments may specify. Any conversion shall be deemed to have occurred at the time of the recordation of appropriate instruments pursuant to subsection (b) of this Code section and subsection (d) of Code Section 44-3-83.
  2. The declarant and all mortgagees of the convertible space shall execute and the declarant shall record an amendment to the declaration effecting the conversion. The amendment shall assign an identifying number to each unit formed out of a convertible space and shall allocate among the unit or units and the remaining convertible space, if any, the undivided interest in the common elements, the number of votes in the association, and the share of the liability for future common expenses pertaining to the convertible space immediately prior to the conversion. All sums assessed against a convertible space prior to its conversion may be reallocated by the amendment to the units and the remaining convertible space, if any. In the event that no reallocation is effected, however, the lien for the assessments shall continue as to all of the space notwithstanding the conversion. The amendment shall describe or delineate the limited common elements, if any, formed out of the convertible space and shall indicate the unit or units to which each is assigned or provide a method for such assignment.
  3. Any convertible space not converted in accordance with this Code section or any portion or portions thereof not so converted shall be treated for all purposes as a single unit unless and until it is so converted; and this article shall be deemed applicable to any space or portion or portions thereof as though the same were a unit.

    (Ga. L. 1975, p. 609, § 24.)

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 5 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

44-3-89. Expansion of condominium; amendment to declaration; expansion of condominium after declarant's right to expand has expired.

  1. No condominium shall be expanded except in accordance with the provisions of the declaration and this article.
  2. Any expansion shall be deemed to have occurred at the time of the recordation of plats or plans pursuant to subsection (c) of Code Section 44-3-83 and an amendment to the declaration effecting the expansion duly executed by the declarant, all other owners or lessees of the additional property being added to the condominium, and all mortgages of the additional property being added to the condominium. The amendment shall contain a legal description by metes and bounds of the additional property being added to the condominium and shall reallocate undivided interests in the common elements, votes in the association, and liabilities for future common expenses all in accordance with the provisions of the declaration.
  3. Notwithstanding any other provision of this article, a condominium may be expanded by the association at any time after the declarant's right to expand the condominium has expired, provided that the unit owners of units to which two-thirds of the votes in the association appertain, or such higher amount as may be required by the declaration, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant, consent to an amendment to the governing documents expanding the condominium under the same terms and conditions as set forth in an explicit reservation of an option or options to expand the condominium contained in the condominium instruments as required by subsection (b) of Code Section 44-3-77; and provided, further, that such explicit reservation existed within the first seven years of the recording of the governing documents. The amendment shall contain a legal description by metes and bounds of the additional property being added to the condominium and shall reallocate undivided interests in the common elements, votes in the association, and liabilities for future common expenses all in accordance with the provisions of the declaration. The amendment shall be executed by all owners or lessees of the additional property being added to the condominium and all mortgagees of the additional property being added to the condominium. Additionally, the agreement of the required majority of unit owners to the amendment shall be evidenced by their execution of the amendment. In the alternative, the sworn statement of the president, any vice president, or the secretary of the association attached to or incorporated in an amendment executed by the association, which sworn statement states unequivocally that agreement of the required majority was otherwise lawfully obtained and that any notices required under this article were properly given, shall be sufficient to evidence the required agreement.

    (Ga. L. 1975, p. 609, § 25; Ga. L. 2017, p. 352, § 2/SB 46.)

The 2017 amendment, effective July 1, 2017, designated the existing provisions as subsections (a) and (b); and added subsection (c).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 5 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

44-3-90. Alterations within units; combining two or more units.

  1. Except to the extent prohibited by the condominium instruments and subject to any restrictions and limitations specified therein, any unit owner may make any improvements or alterations within his unit that do not materially impair the structural integrity of any structure or otherwise materially lessen the support of any portion of the condominium. No unit owner shall do anything which would change the exterior appearance of his unit or of any other portion of the condominium except to such extent and subject to any conditions which the condominium instruments may specify.
  2. If a unit owner acquires an adjoining unit, the unit owner shall have the right to remove all or any part of any intervening partition or to create doorways or other apertures therein, notwithstanding the fact that the partition may in whole or in part be a common element, so long as no portion of any bearing wall or bearing column is materially weakened or removed and no portion of any common elements other than that partition, and other than any chutes, flues, ducts, conduits, wires, or other apparatus contained in the partition which must be relocated by the unit owner if they serve any other part of the condominium, is damaged, destroyed, or endangered. Alterations permitted by this Code section shall not be deemed an alteration of boundaries within the meaning of Code Section 44-3-91.

    (Ga. L. 1975, p. 609, § 26.)

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 5 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

44-3-91. Relocation of boundaries between units; application for relocation; amendment to declaration; plans and plats; recording.

  1. If the condominium instruments expressly permit the relocation of boundaries between adjoining units, the boundaries between those units may be relocated in accordance with this Code section and any restrictions and limitations which the condominium instruments may specify.
  2. If the unit owners of adjoining units whose respective boundaries may be relocated desire to relocate those boundaries, the association shall, upon written application of the unit owners and the written consent of the mortgagees of the units involved, immediately prepare and execute appropriate instruments pursuant to subsections (c) and (d) of this Code section.  No vote of the unit owners shall be necessary for the amendments provided in this Code section to be executed by the association.
  3. An amendment to the declaration shall identify the units involved and shall state that the boundaries between those units are being relocated by agreement of the unit owners thereof. The unit owners of the units involved shall specify in their written application that there shall be no such reallocation or shall specify reallocations between the units involved of the aggregate undivided interest in the common elements, votes in the association, and liabilities for common expenses, or any one or more thereof, pertaining to those units. The amendment to the declaration shall reflect such reallocations or the absence thereof if deemed reasonable by the board of directors. If the reallocations specified by the unit owners of the units involved or the absence thereof is deemed unreasonable by the board of directors, it shall so notify such unit owners and permit them to amend their written application so as to specify reallocations acceptable to the board of directors.
  4. Any plats or plans necessary to show the altered boundaries between the units involved, together with their other boundaries, shall be prepared; and the units depicted thereon shall bear their identifying numbers. The plats or plans shall indicate the new dimensions of the units involved. The plats or plans shall be certified as to their accuracy and compliance with this subsection by a registered land surveyor in the case of any plat and by a registered architect or registered engineer in the case of any plan.
  5. When appropriate instruments have been prepared and executed by the association in accordance with subsections (a) through (d) of this Code section, they shall be delivered immediately to the unit owners of the units involved upon payment by them of all reasonable costs for the preparation, execution, and recordation thereof. The instruments shall become effective when the unit owners of the units involved and the mortgagees of the units have executed them and they have been recorded. The recording of such instruments shall be conclusive evidence that any reallocations made pursuant to subsection (c) of this Code section were reasonable and were approved by the board of directors. Upon recordation, the instruments shall effectuate conveyancing by and between the unit owners of the units involved regardless of whether the instruments contain or provide for the use of conveyancing language.
  6. Any relocation of boundaries between adjoining units shall be governed by this Code section and not by Code Section 44-3-92. Code Section 44-3-92 shall apply only to the subdivision of units which are intended to result in the creation of two or more new units in place of the subdivided unit.

    (Ga. L. 1975, p. 609, § 27; Ga. L. 1990, p. 227, § 5; Ga. L. 1991, p. 94, § 44.)

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 5 et seq. 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

44-3-92. Subdivision of units; application for subdivision; amendment to declaration; plans and plats; recordation.

  1. If the condominium instruments expressly permit the subdivision of any units, the units may be subdivided in accordance with this Code section and any restrictions and limitations which the condominium instruments may specify.
  2. If the unit owner of any unit which may be subdivided desires to subdivide the unit, the association, upon written application of the subdivider, as the unit owner shall henceforth be referred to in this Code section, and the written consent of the mortgagees of the unit, shall immediately prepare and execute appropriate instruments pursuant to subsections (c) and (d) of this Code section.  No vote of the unit owners shall be necessary for the amendments provided in this Code section to be executed by the association.
  3. An amendment to the declaration shall assign identifying numbers to the units created by the subdivision of a unit and shall allocate among those units on a reasonable basis acceptable to the subdivider and the board of directors all of the undivided interest in the common elements, votes in the association, and liabilities for common expenses pertaining to the subdivided unit immediately prior to the subdivision. With regard to any limited common elements assigned to the subdivided unit, the units created by the subdivision shall jointly share all rights and shall be liable equally for all obligations so that the total of the assessments therefor equals the total of the common expenses attributable to such limited common elements, except to the extent that the subdivider may have specified in his written application that all or any portion or portions of any limited common element assigned to the subdivided unit should be assigned exclusively to one or more, but less than all, of the units created by the subdivision, in which case the amendment to the declaration shall reflect the desires of the subdivider as expressed in the written application.
  4. Any plats or plans necessary to show the boundaries separating the units created by the subdivision, together with their other boundaries, shall be prepared; and the units created by the subdivision depicted thereon shall bear their identifying numbers. The plats or plans shall indicate the dimensions of the units created by the subdivision. The plats or plans shall be certified as to their accuracy and compliance with this subsection by a registered land surveyor in the case of any plat and by a registered architect or registered engineer in the case of any plan.
  5. When appropriate instruments in accordance with subsections (a) through (d) of this Code section have been prepared and executed by the association, they shall be delivered immediately to the subdivider upon payment by the subdivider of all reasonable costs for the preparation, execution, and recordation thereof. The instruments shall become effective when the subdivider and all mortgagees of the unit have executed them and they have been recorded. The recordation of such instruments shall be conclusive evidence that any reallocations made pursuant to subsection (c) of this Code section were reasonable and were approved by the board of directors.
  6. This Code section shall have no application to convertible spaces which shall be governed by Code Section 44-3-88.

    (Ga. L. 1975, p. 609, § 28; Ga. L. 1990, p. 227, § 6.)

44-3-93. Amendment of condominium instruments.

    1. Except to the extent expressly permitted or required by other provisions of this article, the condominium instruments shall be amended only by the agreement of unit owners of units to which two-thirds of the votes in the association pertain or such larger majority as the condominium instruments may specify; provided, however, that, during any such time as there shall exist an unexpired option to add any additional property to the condominium or during any such time as the declarant has the right to control the association pursuant to Code Section 44-3-101, the agreement shall be that of the declarant and the unit owners of units to which two-thirds of the votes in the association pertain, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant, or a larger majority as the condominium instruments may specify.
    2. Except to the extent expressly permitted or required by other provisions of this article, from and after July 1, 1990, no amendment of a condominium instrument shall require approval of unit owners  to which more than 80 percent of the association vote pertains and the mortgagees holding 80 percent of the voting interest of mortgaged units; provided, however, that the provisions of any condominium instruments in effect on July 1, 1990, which provide for a majority in excess of 80 percent shall not be affected or modified by the provisions of this paragraph if by July 1, 1991, the association and those mortgagees permitted to vote on amendments voted by the majority required for an amendment as specified in the condominium instrument to retain the existing requirements for amendments; and provided, further, if no such vote by the required majority occurred, those provisions requiring more than 80 percent shall be deemed to require only 80 percent of the voting interest.  The approval of any proposed amendment by a mortgagee shall be deemed implied and consented to if the mortgagee fails to submit a response to any written proposal for an amendment within 30 days after the mortgagee receives notice of the proposed amendment sent by certified or registered mail or statutory overnight delivery, return receipt requested.  This paragraph shall not be deemed to eliminate or modify any right of the declarant provided for in the condominium instruments to approve amendments to the condominium instruments so long as the declarant owns any unit primarily for the purpose of sale and, furthermore, this paragraph shall not be construed as modifying or altering the rights of a mortgagee set forth elsewhere in this article.
  2. If none of the units in the condominium is restricted exclusively to residential use, the condominium instruments may specify a majority smaller than the minimum specified by subsection (a) of this Code section.
  3. Except to the extent expressly permitted or required by other provisions of this article or agreed upon by all unit owners and the mortgagees of all condominium units, no amendment to the condominium instruments shall change the boundaries of any unit, the undivided interest in the common elements pertaining thereto, the number of votes in the association pertaining thereto, or the liability for common expenses pertaining thereto.
  4. Agreement of the required majority of unit owners to any amendment of the condominium instruments shall be evidenced by their execution of the amendment. In the alternative, provided that the declarant does not then have the right to control the association pursuant to Code Section 44-3-101, the sworn statement of the president, of any vice-president, or of the secretary of the association attached to or incorporated in an amendment executed by the association, which sworn statement states unequivocally that agreement of the required majority was otherwise lawfully obtained and that any notices required under this article were properly given, shall be sufficient to evidence the required agreement.  Any such amendment of the condominium instruments shall become effective only when recorded or at such later date as may be specified in the amendment itself.
  5. In any court suit or action where the validity of the adoption of an amendment to a condominium instrument is in issue, the adoption of the amendment shall be presumed valid if the suit is commenced more than one year after the recording of the amendment on the public record.  In such cases, the burden of proof shall be upon the party challenging the validity of the adoption of the amendment.

    (Ga. L. 1975, p. 609, § 29; Ga. L. 1982, p. 3, § 44; Ga. L. 1990, p. 227, § 7; Ga. L. 1991, p. 94, § 44; Ga. L. 1994, p. 1943, §§ 6, 7; Ga. L. 2000, p. 1589, § 4.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985).

JUDICIAL DECISIONS

Effect of recording condominium declaration. - Condominium declaration does not become an "instrument" until the declaration is recorded; before the declaration is recorded, O.C.G.A. § 44-3-111 , which sets forth the information that sellers are required to furnish buyers as well as the rights of buyers generally, applies to the transaction, not O.C.G.A. § 44-3-93(c) . Park Regency Ptnrs., L.P. v. Gruber, 271 Ga. App. 66 , 608 S.E.2d 667 (2004).

Rooftop terrace declared common element versus limited common element. - Trial court properly granted a condominium association and the association's board summary judgment and properly declared a tenth-floor rooftop terrace a common element for all unit owners in a suit involving a dispute over the terrace because the express terms of the original declaration designated the terrace as a common element. Further, an amendment stating otherwise that was signed by a former managing member, and not the association, no longer controlled since the former managing member's control ended by the time the declarant sought to amend the declaration to assign the entire fenced area of the tenth-floor rooftop terrace as a limited common element benefitting only the penthouse unit. Walker v. 90 Fairlie Condo. Ass'n, 290 Ga. App. 171 , 659 S.E.2d 412 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 5 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Validity and construction of condominium association's regulations governing members' use of common facilities, 72 A.L.R.3d 308.

44-3-94. Damage or destruction of units; restoration; vote not to restore; allocation of insurance deductible.

Unless otherwise provided in the condominium instruments, in the event of damage to or destruction of any unit by a casualty covered under insurance required to be maintained by the association pursuant to Code Section 44-3-107, the association shall cause the unit to be restored. Unless otherwise provided in the condominium instruments, any funds required for such restoration in excess of the insurance proceeds attributable thereto shall be paid by the unit owner of the unit; provided, however, that, in the event that the unit owner of the unit together with the unit owners of other units to which two-thirds of the votes in the association pertain agree not to restore the unit, the unit shall not be restored and the entire undivided interest in the common elements pertaining to that unit shall then pertain to the remaining units, to be allocated to them in proportion to their undivided interests in the common elements, and the remaining portion of that unit shall thenceforth be a part of the common elements. Votes in the association and liability for future common expenses shall thereupon pertain to the remaining units, being allocated to them in proportion to their relative voting strength in the association and liability for common expenses, respectively. To the extent provided for in the condominium instruments, the association may allocate equitably the payment of a reasonable insurance deductible between the association and the unit owners affected by a casualty against which the association is required to insure; provided, however, that the amount of deductible which can be allocated to any one unit owner shall not exceed $5,000.00 per casualty loss covered under any insurance required to be maintained by the association under this article. The existence of a reasonable deductible in any required insurance policy shall not be deemed a failure to maintain insurance as required by this Code section.

(Ga. L. 1975, p. 609, § 7; Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 227, § 8; Ga. L. 2004, p. 560, § 4; Ga. L. 2013, p. 890, § 1/HB 458.)

The 2013 amendment, effective July 1, 2013, substituted "$5,000.00" for "$2,500.00" near the end of the next-to-last sentence of this Code section.

JUDICIAL DECISIONS

Cited in Powers v. Jones, 185 Ga. App. 859 , 366 S.E.2d 234 (1988).

RESEARCH REFERENCES

ALR. - Liability of vendor of condominiums for damage occasioned by defective condition thereof, 50 A.L.R.3d 1071.

Proper party plaintiff in action for injury to common areas of condominium development, 69 A.L.R.3d 1148.

44-3-95. Effect of mortgages and liens; foreclosure; release.

  1. In the event of the foreclosure of any mortgage or lien which is subordinate to the declaration or from which any condominium unit has been released, the foreclosure shall not terminate the condominium; and, upon his purchase, the mortgagee, lienholder, or other purchaser at foreclosure shall become the owner of all condominium units which had not been released from the mortgage or lien prior to the purchase. In the event of the foreclosure of any mortgage or lien which is not subordinate to the declaration and from which no condominium unit has been released, the foreclosure of the mortgage or lien shall terminate the condominium unless the foreclosing mortgagee or lienholder subordinates to the declaration prior to foreclosure or forecloses subject to the declaration. For the purposes of this Code section, a lien for labor or services performed or for materials furnished in the improvement of property, either before or after it becomes submitted property, recorded upon the submitted property as a whole after the recordation of the declaration, shall be subordinate to the declaration.
  2. Any other provision of law to the contrary notwithstanding, liens for labor and services performed and for materials furnished for the improvement of property either before or after it becomes submitted property, which labor, services, and materials were performed or used in the original construction of any portion of a condominium or additional property of an expandable condominium, may be recorded against the submitted property as a whole; provided, however, that any such lien shall constitute a valid lien only against those units which have not been conveyed by the declarant to any person in a bona fide sale and purchase transaction prior to the recording of the lien. For those units which have been so conveyed, the lien shall be inapplicable and unenforceable.
  3. Subsequent to the creation of the condominium and as long as the submitted property remains subject to this article, no lien shall arise or, except as provided in subsections (a) and (b) of this Code section, be effective against the submitted property as a whole. During such period of submission to this article and except as provided in this subsection, liens or encumbrances shall arise or be created or effective only against each condominium unit in the same manner and under the same conditions in every respect as liens or encumbrances may arise or be created upon or be effective against any other separate parcel of real property subject to individual ownership; provided, however, that labor or services performed or materials furnished for improvement of the common elements, if duly authorized by the association, shall be deemed to be performed or furnished with the express consent of each unit owner and shall, if other applicable provisions of law are complied with and subject to the limitations thereof, create a lien upon all of the condominium units subject to subsection (d) of this Code section.
  4. In the event that any lien for labor or services performed or materials furnished for improvement of the common elements becomes effective subsequent to the creation of the condominium, any unit owner may remove that lien from his condominium unit by the payment of the amount attributable to his condominium unit. The amount shall be computed by reference to the liability for common expenses pertaining to that condominium unit pursuant to subsection (c) of Code Section 44-3-80. Subsequent to the payment, discharge, or other satisfaction, the unit owner of that condominium unit shall be entitled to have that lien released as to his condominium unit in accordance with applicable provisions of law; and, notwithstanding anything to the contrary in Code Sections 44-3-80 and 44-3-109, the association shall not assess or have a valid lien against that condominium unit for any portion of the common expenses incurred in connection with that lien.

    (Ga. L. 1975, p. 609, § 8.)

RESEARCH REFERENCES

ALR. - Enforceability of mechanic's lien attached to leasehold estate against landlord's fee, 74 A.L.R.3d 330.

44-3-96. Separate titles and taxation.

For all purposes, each condominium unit shall constitute a separate parcel of real property which shall be distinct from all other condominium units. If there is any unit owner other than the declarant, no tax or assessment shall be levied on the condominium as a whole but only on the individual condominium units.

(Ga. L. 1975, p. 609, § 4; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Cited in Powers v. Jones, 185 Ga. App. 859 , 366 S.E.2d 234 (1988).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, §§ 48-50. 71 Am. Jur. 2d, State and Local Taxation, § 21.

C.J.S. - 84 C.J.S., Taxation, § 494 et seq.

ALR. - Real estate taxation of condominiums, 71 A.L.R.3d 952.

44-3-97. Eminent domain; compensation; reallocation of interests; court determination; amendment to declaration.

  1. If any portion of the common elements is taken by eminent domain, the award therefor shall be allocated to the unit owners in proportion to their respective undivided interests in the common elements unless otherwise provided in the condominium instruments; provided, however, that the portion of the award attributable to the taking of any permanently assigned limited common element shall be allocated to the unit owner of the unit to which that limited common element was so assigned at the time of the taking. If any limited common element is permanently assigned to more than one unit at the time of the taking, the portion of the award attributable to the taking thereof shall be allocated in equal shares to the unit owners of the units to which it was so assigned or in such other shares as the declaration may specify for this purpose.
  2. If one or more units are taken by eminent domain, the undivided interest in the common elements pertaining to any such units shall then pertain to the remaining units to be allocated to them in proportion to their respective undivided interests in the common elements. The court shall enter a decree reflecting the reallocation of undivided interests produced thereby; and the award shall include, without limitation, just compensation to the unit owner of any unit taken for his undivided interest in the common elements as well as for his unit.
  3. If a portion of any unit is taken by eminent domain, the court shall determine the fair market value of the portion of such unit not taken; and the undivided interest in the common elements pertaining to any such unit shall be reduced, in the case of each such unit, in proportion to the diminution in the fair market value of such unit resulting from the taking. The portion of undivided interest in the common elements thereby divested from the unit owner of any such unit shall be reallocated among that unit and the other units in the condominium in proportion to their respective undivided interests in the common elements. Any units partially taken shall participate in such reallocation on the basis of their undivided interests as reduced in accordance with the preceding sentence. The court shall enter a decree reflecting the reallocation of undivided interests produced thereby; and the award shall include, without limitation, just compensation to the unit owner of any unit partially taken for that portion of his undivided interest in the common elements divested from him by operation of the first sentence of this subsection and not revested in him by operation of the second sentence of this subsection as well as for that portion of his unit taken by eminent domain.
  4. If the taking of a portion of any unit makes it impractical to use the remaining portion of that unit for the primary purpose permitted by the condominium instruments, the entire undivided interest in the common elements pertaining to that unit shall then pertain to the remaining units, to be allocated to them in proportion to their respective undivided interests in the common elements, and the remaining portion of that unit shall thenceforth be a part of the common elements. The court shall enter a decree reflecting the reallocation of the undivided interests produced thereby; and the award shall include, without limitation, just compensation to the unit owner of such unit for his entire undivided interest in the common elements and for his entire unit.
  5. Votes in the association and liability for future common expenses pertaining to any unit or units taken or partially taken by eminent domain shall then pertain to the remaining units, to be allocated to them in proportion to their relative voting strength in the association and liability for common expenses, respectively, with any unit partially taken participating in such reallocation as though its voting strength and its liability for common expenses in the association had been reduced in proportion to the reduction in its undivided interest in the common elements and the decree of the court shall provide accordingly.
  6. Any or all of the matters which, under this Code section, are prescribed for the determination of the court may instead be resolved by amendment to the declaration agreed to by unit owners to which more than 50 percent of the votes in the association pertain, including the unit owner of all units wholly or partially taken, or to which there is appurtenant any permanently assigned limited common element wholly or partially taken, together with the mortgagee of each such unit.

    (Ga. L. 1975, p. 609, § 6.)

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Eminent Domain, § 220 et seq.

Condemnation of Rural Property for Highway Purposes, 8 Am. Jur. Trials 57.

Condemnation of Urban Property, 11 Am. Jur. Trials 189.

Condemnation of Easements, 22 Am. Jur. Trials 743.

Landowner's Evidence of Market Value in Eminent Domain Proceeding, 60 Am. Jur. Trials 447.

Condemnation of Leasehold Interests, 96 Am. Jur. Trials 211.

C.J.S. - 29A C.J.S., Eminent Domain, § 100 et seq.

44-3-98. Termination of condominium; creation of tenancy in common; distribution of assets; transfer of mortgages and liens.

  1. The condominium shall be terminated only by the agreement of unit owners of units to which four-fifths of the votes in the association pertain and all mortgagees of such units or such larger majority as the condominium instruments may specify; provided, however, that during such times, if any, as there shall exist an unexpired option to add any additional property to the condominium or during such time, if any, as the declarant has the right to control the association pursuant to Code Section 44-3-101, the agreement shall be that of the declarant and the unit owners of units to which four-fifths of the votes in the association pertain, exclusive of any vote or votes appurtenant to any unit or units then owned by the declarant, and the mortgagees of those units or the larger majority that the condominium instruments may specify.
  2. If none of the units in the condominium are restricted exclusively to residential use, the condominium instruments may specify a majority smaller than the minimum specified by subsection (a) of this Code section.
  3. Agreement of the required majority of unit owners and their mortgagees to termination of the condominium shall be evidenced by their execution of a termination agreement. Any termination agreement shall become effective only when recorded or at such later date as may be specified therein. For the purposes of this Code section, a termination agreement shall be deemed a condominium instrument subject to Code Section 44-3-74.
  4. Upon the effective date of a termination agreement, all of the property constituting the condominium shall be owned by the unit owners as tenants in common and shall be in proportion to their respective undivided interests in the common elements immediately prior to the effective date. As long as the tenancy in common lasts, however, each unit owner and his heirs, representatives, successors, and assigns shall have the same right of occupancy and use of that portion of the property which formerly constituted his unit and the limited common elements appurtenant thereto, if any, as existed immediately prior to termination and a nonexclusive right to use that portion of the property which formerly constituted common elements other than limited common elements.
  5. Upon the effective date of a termination agreement, any rights the unit owners may have to the assets of the association shall be in proportion to their respective undivided interests in the common elements immediately prior to the effective date; and any distribution thereof to the unit owners shall be to such owners and to their mortgagees as their interests may appear.
  6. Upon the effective date of a termination agreement, mortgages and liens affecting each unit shall be deemed to be transferred, in accordance with their existing priorities, to the undivided interest of the unit owner in the property which formerly constituted the condominium.
  7. After the effective date of a termination agreement and except as otherwise expressly provided in this Code section, the property which formerly constituted the condominium and the rights and obligations of the former unit owners with respect thereto shall be subject to and governed by the laws of this state pertaining to tenancies in common for as long as the tenancy in common lasts.

    (Ga. L. 1975, p. 609, § 30; Ga. L. 1982, p. 3, § 44.)

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 51 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

44-3-99. Withdrawal of submitted property; reallocation to remaining units of undivided interest in common elements; contents of amendment; transfer of mortgages and liens.

  1. Unless the condominium instruments expressly prohibit the withdrawal of any submitted property from the condominium, submitted property may be withdrawn but only in accordance with this Code section and any restrictions or limitations which the condominium instruments may specify, the property being withdrawn hereinafter being referred to as the "withdrawn property"; provided, however, that no unit or limited common element may be withdrawn in part.
  2. Submitted property may be withdrawn from the condominium only by an amendment to the condominium instruments agreed to by the following required persons:
    1. The owner of each unit which is being withdrawn;
    2. The owner of each unit to which pertains any limited common element which is being withdrawn;
    3. The declarant, if, at the time of the withdrawal there shall exist any unexpired option to add any additional property to the condominium, or if, at the time of the withdrawal, the declarant has the right to control the association pursuant to Code Section 44-3-101;
    4. The owners of the units to which pertain four-fifths of the votes in the association or such larger majority as may be specified in the condominium instruments, exclusive of the votes appertaining to the units owned by the persons required in paragraphs (1) through (3) of this subsection. If none of the units in the condominium are restricted exclusively to residential use, the condominium instruments may specify a majority smaller than four-fifths; and
    5. Each mortgagee of the units owned by the required persons set forth in paragraphs (1) through (4) of this subsection.
  3. If the withdrawn property includes any unit, the amendment effectuating the withdrawal shall specify the reallocation to the remaining units of the undivided interest in the common elements, the number of votes in the association, and the share of liability for common expenses pertaining to the unit or units being withdrawn. The reallocation of each item shall be in proportion to the allocation of the item among the remaining units immediately prior to the effectuation of the withdrawal.
  4. If the withdrawn property does not include any unit or any limited common element, the withdrawn property shall, upon the effective date of the amendment, be owned by the unit owners as tenants in common in proportion to their respective undivided interest in the common elements immediately prior to the effective date.
  5. If any unit or any limited common element is included in the withdrawn property, the amendment shall allocate to the owner of each such unit or of each unit to which each such limited common element pertains, as the case may be, an undivided interest in the withdrawn property in consideration for the withdrawal of the unit or limited common element. The remaining undivided interest in the withdrawn property shall be allocated among the unit owners, including the owners of any unit or units to which there are appurtenant limited common elements which are being withdrawn, in proportion to their respective undivided interests in the common elements immediately preceding the effective date of the amendment.
  6. The amendment to the declaration effectuating the withdrawal of submitted property shall be executed by those persons whose agreement thereto is required under subsection (b) of this Code section and shall include:
    1. A legal description by metes and bounds of the withdrawn property;
    2. A legal description by metes and bounds of the remaining submitted property;
    3. The effective date of the amendment if subsequent to the date of recording the amendment;
    4. The undivided interest in the withdrawn property being allocated to each unit owner; and
    5. The undivided interest in the common elements, the number of votes in the association, and the share of liability for common expenses pertaining to each unit remaining in the condominium.

      The amendment shall become effective only when it and all plats required in connection therewith under subsection (e) of Code Section 44-3-83 shall have been recorded or at such later date as may be specified therein.

  7. Upon the effective date of the amendment, the withdrawn property shall be owned by the unit owners as tenants in common having the undivided interests set forth in the amendment. As long as the tenancy in common lasts, however, each unit owner and his heirs, representatives, successors, and assigns shall have the same right of occupancy and use of that portion of the withdrawn property which formerly constituted his unit and the limited common elements appurtenant thereto, if any, as existed immediately prior to the withdrawal and a nonexclusive right to use that portion of the withdrawn property which formerly constituted common elements other than limited common elements.
  8. Upon the effective date of the amendment, mortgages and liens of unit owners theretofore affecting any portion of the withdrawn property shall, regarding the withdrawn property, be deemed to be transferred in accordance with their existing priorities to the undivided interests of the respective owners in the withdrawn property. Mortgages and liens of the unit owners theretofore affecting any portion of the remaining submitted property shall, regarding such remaining submitted property, not be affected by the withdrawal and shall continue in full force and effect; provided, however, that, in the case of mortgages or liens theretofore affecting only a condominium unit or units which are included within the withdrawn property, the lien of such mortgage or lien shall be transferred wholly to the undivided interest of the owner or owners of such unit or units in the withdrawn property, including both the undivided interest allocated in consideration of the withdrawal of said units and the undivided interest allocated in common to all unit owners, and the lien of such mortgage or lien shall not thereafter affect or be applicable to any portion of the remaining submitted property.
  9. After the effective date of the amendment and except as otherwise expressly provided in this Code section, the withdrawn property and the rights and obligations of the unit owners with respect thereto shall be subject to and governed by the laws of this state pertaining to tenancies in common for as long as the tenancy in common lasts.

    (Ga. L. 1975, p. 609, § 31.)

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 53 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenants, § 232.

44-3-100. Incorporation of association; name; articles and bylaws; membership; organization.

  1. Prior to recording the declaration, the declarant shall cause the association to be duly incorporated either as a business corporation under Chapter 2 of Title 14 or as a nonprofit membership corporation under Chapter 3 of Title 14. The corporate name of the association shall include the phrase "unit owners' association" or the phrase "condominium association" and shall otherwise comply with applicable laws regarding corporate names. The articles of incorporation of the association and the bylaws adopted by the association shall contain provisions not inconsistent with applicable law, including, but not limited to, this article, or with the declaration, as may be required by this article or by the declaration and as may be deemed appropriate or desirable for the proper management and administration of the association. Each unit owner shall automatically be a member of the association. The term "member" shall include a shareholder in the event the association is a business corporation or issues stock. Membership shall continue during the period of ownership by such unit owner.
  2. Prior to the first conveyance of a condominium unit, the declarant shall cause the first board of directors to be duly appointed, the officers to be elected, and the organization of the association to be effectuated.
  3. True and correct copies of the articles of incorporation and bylaws of the association and all amendments thereto shall be maintained at the principal and the registered offices of the association and at the sales office of the declarant so long as the declarant has the right to control the association pursuant to Code Section 44-3-101; and copies thereof shall be furnished to any unit owner on request upon payment of a reasonable charge therefor.

    (Ga. L. 1975, p. 609, § 32.)

Law reviews. - For article, "Georgia Condominium Law: Beyond the Condominium Act," see 13 Ga. St. B.J. 24 (2007).

JUDICIAL DECISIONS

Cited in Equitable Life Assurance Soc'y v. Tinsley Mill Village, 249 Ga. 769 , 294 S.E.2d 495 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 18 Am. Jur. 2d, Corporations, § 44 et seq. 18A Am. Jur. 2d, Corporations, § 228 et seq.

C.J.S. - 7 C.J.S., Associations, § 106 et seq.

ALR. - Adequacy and application of guidelines relating to condominium association's requisite approval of individual unit owner's improvement or decoration, 25 A.L.R.4th 1059.

44-3-101. Control of association by declarant; surrender of control to unit owners; liability for books and records; cancellation of leases and contracts.

  1. If provided for in the condominium instruments and subject to any limitations contained in the condominium instruments, the association's articles of incorporation, the association's bylaws, or this article with respect thereto, the declarant shall be authorized to appoint and remove any member or members of the board of directors and any officer or officers of the association. The declarant's authority to appoint and remove members of the board of directors and officers of the association shall in no event extend beyond and shall in all cases expire immediately upon the occurrence of any of the following:
    1. The expiration of any time limit specified for such purpose in the condominium instruments, which time limit may not be enlarged or extended after the conveyance by the declarant of a condominium unit without the express consent of all unit owners;
    2. Unless the declarant at that time has an unexpired option to add additional property, the date as of which units to which four-fifths of the undivided interests in the common elements pertain shall have been conveyed by the declarant to unit owners other than a person or persons constituting the declarant;
    3. The expiration of seven years after the recording of the declaration in the case of an expandable condominium or the expiration of three years after the recording of the declaration in the case of any other type of condominium; or
    4. The surrender by the declarant of the authority to appoint and remove members of the board of directors and officers of the association by an express amendment to the declaration which is executed and recorded by the declarant.

      No formal or written proxy or power of attorney need be required of the unit owners to vest such authority to appoint and remove members of the board of directors and officers of the association in the declarant, the acceptance of a conveyance of a condominium unit being wholly sufficient for such purpose.

  2. Upon the expiration of the period of the declarant's right to control the association pursuant to subsection (a) of this Code section, the right to control shall automatically pass to the unit owners, including the declarant if the declarant then owns one or more condominium units. The declarant shall be jointly responsible and liable with the members of the board of directors and the officers of the association to the unit owners for ensuring that the books, records, and accounts of the association are in proper order, that the association is in good standing under the laws of this state, and that the affairs of the association have been conducted in a prudent and businesslike manner, all as of the date upon which the declarant's right to control the association expires. The declarant shall not be insulated against liability to the unit owners because any act, omission, or matter complained of during such period of control may have been done, omitted, or permitted by or on behalf of the association as a corporate entity. Nothing contained in this Code section shall make any successor to the declarant responsible or subject to liability by operation of law or through the purchase of the declarant's interest in the property or any part thereof at foreclosure for any act, omission, or matter occurring or arising from any act, omission, or matter occurring prior to the time the successor succeeded to the interest of the declarant.
    1. Notwithstanding and prior to the usual expiration of the period of the declarant's right to control the association pursuant to subsection (a) of this Code section and notwithstanding any provision to the contrary in any condominium instruments, the association's articles of incorporation, or the association's bylaws, the right to control also may pass to the unit owners as provided in this subsection if the declarant fails to do any of the following:
      1. Incorporate or maintain an annual registration pursuant to subsection (a) of Code Section 44-3-100;
      2. Cause the board of directors to be duly appointed and the officers to be elected pursuant to subsection (b) of Code Section 44-3-100;
      3. Maintain and make available to owners, upon written request, a list of the names and business or home addresses of the association's current directors and officers;
      4. Call meetings of the members of the association in accordance with the provisions of the association's bylaws at least annually pursuant to Code Section 44-3-102;
      5. Prepare an annual operating budget, establish the annual assessment, and distribute such budget and notice of assessment to the owners in accordance with the condominium instruments no later than 30 days after the beginning of the association's fiscal year; or
      6. Pay property taxes on common property of the condominium for two or more years.
    2. In the event that the declarant fails to meet one or more of the obligations of this subsection, then any owner, acting individually or jointly with other owners, may send the declarant written notice of the failure to comply with such requirements and provide the declarant a 30 day opportunity to cure the failure; and such notice shall be sent by certified mail or statutory overnight delivery to the declarant's principal office. If the declarant fails to cure any or all deficiencies identified in the notice within 30 days of such notice, then any owner, acting individually or jointly with other owners, shall have standing individually, and not solely through a derivative action, to institute an action in the superior court of the county in which any portion of the condominium is located in order to obtain a declaratory judgment to grant the owner or owners control of the association by ordering an election and setting the terms thereof, or issuing any other orders appropriate to transfer control of the association. The superior court shall have authority to hold a hearing and issue a summary ruling on said action at any time designated by the court not earlier than 20 days after the service thereof, unless the parties consent in writing to an earlier trial. No discovery shall be had unless ordered by the court for good cause. In addition, the superior court shall be authorized to issue a summary ruling on the conveyance of any intended common areas or other property in the common interest community to the association or other appropriate entity. If the owner or owners prevail in such action, then the superior court shall award to the owner or owners all reasonable attorney's fees and costs incurred for the prosecution of such action. This subsection shall not be the basis for any liability against any party or agent of any party outside of the exclusive remedies provided herein.
  4. In addition to any right of termination set forth therein, any management contract, any lease of recreational area or facilities, or any other contract or lease executed by or on behalf of the association during the period of the declarant's right to control the association pursuant to subsection (a) of this Code section shall be subject to cancellation and termination at any time during the 12 months following the expiration of such control period by the affirmative vote of the unit owners of units to which a majority of the votes in the association pertain, unless the unit owners by a like majority shall have theretofore, following the expiration of such control period, expressly ratified and approved the same.

    (Ga. L. 1975, p. 609, § 33; Ga. L. 1990, p. 227, § 9; Ga. L. 2012, p. 1031, § 1/SB 136; Ga. L. 2017, p. 352, § 3/SB 46.)

The 2012 amendment, effective July 1, 2012, added subsection (c) and redesignated former subsection (c) as present subsection (d).

The 2017 amendment, effective July 1, 2017, substituted the present provisions of subsection (c) for the former provisions, which read: "Notwithstanding and prior to the usual expiration of the period of the declarant's right to control the association pursuant to subsection (a) of this Code section, the right to control also may pass to the unit owners as provided in this subsection if the declarant fails to do any of the following: (1) incorporate the association pursuant to subsection (a) of Code Section 44-3-100; (2) cause the board of directors to be duly appointed and the officers to be elected pursuant to subsection (b) of Code section 44-3-100; (3) maintain and make available to owners, upon written request, a list of the names and business or home addresses of the association's current directors and officers; (4) call meetings of the members of the association in accordance with the provisions of the association's bylaws at least annually pursuant to Code Section 44-3-102; or (5) prepare an annual operating budget and establish the annual assessment and distribute the budget and notice of assessment to the owners in accordance with the condominium instruments no later than 30 days after the beginning of the association's fiscal year. In the event that the declarant fails to meet one or more of the obligations of this subsection, then any owner, acting individually or jointly with other owners, may send the declarant written notice of the failure to comply with such requirements and provide the declarant a 30 day opportunity to cure the failure; and such notice shall be sent by certified mail or statutory overnight delivery to the declarant's principal office. If the declarant fails to cure any or all deficiencies identified in the notice within 30 days of such notice, then any owner, acting individually or jointly with other owners, may file a petition in the superior court of the county in which any portion of the condominium is located in order to obtain an order to grant the owners control of the association. The superior court shall have authority to hold a hearing and issue a summary ruling on said petition at any time designated by the court not earlier than 20 days after the service thereof, unless the parties consent in writing to an earlier trial. If the owners prevail in such action, then the superior court shall award to the owners all reasonable attorney's fees and costs incurred by the owners for the prosecution of such action."

Law reviews. - For annual survey on construction law, see 66 Mercer L. Rev. 27 (2014).

JUDICIAL DECISIONS

Conditional termination not permitted. - Nothing in O.C.G.A. § 44-3-101(c) permits any "conditional termination," one which may ripen eventually, upon which termination would be effective as of some prior date; although the time limitation in O.C.G.A. § 44-3-101(c) is not a statute of limitation, it serves an analogous function in that it establishes a limited period beyond which an association loses its right thereunder to terminate contracts. Capitol Infrastructure, LLC v. Plaza Midtown Residential Condo. Ass'n, 306 Ga. App. 794 , 702 S.E.2d 910 (2010).

Rooftop terrace declared common element versus limited common element. - Trial court properly granted a condominium association and the association's board summary judgment and properly declared a tenth-floor rooftop terrace a common element for all unit owners in a suit involving a dispute over the terrace because the express terms of the original declaration designated the terrace as a common element. Further, an amendment stating otherwise that was signed by a former managing member, and not the association, no longer controlled since the former managing member's control ended by the time the declarant sought to amend the declaration to assign the entire fenced area of the tenth-floor rooftop terrace as a limited common element benefitting only the penthouse unit. Walker v. 90 Fairlie Condo. Ass'n, 290 Ga. App. 171 , 659 S.E.2d 412 (2008).

Termination of telecommunications contract. - Superior court's judgment declaring that an agreement between a condominium association and a telecommunications company was subject to termination by the association pursuant to O.C.G.A. § 44-3-101 was vacated because the 12-month period of O.C.G.A. § 44-3-101 (c) expired without the association having terminated any telecommunications contract, rendering the issue in its declaratory judgment action moot, and the declaratory judgment upon a moot issue was not authorized under the Declaratory Judgment Act, O.C.G.A. § 9-4-1 et seq.; by the time the superior court issued the declaratory judgment, the statutory period of O.C.G.A. § 44-3-101(c) had expired, and any right the association had to cancel and terminate contracts under that statute expired. Capitol Infrastructure, LLC v. Plaza Midtown Residential Condo. Ass'n, 306 Ga. App. 794 , 702 S.E.2d 910 (2010).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 5 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

44-3-102. Meetings of the association; notice; reports.

Meetings of the members of the association shall be held in accordance with the provisions of the association's bylaws and in any event shall be called not less frequently than annually. A condominium instrument recorded on or after July 1, 1990, shall also provide for the calling of a meeting upon the written request of at least 15 percent of the unit owners. Notice shall be given to each unit owner at least 21 days in advance of any annual or regularly scheduled meeting and at least seven days in advance of any other meeting and shall state the time, place, and purpose of such meeting. Such notice shall be delivered personally, sent by United States mail, postage prepaid, statutory overnight delivery, or issued electronically in accordance with Chapter 12 of Title 10, the "Uniform Electronic Transactions Act," to all unit owners of record at such address or addresses as any of them may have designated or, if no other address has been so designated, at the address of their respective units. At the annual meeting, comprehensive reports of the affairs, finances, and budget projections of the association shall be made to the unit owners.

(Ga. L. 1975, p. 609, § 34; Ga. L. 1990, p. 227, § 10; Ga. L. 2004, p. 560, § 5; Ga. L. 2009, p. 698, § 2/HB 126.)

The 2009 amendment, effective July 1, 2009, substituted "Uniform Electronic Transactions Act" for "Georgia Electronic Records and Signatures Act" in the middle of the fourth sentence.

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, §§ 11, 39 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

44-3-103. Quorums at meetings of association or board.

Unless the condominium instruments or bylaws provide otherwise, a quorum shall be deemed present throughout any meeting of the members of the association if persons entitled to cast more than one-third of the votes are present at the beginning of the meeting. Unless the condominium instruments or bylaws specify a larger percentage, the presence of persons entitled to cast one-half of the votes of the board of directors shall constitute a quorum for the transaction of any business at any meeting of the board.

(Ga. L. 1975, p. 609, § 35; Ga. L. 1994, p. 1943, § 8; Ga. L. 2004, p. 560, § 6.)

JUDICIAL DECISIONS

Proxies not counted in determining quorum. - Trial court properly held that proxies were not counted in determining whether a quorum was present for a meeting of condominium owners because: (1) the word "member" in a bylaw referred to an individual and not to a proxy authorizing one person to act for another; (2) O.C.G.A. § 44-3-103 affirmed the common law rule requiring the presence of a person entitled to cast a vote to establish a quorum, unless condominium instruments or bylaws provided otherwise; and (3) the condominium association's bylaws did not provide otherwise. Demere Landing Condo. Owners Ass'n v. Matthews, 315 Ga. App. 464 , 726 S.E.2d 416 (2012).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 11.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

44-3-104. Directors and officers; eligibility.

If the condominium instruments provide that any member of the board of directors or any officer of the association must be a unit owner, then, notwithstanding paragraph (1) of subsection (a) of Code Section 44-3-75, the term "unit owner" in such context shall, unless the condominium instruments otherwise provide, be deemed to include, without limitation, any shareholder, director, officer, partner in, or trustee of any person who is, either alone or in conjunction with any other person or persons, a unit owner. Any individual who would not be eligible to serve as a member of the board of directors or officer were he not a shareholder, director, officer, partner in, or trustee of such a person shall be deemed to have disqualified himself from continuing in office if he ceases to have any such affiliation with that person.

(Ga. L. 1975, p. 609, § 36.)

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 24 et seq.

C.J.S. - 19 C.J.S., Corporations, §§ 532, 533.

44-3-105. Powers and duties as to upkeep of the condominium; access; liability for damage.

Except to the extent otherwise provided by the condominium instruments, all powers and responsibilities with regard to maintenance, repair, renovation, restoration, and replacement shall pertain to the association in the case of the common elements other than limited common elements and to the individual unit owner in the case of any unit and the limited common elements, if any, appurtenant thereto. Each unit owner shall afford to the other unit owners, to the association, and to any agents or employees of either such access through his unit as may be reasonably necessary to enable them to exercise and discharge their respective powers and responsibilities. To the extent that damage is inflicted on the common elements, including, without limitation, limited common elements, or on any unit through which access is taken, the association or unit owner occasioning the same, whether by itself or himself or through agents, employees, or others, shall be liable for the prompt repair thereof.

(Ga. L. 1975, p. 609, § 37.)

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985).

JUDICIAL DECISIONS

Freedom of parties to contract. - Condominium association's duty to the association's members only pursuant to O.C.G.A. § 51-3-1 with regard to the common elements of a condominium property may be circumscribed by the terms of the condominium instruments/contract, and a court must look to the terms of the contract, as well as O.C.G.A. § 44-3-70 et seq., in order to determine an association's duties. In that regard, it is the paramount public policy of Georgia that courts will not lightly interfere with the freedom of parties to contract as a contracting party may waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest. Bradford Square Condo. Ass'n v. Miller, 258 Ga. App. 240 , 573 S.E.2d 405 (2002).

Upkeep didn't include security from third party criminal acts. - Like other statutes which are in derogation of the common law, the Georgia Condominium Act (the Act), O.C.G.A. § 44-3-70 et seq., must be strictly construed and limited to its explicit terms, and, in that regard, the Act does not in any fashion speak to providing security from third party criminal acts as a part of a condominium's "upkeep," meaning maintenance, repair, renovation, restoration, and replacement. Bradford Square Condo. Ass'n v. Miller, 258 Ga. App. 240 , 573 S.E.2d 405 (2002).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 33.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Right of condominium association's management or governing body to inspect individual units, 41 A.L.R.4th 730.

44-3-106. Powers and responsibilities of association; tort actions.

  1. Except to the extent prohibited by the condominium instruments and subject to any restrictions and limitations specified therein, the association shall have the power to:
    1. Employ, retain, dismiss, and replace agents and employees to exercise and discharge the powers and responsibilities of the association;
    2. Make or cause to be made additional improvements on and as a part of the common elements; and
    3. Grant or withhold approval of any action by one or more unit owners or other persons entitled to occupancy of any unit if such action would change the exterior appearance of any unit or of any other portion of the condominium or elect or provide for the appointment of an architectural control committee to grant or withhold such approval.
  2. Except to the extent prohibited by the condominium instruments and subject to any restrictions and limitations specified therein, the association shall have the irrevocable power, as attorney in fact on behalf of all unit owners and their successors in title, to grant easements, leases, and licenses through or over the common elements, to accept easements, leases, and licenses benefiting the condominium or any portion thereof, and to acquire or lease property in the name of the association as nominee for all unit owners. Property so acquired by the association as nominee for the unit owners, upon the recordation of the deed thereto or other instrument granting the same, shall automatically and without more, and for all purposes, including, without limitation, taxation, be a part of the common elements. The association shall also have the power to acquire, lease, and own in its own name property of any nature, real, personal, or mixed, tangible or intangible; to borrow money; and to pledge, mortgage, or hypothecate all or any portion of the property of the association for any lawful purpose within the association's inherent or expressly granted powers. Any third party dealing with the association shall be entitled to rely in good faith upon a certified resolution of the board of directors of the association authorizing any such act or transaction as conclusive evidence of the authority and power of the association so to act and of full compliance with all restraints, conditions, and limitations, if any, upon the exercise of such authority and power.  The provisions of Code Section 44-2-2 notwithstanding, any such actions taken by the association as attorney in fact on behalf of all unit owners and their successors in title shall be effective record notice to third parties if recorded in the name of the association as that name is reflected in the recorded declaration or any recorded amendments thereto.  Such recorded document shall not require a listing of the names of the unit owners or their successors in title or assigns.
  3. The association shall have the power to amend the condominium instruments, the articles of incorporation, and the bylaws of the association or any of them in such respects as may be required to conform to mandatory provisions of this article or of any other applicable law without a vote of the unit owners.
  4. In addition to any other duties and responsibilities as this article or the condominium instruments may impose, the association shall keep:
    1. Detailed minutes of all meetings of the members of the association and of the board of directors;
    2. Detailed and accurate financial records, including itemized records of all receipts and expenditures; and
    3. Any books and records as may be required by law or be necessary to reflect accurately the affairs and activities of the association.
  5. This Code section shall not be construed to prohibit the grant or imposition of other powers and responsibilities to or upon the association by the condominium instruments.
  6. Except to the extent otherwise expressly required by this article, by Chapter 2 or 3 of Title 14, by the condominium instruments, by the articles of incorporation, or by the bylaws of the association, the powers inherent in or expressly granted to the association may be exercised by the board of directors, acting through the officers, without any further consent or action on the part of the unit owners.
  7. A tort action alleging or founded upon negligence or willful misconduct by any agent or employee of the association or in connection with the condition of any portion of the condominium which the association has the responsibility to maintain shall be brought against the association. No unit owner shall be precluded from bringing such an action by virtue of his ownership of an undivided interest in the common elements or by virtue of his membership in the association. A judgment against the association arising from a tort action shall be a lien against the property of the association.
  8. The association shall have the capacity, power, and standing to institute, intervene in, prosecute, represent in, or defend, in its own name, litigation, administrative or other proceedings of any kind concerning claims or other matters relating to any portions of the units or common elements which the association has the responsibility to administer, repair, or maintain; and such capacity, power, and standing shall not be waived, abridged, modified, or removed by any provision of any contract or document, including the condominium instruments, that were recorded, entered into, or established prior to the expiration of the period of the declarant's right to control the association as set forth in subsection (a) of Code Section 44-3-101.
  9. This Code section shall not alter, modify, or remove the association's obligation to comply with Part 2A of Article 1 of Chapter 2 of Title 8.

    (Ga. L. 1975, p. 609, § 38; Ga. L. 1990, p. 227, § 11; Ga. L. 1994, p. 1943, § 9; Ga. L. 2014, p. 212, § 1/HB 820.)

The 2014 amendment, effective July 1, 2014, added the language beginning with "; and such capacity" and ending with "Code Section 44-3-101" at the end of subsection (h) and added subsection (i).

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985). For annual survey on construction law, see 66 Mercer L. Rev. 27 (2014).

JUDICIAL DECISIONS

Upkeep didn't include security from third party criminal acts. - Like other statutes which are in derogation of the common law, the Georgia Condominium Act (the Act), O.C.G.A. § 44-3-70 et seq., must be strictly construed and limited to its explicit terms, and, in that regard, the Act does not in any fashion speak to providing security from third party criminal acts as a part of a condominium's "upkeep," meaning maintenance, repair, renovation, restoration, and replacement. Bradford Square Condo. Ass'n v. Miller, 258 Ga. App. 240 , 573 S.E.2d 405 (2002).

Approval of actions of owners. - Paragraph (a)(3) of O.C.G.A. § 44-3-106 constitutes a delegation of authority to the condominium association and must be construed strictly against the party seeking to restrict the use of property. Piccadilly Place Condominium Ass'n v. Frantz, 210 Ga. App. 676 , 436 S.E.2d 728 (1993).

Installation of burglar bars on the interior of the windows of a condominium unit did not constitute alteration of the exterior of the unit within the prohibition of paragraph (a)(3) of O.C.G.A. § 44-3-106 . Piccadilly Place Condominium Ass'n v. Frantz, 210 Ga. App. 676 , 436 S.E.2d 728 (1993).

Standing of association to sue. - An amendment to a condominium declaration removing a prohibition against the condominium association's filing suits for damages based on condominium defects did not confer standing on the association to sue for damages based on alleged defects in the construction of the condominium's common areas since the amendment was made after the suit was filed. Phoenix on Peachtree Condo. Ass'n v. Phoenix on Peachtree, LLC, 294 Ga. App. 447 , 669 S.E.2d 229 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, §§ 44, 56 et seq.

C.J.S. - 7 C.J.S., Associations, § 71 et seq.

ALR. - Liability of condominium association or corporation for injury allegedly caused by condition of premises, 45 A.L.R.3d 1171.

Proper party plaintiff in action for injury to common areas of condominium development, 69 A.L.R.3d 1148.

Self-dealing by developers of condominium project as affecting contracts or leases with condominium association, 73 A.L.R.3d 613.

Expenses for which condominium association may assess unit owners, 77 A.L.R.3d 1290.

Construction of contractual or state regulatory provisions respecting formation, composition, and powers of governing body of condominium association, 13 A.L.R.4th 598.

Condominium association's liability to unit owner for injuries caused by third person's criminal conduct, 59 A.L.R.4th 489.

44-3-107. Insurance coverage.

  1. The association shall obtain:
    1. A property insurance policy or policies affording fire and extended coverage insurance for and in an amount consonant with the full insurable replacement cost, less deductibles, of all buildings and structures within the condominium. Regardless of the boundaries of the condominium units, the insurance required by this paragraph shall include, without limitation, all portions of each building which are common elements including limited common elements, all foundations, roofs, roof structures, and exterior walls, including windows and doors and the framing therefor, and all convertible space within the building. Such insurance shall cover the following items with respect to each condominium unit regardless of who is responsible for maintaining them under the condominium instruments:
      1. The HVAC system serving the condominium unit;
      2. All Sheetrock and plaster board comprising the walls and ceilings of the condominium unit; and
      3. The following items within the condominium unit of the type and quality initially installed, or replacements thereof of like kind and quality in accordance with the original plans and specifications, or as they existed at the time the condominium unit was initially conveyed if the original plans and specifications are not available: floors and subfloors; wall, ceiling, and floor coverings; plumbing and electrical lines and fixtures; built-in cabinetry and fixtures; and appliances used for refrigeration, cooking, dishwashing, and laundry.

        Unless otherwise provided in the declaration, with respect to unfinished shell units conveyed by the declarant, the items in subparagraph (C) of this paragraph shall be insured by the condominium unit owner and the coverage required by this paragraph shall repair or reconstruct only those portions of the shell unit constructed by the declarant. With respect to any condominium units which have not been conveyed by the declarant at the time of an insured loss, the coverage required by this paragraph shall repair or reconstruct such units as they exist at the time of such loss. The association may exclude from coverage required by this paragraph improvements made by the condominium unit owners and structures covered by builder's risk insurance, such coverage to be in an amount consonant with the full replacement value thereof, but only during such period of time as the builder's risk insurance remains in full force and effect and only on the condition that the association is named as an additional named insured;

    2. A commercial general liability insurance policy or policies affording coverage for bodily injury and property damage in an amount not less than $1 million for a single occurrence and $2 million aggregate. The policy or policies shall cover the association, the board of directors and the officers of the association, all agents and employees of the association, and all unit owners and other persons entitled to occupy any unit or other portion of the condominium for occurrences commonly insured against arising out of or in connection with the use, ownership, or maintenance of the common elements or other portion of the condominium which the association has the responsibility to maintain; and
    3. Any additional types and amounts of insurance coverage as may be specified in the condominium instruments.
  2. The association may obtain additional types and amounts of insurance as may be authorized by the board of directors.
  3. In the event of a potential or submitted claim related to water damage or water peril on any insurance policy obtained by:
    1. An association, and upon written request by a unit owner to the association, the association or its designated agent shall, within five business days from the receipt of such request, provide to such owner a copy of the association's certificate of insurance for all such insurance obtained by the association that may apply to such potential claim or submitted claim. Such request shall state an address to which such information shall be directed and shall specify whether such information shall be available for pickup, mailed, or sent by electronic communication along with the specific address for mailing or electronic communication. When such claim related to water damage or water peril has been submitted, and upon written request by a unit owner to the association, the association or its designated agent shall, within five business days from the receipt of such request, provide the name, address, and telephone number of the insurance adjuster, if one has been identified to the association; or
    2. A unit owner, and upon written request by an association or its designated agent to a unit owner, the unit owner shall, within five business days from the receipt of such request, provide to the association or its designated agent a copy of the unit owner's certificate of insurance for all such insurance obtained by the unit owner that may apply to the potential claim or actual claim. Such request shall state an address to which such information is to be directed and shall specify whether such information shall be available for pickup, mailed, or sent by electronic communication along with the specific address for mailing or electronic communication. When such claim related to water damage or water peril has been submitted, and upon written request by the association to a unit owner, the unit owner or its designated agent shall, within five business days from the receipt of such request, provide the name, address, and telephone number of the insurance adjuster, if one has been identified to the unit owner.

      Nothing contained in this subsection shall require an association to obtain insurance related to water damage or water perils.

      (Ga. L. 1975, p. 609, § 39; Ga. L. 1990, p. 227, § 12; Ga. L. 2008, p. 1030, § 1/HB 1121; Ga. L. 2020, p. 370, § 1/HB 1070.)

The 2008 amendment, effective July 1, 2008, designated the existing provisions as subsection (a), rewrote subsection (a), and added subsection (b).

The 2020 amendment, effective January 1, 2021, added subsection (c).

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985).

JUDICIAL DECISIONS

"Extended coverage" did not include water perils. - In a condominium owner's action against the condominium association for breach of contract after two separate water leaks in the owner's condominium unit, the trial court erred by holding that the Georgia Condominium Act, O.C.G.A. § 44-3-70 , did not require the association to maintain coverage for water leak damage; rather, it was required to have "fire and extended coverage insurance". "Extended coverage" included windstorm, hail, aircraft, riot, vehicles, explosion, and smoke, not water. Villa Sonoma Perimeter Summit Condo. Ass'n v. Mainor, 356 Ga. App. 794 , 849 S.E.2d 226 (2020).

Discretion of condominium board of directors. - In the condominium declaration, the purchase of additional insurance coverage was specified to be within the discretion of the board of directors, thus the board's decision not to maintain structural insurance coverage clearly fell within the parameters of that discretion. Fleetwood v. Wieuca N. Condominium Ass'n, 182 Ga. App. 15 , 354 S.E.2d 623 (1987) (applying former Georgia Apartment Ownership Act).

Coverage for water leaks not required. - In a condominium owner's action against the condominium association for breach of contract and attorney fees, the trial court erred in granting the owner's motion for summary judgment and holding that the Georgia Condominium Act, O.C.G.A. § 44-3-70 et seq., required that the association maintain coverage for damage caused by water leaks because the requirement that the association maintain fire and extended coverage insurance did not require coverage for water leaks. Villa Sonoma Perimeter Summit Condo. Ass'n v. Mainor, 356 Ga. App. 794 , 849 S.E.2d 226 (2020).

Cited in Henning v. Cont'l Cas. Co., 254 F.3d 1291 (11th Cir. 2001).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 27. 43 Am. Jur. 2d, Insurance, §§ 489 et seq., 667 et seq.

C.J.S. - 45 C.J.S., Insurance, § 762 et seq.

44-3-108. Common profits; application to expenses; surplus.

The common profits shall be applied to the payment of common expenses, and the rights in any surplus remaining after such payment shall pertain to the condominium units in proportion to the liability for common expenses pertaining to each such unit. The surplus shall be accordingly distributed to or credited to the next assessments chargeable to the unit owners except to such extent as the condominium instruments may require or permit the same to be added to reserves maintained pursuant to those instruments.

(Ga. L. 1975, p. 609, § 40.)

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 34.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

44-3-109. Lien for assessments; personal obligation of unit owner; notice and foreclosure; lapse; right to statement of assessments; effect of failure to furnish statement.

  1. All sums lawfully assessed by the association against any unit owner or condominium unit, whether for the share of the common expenses pertaining to that condominium unit, for fines, or otherwise, and all reasonable charges made to any unit owner or condominium unit for materials furnished or services rendered by the association at the owner's request to or on behalf of the unit owner or condominium unit, shall, from the time the same become due and payable, be the personal obligation of the unit owner and constitute a lien in favor of the association on the condominium unit prior and superior to all other liens whatsoever except:
    1. Liens for ad valorem taxes on the condominium unit;
    2. The lien of any first priority mortgage covering the unit and the lien of any mortgage recorded prior to the recording of the declaration;
    3. The lessor's lien provided for in Code Section 44-3-86; and
    4. The lien of any secondary purchase money mortgage covering the unit, provided that neither the grantee nor any successor grantee on the mortgage is the seller of the unit.

      The recording of the declaration pursuant to this article shall constitute record notice of the existence of the lien, and no further recordation of any claim of lien for assessments shall be required.

  2. To the extent that the condominium instruments provide, the personal obligation of the unit owner and the lien for assessments shall also include:
    1. A late or delinquency charge not in excess of the greater of $10.00 or 10 percent of the amount of each assessment or installment thereof not paid when due;
    2. At a rate not in excess of 10 percent per annum, interest on each assessment or installment thereof and any delinquency or late charge pertaining thereto from the date the same was first due and payable;
    3. The costs of collection, including court costs, the expenses of sale, any expenses required for the protection and preservation of the unit, and reasonable attorney's fees actually incurred; and
    4. The fair rental value of the condominium unit from the time of the institution of an action until the sale of the condominium at foreclosure or until the judgment rendered in the action is otherwise satisfied.
  3. Not less than 30 days after notice is sent by certified mail or statutory overnight delivery, return receipt requested, to the unit owner both at the address of the unit and at any other address or addresses which the unit owner may have designated to the association in writing, the lien may be foreclosed by the association by an action, judgment, and foreclosure in the same manner as other liens for the improvement of real property, subject to superior liens or encumbrances, but any such court order for judicial foreclosure shall not affect the rights of holders of superior liens or encumbrances to exercise any rights or powers afforded to them under their security instruments. The notice provided for in this subsection shall specify the amount of the assessments then due and payable together with authorized late charges and the rate of interest accruing thereon. No foreclosure action against a lien arising out of this subsection shall be permitted unless the amount of the lien is at least $2,000.00. Unless prohibited by the condominium instruments, the association shall have the power to bid on the unit at any foreclosure sale and to acquire, hold, lease, encumber, and convey the same. The lien for assessments shall lapse and be of no further effect, as to assessments or installments thereof, together with late charges and interest applicable thereto, four years after the assessment or installment first became due and payable.
  4. Any unit owner, mortgagee of a unit, person having executed a contract for the purchase of a condominium unit, or lender considering the loan of funds to be secured by a condominium unit shall be entitled upon request to a statement from the association or its management agent setting forth the amount of assessments past due and unpaid together with late charges and interest applicable thereto against that condominium unit. Such request shall be in writing, shall be delivered to the registered office of the association, and shall state an address to which the statement is to be directed. Failure on the part of the association to mail or otherwise furnish such statement regarding amounts due and payable at the expiration of such five-day period with respect to the condominium unit involved to such address as may be specified in the written request therefor within five business days from the receipt of such request shall cause the lien for assessments created by this Code section to be extinguished and of no further force or effect as to the title or interest acquired by the purchaser or lender, if any, as the case may be, and their respective successors and assigns, in the transaction contemplated in connection with such request. The information specified in such statement shall be binding upon the association and upon every unit owner. Payment of a fee not exceeding $10.00 may be required as a prerequisite to the issuance of such a statement if the condominium instruments so provided.
  5. Nothing in this Code section shall be construed to prohibit actions maintainable pursuant to Code Section 44-3-76 to recover sums for which subsection (a) of this Code section creates a lien.

    (Ga. L. 1975, p. 609, § 41; Ga. L. 1982, p. 3, § 44; Ga. L. 1990, p. 227, §§ 13, 14; Ga. L. 1994, p. 1943, § 10; Ga. L. 2000, p. 1589, § 3; Ga. L. 2004, p. 560, § 7; Ga. L. 2008, p. 1135, § 1/HB 422.)

The 2008 amendment, effective July 1, 2008, added the third sentence in subsection (c).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

JUDICIAL DECISIONS

Applicability. - As an assignee of a condominium association's interest in unpaid condominium assessments and liens in a unit presented no evidence that the declaration of condominium, recorded before enactment of the Georgia Condominium Act, O.C.G.A. § 44-3-70 et seq., was amended to submit the condominium to the Act, the assignee failed to show that the lien priority provisions of O.C.G.A. § 44-3-109 of the Act applied. Therefore, upon a creditor's foreclosure of the creditor's deed to secure debt, the provisions of the declaration operated to extinguish the assignee's lien for condominium assessments. Denhardt v. 7 Bay Traders LLC, 296 Ga. App. 122 , 673 S.E.2d 621 (2009).

Provision added by 1990 amendment inapplicable. - The 1990 amendment of subsection (a) of O.C.G.A. § 44-3-109 , adding the proviso at the end of the provision that all assessments due and payable from the unit owner constitutes a lien against the unit superior to all other liens, except the lien of any secondary purchase money mortgage covering the unit, provided that neither the grantee nor any successor grantee on the mortgage is the seller of the unit, did not apply when a secondary purchase money mortgage was made prior to the effective date of the amendment, but was not recorded until after that date. North Decatur Courtyards Condominium Ass'n v. Casey, 217 Ga. App. 716 , 458 S.E.2d 676 (1995).

Foreclosure proceedings. - Sole requirements for creation of the lien for assessments are contained in this statute, and it is only the actual foreclosure proceedings which must be in the same manner as other liens for the improvement of real property. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135 , 253 S.E.2d 813 (1979) (see O.C.G.A. § 44-3-109 ).

Ga. L. 1975, p. 609, § 41 (see O.C.G.A. § 44-3-109 ) does not require procedural compliance with former Code 1933, § 67-2301 (see O.C.G.A. § 44-14-530 ) which provided for the enforcement of mechanics liens. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135 , 253 S.E.2d 813 (1979).

Plaintiff condominium association could not assess against the defendant owner's unit, as common expenses under O.C.G.A. § 44-3-80(b)(2), legal fees and interest in connection with enforcing restraining orders against a former occupant since the occupant had moved before those expenses were incurred; those assessments were not lawfully assessed under O.C.G.A. § 44-3-109(a) and thus could not form the basis for a lien, and since the notice of foreclosure included those amounts, the notice did not comply with § 44-3-109(c) . One Buckhead Loop Condo. Ass'n v. Pew, F.3d (11th Cir. July 5, 2012)(Unpublished).

Trial court properly allowed a condominium association to foreclose a lien against a debtor's condominium unit and awarded the association damages because O.C.G.A. § 44-3-109 and the condominium documents created a lien in the association's favor and the debtor's bankruptcy discharge had no impact on the association's right to enforce the association's lien since discharges in bankruptcy did not affect liability in rem. Casas-Rodriguez v. Cosmopolitan on Lindbergh Condo. Ass'n, 325 Ga. App. 253 , 749 S.E.2d 371 (2013).

Condominium unit owner's claim for constructive eviction was not barred by the owner's failure to plead the eviction in an earlier action by the condominium association for assessments and foreclosure of its lien on the owner's units because the constructive eviction claim did not mature until after the conclusion of the association's suit and was therefore a permissive, not compulsory counterclaim. Elekima v. Abbey Rd. Condo. Ass'n., 331 Ga. App. 357 , 771 S.E.2d 63 (2015).

Liability of secondary purchase-money mortgagee. - Even though a secondary purchase-money mortgagee did not sell the condominium unit directly to the debtor who eventually failed to pay the mortgage or condominium fees and assessments, the association's lien was superior to the mortgage, and the mortgagee, as the seller of the unit, was liable for preforeclosure fees and assessments. Dunhill Condominium Ass'n v. Gregory, 228 Ga. App. 494 , 492 S.E.2d 242 (1997).

Limitation on fees found in O.C.G.A. § 13-1-11(a)(2) is inapplicable to an action enforcing a condominium association's right to a lien for assessments. Wehunt v. Wren's Cross of Atlanta Condominium Ass'n, 175 Ga. App. 70 , 332 S.E.2d 368 (1985).

Foreclosing mortgagee not entitled to pro rata share of lien elements. - While a foreclosing mortgagee is clearly not liable nor is its property interest subject to a lien for any assessment, it is obligated to pay a pro rata amount of that "unpaid share" which becomes a part of the common expenses, but the condominium association would not be entitled to recover from the foreclosing mortgagee a pro rata share of the elements enumerated in subsection (b) of O.C.G.A. § 44-3-109 because those elements arise only from the lien which results from the failure to make a timely payment of assessments. First Fed. Sav. Bank v. Eaglewood Court Condominium Ass'n, 186 Ga. App. 605 , 367 S.E.2d 876 , cert. denied, 186 Ga. App. 918 , 367 S.E.2d 876 (1988).

Impact of bankruptcy on lien enforcement. - Bankruptcy discharge has no impact on a condominium association's right to enforce the association's lien as a bankruptcy discharge extinguishes only one mode of enforcing a claim, namely, an action against the debtor in personam, while leaving intact another, namely, an action against the debtor in rem. Casas-Rodriguez v. Cosmopolitan on Lindbergh Condo. Ass'n, 325 Ga. App. 253 , 749 S.E.2d 371 (2013).

Attorney fees. - Evidence showing no more than the amount billed by plaintiff's attorney was insufficient to establish the reasonableness of the claimed attorney fees. Hershiser v. Yorkshire Condominium Ass'n, 201 Ga. App. 185 , 410 S.E.2d 455 (1991).

Court costs and attorney fees were appropriately awarded to a condominium association pursuant to O.C.G.A. § 44-3-109 and condominium documents. Atlanta Georgetown Condominium Ass'n v. Chaplin, 235 Ga. App. 460 , 509 S.E.2d 729 (1998).

Condominium association was not entitled to all of the fees requested under O.C.G.A. § 44-3-109(b)(3) in the association's attempt to collect a default judgment entered against the debtor because the association incurred far more fees and expenses than necessary in an ill-considered and ineffective effort to collect through garnishment when the debtor, although failing to communicate with the association, acknowledged the debt and had made attempts to pay the past due assessments; the association was entitled to the fees in the association's attempt to obtain the default judgment as established by the state court and for fees for pre-bankruptcy legal services and private investigator expenses, but the other expenses and fees were thus not reasonable. Jacobs v. Vineyards Condo. Ass'n, Inc. (In re Jacobs), 324 Bankr. 402 (Bankr. N.D. Ga. 2005).

Because attorney fees incurred on appeal were contemplated by O.C.G.A. § 44-3-109(b)(3) and a homeowners association's bylaws, the trial court erred by failing to hold a hearing as to the reasonable amount of attorney fees incurred by the association. Springside Condo. Ass'n, Inc. v. Harpagon Co., 298 Ga. App. 39 , 679 S.E.2d 85 (2009).

Condominium association's property manager's affidavit, in which the manager testified that the manager was familiar with the billing processes of the association and the association's records and that the manager's affidavit was on personal knowledge, was sufficient to support summary judgment for the association in the association's action against an owner for assessments and fees. Because the declaration provided for attorney's fees, an award of attorney's fees was mandated under O.C.G.A. § 44-3-109(b)(3), although the association did not ask for the fees. Ellington v. Gallery Condo. Ass'n, 313 Ga. App. 424 , 721 S.E.2d 631 (2011).

Cited in Casey v. North Decatur Courtyards Condominium Ass'n, 213 Ga. App. 190 , 444 S.E.2d 361 (1994).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, §§ 35, 36, 45 et seq.

C.J.S. - 53 C.J.S., Liens, §§ 1 et seq. 44.

44-3-110. Restraints on alienation and rights of first refusal; statement of waiver or failure to exercise rights or restraints; effect of failure to furnish statement.

Any rights of first refusal or other restraints on free alienability of the condominium units created by the condominium instruments shall be void unless the condominium instruments make provision for furnishing upon request to any unit owner or person who has executed a contract for the purchase of a condominium unit a recordable statement certifying to any waiver of or failure or refusal to exercise such rights and restraints whenever such waiver, failure, or refusal has occurred. Failure or refusal to furnish that statement within 30 days or such lesser period as the condominium instruments may specify shall cause all such rights and restraints to be inapplicable to the disposition of the condominium unit in contemplation of which such statement was requested. Any such statement shall be binding on the association and on every unit owner. Payment of a fee not exceeding $25.00 may be required as a prerequisite to the issuance of such a statement if the condominium instruments so provide.

(Ga. L. 1975, p. 609, § 42.)

JUDICIAL DECISIONS

Cited in Hill v. Fontaine Condominium Ass'n, 255 Ga. 24 , 334 S.E.2d 690 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 42.

C.J.S. - 31 C.J.S., Estates, § 145 et seq.

44-3-111. Sales of residential condominium units for residential occupancy; information required to be furnished by seller; buyer's right to void contract; limitations period; attorney's fees; penalty for willful violation.

  1. This Code section shall apply only to the first bona fide sale of each residential condominium unit for residential occupancy by the buyer, any member of the buyer's family, or any employee of the buyer. This Code section shall apply to any such sale regardless of whether the seller is the declarant, the association, or any other person. A contract for a sale to which this Code section is applicable is referred to in this Code section as a "covered contract."
  2. Any covered contract shall be voidable by the buyer until at least seven days after the seller has furnished to the prospective buyer the documents specified in this subsection. The copy of any such document which must be executed in order to be effective shall be a copy of the executed document. The documents required under this subsection to be furnished to the prospective buyer are the following:
    1. A copy of the floor plan of the unit which is the subject of the covered contract;
    2. A copy of the declaration and of each amendment thereto as of that time;
    3. A copy of the articles of incorporation and bylaws of the association and of each amendment to either as of that time;
    4. A copy of any ground lease or other underlying lease of all or any part of the condominium;
    5. A copy of every management, maintenance, and other contract for the management and operation of either the association, the condominium, or the facilities to be used by the unit owners having a term in excess of one year; contracts renewable without the consent of the association shall be deemed to have a term in excess of one year;
    6. The estimated or actual operating budget for the condominium for the current year containing the matters set forth in subparagraph (A) of this paragraph and a schedule of estimated or actual expenses pertaining to each condominium unit for the current year containing the matters set forth in subparagraph (B) of this paragraph:
      1. Expenses of the association for:
        1. Administration;
        2. Management fees;
        3. Maintenance;
        4. Rent for recreational and other commonly used facilities;
        5. Taxes on property of the association;
        6. Insurance;
        7. Security provisions;
        8. Other expenses;
        9. Operating capital;
        10. Reserve for deferred maintenance;
        11. Reserve for depreciation; and
        12. Other reserves; and
      2. Expenses of the unit owner for:
        1. Assessments to cover association expenses;
        2. Rent for the unit if part of a leasehold condominium; and
        3. Rent, fees, or charges payable by the unit owner directly to the lessor or the lessor's agent under any recreational lease or lease for the use of commonly used facilities, which leases are and payment is a mandatory condition of ownership and which payment is not included in the assessments paid by the unit owner to the association;
    7. A copy of any lease of recreational or other facilities that will be used only by the unit owners;
    8. A copy of any lease of recreational or other facilities that will or may be used by unit owners in common with any other person;
    9. A copy of a statement setting forth the extent of and conditions or limitations applicable to the declarant's commitment to build and submit additional units, additional recreational or other facilities, or additional property; and
    10. If the covered contract applies to a condominium unit which is part of a conversion condominium:
      1. A statement by the declarant, based on a report prepared by an independent, registered architect or engineer, describing the present condition of all structural components and mechanical and electrical systems, excluding fixtures and appliances within the units, material to the use and enjoyment of the condominium;
      2. A statement by the declarant of the expected useful life of each item reported on as provided in subparagraph (A) of this paragraph or a statement that no representations are made in that regard; and
      3. A list of any outstanding notices of uncured violations of building code or other county or municipal regulations together with the estimated cost of curing those violations.

        This paragraph shall not apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.

        The items required by this subsection shall be bound or stapled into a single package and covered by an index sheet listing each item required by this subsection and showing either that the same is attached or does not exist. A nonrefundable deposit not in excess of $25.00 may be required of the recipient of the documents required by this Code section, such deposit to be applied to the purchase price of the condominium unit in the event of purchase by the recipient. A dated, written acknowledgment of receipt of all items required by this subsection, executed by the recipient, shall be prima-facie evidence of the date of delivery of said items.

    1. Any covered contract shall be voidable by the buyer until at least seven days after the seller has furnished to the buyer all of the items required to be furnished under this Code section. This subsection may not be waived. The contract shall contain within the text the following legend in boldface type or capital letters no smaller than the largest type in the text:

      "THIS CONTRACT IS VOIDABLE BY BUYER UNTIL AT LEAST SEVEN DAYS AFTER ALL OF THE ITEMS REQUIRED UNDER CODE SECTION 44-3-111 OF THE 'GEORGIA CONDOMINIUM ACT' TO BE DELIVERED TO BUYER HAVE BEEN RECEIVED BY BUYER. THE ITEMS SO REQUIRED ARE: (1) A FLOOR PLAN OF THE UNIT, (2) THE DECLARATION AND AMENDMENTS THERETO, (3) THE ASSOCIATION'S ARTICLES OF INCORPORATION AND BYLAWS AND AMENDMENTS THERETO, (4) ANY GROUND LEASE, (5) ANY MANAGEMENT CONTRACT HAVING A TERM IN EXCESS OF ONE YEAR, (6) THE ESTIMATED OR ACTUAL BUDGET FOR THE CONDOMINIUM, (7) ANY LEASE OF RECREATIONAL OR OTHER FACILITIES THAT WILL BE USED ONLY BY THE UNIT OWNERS, (8) ANY LEASE OF RECREATIONAL OR OTHER FACILITIES THAT WILL OR MAY BE USED BY THE UNIT OWNERS WITH OTHERS, (9) A STATEMENT SETTING FORTH THE EXTENT OF THE SELLER'S COMMITMENT TO BUILD OR SUBMIT ADDITIONAL UNITS, ADDITIONAL RECREATIONAL OR OTHER FACILITIES, OR ADDITIONAL PROPERTY, AND (10) IF THIS CONTRACT APPLIES TO A CONDOMINIUM UNIT WHICH IS PART OF A CONVERSION CONDOMINIUM, A STATEMENT DESCRIBING THE CONDITION OF CERTAIN COMPONENTS AND SYSTEMS, A STATEMENT REGARDING THE EXPECTED USEFUL LIFE OF CERTAIN COMPONENTS AND SYSTEMS, AND CERTAIN INFORMATION REGARDING ANY NOTICES OF VIOLATIONS OF COUNTY OR MUNICIPAL REGULATIONS. A DATED, WRITTEN ACKNOWLEDGMENT OF RECEIPT OF ALL SAID ITEMS SIGNED BY THE BUYER SHALL BE PRIMA-FACIE EVIDENCE OF THE DATE OF DELIVERY OF SAID ITEM."

      This paragraph shall apply to any condominium created on or after July 1, 1980, or to the expansion of any such condominium.

    2. No covered contract executed prior to the expiration of seven days after the actual delivery to the prospective purchaser of the items required to be furnished by subsection (b) of this Code section shall be of any force or effect whatsoever. This subsection may not be waived. The contract shall contain within the text the following legend in boldface type or capital letters no smaller than the largest type in the text:

      "UNLESS ALL OF THE ITEMS REQUIRED UNDER CODE SECTION 44-3-111 OF THE 'GEORGIA CONDOMINIUM ACT' TO BE DELIVERED TO BUYER HAVE BEEN RECEIVED BY BUYER AT LEAST SEVEN DAYS PRIOR TO BUYER'S EXECUTION OF THIS CONTRACT, THIS CONTRACT IS OF NO FORCE OR EFFECT AND SHALL NOT BE BINDING ON ANY PARTY. THE ITEMS SO REQUIRED ARE: (1) A FLOOR PLAN OF THE UNIT, (2) THE DECLARATION AND AMENDMENTS THERETO, (3) THE ASSOCIATION'S ARTICLES OF INCORPORATION AND BYLAWS AND AMENDMENTS THERETO, (4) ANY GROUND LEASE, (5) ANY MANAGEMENT CONTRACT HAVING A TERM IN EXCESS OF ONE YEAR, (6) THE ESTIMATED OR ACTUAL BUDGET FOR THE CONDOMINIUM, (7) ANY LEASE OF RECREATIONAL OR OTHER FACILITIES THAT WILL BE USED ONLY BY THE UNIT OWNERS, (8) ANY LEASE OF RECREATIONAL OR OTHER FACILITIES THAT WILL OR MAY BE USED BY THE UNIT OWNERS WITH OTHERS, AND (9) A STATEMENT SETTING FORTH THE EXTENT OF THE SELLER'S COMMITMENT TO BUILD OR SUBMIT ADDITIONAL UNITS, ADDITIONAL RECREATIONAL OR OTHER FACILITIES, OR ADDITIONAL PROPERTY. A DATED, WRITTEN ACKNOWLEDGMENT OF RECEIPT OF ALL SAID ITEMS SIGNED BY THE BUYER SHALL BE PRIMA-FACIE EVIDENCE OF THE DATE OF DELIVERY OF SAID ITEMS."

      This paragraph shall apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.

  4. The items required to be furnished or made available to a prospective buyer under this Code section shall constitute a part of each covered contract; and no change may be made in any of such items which would materially affect the rights of the prospective buyer or the value of the unit without the approval of the prospective buyer except to the extent that such items by their own terms, by the express terms of such covered contract, or by the provisions of this article may be changed without the consent of any unit owner or prospective buyer.
  5. In addition to provisions elsewhere required, a covered contract shall include the following provisions:
    1. A caveat in boldface type or capital letters no smaller than the largest type on the page shall be placed upon the first page of the contract in the following words:

      "ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY STATING THE REPRESENTATIONS OF THE SELLER. FOR CORRECT REPRESENTATIONS, REFERENCE SHOULD BE MADE TO THIS CONTRACT AND THE DOCUMENTS REQUIRED BY CODE SECTION 44-3-111 OF THE 'GEORGIA CONDOMINIUM ACT' TO BE FURNISHED BY A SELLER TO A BUYER.";

    2. If the contract applies to a condominium unit which is part of an expandable condominium, the contract shall contain within the text the following statement in boldface type or capital letters no smaller than the largest type in the text:

      "THIS CONTRACT APPLIES TO A CONDOMINIUM UNIT WHICH IS PART OF AN EXPANDABLE CONDOMINIUM.";

    3. If the contract applies to a condominium unit which includes a leasehold estate or estate for years in property and if, upon the expiration of such leasehold or estate, the unit will be deemed to have been withdrawn pursuant to subsection (c) of Code Section 44-3-81 or the condominium will be terminated, the contract shall contain within the text a statement in the following words in boldface type or capital letters no smaller than the largest type in the text:

      "THIS CONTRACT IS FOR THE TRANSFER OF A CONDOMINIUM UNIT SUBJECT TO A LEASE THAT EXPIRES ______________, AND THE LESSEE'S INTEREST WILL TERMINATE UPON EXPIRATION OF THE LEASE.";

    4. If the contract applies to a condominium unit that is subject to a lien for rent payable under a lease of a recreational facility or other commonly used facility, the contract shall contain within the text a statement in the following words in boldface type or capital letters no smaller than the largest type in the text:

      "THIS CONTRACT IS FOR THE TRANSFER OF A CONDOMINIUM UNIT THAT IS SUBJECT TO A LIEN FOR RENT PAYABLE UNDER A LEASE OF A RECREATIONAL FACILITY, AND FAILURE TO PAY THIS RENT MAY RESULT IN FORECLOSURE OF THE LIEN.";

    5. If, but only if, any applicable statute, ordinance, rule, or regulation requires, permits, or provides for the issuance of a certificate of occupancy by any officer, department, or agency of any governmental entity, the contract shall contain an express obligation on the part of the seller to furnish to the buyer at or prior to closing a true, correct, and complete copy of a duly issued certificate of occupancy covering the unit which is the subject matter of the covered contract unless the buyer executes a separate agreement at or before closing setting forth that the contract applies to a condominium unit for which the seller is not obligated to obtain a certificate of occupancy before conveyance of the unit to the buyer and such agreement contains the following statement in at least 14-point boldface type or capital letters:

      "THE SELLER IS NOT OBLIGATED TO OBTAIN A CERTIFICATE OF OCCUPANCY BEFORE CONVEYANCE OF THE UNIT TO THE BUYER. THE LACK OF A CERTIFICATE OF OCCUPANCY SHALL NOT EXCUSE THE BUYER FROM ANY OBLIGATION TO PAY ASSESSMENTS TO THE ASSOCIATION."; and

    6. If the contract applies to a condominium unit which is part of a conversion condominium, the contract shall contain within the text the following statement in boldface type or capital letters no smaller than the largest type in the text:

      "THIS CONTRACT APPLIES TO A CONDOMINIUM UNIT WHICH IS PART OF A CONVERSION CONDOMINIUM."

      This paragraph shall not apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.

  6. If any condominium unit is offered for sale prior to the completion of the construction or remodeling of that unit or of improvements which shall constitute common elements, the seller shall make available to each prospective buyer for his inspection at a place convenient to the site a copy of the existing plans and specifications for the construction or remodeling of that unit and of the improvements which shall constitute common elements, whichever is not then complete.
  7. Any sales brochures describing the condominium and the units to be sold shall include a description and location of the recreational facilities proposed to be provided by the seller, the parking facilities, and other commonly used facilities together with a statement indicating:
    1. Which of the facilities will be owned by the unit owners as part of the common elements and which of the facilities will be owned by others;
    2. Whether, with respect to each facility so shown, the seller is obligated to complete the same; and
    3. The limitations or conditions, if any, on the seller's obligation to complete the same.

      A caveat in boldface type or capital letters no smaller than the largest type of text material shall be conspicuously placed on the inside front cover of the sales brochure or on the first page containing text material or shall be otherwise conspicuously displayed and shall contain the following words:

      "ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY STATING REPRESENTATIONS OF THE SELLER. FOR CORRECT REPRESENTATIONS, REFERENCE SHOULD BE MADE TO THIS BROCHURE AND TO THE DOCUMENTS REQUIRED BY CODE SECTION 44-3-111 OF THE 'GEORGIA CONDOMINIUM ACT' TO BE FURNISHED BY THE SELLER TO A BUYER."

  8. If condominium units are sold subject to a lease, all written or printed advertising of the units shall contain a statement in the following words in boldface type or capital letters no smaller than the largest type in the context where used:

    "THESE CONDOMINIUM UNITS WILL BE TRANSFERRED SUBJECT TO A LEASE."

  9. Any person who, in reasonable reliance upon any false or misleading material statement or information published by or under authority from the seller in advertising and promotional materials, including, but not limited to, the items required to be furnished by this Code section, brochures, and newspaper advertising, or who, without having been furnished with all of the information required to be furnished by this Code section, pays anything of value toward the purchase of a condominium unit located in this state shall be entitled to bring an action against the seller for damages under this Code section at any time prior to the expiration of one year after the date upon which the last of the events described in paragraphs (1) through (5) of this subsection shall occur:
    1. The closing of the transaction;
    2. The first issuance by the applicable governmental authority of a certificate of occupancy or other evidence of sufficient completion of construction of the building containing the unit to allow lawful occupancy of the unit. In counties or municipalities in which certificates of occupancy or other evidence of completion sufficient to allow lawful occupancy are not customarily issued, for the purpose of this Code section, evidence of lawful occupancy shall be deemed to have been given or issued upon the date that such lawful occupancy of the unit may first be allowed under prevailing applicable laws, ordinances, or statutes;
    3. The completion of the common elements and any recreational facilities, whether or not the same are common elements, which the seller is obligated to complete or to provide under the terms of the written contract for the sale of the unit;
    4. As to claims relating to the common elements and other portions of the condominium which are the responsibility of the association to maintain, the date upon which the declarant's right to control the association terminates as provided in Code Section 44-3-101; or
    5. In the event there shall not be a written contract for the sale of the unit, then the completion of the common elements and such recreational facilities, whether or not the same are common elements, which the seller would be obligated to complete under any rule of law applicable to the seller's obligation.
  10. Under no circumstances shall a cause of action created or recognized under this Code section survive for a period of more than five years after the closing of the transaction. Any person who has a right of action for damages as provided in this subsection shall have the additional right to rescind any contract for the purchase of a condominium unit at any time prior to the closing of the transaction. In any action for relief under this Code section, the prevailing party shall be entitled to recover reasonable attorney's fees.
  11. Willful violation of any of the requirements of this Code section by the declarant, the seller, any sales agent or broker, or any other person shall constitute a misdemeanor.

    (Ga. L. 1975, p. 609, § 43; Ga. L. 1980, p. 487, §§ 1, 2; Ga. L. 1980, p. 1406, §§ 5-7; Ga. L. 1982, p. 3, § 44; Ga. L. 1983, p. 3, § 33; Ga. L. 1986, p. 942, § 1; Ga. L. 1990, p. 227, § 15; Ga. L. 1991, p. 94, § 44; Ga. L. 2007, p. 611, § 3/HB 383; Ga. L. 2010, p. 878, § 44/HB 1387.)

The 2010 amendment, effective June 3, 2010, part of an Act to revise, modernize, and correct the Code, revised language in the last sentence of the undesignated paragraph at the end of subsection (b), and in the contract language in paragraphs (c)(1) and (c)(2).

Law reviews. - For article, "Recommended Changes in the Law Affecting Condominium and Homeowner Associations in Georgia," see 1 Ga. St. U.L. Rev. 185 (1985). For article, "Georgia Condominium Law: Beyond the Condominium Act," see 13 Ga. St. B.J. 24 (2007).

JUDICIAL DECISIONS

No misappropriation to furnish plans to buyers. - Any seller of a condominium may furnish prospective buyers with various documents, including a copy of the floor plan of the unit and a copy of the condominium declaration, and such will not constitute a misappropriation. Wright v. Tidmore, 208 Ga. App. 150 , 430 S.E.2d 72 (1993).

Change in number of units built. - Seller did not violate the buyers' rights by reducing the number of condominium units the seller built, as the seller retained the right to do so, and decreasing the number of units increased, rather than diluted, the buyer's voting power. Park Regency Ptnrs., L.P. v. Gruber, 271 Ga. App. 66 , 608 S.E.2d 667 (2004).

Changes to disclosure documents held proper. - As condominium buyers acknowledged the seller's limited right to make certain changes to the disclosure documents without the buyer's consent, prior to the recordation of the declaration in the declaration's final form, by making such changes, the seller did not violate O.C.G.A. § 44-3-111(d) . Park Regency Ptnrs., L.P. v. Gruber, 271 Ga. App. 66 , 608 S.E.2d 667 (2004).

Effect of recording declaration. - Condominium declaration does not become an "instrument" until the declaration is recorded; before the declaration is recorded, O.C.G.A. § 44-3-111 , which sets forth the information that sellers are required to furnish buyers as well as the rights of buyers generally, applies to the transaction, not O.C.G.A. § 44-3-93(c) . Park Regency Ptnrs., L.P. v. Gruber, 271 Ga. App. 66 , 608 S.E.2d 667 (2004).

Cited in McKnight v. Golden Isles Marina, Inc., 186 Ga. App. 228 , 366 S.E.2d 830 (1988).

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 14 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 232.

ALR. - Self-dealing by developers of condominium project as affecting contracts or leases with condominium association, 73 A.L.R.3d 613.

Expenses for which condominium association may assess unit owners, 77 A.L.R.3d 1290.

Validity and construction of regulations of governing body of condominium or cooperative apartment pertaining to parking, 60 A.L.R.5th 647.

Disclosure requirements under state condominium, homeowner association, or planned real estate statute, 44 A.L.R.7th Art. 6.

44-3-112. Escrow of deposits or other payments made prior to closing.

  1. Any deposit or other payment made prior to closing with respect to the first bona fide sale of each residential condominium unit for residential occupancy by the buyer, any member of the buyer's family, or any employee of the buyer shall be held in escrow until it is delivered at closing, delivered to the seller in accordance with subsection (b) of this Code section, or delivered to the person or persons entitled thereto upon breach of the contract for the sale. Such escrow funds shall be deposited in a separate account designated for this purpose; provided, however, that, in the event any such deposit is held by a real estate broker licensed under the laws of this state, such funds may be placed in such broker's escrow account instead of a separately designated account.
  2. If the contract for sale of the condominium unit so provides and the purchase price of the condominium unit is not less than $150,000.00, the seller may withdraw escrow funds in excess of 1 percent of the purchase price from the escrow account required by subsection (a) of this Code section when the construction of improvements has commenced. The seller shall only use the funds in the actual construction and development of the condominium property in which the unit to be sold is located. However, no part of these funds may be used for salaries, commissions, expenses of real estate licensees, or advertising purposes. A contract which permits use of the advance payments for these purposes shall be initialed by the buyer and include the following caveat in boldfaced type or capital letters no smaller than the largest type on the first page of the contract: ANY PAYMENT IN EXCESS OF 1 PERCENT OF THE PURCHASE PRICE MADE TO THE SELLER PRIOR TO CLOSING PURSUANT TO THIS CONTRACT MAY BE USED FOR CONSTRUCTION PURPOSES BY THE SELLER.

    (Ga. L. 1975, p. 609, § 44; Ga. L. 2006, p. 548, § 2/SB 573.)

Editor's notes. - Ga. L. 2006, p. 548, § 3, not codified by the General Assembly, provides: "This Act shall only apply with respect to causes of actions or claims arising on or after the effective date of this Act, and any prior causes of action or claims shall continue to be governed by prior law."

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Escrow, § 6 et seq.

C.J.S. - 30A C.J.S., Escrows, §§ 1, 8.

44-3-113. Applicability of this article; effect on existing condominiums.

  1. This article shall apply to all property which is submitted to this article and shall also apply to any condominium created prior to October 1, 1975, pursuant to the "Apartment Ownership Act" if the instruments creating such condominium are amended in accordance with their terms in order to submit the condominium to this article.
  2. Existing condominiums created pursuant to the "Apartment Ownership Act" may amend the instruments creating them in certain respects in order to avail themselves of this article; provided, however, that any amendment must conform the instrument or instruments creating the condominium to this article in all necessary respects and the condominium shall thereafter be deemed to be submitted to this article. No condominium shall be established under the "Apartment Ownership Act" on or after October 1, 1975. Nothing contained in this article shall be construed to affect the validity of any provision of any instrument recorded prior to October 1, 1975.

    (Ga. L. 1975, p. 609, § 2.)

Code Commission notes. - The Apartment Ownership Act, Ga. L. 1963, p. 561, has not been codified in view of the provisions of this Code section.

JUDICIAL DECISIONS

Georgia Condominium Act held inapplicable. - As an assignee of a condominium association's interest in unpaid condominium assessments and liens in a unit presented no evidence that the declaration of condominium, recorded before enactment of the Georgia Condominium Act, O.C.G.A. § 44-3-70 et seq., was amended to submit the condominium to the Act, the assignee failed to show that the lien priority provisions of O.C.G.A. § 44-3-109 of the Act applied. Therefore, upon a creditor's foreclosure of its deed to secure debt, the provisions of the declaration operated to extinguish the assignee's lien for condominium assessments. Denhardt v. 7 Bay Traders LLC, 296 Ga. App. 122 , 673 S.E.2d 621 (2009).

Cited in Devins v. Leafmore Forest Condominium Ass'n, 200 Ga. App. 158 , 407 S.E.2d 76 (1991).

44-3-114. Effect of article upon land use, zoning, building, and subdivision laws; effect of Code Section 44-3-92; applicability of land use and zoning ordinances or laws to expandable condominium.

  1. No zoning, subdivision, building code, or other real estate use law, ordinance, or regulation shall prohibit the condominium form of ownership or impose any requirement upon a condominium which it does not impose upon a physically identical development under a different form of ownership. No subdivision law, ordinance, or regulation shall apply to any condominium or to any subdivision of any convertible space or unit. Except as stated in this Code section, no provision of this article invalidates or modifies any provision of any zoning, subdivision, building code, or other real estate use law, ordinance, or regulation; and nothing contained in this Code section shall be construed to amend, supersede, or invalidate any provision of Article 1 of this chapter nor shall Code Section 44-3-92 be construed to override any lawful density requirement imposed by any zoning, building, or land use law, ordinance, or regulation. This subsection shall apply to any condominium created on or after July 1, 1980, or to the expansion of any such condominium.
  2. No subdivision law, ordinance, or regulation shall apply to any subdivision of any convertible space or unit as defined in this article. Notwithstanding the foregoing provisions of this subsection, however, nothing contained in this subsection shall be construed to amend, repeal, supersede, or invalidate any provision of Article 1 of this chapter nor shall Code Section 44-3-92 be construed to override any lawful density requirement imposed by any zoning, building, or land use law, ordinance, or regulation. This subsection shall apply to any condominium created prior to July 1, 1980, or to the expansion of any such condominium.
  3. No subdivision law, ordinance, or regulation shall apply to the additional property of an expandable condominium for so long as the additional property may be added to the expandable condominium in accordance with the provisions of this article and the declaration. If the additional property is not deemed separate from the submitted property under any zoning, land use, subdivision, building, or life safety law, code, regulation, or ordinance at the time of the establishment of the condominium, the additional property shall not be deemed separate from the submitted property under any zoning, land use, subdivision, building, or life safety law, code, regulation, or ordinance so long as the additional property may be added by the declarant to the expandable condominium in accordance with the provisions of this article and the declaration.

    (Ga. L. 1975, p. 609, § 5; Ga. L. 1980, p. 1406, § 2; Ga. L. 1983, p. 3, § 33; Ga. L. 2007, p. 611, § 4/HB 383.)

RESEARCH REFERENCES

Am. Jur. 2d. - 15A Am. Jur. 2d, Condominiums and Cooperative Apartments, § 18 et seq. 82 Am. Jur. 2d, Zoning and Land Planning, § 1.

C.J.S. - 101A C.J.S., Zoning and Land Planning, §§ 52, 53, 56, 57, 74, 207, 208, 261.

ALR. - Retroactive effect of zoning regulation, in absence of saving clause, on pending application for building permit, 50 A.L.R.3d 596.

Zoning or building regulations as applied to condominiums, 71 A.L.R.3d 866.

44-3-115. Construction of this article; substantial compliance; procedure for curing defects in recorded instruments.

The provisions of this article and of condominium instruments recorded pursuant thereto shall be liberally construed in favor of the valid establishment of a condominium pursuant to this article with respect to the submitted property. Substantial compliance with the requirements of this article for the establishment of a condominium shall suffice to bring property described in condominium instruments recorded pursuant to this article within the purview and application of this article; and any defects in such instruments or want of conformity with this article may be cured by an amendment thereto duly executed by the association and recorded or, upon application of any unit owner, with notice to the declarant, the association, and all other unit owners, by decree of the court.

(Ga. L. 1975, p. 609, § 45.)

JUDICIAL DECISIONS

Use of statute to cure defects and breach of contract. - Chapter 11 debtor was not entitled to summary judgment on the debtor's objection to a claim. The issue of the unresolved materiality of purported defects in condominium documents was critical to the determination of whether O.C.G.A. § 44-3-115 could be used to cure the defects and to the underlying breach of contract and warranty claims. In re Foster, Bankr. (Bankr. S.D. Ga. Jan. 16, 2013).

RESEARCH REFERENCES

Am. Jur. 2d. - 17A Am. Jur. 2d, Contracts, §§ 340, 341, 367.

C.J.S. - 17A C.J.S., Contracts, § 332.

44-3-116. Limitations in certain restrictive covenants inapplicable.

The limitations provided in subsection (b) and in paragraphs (1), (2), and (4) of subsection (d) of Code Section 44-5-60 shall not apply to any covenants contained in any condominium instrument created pursuant to this article.

(Code 1981, § 44-3-116 , enacted by Ga. L. 1990, p. 227, § 16; Ga. L. 1994, p. 1943, § 11.)

RESEARCH REFERENCES

ALR. - Erection of condominium as violation of restrictive covenant forbidding erection of apartment houses, 65 A.L.R.3d 1212.

44-3-117. Application to subcondominiums; creation of subcondominium; subassociation; insurance; effect of certain liens; eminent domain; description of certain units; assessments.

  1. Except as otherwise set forth in this Code section, the creation of a subcondominium shall not limit the application of this article in its entirety to such subcondominium.
  2. To the extent permitted in the condominium instruments, a condominium unit may be submitted by the owner thereof to a subcondominium and such owner shall thereafter be deemed the declarant, as such term is defined in paragraph (13) of Code Section 44-3-71, of such subcondominium.
  3. Upon the creation of a subcondominium:
    1. No tax or governmental assessment shall be levied against the unit as a whole but instead shall only be levied on the subunits;
    2. The subassociation shall represent and be responsible for acting on behalf of the subunit owners in discharging the rights and obligations of the unit owner as a member of the master association, including, without limitation, voting the interests of the unit in the master association and paying assessments owing on the unit to the master association;
    3. The insurance required in paragraph (1) of Code Section 44-3-107 may be obtained by either the subassociation or the master association for the condominium in which the subcondominium is a unit;
    4. No lien for labor or services performed or materials furnished in the improvement of the unit shall be filed against the subcondominium as a whole but shall only be filed against the subunits, and such lien may be discharged by the owner of any subunit in the same manner provided in subsection (d) of Code Section 44-3-95;
    5. If a subassociation has been created for property affected by an eminent domain proceeding, no eminent domain action shall be brought against the subassociation as a whole but only against the subunit owners thereof; and
    6. No description of a subunit shall be deemed to be vague, uncertain or otherwise insufficient if the description complies with Code Section 44-3-73.
  4. The description of submitted property or additional property to a subcondominium required by this article shall be valid if described by a legal description by metes and bounds or by a description of a unit in a master condominium in the manner provided for in Code Section 44-3-73.
  5. All sums lawfully assessed by a master association against a subassociation shall have the same effect as provided in subsection (a) of Code Section 44-3-109.

    The recording of the declaration for a subcondominium pursuant to this article shall constitute record notice of the existence of the lien, and no further recordation of any claim of lien for assessments shall be required.

  6. In the event any lien becomes effective against a subunit as provided in subsection (e) of this Code section, the subassociation may remove that lien from the subunits by:
    1. The payment of the amount attributable to the subunits, or
    2. Bonding of the amount assessed against the subassociation

      or any subunit owner may remove that lien from his or her subunit by the payment of the amount attributable to his or her subunit. The amount shall be computed by reference to the liability for common expenses pertaining to that condominium unit pursuant to subsection (c) of Code Section 44-3-80. Subsequent to the payment, discharge, or other satisfaction of such amount, the subunit owner of that subunit shall be entitled to have that lien released as to his or her subunit in accordance with applicable provisions of law, and notwithstanding anything to the contrary in Code Sections 44-3-80 and 44-3-109, the master association shall not assess or have a valid lien against that subunit for any portion of the common expenses incurred by the master association in connection with that lien.

  7. Not less than 30 days after notice is sent by certified mail or statutory overnight delivery, return receipt requested, to the subunit owner both at the address of the subunit and at any other address or addresses which the subunit owner may have designated to the master association in writing, the lien of the master association may be foreclosed by the master association by an action, judgment, and foreclosure in the same manner as other liens for the improvement of real property, subject to superior liens or encumbrances, but any such court order for judicial foreclosure shall not affect the rights of holders of superior liens or encumbrances to exercise any rights or powers afforded to them under their security instruments. The notice provided for in this subsection shall specify the amount of the assessments then due and payable together with authorized late charges and the rate of interest accruing thereon. No foreclosure action against a lien arising out of this subsection shall be permitted unless the amount of the lien is at least $2,000.00. Unless prohibited by the master condominium instruments, the master association shall have the power to bid on the subunit at any foreclosure sale and to acquire, hold, lease, encumber, and convey the same. The lien for assessments shall lapse and be of no further effect, as to assessments or installments thereof, together with late charges and interest applicable thereto, four years after the assessment or installment first became due and payable.
  8. Any subunit owner, mortgagee of a subunit, person having executed a contract for the purchase of a subunit, or lender considering the loan of funds to be secured by a subunit shall be entitled upon request to a statement from the subassociation or its management agent setting forth the amount of assessments past due and unpaid together with late charges and interest applicable owed by the subassociation to the master association. If the subassociation or its management agent states an amount less than the amount actually owed by the subassociation to the master association, the lien created by Code Section 44-3-109 for any amounts in excess of the stated amount shall be subordinate to the lien of any first priority mortgage covering the subunit.
  9. In addition to the documents required to be furnished to the prospective buyer under subsection (b) of Code Section 44-3-111 , if the covered contract applies to a condominium unit which is part of a subcondominium, the following shall be provided to the prospective buyer:
    1. A copy of the declaration for the master condominium, and a copy of each amendment thereto; and
    2. A copy of the articles of incorporation and bylaws of the master association, and of each amendment to either. (Code 1981, § 44-3-117 , enacted by Ga. L. 2007, p. 611, § 5/HB 383.)

ARTICLE 4 CEMETERIES

44-3-130 through 44-3-152.

Reserved. Repealed by Ga. L. 2000, p. 882, § 5, effective July 1, 2000.

Editor's notes. - This article consisted of Code Sections 44-3-130 through 44-3-152, relating to cemeteries, and was based on Ga. L. 1983, p. 1508, § 1; Ga. L. 1984, p. 22, § 44; Ga. L. 1985, p. 149, § 44; Ga. L. 1986, p. 10, § 44; Ga. L. 1986, p. 1468, §§ 1-9; Ga. L. 1987, p. 3, § 44; Ga. L. 1992, p. 6, § 44; Ga. L. 1992, p. 2397, § 1; Ga. L. 1994, p. 329, § 1; Ga. L. 1998, p. 128, § 44; Ga. L. 2000, p. 1589, § 3. For present comparable provisions, see Chapter 14 of Title 10.

ARTICLE 5 TIME-SHARE PROJECTS AND PROGRAMS

Law reviews. - For article discussing provisions pertaining to the regulation of time shared interests in property ownership, see 12 Ga. St. B.J. 75 (1975). For annual survey of real property law, see 35 Mercer L. Rev. 257 (1983). For comment, "Proposed Legislation for Property's Twilight Zone: Time Sharing in Georgia," see 34 Mercer L. Rev. 403 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Use of campground on first-come, first-serve basis. - Since the General Assembly contemplated the recognition and regulation of the purchase and sale of interests, whether contractual or real property, which entitled the purchaser to the use of property for a time period, it was not the intention of the General Assembly to regulate the sale of the right to use a campground which entitled the user to no specific time period of use, but only a right to use, common among other purchasers, on a first-come, first-serve basis. 1984 Op. Att'y Gen. No. 84-81.

PART 1 G ENERAL PROVISIONS

44-3-160. Short title.

This article shall be known and may be cited as the "Georgia Time-Share Act."

(Code 1981, § 44-3-160 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1984, p. 22, § 44; Ga. L. 1995, p. 1260, § 1.)

44-3-161. Purpose of article.

The purposes of this article are to:

  1. Give statutory recognition to real property timesharing in this state;
  2. Regulate developers of time-share estate and time-share use projects located in this state and outside this state when offered for sale in this state;
  3. Require that developers of time-share projects:
    1. Make certain disclosures to purchasers and prospective purchasers through the use of a public offering statement;
    2. Deposit trust funds with an escrow agent;
    3. Utilize only licensed real estate brokers as sales agents if required by Chapter 40 of Title 43; and
    4. Comply with promotional advertising standards;
  4. Establish operating standards for time-share project managing agents and exchange programs operating in this state; and
  5. Provide for sanctions for violations of any provisions of this article which will permit:
    1. Courts of competent jurisdiction to impose fines or imprisonment for misdemeanors and felonies; and
    2. A claim for appropriate relief by any person adversely affected. (Code 1981, § 44-3-161 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1.)

44-3-162. Definitions.

As used in this article, the term:

  1. "Agent" means a person authorized by the developer to act for such developer in offering to the public or managing time-share intervals including but not limited to employees or independent contractors of the developer, managing agents, sales agents, and escrow agents.
  2. "Conspicuous statement" means a statement in boldface and conspicuous type of at least ten points, such statements always being larger than all other statements, except for other conspicuous statements, in the body of the document in which they are required.
  3. "Developer" means, in the case of any given property, any person or entity which is in the business of creating or which is in the business of selling its own time-share intervals in any time-share program. This definition shall not mean a person acting solely as a sales agent.
  4. "Developer control period" means the period of time during which the developer or managing agent selected by the developer may manage the time-share program and the units in the time-share program.
  5. "Development," "project," or "property" means all of the real property subject to a project instrument and which contains more than one unit.
  6. "Escrow agent" means a licensed real estate broker, an attorney who is a member of the State Bar of Georgia, a title company, or a banking institution or savings and loan company having trust powers and located in this state who is entrusted with the deposit of trust funds with instructions to carry out the provisions of an agreement or contract.
  7. "Exchange company" means any person owning or operating an exchange program.
  8. "Exchange program" means any arrangement whereby owners may exchange occupancy rights with persons owning other time-share intervals or units or other rights of possession; provided, however, that an exchange program shall not exist if all of the occupancy rights which may be exchanged are in the same time-share property.
  9. "Managing agent" means a person who undertakes the duties, responsibilities, and obligations of the management of a time-share program.
  10. "Multilocation developer" means a developer creating or selling its own time-share intervals in a multilocation plan.
  11. "Multilocation plan" means a time-share plan respecting more than one time-share property pursuant to which owners may or may not obtain use rights in a specific time-share property and may, by reservation or other similar procedure, become entitled to occupy time-share units in more than one time-share property.
  12. "Offering" means any offer to sell, solicitation, inducement, or advertisement whether by radio, television, newspaper, magazine, or mail whereby a person is given an opportunity to acquire a time-share interval.

    (12.1) "Owners' association" means an association made up of all owners of time-share intervals in a time-share program.

  13. "Person" means one or more natural persons, corporations, partnerships, associations, trusts, other entities, or any combination thereof.
  14. "Project" means development.
  15. "Project instrument" means one or more recordable documents applicable to the whole project by whatever name denominated, containing restrictions or covenants regulating the use, occupancy, or disposition of an entire project including any amendments to the document excluding any law, ordinance, or governmental regulation.
  16. "Property" means development.
  17. "Public offering statement" means a written statement given to prospective purchasers by the developer or the developer's agent disclosing such information about the time-share project as required by this article.
  18. "Purchaser" means any person other than a developer or lender who acquires an interest in a time-share interval.
  19. "Sales agent" means a person who for another, for a fee, commission, or any other valuable consideration or with the intent or expectation of receiving the same from another, negotiates or attempts to negotiate the sale or lease of a time-share interval in a time-share program.
  20. "Sales agreement" means that contract, agreement, lease, or other written instrument by which a purchaser contracts to acquire or acquires, in the event there is no contract to acquire, an interest in a time-share interval.
  21. "Time-share estate" means an ownership or leasehold interest in real property divided into measurable chronological periods, including real property interests held in irrevocable trust wherein all owners of the time-share program or the owners' association of the time-share program are express beneficiaries of such trust and the trustee is independent of the developer; provided, however, that if such real property interests are held in trust, conveyance of the property to the trust shall be free of all financial liens and encumbrances or shall include a recorded nondisturbance agreement.
  22. "Time-share instrument" means any document, by whatever name denominated, creating or regulating time-share programs excluding any law, ordinance, or governmental regulation.
  23. "Time-share interval" means a time-share estate or a time-share use.
  24. "Time-share program" means any arrangement for time-share intervals in a time-share project whereby the use, occupancy, or possession of real property has been made subject to either a time-share estate or time-share use whereby such use, occupancy, or possession circulates among purchasers of the time-share intervals according to a fixed or floating time schedule on a periodic basis occurring annually over any period of time in excess of one year in duration.
  25. "Time-share project" means any real property that is subject to a time-share program.
  26. "Time-share use" means any contractual right of exclusive occupancy which does not fall within the definition of a time-share estate including, without limitation, a vacation license, prepaid hotel reservation, club membership, limited partnership, or vacation bond.
  27. "Unit" means the real property or real property improvement in a project which is divided into time-share intervals. (Code 1981, § 44-3-162 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1986, p. 10, § 44; Ga. L. 1989, p. 321, § 1; Ga. L. 1990, p. 227, § 17; Ga. L. 1995, p. 1260, § 1; Ga. L. 2009, p. 332, § 1/HB 608.)

The 2009 amendment, effective July 1, 2009, added paragraph (12.1) and, in paragraph (21), added ", including real property interests held in irrevocable trust wherein all owners of the time-share program or the owners' association of the time-share program are express beneficiaries of such trust and the trustee is independent of the developer; provided, however, that if such real property interests are held in trust, conveyance of the property to the trust shall be free of all financial liens and encumbrances or shall include a recorded nondisturbance agreement".

44-3-162.1. Time-share projects and programs; application of restrictive covenants; exceptions.

  1. As used in this Code section, the term:
    1. "Private residence club" means an improvement located on real property, including, but not limited to, a single-family residence, the title to which is held by a maximum of eight individuals as tenants in common in fee simple or by a limited liability company containing not greater than eight members, and the use of such improvement or residence includes, without limitation, exclusive occupancy for certain time periods which are determined among the titleholders or limited liability company members by project instrument, including, but not limited to, a declaration of restrictive covenants, a contract, or otherwise. A private residence club may or may not be located in a private residence club development.
    2. "Private residence club development" means a development of at least two private residence clubs in which the titleholders or members of the limited liability company, as respects to each private residence club, contractually agree by project instrument, contract, or otherwise to permit occupancy for certain time periods to the titleholders or members of the limited liability company as exist with respect to any or all of the private residence clubs in the private residence club development.
  2. Neither a private residence club nor a private residence club development shall be considered a time-share estate, time-share program, time-share project, or time-share use under this article, and this article shall not be applicable to private residence clubs or private residence club developments; provided, however, that, notwithstanding the foregoing, if there exists a restrictive covenant on real estate that restricts or prohibits time-share estates, time-share programs, time-share projects, or time-share uses, such restrictive covenants shall equally restrict or prohibit a private residence club and a private residence club development unless such restrictive covenant expressly states that it does not apply to private residence clubs and private residence club developments. No zoning, subdivision, or building code or other real estate use ordinance or regulation shall prohibit a private residence club form of ownership or impose any requirement upon a private residence club which it does not impose upon a physically identical improvement or development under a different form of ownership. No subdivision law, ordinance, or regulation shall apply to any division of an improvement, including a single-family residence, into a private residence club or private residence club development. (Code 1981, § 44-3-162.1 , enacted by Ga. L. 2009, p. 689, § 1/HB 492.)

Effective date. - This Code section became effective May 5, 2009.

44-3-163. Time-share estate title; recording transfer or encumbrance; taxation.

  1. A time-share estate is an estate in real property and has the character and incidents of an estate in fee simple at common law or estate for years, if a leasehold, except as expressly modified by this article. This subsection shall supersede any contrary rule at common law.
  2. A document transferring or encumbering a time-share estate in real property shall not be rejected for recordation because of the nature or duration of that estate or interest, provided there is compliance with all requirements necessary to make an instrument recordable.
  3. For purposes of title, each time-share estate constitutes a separate estate or interest in property.
  4. For purposes of local real property taxation, each time-share unit, other than a unit operated for time-share use, shall be valued in the same manner as if such unit were owned by a single taxpayer. The total cumulative purchase price paid by the time-share owners for a unit shall not be utilized by the commissioner of revenue or other local assessing officers as a factor in determining the assessed value of such unit. A unit operated as a time-share use, however, may be assessed the same as other income-producing and investment property. Tax records in a time-share unit shall be in the name of the association or the managing agent. (Code 1981, § 44-3-163 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1989, p. 321, § 2; Ga. L. 1995, p. 1260, § 1.)

Code Commission notes. - Pursuant to § 28-9-5 , in 1985, in the second sentence of subsection (a) "subsection" was substituted for "rule".

RESEARCH REFERENCES

ALR. - Property taxation of residential time-share or interval-ownership units, 80 A.L.R.4th 950.

44-3-164. Application of zoning and other local codes, ordinances, and regulations.

No zoning, subdivision, or building code or other real estate use ordinance or regulation shall prohibit the time-share interval form of ownership or use or impose any requirement upon the time-share project which it does not impose upon a physically identical improvement or development under a different form of ownership. No subdivision law, ordinance, or regulation shall apply to any division of an improvement or unit into a time-share project or time-share intervals.

(Code 1981, § 44-3-164 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1.)

PART 2 A DMINISTRATION

44-3-165. Creation of time-share program; partition.

  1. A time-share program may be created in any unit, unless expressly prohibited by the project instruments.
  2. No action for partition of a unit may be maintained except as permitted by the time-share instrument. (Code 1981, § 44-3-165 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1.)

44-3-166. Contents and recording of project and time-share instruments.

  1. Project instruments and time-share instruments creating time-share estates located in the State of Georgia shall be recorded in the superior court of the county in which the project is located and shall contain the following:
    1. The name of the county in which the property is situated;
    2. The legal description, street address, or other description sufficient to identify the property;
    3. Identification of time periods by letter, name, number, or combination thereof;
    4. Identification of time-share estates and, where applicable, the method whereby additional time-share estates may be created;
    5. The formula, fraction, or percentage of the common expenses and any voting rights assigned to each time-share estate and, where applicable, to each unit in a project that is not subject to the time-share program;
    6. Any restrictions on the use, occupancy, alteration, or alienation of time-share intervals; and
    7. The ownership interest, if any, in personal property and provisions for care and replacement.
  2. For time-share projects located outside the State of Georgia, project instruments therefor shall be recorded as required by the law of the jurisdiction in which such time-share project is located. (Code 1981, § 44-3-166 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1.)

44-3-167. Time-share estate program management and operation.

The time-share instruments for a time-share estate program shall prescribe reasonable arrangements for management and operation of the time-share program and for the maintenance, repair, and furnishing of units, which shall include the following:

  1. Creation of an association organization of time-share estate owners;
  2. Adoption of bylaws for organizing and operating the association organization;
  3. Payment of costs and expenses of operating the time-share program and of owning and maintaining the units;
  4. Employment and termination of employment of the managing agent for the association organization;
  5. Preparation and dissemination to owners of an annual budget and of operating statements and other financial information including, but not limited to, the current status of payments under any security deed, contracts for improvements, or other encumbrances concerning the time-share program;
  6. Adoption of standards and rules of conduct for the use and occupancy of units by owners;
  7. Collection of assessments from owners to defray the expenses of management of the time-share program and maintenance of the units;
  8. Comprehensive general liability insurance for death, bodily injury, and property damage arising out of or in connection with the use of units by owners, their guests, and others and extended coverage casualty insurance;
  9. Methods for providing compensating use periods or monetary compensation to an owner if a unit cannot be made available for the period to which the owner is entitled by schedule or by confirmed reservation;
  10. Procedures for imposing a monetary penalty or suspension of an owner's rights and privileges in the time-share program for failure of the owner to comply with provisions of the time-share instruments or the rules of the association organization with respect to the use of the units. Under these procedures, an owner must be given notice and the opportunity to refute or explain the charges against him or her in person or in writing to the governing body of the association organization before a decision to impose discipline is rendered;
  11. Employment of attorneys, accountants, and other professional persons as necessary to assist in the management of the time-share program and the units; and
  12. Procedures for the developer to obtain the consent of a majority of the existing owners of the time-share estates before encumbering the time-share project for the purpose of making additional improvements to the project. (Code 1981, § 44-3-167 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1.)

Cross references. - Financial and other records of time-share project association or managing agent, § 44-3-182 .

Developer's financial records required, § 44-3-188 .

44-3-168. Developer control period in time-share estate program.

  1. The time-share instruments for a time-share estate program may provide for a developer control period.
  2. If the time-share instruments for a time-share estate program provide for the establishment of a developer control period, they shall include provisions for the following:
    1. Termination of the developer control period by action of the association;
    2. Termination of contracts for goods and services for the time-share program or for units in the time-share program entered into during the developer control period; and
    3. A regular accounting by the developer to the association as to all matters that significantly affect the interests of owners in the time-share program including, but not limited to, the current status of payments under any security deed, contracts for improvements, or other encumbrances. (Code 1981, § 44-3-168 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1986, p. 10, § 44; Ga. L. 1995, p. 1260, § 1.)

44-3-169. Identification of time-share project, time-share units, and time periods.

Project instruments and time-share instruments creating time-share uses shall contain the following:

  1. Identification by name of the time-share project and street address where the time-share project is situated;
  2. Identification of the time periods, type of units, and the units that are in the time-share program and the length of time that the units are committed to the time-share program; and
  3. In case of a time-share project, identification of which units are in the time-share program and the method whereby any other units may be added, deleted, or substituted. (Code 1981, § 44-3-169 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1989, p. 321, § 3; Ga. L. 1990, p. 227, § 18; Ga. L. 1995, p. 1260, § 1.)

44-3-170. Time-share use program management and operation.

The time-share instruments for a time-share use program shall prescribe reasonable arrangements for management and operation of the time-share program and for the maintenance, repair, and furnishing of units which shall include the following:

  1. Standards and procedures for upkeep, repairs, and interior furnishing of units;
  2. Adoption of standards and rules of conduct governing the use and occupancy of units by owners;
  3. Payment of the costs and expenses of operating the time-share program and owning and maintaining the units;
  4. Selection of a managing agent to act on behalf of the developer;
  5. Preparation and dissemination to owners of an annual budget and of operating statements and other financial information concerning the time-share program;
  6. Procedures for establishing the rights of owners to the use of units by prearrangement or under a first reserved, first served priority system;
  7. Organization of a management advisory board or board of directors consisting of time-share use owners including an enumeration of rights and responsibilities of the board;
  8. Procedures for imposing and collecting assessments or use fees from time-share use owners as necessary to defray costs of management of the time-share program and in providing materials and services to the units;
  9. Comprehensive general liability insurance for death, bodily injury, and property damage arising out of or in connection with the use of units by time-share use owners, their guests, and others and extended coverage casualty insurance;
  10. Methods for providing compensation use periods or monetary compensation to an owner if a unit cannot be made available for the period to which the owner is entitled by schedule or by a confirmed reservation;
  11. Procedures for imposing a monetary penalty or suspension of an owner's rights and privileges in the time-share program for failure of the owner to comply with the provisions of the time-share instruments or the rules established by the developer with respect to the use of the units. The owner shall be given notice and the opportunity to refute or explain the charges in person or in writing to the management advisory board before a decision to impose discipline is rendered;
  12. Annual dissemination to all time-share use owners by the developer or by the managing agent of a list of the names and mailing addresses of all current time-share use owners in the time-share program;
  13. Procedures for the developer to obtain the consent of a majority of the existing owners of the time-share uses before encumbering the time-share project for the purpose of making additional improvements to the project;
  14. A definition of what shall constitute the facilities being available for use; and
  15. An owners' association shall act as a fiduciary to the purchasers of a time-share program. (Code 1981, § 44-3-170 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1; Ga. L. 2009, p. 332, § 2/HB 608.)

The 2009 amendment, effective July 1, 2009, deleted "and" at the end of paragraph (13); substituted "; and" for a period at the end of paragraph (14); and added paragraph (15).

Cross references. - Financial and other records of time-share project association or managing agent, § 44-3-182 .

44-3-171. Sale of time-share intervals and programs organized prior to July 1, 1983.

In the event that:

  1. Time-share intervals in a time-share program have been sold in this state to a resident of this state prior to July 1, 1983;
  2. The time-share instruments and project instruments creating such program do not provide for or contain the provisions required by Code Sections 44-3-166 through 44-3-170; and
  3. The developer does not control a sufficient number of votes in the time-share program to amend the time-share instruments and project instruments to provide for the inclusion of the provisions required by Code Sections 44-3-166 through 44-3-170 without the vote of any other time-share interval owners, then the developer shall include in the public offering statement a listing of those provisions required by Code Sections 44-3-166 through 44-3-170 but not included in the instruments. (Code 1981, § 44-3-171 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1985, p. 149, § 44; Ga. L. 1986, p. 10, § 44; Ga. L. 1989, p. 321, § 4; Ga. L. 1990, p. 227, § 19; Ga. L. 1995, p. 1260, § 1.)

Cross references. - Application of article to time-share programs created prior to or following effective date of law, § 44-3-205 .

PART 3 D EVELOPERS AND EXCHANGE COMPANIES

44-3-172. Contents of public offering statement.

  1. A public offering statement must be provided to each purchaser of a time-share interval. Prospective purchasers receiving a copy of the public offering statement shall sign a statement acknowledging receipt of the public offering statement and such receipt shall be kept at the principal office of the developer for three years from the date of receipt.
    1. The public offering statement must contain or fully and accurately disclose the following information:
      1. The name of the developer, the principal address of the developer, the address of the time-share intervals offered in the statement, and a description of the developer's ownership interest in the time-share project;
      2. The nature of the interest in the time-share interval being offered whether it involves real property ownership, leasehold interest, right to use or occupy the facility, or some other interest being offered;
      3. A general description of the units including, without limitation, the developer's contemplated schedule of commencement and completion of all buildings, units, and amenities or, if completed, a statement that they have been completed;
      4. As to all units offered by the developer in the same time-share project:
        1. The types and number of units;
        2. Identification of units that are subject to time-share intervals; and
        3. The estimated number of units that may become subject to time-share intervals;
      5. A brief description of the project;
      6. Any current budget or a projected budget for the time-share intervals for one year after the date of the first transfer to a purchaser. The budget must include, without limitation:
        1. A statement of the amount or a statement that there is no amount included in the budget as a reserve for repairs and replacement;
        2. The projected common expense liability, if any, by category of the expenditures for the time-share intervals;
        3. The projected common expense liability for all time-share intervals; and
        4. A statement of any services not reflected in the budget that the developer provides or expenses that he or she pays;
      7. Any initial or special fee for the use of the unit or amenities due from the purchaser at closing together with a description of the purpose and method of calculating the fee;
      8. A description of any liens, defects, or encumbrances on or affecting the title to the time-share intervals;
      9. A description of any financing offered by the developer;
      10. A statement of any pending actions material to the time-share intervals of which a developer has actual knowledge;
      11. Any restraints on alienation of any number or portion of any time-share intervals;
      12. A description of the insurance coverage or a statement that there is no insurance coverage provided for the benefit of time-share interval owners including specific statements on the amount of comprehensive general liability insurance and extended coverage casualty insurance;
      13. Any current or expected fees or charges to be paid by time-share interval owners for the use of any facilities related to the property;
      14. Whether financial arrangements have been provided for and with whom financial arrangements have been made for the completion of all promised or proposed improvements and the proposed date of completion;
      15. The extent to which a time-share unit may become subject to a tax or other lien arising out of claims against other owners of the same unit;
      16. A conspicuous statement on the cover page as follows:

        "YOU MAY CANCEL WITHOUT PENALTY OR OBLIGATION ANY SALES AGREEMENT WHICH YOU HAVE SIGNED FOR THE PURCHASE OR LEASE OF A TIME-SHARE INTERVAL WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER SIGNING ANY SALES AGREEMENT AND RECEIVE A REFUND. IF THIS PUBLIC OFFERING STATEMENT WAS NOT GIVEN TO YOU BEFORE YOU SIGNED ANY SALES AGREEMENT, YOU MAY CANCEL THE SALES AGREEMENT WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER YOUR RECEIPT OF THIS PUBLIC OFFERING STATEMENT AND RECEIVE A REFUND. YOU MAY NOT GIVE UP OR WAIVE THIS RIGHT TO CANCEL. IF YOU DECIDE TO CANCEL A SALES AGREEMENT, YOU MUST NOTIFY THE DEVELOPER IN WRITING WITHIN THE CANCELLATION PERIOD OF YOUR INTENT TO CANCEL BY SENDING NOTICE BY CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED, TO (insert the name and address of the developer or the developer's agent). YOUR NOTICE WILL BE EFFECTIVE ON THE DATE YOU MAIL IT.";

      17. When a time-share use is offered, a conspicuous statement as follows:

        "YOU MAY CANCEL ANY SALES AGREEMENT WHICH YOU HAVE SIGNED FOR THE PURCHASE OF A TIME-SHARE USE AT ANY TIME THE FACILITY IS NOT MADE AVAILABLE FOR USE ACCORDING TO AGREED UPON TERMS. YOU MAY NOT GIVE UP OR WAIVE THIS RIGHT TO CANCEL.";

      18. A schedule for refunding any funds due the purchaser if the time-share project is not completed or if the purchaser exercises cancellation rights;
      19. The name and address of the escrow agent;
      20. A conspicuous statement as follows:

        "ANY QUESTIONS ABOUT THE LEGAL ASPECTS OF THE PURCHASE OR LEASE OF A TIME-SHARE INTERVAL SHOULD BE REFERRED TO AN ATTORNEY.";

      21. A conspicuous statement on the cover page as follows:

        "PURCHASER SHOULD READ THIS DOCUMENT BEFORE SIGNING ANYTHING.";

        1. Except as otherwise provided in division (ii) of this subparagraph, a conspicuous statement as follows:

          "THIS IS A REAL PROPERTY TRANSACTION. YOU OR YOUR ATTORNEY SHOULD REVIEW THE DOCUMENTS RELATING TO THIS TRANSACTION ON FILE IN THE SUPERIOR COURT OF THE COUNTY WHEREIN THE PROPERTY IS LOCATED."

        2. If the time-share project is located outside this state, then the conspicuous statement must read as follows:

          "THIS IS A REAL PROPERTY TRANSACTION. YOU OR YOUR ATTORNEY SHOULD REVIEW THE DOCUMENTS RELATING TO THIS TRANSACTION ON FILE IN THE APPROPRIATE LAND RECORDS OF THE JURISDICTION IN WHICH THE PROPERTY IS LOCATED."; and

      23. A description of the exact procedure that will be used by the developer for closing sales of time-share intervals including, but not limited to, the procedures for conveying title to the time-share intervals, the procedures for delivery and recording of deeds, and the procedures for disbursing funds held by the escrow agent.
    2. If the owners of time-share intervals are offered an opportunity to become members of or to participate in any program for the exchange of occupancy rights among themselves or with the owners of time-share intervals of other time-share projects, or both, the public offering statement or a supplement delivered therewith must fully and accurately disclose the following information:
      1. The name and address of the exchange company;
      2. The names of all officers, directors, and shareholders owning 5 percent or more of the outstanding stock of the exchange company;
      3. Whether the exchange company or any of its officers or directors has any legal or beneficial interest in any developer or managing agent for any time-share project participating in the exchange program and, if so, the name and location of the time-share project and the nature of the interest;
      4. Unless the exchange company is also the developer or an affiliate, a statement that the purchaser's contract with the exchange company is a contract separate and distinct from the sales agreement;
      5. Whether the purchaser's participation in the exchange program is dependent upon the continued affiliation of the time-share project with the exchange program;
      6. Whether the purchaser's membership or participation, or both, in the exchange program is voluntary or mandatory;
      7. A complete and accurate description of the terms and conditions of the purchaser's contractual relationship with the exchange company and the procedure by which changes thereto may be made;
      8. A complete and accurate description of the procedure to qualify for and effectuate exchanges;
      9. A complete and accurate description of all limitations, restrictions, or priorities employed in the operation of the exchange program, including, but not limited to, limitations on exchanges based on seasonableness, unit size, or levels of occupancy, expressed in a conspicuous statement, and, in the event that such limitations, restrictions, or priorities are not uniformly applied by the exchange program, a clear description of the manner in which they are applied;
      10. Whether exchanges are arranged on a space-available basis and whether any guarantees of fulfillment of specific requests for exchanges are made by the exchange program;
      11. Whether and under what circumstances an owner, in dealing with the exchange company, may lose the use and occupancy of such owner's time-share interval in any properly applied for exchange without such owner being provided with substitute accommodations by the exchange company;
      12. The fees or range of fees for participation by owners in the exchange program, a statement whether any such fees may be altered by the exchange company, and the circumstances under which alterations may be made;
      13. The name and address of the site of each time-share property, accommodation, or facility which is participating in the exchange program;
      14. The number of units in each property participating in the exchange program which are available for occupancy and which qualify for participation in the exchange program, expressed within the following numerical groupings: 1-5, 6-10, 11-20, 21-50, and 51 and over;
      15. The number of owners with respect to each time-share project or other property which are eligible to participate in the exchange program expressed within the following numerical groupings: 1-100, 101-249, 250-499, 500-999, and 1,000 and over, and a statement of the criteria used to determine those owners who are currently eligible to participate in the exchange program;
      16. The disposition made by the exchange company of time-share intervals deposited with the exchange program by owners eligible to participate in the exchange program and not used by the exchange company in effecting exchanges;
      17. The following information, which, except as provided in subparagraph (S) of this paragraph, shall be independently audited by a certified public accountant or accounting firm in accordance with the standards of the Accounting Standards Board of the American Institute of Certified Public Accountants and included in the public offering statement for each year no later than July 1 of the succeeding year, beginning no later than July 1, 1983:
        1. The number of owners eligible to participate in the exchange program. Such number shall disclose the relationship between the exchange company and owners as being either fee-paying or gratuitous in nature;
        2. The number of time-share properties, accommodations, or facilities eligible to participate in the exchange program categorized by those having a contractual relationship between the developer or the association and the exchange company and those having solely a contractual relationship between the exchange company and owners directly;
        3. The percentage of confirmed exchanges, which shall be the number of exchanges confirmed by the exchange company divided by the number of exchanges properly applied for, together with a complete and accurate statement of the criteria used to determine whether an exchange request was properly applied for;
        4. The number of time-share intervals for which the exchange company has an outstanding obligation to provide an exchange to an owner who relinquished a time-share interval during the year in exchange for a time-share interval in any future year; and
        5. The number of exchanges confirmed by the exchange company during the year;
      18. A conspicuous statement to the effect that the percentage described in division (iii) of subparagraph (Q) of this paragraph is a summary of the exchange requests entered with the exchange company in the period reported and that the percentage does not indicate a purchaser's or owner's probabilities of being confirmed to any specific choice or range of choices, since availability at individual locations may vary; and
      19. The information required by this paragraph shall be accurate as of a date which is not more than 30 days prior to the date on which the information is delivered to the purchaser, except that the information required by subparagraphs (B), (C), (M), (N), (O), and (Q) of this paragraph shall be provided as of December 31 of the year preceding the year in which the information is delivered, except for information delivered within the first 180 days of any calendar year which shall be provided as of December 31 of the year preceding the year in which the information is delivered. All references in this Code section to the word "year" shall mean calendar year;
    3. A multilocation developer shall include in the public offering statement or a supplement delivered therewith the following information:
      1. A complete and accurate description of the procedure to qualify for and effectuate use rights in time-share units in the multilocation plan;
      2. A complete and accurate description of all limitations, restrictions, or priorities employed in the operation of the multilocation plan, including, but not limited to, a conspicuous statement of limitations on reservations, use or entitlement rights based on seasonableness, unit size, levels of occupancy or class of owner, and, in the event that such limitations, restrictions, or priorities are not uniformly applied by the multilocation plan, a clear description of the manner in which they are applied;
      3. Whether use is arranged on a space-available basis and whether any guarantees of fulfillment of specific requests for use are made by the multilocation developer;
      4. The name and address of the site of each time-share property included in the multilocation plan;
      5. The number of time-share units in each time-share property which are available for occupancy and, with respect to each such time-share unit, the interest, such as fee ownership, leasehold, or option to purchase, which the multilocation developer has therein; a statement of all relevant terms of the multilocation developer's interest if such interest is less than fee ownership; and whether the time-share unit may be withdrawn from the multilocation plan;
      6. The following information, which, except as provided in subparagraph (H) of this paragraph, shall be independently audited by a certified public accountant or accounting firm in accordance with the standards of the Accounting Standards Board of the American Institute of Certified Public Accountants and included in the public offering statement for each year on or before July 1 of the succeeding year beginning no later than July 1, 1983:
        1. The number of owners in the multilocation plan;
        2. For each time-share property in the multilocation plan, the number of properly made requests for use of time-share units in such time-share property; and
        3. For each time-share property, the percentage of owners who properly requested use of a time-share unit in such time-share property who received the right to use a time-share unit in such time-share property;
      7. A conspicuous statement to the effect that the percentages described in subparagraph (F) of this paragraph do not indicate a purchaser's or owner's probabilities of being able to use any time-share unit since availability at individual locations may vary; and
      8. The information required by this paragraph shall be provided as of a date which is no more than 30 days prior to the date on which the information is delivered to the purchaser, except that the information required by subparagraphs (D), (E), and (F) of this paragraph shall be provided as of December 31 of the year preceding the year in which the information is delivered, except for information delivered within the first 180 days of any calendar year which shall be provided as of December 31 of the year preceding the year in which the information is delivered.
  2. In the event an exchange company offers an exchange program directly to the purchaser or owner, the exchange company shall deliver to each purchaser or owner, prior to the execution of any contract between the purchaser or owner and the company offering the exchange program, the information set forth in paragraph (2) of subsection (a) of this Code section. The requirements of paragraph (2) of subsection (a) of this Code section shall not apply to any renewal of a contract between an owner and an exchange company.
  3. Each exchange company offering an exchange program to purchasers in this state must include the statement set forth in subparagraph (a)(2)(R) of this Code section on all promotional brochures, pamphlets, advertisements, or other materials disseminated by the exchange company which also contain the percentage of confirmed exchanges described in division (a)(2)(Q)(iii) of this Code section. (Code 1981, § 44-3-172 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1984, p. 22, § 44; Ga. L. 1985, p. 149, § 44; Ga. L. 1985, p. 856, § 1; Ga. L. 1992, p. 6, § 44; Ga. L. 1995, p. 1260, § 1; Ga. L. 1996, p. 6, § 44; Ga. L. 2000, p. 1589, § 3.)

Code Commission notes. - Pursuant to § 28-9-5 , in 1985, in subparagraph (a)(2)(R) "division (iii) of subparagraph (Q) of this paragraph" was substituted for "division (a)(2)(Q)(iii) of this Code section".

Pursuant to § 28-9-5 , in 1988, the correct spelling of "number" was substituted in division (a)(2)(Q)(iv).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

44-3-173. Annual reports filed by exchange companies and multilocation developers.

  1. An exchange company whose exchange program is offered to purchasers in connection with the offer or disposition of time-share intervals in this state shall, on or before July 1 of each year, file with the secretary of the association for the time-share program in which the time-share intervals are offered or disposed, the information required by paragraph (2) of subsection (a) of Code Section 44-3-172 with respect to the preceding year. If any of the information supplied fails to meet the requirements of this Code section, the district attorney or Attorney General may undertake enforcement action against the exchange company in accordance with the provisions of this article in either the superior court of the county wherein the time-share accommodations or facilities are located or in the Superior Court of Fulton County. No developer shall have any liability arising out of the use, delivery, or publication by the developer of any information provided to it by the exchange company pursuant to this Code section. Except as provided in this Code section, no exchange company shall have any liability with respect to (1) any representation made by the developer relating to the exchange program or exchange company, or (2) the use, delivery, or publication by the developer of any information relating to the exchange program or exchange company. An exchange company shall only be liable for written information provided to the developer by the exchange company. The failure of the exchange company to observe the requirements of this Code section, or the use by it of any unfair or deceptive act or practice in connection with the operation of the exchange program, shall be a violation of this article.
  2. A multilocation developer which offers or disposes of time-share intervals in this state shall, on or before July 1 of each year, file with the secretary of the association for the time-share program the information required by paragraph (3) of subsection (a) of Code Section 44-3-172 with respect to the preceding year. If at any time any of the information supplied fails to meet the requirements of this Code section, the district attorney or Attorney General may undertake enforcement action against the multilocation developer in accordance with the provisions of this article in either the superior court of the county wherein the time-share accommodations or facilities are located or in the Superior Court of Fulton County. The failure of a multilocation developer to observe the requirements of this Code section, or the use by it of any unfair or deceptive act or practice in connection with the operation of the exchange program, shall be a violation of this article. (Code 1981, § 44-3-173 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1985, p. 149, § 44; Ga. L. 1995, p. 1260, § 1.)

44-3-174. Public offering statement provided to purchasers; cancellation of sales agreement by purchaser or developer; statement acknowledging receipt.

  1. Before transfer of a time-share interval and no later than the date of any sales agreement, the developer shall provide the intended transferee with a copy of the public offering statement and any amendments and supplements thereto. The sales agreement is voidable by the purchaser for seven days, Sundays and holidays excepted, after receipt of the public offering statement or for seven days, Sundays and holidays excepted, after signing any sales agreement, whichever is later. Cancellation is without penalty or obligation, and all payments made by the purchaser before cancellation must be refunded within 30 days after receipt of the notice of cancellation.
  2. In addition to the rights of the developer provided in the sales agreement, up to seven days, Sundays and holidays excepted, after the signing of any sales agreement, the developer may cancel the sales agreement without penalty or obligation to either party. The developer shall return all payments made by the purchaser within 30 days after canceling the agreement and the purchaser shall return all materials received in good condition, reasonable wear and tear excepted.
  3. If a time-share use is being conveyed, a purchaser shall have the right to cancel the transaction at any time after the facilities are no longer available for use.
  4. The rights of cancellation provided for in subsections (a), (b), and (c) of this Code section shall not be waivable by any purchaser.
  5. Any sales agreement must contain a conspicuous statement as follows:

    "YOU MAY CANCEL WITHOUT PENALTY OR OBLIGATION THIS SALES AGREEMENT FOR THE PURCHASE OR LEASE OF A TIME-SHARE INTERVAL WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER SIGNING AND RECEIVE A REFUND OF ANY FUNDS PAID. IF YOU DID NOT RECEIVE A PUBLIC OFFERING STATEMENT PRIOR TO SIGNING THIS SALES AGREEMENT, YOU MAY CANCEL THIS SALES AGREEMENT WITHIN SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER RECEIPT OF A PUBLIC OFFERING STATEMENT. YOU MAY NOT GIVE UP OR WAIVE THIS RIGHT TO CANCEL. IF YOU DECIDE TO CANCEL, YOU MUST NOTIFY THE DEVELOPER IN WRITING WITHIN THE CANCELLATION PERIOD OF YOUR INTENT TO CANCEL BY SENDING NOTICE BY CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED, TO (insert the name and address of the developer or the developer's agent). YOUR NOTICE WILL BE EFFECTIVE UPON THE DATE YOU SEND IT."

  6. Prospective purchasers receiving a copy of the public offering statement shall sign a conspicuous statement acknowledging receipt of the public offering statement which shall be kept at the principal office of the developer for a period of three years from the date of receipt. Said statement shall read as follows: "I HEREBY ACKNOWLEDGE THAT I HAVE RECEIVED THE PUBLIC OFFERING STATEMENT OF (insert name of project) ON (insert date) AND I UNDERSTAND THAT MY RIGHT TO CANCEL ANY SALES AGREEMENT TO PURCHASE A TIME-SHARE INTERVAL EXPIRES ON (insert date), WHICH IS SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER SIGNING ANY SALES AGREEMENT OR SEVEN DAYS, SUNDAYS AND HOLIDAYS EXCEPTED, AFTER RECEIPT OF THE PUBLIC OFFERING STATEMENT, WHICHEVER IS LATER." (Code 1981, § 44-3-174 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1985, p. 856, § 2; Ga. L. 1995, p. 1260, § 1; Ga. L. 2000, p. 1589, § 3.)

Code Commission notes. - Pursuant to § 28-9-5 , in 1987, "canceling" was substituted for "cancelling" in the second sentence of subsection (b).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

44-3-175. Funds required to be escrowed by developer; exceptions; escrow agents.

  1. A developer of a time-share program shall:
    1. Deposit with an escrow agent 100 percent of all funds which are received during the seven-day cancellation period provided for in this article. The deposit of such funds shall be evidenced by an executed escrow agreement between the escrow agent and the developer, the provisions of which shall include:
      1. That its purpose is to protect the purchaser's right to a refund if he or she cancels the sales agreement for a time-share interval within a seven-day cancellation period;
      2. That funds may be disbursed to the developer by the escrow agent from the escrow account only after expiration of the purchaser's seven-day cancellation period and in accordance with the sales agreement; and
      3. That the escrow agent may release funds to the developer from the escrow account only after receipt of a sworn statement from the developer that no cancellation notice was received before expiration of the seven-day period;
    2. Deposit with an escrow agent after the seven-day cancellation period 100 percent of all funds which are received from purchasers of time-share uses. The deposit of such funds shall be evidenced by an executed escrow agreement between the escrow agent and the developer, the provisions of which shall include:
      1. That its purpose is to protect the purchaser's right to a refund, at any time the accommodations or facilities are no longer available as provided in the sales agreement entered into by the developer and the purchaser in an amount provided for in subparagraph (B) of this paragraph;
      2. That funds may be disbursed to the developer by the escrow agent from the escrow account periodically in the ratio of the amount of time the purchaser has already used or had the right to use the accommodations or facilities of the time-share use at the time of the disbursement in relation to the total time sold to the purchaser; and
      3. That the escrow agent may release funds to the developer from the escrow account only after receipt of a statement signed by the purchaser indicating that such purchaser has used or has had the right to use a specific number of days out of the total time period purchased. If a purchaser refuses to sign such a statement when tendered, the developer may submit a sworn statement to the escrow agent that the purchaser used or had the right to use a specific number of days, but that the purchaser refused to sign a statement to that effect;
    3. Place 100 percent of all funds received from purchasers of such time-share intervals, after the seven-day cancellation periods have ended, in an escrow account when interests in real property are being sold, according to a sales agreement which will transfer title to the purchasers. The establishment of such an escrow account shall be evidenced by an executed escrow agreement between the escrow agent and the developer, the provisions of which shall include:
      1. That its purpose is to protect all deposits and payments made by a purchaser toward the purchase price until the deed is delivered to the purchaser, whether physically or by recording the same, or until the purchaser and developer enter into a sales agreement which will transfer title to the purchaser; and
      2. That funds may be disbursed to the developer by the escrow agent from the escrow account only after title has been delivered to the purchaser physically or delivered for recording to the clerk of the superior court in the county where the real property underlying the time-share project is located or at such other time as may be agreed upon in writing by the purchaser and developer. However, in the case of a time-share estate sold by agreement for deed, funds may only be disbursed to the developer after recording of the agreement for deed and, if necessary, a notice to creditors with secured interests in the property underlying the time-share project and, if the property is encumbered by a deed to secure debt or mortgage instrument, a nondisturbance instrument has been recorded in the public records of the county or counties in which the time-share is located; or alternatively, after the developer records a notice to the aforesaid creditors and obtains a release of lien for a time-share interval, funds may be disbursed pertaining to that time-share interval; and
    4. Place any funds escrowed pursuant to this Code section with an escrow agent who shall be one of the following: an attorney in this state, a bank or savings and loan company having trust powers in this state, a title company in this state, or a real estate broker in this state. In lieu of the foregoing, the funds may be escrowed in an account required by the jurisdiction in which the sale of the time-share took place. The developer must notify the purchaser of the name and address of the escrow agent or the name, address, and account number of the bank or savings and loan company where the developer maintains the funds. Maintenance of trust funds and disbursements by an escrow agent in another state must be in accordance with the provisions of this article. The escrow agreement shall authorize the purchaser or the purchaser's representative to examine said trust account.
  2. An escrow agent holding funds escrowed pursuant to this Code section may invest such escrowed funds in securities of the United States government, or any agency thereof, or in savings or time deposits in institutions insured by an agency of the United States government. The right to receive the interest generated by any such investments shall be as specified by a written agreement between the developer and the purchaser.
  3. Each escrow agent shall maintain separate books and records for each time-share project and shall maintain such books and records according to generally accepted accounting principles. (Code 1981, § 44-3-175 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1.)

44-3-176. Payments received by developer on uncompleted projects to be escrowed.

  1. If a developer enters into a sales agreement to sell a time-share interval and the construction, furnishing, and landscaping of the time-share project have not been substantially completed in accordance with the representations made by the developer in the disclosures required by this article, the developer shall deposit with an escrow agent all payments received by the developer from the purchaser towards the sales price until the project is substantially complete. Funds shall be released from escrow as follows:
    1. If a purchaser properly terminates the sales agreement pursuant to its terms or pursuant to this article, the funds shall be paid to the purchaser together with any interest earned;
    2. If the purchaser defaults in the performance of such purchaser's obligations under the sales agreement, the funds shall be paid to the developer together with any interest earned; or
    3. If the funds of a purchaser have not been previously disbursed in accordance with the provisions of this subsection, they may be disbursed to the developer in accordance with this article by the escrow agent upon substantial completion of the time-share project.
  2. In lieu of any escrows required by subsection (a) of this Code section, the purchasers shall have the discretion to accept in writing other financial assurances including, but not limited to, a performance bond or an irrevocable letter of credit in an amount equal to the cost to complete the time-share project.
  3. For the purpose of this Code section, "substantially completed" means that all amenities, furnishings, appliances, and structural components and mechanical systems of buildings are completed and provided as represented in the public offering statement and that the premises are ready for occupancy. (Code 1981, § 44-3-176 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1992, p. 6, § 44; Ga. L. 1995, p. 1260, § 1.)

44-3-177. Exemption from other state laws requiring registration and public offering statements.

  1. Any time-share program registered under this article in which a public offering statement has been prepared shall not require registration under any of the following:
    1. Article 1 of this chapter;
    2. Chapter 5 of Title 10; or
    3. Any other state law which requires the preparation of a public offering statement or substantially similar document for distribution to purchasers.
  2. Any time-share program registered under this article that fails to restrict the price at which an owner may sell or exchange such owner's time-share interval shall not by virtue of such failure cause the time-share interval to become a security under Chapter 5 of Title 10; nor shall an exchange program offering such a time-share interval for exchange be construed to be offering a security under Chapter 5 of Title 10. (Code 1981, § 44-3-177 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1.)

44-3-178. Exceptions to public offering statement requirement under this article.

  1. In lieu of the public offering statement required by this article, the developer may give prospective purchasers a public offering statement or similar disclosure document which meets the requirements of the Federal Securities and Exchange Act of 1933 or, if the time-share project is located in another state, a public offering statement or similar disclosure document which that state may require to be prepared and provided to purchasers.
  2. A public offering statement need not be prepared or delivered in the case of:
    1. A transfer of a time-share interval by any time-share interval owner or user other than the developer or such developer's agent;
    2. A disposition pursuant to court order;
    3. A disposition by a government or governmental agency;
    4. A disposition by foreclosure or deed in lieu of foreclosure;
    5. A disposition of a time-share interval in a time-share project situated wholly outside this state, provided that all solicitations and negotiations took place wholly outside this state and the sales agreement was executed wholly outside this state;
    6. A gratuitous transfer of a time-share interval; or
    7. Group reservations made for 15 or more people as a single transaction between a hotel and travel agent or travel groups for hotel accommodations when deposits are made and held for more than three years in advance. (Code 1981, § 44-3-178 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1984, p. 22, § 44; Ga. L. 1995, p. 1260, § 1.)

44-3-179. Updating public offering statement required.

The developer shall immediately amend or supplement the public offering statement to report any material change in the information required by Code Section 44-3-172. As to any exchange program, the developer shall use the current written materials that are supplied to it for distribution to the time-share interval owners as it is received.

(Code 1981, § 44-3-179 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1.)

44-3-180. Purchase of interval is free of liens affecting that interval; exceptions.

  1. Unless the purchaser expressly agrees in the sales agreement to accept such purchaser's interest subject to a lien or by assuming a lien prior to transferring a time-share interval other than by deed in lieu of foreclosure, the developer shall record or furnish to the purchaser releases of all liens affecting that time-share interval or shall provide a surety bond or insurance against the lien, as provided for liens on real estate in this state. In lieu of the foregoing, a lienholder may agree to repurchase in the amount agreed to by the parties but in no event less than the amount actually paid by the purchaser a purchaser's time-share interval in the event the lienholder comes into possession of the time-share project; or the lienholder may agree to allow the continued right of quiet enjoyment to the purchaser.
  2. Unless a time-share interval owner or such owner's predecessor in title agrees otherwise with the lienor, if a lien other than an underlying mortgage or security deed becomes effective against more than one time-share interval in a time-share project, any time-share interval owner is entitled to a release of such owner's time-share interval from the lien upon payment of the amount of the lien attributable to such owner's time-share interval. The amount of the payment must be proportionate to the ratio that the time-share interval owner's liability bears to the liabilities of all time-share interval owners whose interests are subject to the lien. Upon receipt of payment, the lienholder shall promptly deliver to the time-share interval owner a release of the lien covering that time-share interval. After payment, the managing entity may not assess or have a lien against that time-share interval for any portion of the expenses incurred in connection with that lien. (Code 1981, § 44-3-180 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1.)

Cross references. - Protection of purchasers from developer's underlying blanket encumbrances, § 44-3-189 .

44-3-181. Transfer of developer's entire interest.

The developer shall not sell, lease, assign, or otherwise transfer the entire interest of the developer, other than as a transfer of a time-share interval in the normal course of marketing, in the time-share program or the accommodations or facilities to a third party when such a sale, lease, assignment, or other transfer substantially affects the rights of other owners of the time-share units, unless:

  1. The third party agrees in writing to honor fully the rights of purchasers of the time-share intervals to occupy and use the accommodations or facilities or agrees in writing to purchase the interval in an amount equal to the amount actually paid by the purchaser toward the purchase price of the time-share interval;
  2. The third party agrees in writing to honor fully the rights of purchasers of the time-share intervals to cancel their sales agreement and receive any refunds due;
  3. The third party agrees in writing to comply with the provisions of this article for as long as the third party continues to sell the time-share project or for as long as purchasers of the time-share project are entitled to occupy the accommodations or use the facilities, whichever is longer in time; and
  4. Written notice is given to the association and notice shall be sent by certified mail or statutory overnight delivery within 30 days of the sale, lease, assignment, or other transfer. (Code 1981, § 44-3-181 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

44-3-182. Financial and other records of time-share project association or managing agent.

The person or entity responsible for making or collecting common expense assessments or maintenance assessments shall keep detailed financial records and shall keep said funds in a designated trust account. All financial and other records shall be made reasonably available for examination by any time-share interval owner in the program, by the time-share program's association, or by the authorized agent of such owner or association upon reasonable request.

  1. The developer of a time-share program shall maintain the following records for a period of three years. Said records shall be made available for inspection by any time-share interval owner in the program, by the time-share program's association, or by the authorized agent of such owner or association upon reasonable request:
    1. A copy of the escrow agreement for each time-share interval sold or, if alternative arrangements are made, a copy of the documents relating to those arrangements;
    2. Copies of lien releases, surety bonds, or other financial assurances executed by the developer to protect purchasers against any claims against the time-share program;
    3. Copies of management agreements entered into with managing agents for the management of the time-share program;
    4. Copies of agreements entered into with exchange programs for the inclusion of the time-share project in the exchange program's available facilities; and
    5. For multilocation developers, copies of certified public accountants' reports required by subparagraph (a)(3)(F) of Code Section 44-3-172.
  2. The managing agent of a time-share program shall maintain the following records for a period of three years. Said records shall be made available for inspection by any time-share interval owner in the program, by the time-share program's association, or by the authorized agent of such owner or association upon reasonable request:
    1. Copies of management agreements entered into with developers for the management of time-share programs; and
    2. Copies of budgets and statements sent to developers and time-share interval owners accounting for common expense and maintenance assessments.
  3. Exchange programs shall maintain the following records for a period of three years. Said records shall be made available for inspection by any time-share interval owner in the program, by the time-share program's association, or by the authorized agent of such owner or association upon reasonable request:
    1. Copies of agreements with developers for the inclusion of their projects in the exchange program's available facilities;
    2. Copies of agreements with time-share interval owners for their membership in the exchange program; and
    3. Copies of certified public accountants' reports as required by subparagraph (a)(2)(Q) of Code Section 44-3-172 . (Code 1981, § 44-3-182 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1.)

44-3-183. Remedy for violation of article; punitive damages; attorney's fees.

If a developer or any other person subject to this article violates any provision of this article or any provision of the project instruments, any person or class of persons adversely affected by the violation has a claim for appropriate relief. Punitive damages may be awarded for a willful violation of this article. The court may also award reasonable attorney's fees.

(Code 1981, § 44-3-183 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1.)

44-3-184. Limitation of actions.

A judicial proceeding where the accuracy of the public offering statement or validity of any sales agreement is an issue and a rescission of the sales agreement is sought or damages are sought must be commenced within one year after the date upon which the last of the events described in paragraphs (1) through (3) of this Code section shall occur:

  1. The closing of the transaction;
  2. The first issuance by the applicable governmental authority of a certificate of occupancy or other evidence of sufficient completion of construction of the building containing the unit to allow lawful occupancy of the unit. In counties or municipalities in which certificates of occupancy or other evidence of completion sufficient to allow lawful occupancy are not customarily issued, for the purpose of this Code section, evidence of lawful occupancy shall be deemed to have been given or issued upon the date that such lawful occupancy of the unit may first be allowed under prevailing applicable laws, ordinances, or statutes; or
  3. The completion of the common elements and any recreational facilities, whether or not the same are common elements, which the seller is obligated to complete or to provide under the terms of the written contract for the sale of the unit. (Code 1981, § 44-3-184 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1995, p. 1260, § 1.)

PART 4 A DVERTISING

44-3-185. False advertising prohibited.

  1. It shall be unlawful for any person, directly or indirectly, to sell or offer for sale time-share intervals in this state by authorizing, using, directing, or aiding in the dissemination, publication, distribution, or circulation of any statement, advertisement, radio broadcast, or telecast concerning the time-share project in which the time-share intervals are offered, which contains any statement or sketch which is false or misleading or contains any representation or pictorial representation of proposed improvements or nonexistent scenes without clearly indicating that the improvements are proposed and the scenes do not exist.
  2. Nothing in this Code section shall be construed to hold the publisher or employee of any newspaper, or any job printer, or any broadcaster or telecaster, or any magazine publisher, or any of the employees thereof, liable for any publication referred to in subsection (a) of this Code section unless the publisher, employee, or printer has actual knowledge of the falsity thereof or has an interest either as an owner or agent in the time-share project so advertised. (Code 1981, § 44-3-185 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1987, p. 1386, § 4; Ga. L. 1995, p. 1260, § 1.)

Code Commission notes. - Pursuant to § 28-9-5 , in 1988, a comma was deleted following "contains any statement" near the middle of subsection (a).

44-3-186. Statements or representations which are prohibited.

No advertising for the sale or offer for sale of time-share intervals shall:

  1. Contain any representation as to the availability of a resale program or rental program offered by or on behalf of the developer or its affiliate unless the resale program or rental program has been made a part of the offering;
  2. Contain an offer or inducement to purchase which purports to be limited as to quantity or restricted as to time unless the numerical quantity or time applicable to the offer or inducement is clearly and conspicuously disclosed;
  3. Contain statements concerning the availability of time-share intervals at a particular minimum price if the number of time-share intervals available at that price comprises less than 10 percent of the unsold inventory of the developer, unless the number of time-share intervals then for sale at the minimum price is set forth in the advertisement;
  4. Contain any statement that the time-share interval being offered for sale can be further divided unless a full disclosure is included as the legal requirements for further division of the time-share interval;
  5. Contain any asterisk or other reference symbol as a means of contradicting or changing the ordinary meaning of any previously made statement in the advertisement in such a manner as to mislead the public;
  6. Misrepresent the size, nature, extent, qualities, or characteristics of the accommodations or facilities which comprise the time-share project;
  7. Misrepresent the nature or extent of any services incident to the time-share project;
  8. Misrepresent or imply that a facility or service is available for the exclusive use of purchasers or owners if a public right of access or of use of the facility or service exists;
  9. Make any misleading or deceptive representation with respect to the registration of the time-share project, the sales agreement, the purchaser's rights, privileges, benefits, or obligations under the sales agreement or this article;
  10. Misrepresent the conditions under which a purchaser or owner may participate in an exchange program;
  11. Purport to have resulted through a referral unless the name of the person making the referral can be produced upon demand of any prospective purchaser or the time-share program's association;
  12. Describe any proposed or uncompleted private facilities over which the developer has no control or documented right of use unless the estimated date of completion is set forth and evidence can be produced upon the demand of any prospective purchaser or the time-share program's association that the completion and operation of the facilities are reasonably assured within the time represented in the advertisement or that no assurances of completion are provided;
  13. Contain any statement that the developer plans to affiliate with an exchange program;
  14. Represent that any federal, state, county, or municipal agency, board, or commission has recommended the time-share project or any of its documents; or
  15. Contain any statement guaranteeing or offering to guarantee the sale or resale of any time-share interval. (Code 1981, § 44-3-187 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1987, p. 1386, § 4; Code 1981, § 44-3-186 , as redesignated by Ga. L. 1995, p. 1260, § 1.)

Editor's notes. - This Code section formerly pertained to the filing of advertising materials with the commission in connection with the sale of time-share intervals. The former Code section was based on Ga. L. 1983, p. 1255, § 1.

44-3-187. Offer of gifts or prizes.

Any person who offers a gift, prize, award, or other item, or any other promotional contest or giveaway in connection with the sale or offer to sell of time-share intervals under this article must comply with all of the provisions of paragraph (16) of subsection (b) of Code Section 10-1-393, relating to promotional contests and giveaways in general.

(Code 1981, § 44-3-188 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1986, p. 1313, § 5; Ga. L. 1987, p. 3, § 44; Ga. L. 1987, p. 1386, § 4; Ga. L. 1988, p. 13, § 44; Code 1981, § 44-3-187 , as redesignated by Ga. L. 1995, p. 1260, § 1.)

Code Commission notes. - The amendment of this Code section by Ga. L. 1987, p. 3, § 44, irreconcilably conflicted with and was treated as superseded by Ga. L. 1987, p. 1386, § 4. See County of Butts v. Strahan, 151 Ga. 417 (1921); Keener v. McDougall, 232 Ga. 273 (1974)

Editor's notes. - Ga. L. 1995, p. 1260, § 1, renumbered former Code Section 44-3-187 as present Code Section 44-3-186.

PART 5 F INANCING BY DEVELOPER

44-3-188. Developer's financial records; availability; periodic reports; transfer of developer's interest subject to debts.

In the developer's financing of a time-share program, the developer shall retain financial records of the schedule of payments required to be made and the payments made to any person or entity which is the holder of an underlying blanket mortgage, deed of trust, contract of sale, or other lien or encumbrance which is not subordinated to the time-share program and shall make the same available upon reasonable request to owners of time-share intervals in the time-share program and the time-share program's association. The time-share program's association, in its discretion, may require the developer to submit periodic, written reports from the mortgagee, lienholder, or other creditor of the status of payments made on any underlying blanket mortgage, deed of trust, contract of sale, or other lien or encumbrance which is not subordinated in the time-share program. Any transfer of the developer's interest in the time-share program to any third person shall be subject to the obligations of the developer.

(Code 1981, § 44-3-189 , enacted by Ga. L. 1983, p. 1255, § 1; Code 1981, § 44-3-188 , as redesignated by Ga. L. 1995, p. 1260, § 1.)

Editor's notes. - Ga. L. 1995, p. 1260, § 1, renumbered former Code Section 44-3-188 as present Code Section 44-3-187.

44-3-189. Protection of purchasers from developer's underlying blanket encumbrance.

The developer whose project is subject to an underlying blanket lien or encumbrance shall protect nondefaulting purchasers from foreclosure by the lienholder by obtaining from the lienholder a nondisturbance clause, subordination agreements, partial release of the lien as the time-share intervals are sold, or an agreement in writing that the lienholder will purchase nondefaulting purchasers' intervals in an amount equal to the amount agreed to by the parties but in no event less than the amount actually paid by the purchaser toward the purchase price of the time-share interval.

(Code 1981, § 44-3-190 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1984, p. 22, § 44; Code 1981, § 44-3-189 , as redesignated by Ga. L. 1995, p. 1260, § 1.)

Cross references. - Purchase of time-share interval is free of liens, § 44-3-180 .

Editor's notes. - Ga. L. 1995, p. 1260, § 1, renumbered former Code Section 44-3-189 as present Code Section 44-3-188.

PART 6 R EGISTRATION

44-3-190. Real estate broker's license requirement; collection of compensation for real estate brokerage services from persons reselling time-share intervals.

  1. It shall be unlawful for any person to engage in the business of, act in the capacity of, advertise, or assume to act as a sales agent or managing agent within this state without first obtaining a license to act as a real estate broker if required by Chapter 40 of Title 43.
  2. Prior to the closing of a resale of a time-share interval owned by a person other than the developer of the time-share program, no person may charge or collect any compensation for real estate brokerage services from the person reselling the time-share interval; provided, however, that such person providing real estate brokerage services may charge an advertising fee if:
    1. Such person can document that said advertising fee was paid to a firm which regularly provides advertising services to promote the sale of real property and with which such person providing real estate brokerage services has no personal, familial, or business relationship; and
    2. The party reselling the time-share interval signs an agreement authorizing the advertising fee and such agreement identifies the party to whom the advertising fee will be paid. If the person offering real estate brokering services on the resale of a time-share interval also offers a guaranteed sale of the interval, such person may not charge or collect any compensation for any purpose prior to the closing of the resale of the time-share interval. (Code 1981, § 44-3-192 , enacted by Ga. L. 1983, p. 1255, § 1; Code 1981, § 44-3-190 , as redesignated by Ga. L. 1995, p. 1260, § 1.)

Cross references. - Financial requirements for licensing and registration, § 7-1-1003.2 . Application for registration, § 7-1-1003.3 .

Editor's notes. - Ga. L. 1995, p. 1260, § 1, renumbered former Code Section 44-3-190 as present Code Section 44-3-189.

44-3-191. Requirements for out-of-state projects, managing agents, and exchange programs.

  1. Time-share projects located outside this state and offered for sale in this state must comply with such time-share regulations as exist in the situs state unless the provisions of this article are more restrictive, and then the provisions of this article shall be equally applicable. A time-share project located outside this state may supplement its disclosure materials in that situs state with an added disclosure addendum to be applicable to sales occurring in this state, which disclosure addendum incorporates the law of this state if more restrictive.
  2. Managing agents and exchange programs located outside this state and operating in this state must comply with all of the provisions of this article. (Code 1981, § 44-3-194 , enacted by Ga. L. 1983, p. 1255, § 1; Code 1981, § 44-3-191 , as redesignated by Ga. L. 1995, p. 1260, § 1.)

Editor's notes. - Ga. L. 1995, p. 1260, § 1, repealed former Code Section 44-3-191 , relating to requirement of registration of time-share programs, agents, and exchange companies and grounds for reprimand, or for denial, suspension, or revocation of registration, effective July 1, 1995, and renumbered former Code Section 44-3-194 as Code Section 44-3-191 . Former Code Section 44-3-191 was based on Code 1981, § 44-3-191, enacted by Ga. L. 1983, p. 1255, § 1.

44-3-192. Exceptions from registration.

Compliance with this article shall not be required in the case of:

  1. Any transfer of a time-share interval by any time-share interval owner other than the developer or such developer's agent;
  2. Any disposition pursuant to court order;
  3. A disposition by a government or governmental agency;
  4. A disposition by foreclosure or deed in lieu of foreclosure;
  5. A disposition of a time-share interval in a time-share project situated wholly outside this state, provided that all solicitations and negotiations took place wholly outside this state and the sales agreement was executed wholly outside this state;
  6. A gratuitous transfer of a time-share interval; or
  7. Group reservations made for 15 or more people as a single transaction between a hotel and travel agent or travel groups for hotel accommodations when deposits are made and held for more than three years in advance. (Code 1981, § 44-3-197 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1984, p. 22, § 44; Code 1981, § 44-3-192 , as redesignated by Ga. L. 1995, p. 1260, § 1.)

Editor's notes. - Ga. L. 1995, p. 1260, § 1, renumbered former Code Section 44-3-192 as present Code Section 44-3-190. Former Code Section 44-3-192 related to real estate broker's license requirement.

PART 7 M ISCELLANEOUS

44-3-193. Modification of public offering statement; limitations on use of public offering statement.

  1. A developer must alter or supplement the form of or information contained in the public offering statement to assure that the public offering statement adequately and accurately discloses to prospective purchasers the material required to be disclosed by this article.
  2. The public offering statement shall not be used for any promotional purposes unless it is used in its entirety. No person shall advertise or represent that any federal, state, county, or municipal agency, board, or commission has approved or recommended the time-share program, its disclosure statement, or any of its documents. (Code 1981, § 44-3-199 , enacted by Ga. L. 1983, p. 1255, § 1; Code 1981, § 44-3-193 , as redesignated by Ga. L. 1995, p. 1260, § 1.)

Editor's notes. - Ga. L. 1995, p. 1260, § 1, repealed former Code Section 44-3-193 , relating to contents of application for registration of time-share program, effective July 1, 1995, and renumbered former Code Section 44-3-199 as Code Section 44-3-193 . Former Code Section 44-3-193 was based on Code 1981, § 44-3-193, enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1984, p. 22, § 44; Ga. L. 1985, p. 856, § 3.

44-3-194. Records required to be kept by developer or agents.

Any developer or its agents shall keep among its business records and make reasonably available for examination to the purchaser or the time-share program's association or its authorized agent the following:

  1. A copy of each item required by this article;
  2. A copy of the sales agreement from each sale of a time-share interval in the time-share project, which sales agreement shall be retained for a period of at least three years after parties to the sale have completely performed all of their obligations thereunder; and
  3. A list of all employees or independent contractors, including their last known mailing address, which list shall include all current and previous employees or independent contractors whose employment or contract has been terminated within the preceding three years. (Code 1981, § 44-3-200 , enacted by Ga. L. 1983, p. 1255, § 1; Code 1981, § 44-3-194 , as redesignated by Ga. L. 1995, p. 1260, § 1; Ga. L. 1996, p. 6, § 44.)

Cross references. - Financial and other records to be kept by project association or managing agent, § 44-3-182 .

Editor's notes. - Ga. L. 1995, p. 1260, § 1, renumbered former Code Section 44-3-194 as present Code Section 44-3-191.

44-3-195. Criminal penalty for violation of article; injunction restraining prohibited conduct; liability for damages; attorney's fees.

  1. Except that violations of Code Section 44-3-188 shall be subject only to the remedies available under paragraph (16) of subsection (b) of Code Section 10-1-393, any person who shall willfully and intentionally violate any provision of this article shall be guilty of a misdemeanor except in the case the violation causes loss in excess of $5,000.00, then said person shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine not to exceed $5,000.00 or by imprisonment for not less than one nor more than three years. Each violation of this article shall constitute a separate offense.
  2. Whenever it appears to the district attorney or the Attorney General, either upon complaint or otherwise, that any person has engaged in, is engaging in, or is about to engage in any act, practice, or transaction which is prohibited by this article, the district attorney or Attorney General or both may in his or her discretion apply to any court of competent jurisdiction in this state, including the Superior Court of Fulton County, for an injunction restraining such person and that person's agents, employees, partners, officers, and directors from continuing such act, practice, or transaction or doing any acts in furtherance thereof and for the appointment of a receiver or an auditor and such other and further relief as the facts may warrant.
  3. Any person who violates this article shall be liable in damages to any person or class of persons injured thereby. Punitive damages may be awarded for a willful violation of this article. The court may also award reasonable attorney's fees. (Code 1981, § 44-3-202 , enacted by Ga. L. 1983, p. 1255, § 1; Code 1981, § 44-3-195 , as redesignated by Ga. L. 1995, p. 1260, § 1.)

Editor's notes. - Ga. L. 1995, p. 1260, § 1, repealed former Code Section 44-3-195 , relating to authority to establish fees, effective July 1, 1995, and renumbered former Code Section 44-3-202 as Code Section 44-3-195 . Former Code Section 44-3-195 was based on Code 1981, § 44-3-195, enacted by Ga. L. 1983, p. 1255, § 1.

44-3-196. Application of article to time-share programs created prior to or following July 1, 1983.

The provisions of this article shall apply to any time-share program located in this state or outside this state when offered for sale in this state created or commenced after July 1, 1983, and 180 days after July 1, 1983, as to any time-share program heretofore created or commenced.

(Code 1981, § 44-3-205 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1984, p. 22, § 44; Ga. L. 1989, p. 321, § 5; Ga. L. 1990, p. 227, § 20; Code 1981, § 44-3-196 , as redesignated by Ga. L. 1995, p. 1260, § 1.)

Editor's notes. - Ga. L. 1995, p. 1260, § 1, repealed former Code Section 44-3-196 , relating to effective date of registration, administrative review of denial of registration, use of proper forms, and deficiencies in making applications, effective July 1, 1995, and renumbered former Code Section 44-3-205 as Code Section 44-3-196 . Former Code Section 44-3-196 was based on Code 1981, § 44-3-196, enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1985, p. 856, § 4.

44-3-197. Exceptions from registration.

Editor's notes. - Ga. L. 1995, p. 1260, § 1, renumbered former Code Section 44-3-197 as present Code Section 44-3-192.

44-3-198. Powers and duties of the commission.

Repealed by Ga. L. 1995, p. 1260, § 1, effective July 1, 1995.

Editor's notes. - This Code section was based on Code 1981, § 44-3-198 , enacted by Ga. L. 1983, p. 1255, § 1.

44-3-199. Modification of public offering statement; limitations on use of public offering statement.

Editor's notes. - Ga. L. 1995, p. 1260, § 1, renumbered former Code Section 44-3-199 as present Code Section 44-3-193.

44-3-200. Records required to be kept by developer or agents.

Editor's notes. - Ga. L. 1995, p. 1260, § 1, renumbered former Code Section 44-3-200 as present Code Section 44-3-194.

44-3-201. Investigation of developer, agent, or exchange program; report confidential; enumeration of grounds for reprimand or for suspension or revocation of registration; cease and desist order for failure to register.

Repealed by Ga. L. 1995, p. 1260, § 1, effective July 1, 1995.

Editor's notes. - This Code section was based on Code 1981, § 44-3-201 , enacted by Ga. L. 1983, p. 1255, § 1; Ga. L. 1984, p. 22, § 44; Ga. L. 1985, p. 856, § 5.

44-3-202. Criminal penalty for violation of article.

Editor's notes. - Ga. L. 1995, p. 1260, § 1, renumbered former Code Section 44-3-202 as present Code Section 44-3-195. Former Code Section 44-3-202 related to criminal penalty for violation of article.

44-3-203 and 44-3-204.

Repealed by Ga. L. 1995, p. 1260, § 1, effective July 1, 1995.

Editor's notes. - These Code sections were based on Ga. L. 1981, §§ 44-3-203 and 44-3-204, enacted by Ga. L. 1983, p. 1255, § 1.

44-3-205. Application of article to time-share programs created prior to or following July 1, 1983.

Editor's notes. - Ga. L. 1995, p. 1260, § 1, renumbered former Code Section 44-3-205 as present Code Section 44-3-196.

ARTICLE 6 PROPERTY OWNERS' ASSOCIATIONS

RESEARCH REFERENCES

Homeowners' Association Defense: Free Speech, 93 Am. Jur. Trials 293.

44-3-220. Short title.

This article shall be known and may be cited as the "Georgia Property Owners' Association Act."

(Code 1981, § 44-3-220 , enacted by Ga. L. 1994, p. 1879, § 1.)

JUDICIAL DECISIONS

Use of easement for access to lake. - Trial court properly found that an easement did not authorize general access to a lake for all members of the homeowners' association but a remand was required as genuine issues existed as to what was reasonably necessary for the enjoyment of the easement and whether a walkway and bridge caused interference and damage to the easement holders. Crabapple Lake Parc Cmty. Ass'n v. Circeo, 325 Ga. App. 101 , 751 S.E.2d 866 (2013).

Authority of association to enter into agreement for recreational facilities. - In a suit challenging a homeowners association's declaration amendment allowing the association to enter into an agreement with a nearby private swim and tennis club, the trial court erred by not granting the association's summary judgment because even without the amendment, the association was authorized, for the common benefit of all homeowners, to accept an easement granting the homeowners access to recreational facilities, and to assess the homeowners their pro rata share of the ongoing cost of the easement. Amberfield Homeowners Ass'n v. Young, 346 Ga. App. 29 , 813 S.E.2d 618 (2018).

Declaration amendment restricting leasing property in HOA. - Trial court's grant of summary judgment to the homeowners' association was proper because two-thirds of homeowners voted to restrict leasing in their neighborhood; thus, an amendment to the declaration challenged by the plaintiff complied with O.C.G.A. § 44-3-226(a) and the plaintiff did not have an unfettered right to lease the plaintiff's property thereafter. Pasha v. Battle Creek Homeowners Ass'n, 350 Ga. App. 433 , 829 S.E.2d 618 (2019).

44-3-221. Definitions.

As used in this article, the term:

  1. "Board of directors" or "board" means an executive and administrative body, by whatever name denominated, designated in the instrument as the governing body of the association.
  2. "Common area" means all real and personal property submitted to the declaration which is owned or leased by the association for common use and enjoyment of the members.
  3. "Common expenses" means all expenditures lawfully made or incurred by or on behalf of the association together with all funds lawfully assessed for the creation and maintenance of reserves pursuant to the provisions of the instrument.
  4. "Court" means the superior court of the county where the development or any part thereof is located.
  5. "Declarant" means all owners and lessees of the property who execute the declaration or on whose behalf the declaration is executed; provided, however, that the phrase "owners and lessees," as used in this article, shall not include in his or her capacity as such any mortgagee, any lien holder, any person having an equitable interest under any contract for the sale or lease of a lot, or any lessee or tenant of a lot. From the time of the recordation of any amendment to the declaration expanding an expandable property owners' development, all persons who execute that amendment or on whose behalf that amendment is executed shall also come within the definition of "declarant." Any successors-in-title of any owner or lessee referred to in this paragraph who comes to stand in the same relation to the property owners' development as his or her predecessor did shall also come within such definition.
  6. "Declaration" means the recordable instrument creating covenants upon property which covenants are administered by a property owners' association in which membership is mandatory for all owners of lots in the property owners' development.
  7. "Foreclosure" means, without limitation, the judicial foreclosure of a mortgage and the exercise of a power of sale contained in any mortgage.
  8. "Limited common areas" means a portion of the common area reserved for the exclusive use of those entitled to occupy one or more, but less than all, of the lots.
  9. "Lot" means any plot or parcel of land, other than a common area, designated for separate ownership and occupancy shown on a recorded subdivision plat for a development and subject to a declaration. Where the context indicates or requires, the term lot includes any structure on the lot. With respect to a property owners' development which includes a condominium, and to the extent provided for in the instrument, each condominium unit, as defined in paragraph (28) of Code Section 44-3-71, shall be deemed a separate lot.
  10. "Lot owner" means one or more persons who are record title owners of a lot.
  11. "Mortgage" means a mortgage, deed to secure debt, deed of trust, or other instrument conveying a lien upon or security title to property.
  12. "Mortgagee" means the holder of a mortgage.
  13. "Officer" means an officer of the association.
  14. "Person" means a natural person, corporation, partnership, association, trust, other entity, or any combination thereof.
  15. "Property" means any real property and any interest in real property, including, without limitation, parcels of air space.
  16. "Property owners' association" or "association" means a corporation formed for the purpose of exercising the powers of the property owners' association created pursuant to this article.
  17. "Property owners' association instrument" or "instrument" means the declaration, plats, and plans recorded pursuant to this article.  Any exhibit, schedule, or certification accompanying an instrument and recorded simultaneously therewith shall be deemed an integral part of that instrument. Any amendment or certification of any instrument shall, from the time of the recordation of such amendment or certification, be deemed an integral part of the affected instrument so long as such amendment or certification was made in accordance with this article.
  18. "Property owners' development" or "development" means real property which contains lots and which may contain common area located within Georgia and subject to a declaration and submitted to this article. (Code 1981, § 44-3-221 , enacted by Ga. L. 1994, p. 1879, § 1; Ga. L. 2004, p. 560, § 8.)

JUDICIAL DECISIONS

Authority of association to enter into agreement for recreational facilities. - In a suit challenging a homeowners association's declaration amendment allowing the association to enter into an agreement with a nearby private swim and tennis club, the trial court erred by not granting the association's summary judgment because even without the amendment, the association was authorized, for the common benefit of all homeowners, to accept an easement granting the homeowners access to recreational facilities, and to assess the homeowners their pro rata share of the ongoing cost of the easement. Amberfield Homeowners Ass'n v. Young, 346 Ga. App. 29 , 813 S.E.2d 618 (2018).

Cited in Pasha v. Battle Creek Homeowners Ass'n, 350 Ga. App. 433 , 829 S.E.2d 618 (2019); Howell v. Lochwolde Homeowners Ass'n, 355 Ga. App. 678 , 845 S.E.2d 410 (2020).

44-3-222. Creation of property owners' development; affirmative election to be governed by article.

A property owners' development shall come into existence upon either the recordation of the declaration pursuant to this article or the amendment of a recorded declaration in accordance with Code Section 44-3-235. Any declaration or amendment intending to bring or avail a development of the benefits and provisions of this article shall state an affirmative election to be so governed. Any original declaration shall be duly executed by or on behalf of all of the owners of the submitted property. Any such amendment to an existing declaration shall be executed in accordance with the terms of the recorded declaration being amended thereby.

(Code 1981, § 44-3-222 , enacted by Ga. L. 1994, p. 1879, § 1.)

JUDICIAL DECISIONS

Authority of association to enter into agreement for recreational facilities. - In a suit challenging a homeowners association's declaration amendment allowing the association to enter into an agreement with a nearby private swim and tennis club, the trial court erred by not granting the association's summary judgment because even without the amendment, the association was authorized, for the common benefit of all homeowners, to accept an easement granting the homeowners access to recreational facilities, and to assess the homeowners their pro rata share of the ongoing cost of the easement. Amberfield Homeowners Ass'n v. Young, 346 Ga. App. 29 , 813 S.E.2d 618 (2018).

Declaration amendment restricting leasing property in HOA. - Trial court's grant of summary judgment to the homeowners' association was proper because two-thirds of homeowners voted to restrict leasing in their neighborhood; thus, an amendment to the declaration challenged by the plaintiff complied with O.C.G.A. § 44-3-226(a) and the plaintiff did not have an unfettered right to lease the plaintiff's property thereafter. Pasha v. Battle Creek Homeowners Ass'n, 350 Ga. App. 433 , 829 S.E.2d 618 (2019).

44-3-223. Compliance with provisions of instrument and with rules and regulations; penalties for noncompliance.

Every lot owner and all those entitled to occupy a lot shall comply with all lawful provisions of the property owners' association instrument. In addition, any lot owner and all those entitled to occupy a lot shall comply with any reasonable rules or regulations adopted by the association pursuant to the instrument which have been provided to the lot owners and with the lawful provisions of the bylaws of the association. Any lack of such compliance shall be grounds for an action to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, maintainable by the association or, in any proper case, by one or more aggrieved lot owners on their own behalf or as a class action. If and to the extent provided in the instrument, the association shall be empowered to impose and assess fines and suspend temporarily voting rights and the right of use of certain of the common areas and services paid for as a common expense in order to enforce such compliance; provided, however, that no such suspension shall deny any lot owner or occupants access to the lot owned or occupied.

(Code 1981, § 44-3-223 , enacted by Ga. L. 1994, p. 1879, § 1.)

JUDICIAL DECISIONS

Power to collect dues and assessments. - Georgia Property Owners' Association Act, O.C.G.A. § 44-3-223 , gives covenants the force of law, and a homeowners' association acted with privilege when the association exercised the power to collect dues and assessments granted to the association under the covenants; the association was therefore not a stranger to the contracts or the relationship between a developer and lot buyers, and thus was not liable for tortious interference with those contracts or that relationship. Carey Station Vill. Home Owners Ass'n v. Carey Station Vill., Inc., 268 Ga. App. 461 , 602 S.E.2d 233 (2004).

Homeowners association's practice of imposing a $100-per-week fine for the homeowner's failure to obtain pre-approval of the homeowner's flower bed was not supported by the terms of the declaration not in compliance with O.C.G.A. § 43-3-223. Abdullah v. Winslow at Eagle's Landing Homeowners Ass'n, 349 Ga. App. 615 , 823 S.E.2d 872 (2019).

44-3-224. Voting at association meetings.

  1. Since a lot owner may be more than one person, if only one of those persons is present at a meeting of the association, or is voting by proxy, ballot, or written consent, that person shall be entitled to cast the votes pertaining to that lot. However, if more than one of those persons is present, or executes a proxy, ballot, or written consent, the vote pertaining to that lot shall be cast only in accordance with their unanimous agreement unless the instrument expressly provides otherwise; and such consent shall be conclusively presumed if any one of them purports to cast the votes pertaining to that lot without protest being made immediately by any of the others to the person presiding over the meeting or vote.
  2. The votes pertaining to any lot may, and, in the case of any lot owner not a natural person or persons, shall, be cast pursuant to a proxy or proxies duly executed by or on behalf of the lot owner or, in cases where the lot owner is more than one person, by or on behalf of the joint owners of the lot. No such proxy shall be revocable except as provided in Code Section 14-2-722 or Code Section 14-3-724 or by written notice delivered to the association by the lot owner or by any joint owners of a lot. Any proxy shall be void if it is not dated or if it purports to be revocable without such notice. (Code 1981, § 44-3-224 , enacted by Ga. L. 1994, p. 1879, § 1; Ga. L. 2004, p. 560, § 9.)

44-3-225. Assessment of expenses; exemption from liability; liability for unpaid assessments.

  1. To the extent that the instrument expressly so provides:
    1. Any common expenses benefiting less than all of the lots shall be specially assessed equitably among all of the lots so benefited, as determined by the board;
    2. Any common expenses occasioned by the conduct of less than all of those entitled to occupy all of the lots or by the licensees or invitees of any such lot or lots shall be specially assessed against the lot or lots, the conduct of any occupant, licensee, or invitee of which occasioned any such common expenses;
    3. Any common expenses significantly disproportionately benefiting all of the lots shall be assessed equitably among all of the lots in the development as determined by the board; and
    4. Other than for limited common areas expressly designated as such in the instrument and assigned to fewer than all lots, nothing contained in paragraph (1) or (3) of this subsection shall permit an association to specially or disproportionately allocate common expenses for periodic maintenance, repair, and replacement of any portion of the common area or the lots which the association has the obligation to maintain, repair, or replace.
  2. No lot owner other than the association shall be exempted from any liability for any assessment under this Code section or under any instrument for any reason whatsoever, including, without limitation, abandonment, nonuse, or waiver of the use or enjoyment of his or her lot or any part of the common area except to the extent that any lot, upon request by the owner of the lot, expressly may be made exempt from assessments and thus denied voting rights of the lot under the instrument until a certificate of occupancy is issued by the governing authority for a dwelling on such lot.
  3. Unless otherwise provided in the instrument and except as provided in subsection (d) of this Code section, the grantee in a conveyance of a lot shall be jointly and severally liable with the grantor thereof for all unpaid assessments against the latter up to the time of the conveyance without prejudice to the grantee's right to recover from the grantor the amounts paid by the grantee; provided, however, that if the grantor or grantee shall request a statement from the association as provided in subsection (d) of Code Section 44-3-232, such grantee and his or her successors, successors-in-title, and assigns shall not be liable for nor shall the property owners' association lot conveyed be subject to a lien for any unpaid assessments against such grantor in excess of any amount set forth in the statement.
  4. In the event that the holder of a first priority mortgage or secondary purchase money mortgage of record, provided that neither the grantee nor any successor grantee on the secondary purchase money mortgage is the seller of the lot, or in the event that any other person acquires title to any lot as a result of foreclosure of any such mortgage, such holder or other person and his or her successors, successors-in-title, and assigns shall not be liable for nor shall the lot be subject to any lien for assessments under this Code section or under any instrument chargeable to the lot on account of any period prior to the acquisition of title; provided, however, that the unpaid share of an assessment or assessments shall be deemed to be a common expense collectable from all of the lot owners, including such holder or other person and his or her successors, successors-in-title, and assigns. (Code 1981, § 44-3-225 , enacted by Ga. L. 1994, p. 1879, § 1; Ga. L. 2004, p. 560, § 10.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2004, "nonuse" was substituted for "nonuser" in the middle of subsection (b).

44-3-226. Amendment of instrument; presumption of validity in court action.

    1. Except to the extent expressly permitted or required by other provisions of this article, the instrument shall be amended only by the agreement of lot owners of lots to which two-thirds of the votes in the association pertain or such larger majority as the instrument may specify; provided, however, that, during any such time as there shall exist an unexpired option to add any additional property to the property owners' association or during any such time as the declarant has the right to control the association under the instrument, the agreement shall be that of the declarant and the lot owners of lots to which two-thirds of the votes in the association pertain, exclusive of any vote or votes appurtenant to any lot or lots then owned by the declarant, or a larger majority as the instrument may specify.
    2. Notwithstanding any other provisions of this subsection:
      1. During such time as the declarant shall own at least one lot primarily for the purpose of sale of such lot, no amendment shall be made to the instrument without the written agreement of the declarant if such amendment would impose a greater restriction on the use or development by the declarant of the lot or lots owned by the declarant; and
      2. No amendment shall be made to the instrument so as to prohibit or restrict a nonowner occupied lot from continuing to be leased or rented for an initial term of six months or longer pursuant to the preamended instrument; provided, however, that upon the conveyance for value of such lot, such lot shall be made to conform to the instrument as amended. For purposes of this subparagraph, the term "conveyance for value" means any transfer of the lot for consideration in the amount of $100.00 or more or any transfer of an interest in the entity that owns the lot for consideration in the amount of $100.00 or more.
  2. No amendment of an instrument shall require approval of lot owners to which more than 80 percent of the association vote pertains and the mortgagees holding 80 percent of the voting interest of mortgaged lots; any property owners' association which exists prior to July 1, 1994, and amends its documents to avail itself of the provisions of this article shall be deemed to have amended the association instrument to conform to this limitation.  This subsection shall not be deemed to eliminate or modify any right of the declarant provided for in the instrument to approve amendments to the instrument so long as the declarant owns any lot primarily for the purpose of sale and, furthermore, this Code section shall not be construed as modifying or altering the rights of a mortgagee set forth elsewhere in this article.
  3. Except to the extent expressly permitted or required by other provisions of this article, or agreed upon or permitted by the instrument concerning submission of additional property to this article by the declarant or the association, or agreed upon by all lot owners and the mortgagees of all lots, no amendment to the instrument shall change the boundaries of any lot, the number of votes in the association pertaining thereto, or the liability for common expenses pertaining thereto.
  4. Agreement of the required majority of lot owners to any amendment of the instrument shall be evidenced by their execution of the amendment.  In the alternative, provided that the declarant does not then have the right to control the association pursuant to the instrument, the sworn statement of the president, of any vice president, or of the secretary of the association attached to or incorporated in an amendment executed by the association, which sworn statement states unequivocally that agreement of the required majority was otherwise lawfully obtained and that all notices required by this article were properly given, shall be sufficient to evidence the required agreement. Any such amendment of the instrument shall become effective only when recorded or at such later date as may be specified in the amendment itself.
  5. Notwithstanding anything to the contrary in this article or in the instrument, the approval of any proposed amendment by a mortgagee shall be deemed implied and consented to if the mortgagee fails to submit a response to any written proposal for an amendment within 30 days after the mortgagee receives notice of the proposed amendment sent by certified mail or statutory overnight delivery, return receipt requested.
  6. In any court suit or action where the validity of the adoption of an amendment to an instrument is at issue, the adoption of the amendment shall be presumed valid if the suit is commenced more than one year after the recording of the amendment on the public record.  In such cases, the burden of proof shall be upon the party challenging the validity of the adoption of the amendment. (Code 1981, § 44-3-226 , enacted by Ga. L. 1994, p. 1879, § 1; Ga. L. 1995, p. 10, § 44; Ga. L. 2000, p. 1589, § 3; Ga. L. 2020, p. 690, § 1/SB 442.)

The 2020 amendment, effective January 1, 2021, designated the existing provisions of subsection (a) as paragraph (a)(1) and subparagraph (a)(2)(A); substituted a colon for ", during" at the end of paragraph (a)(2); in subparagraph (a)(2)(A) added "During" at the beginning and substituted " and" for the period at the end; and added subparagraph (a)(2)(B).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Declaration amendment restricting leasing property. - Trial court's grant of summary judgment to the homeowners' association was proper because two-thirds of homeowners voted to restrict leasing in their neighborhood; thus, an amendment to the declaration challenged by the plaintiff complied with O.C.G.A. § 44-3-226(a) and the plaintiff did not have an unfettered right to lease the plaintiff's property thereafter. Pasha v. Battle Creek Homeowners Ass'n, 350 Ga. App. 433 , 829 S.E.2d 618 (2019).

44-3-227. Incorporation as prerequisite to submission to article; requirements as to corporate documents; board of directors.

  1. Prior to submission to this article, the association shall be duly incorporated either as a business corporation under Chapter 2 of Title 14 or as a nonprofit membership corporation under Chapter 3 of Title 14, as amended. The corporate name of the association shall include the word or words "homeowners," "property owners," "community," "club," or "association" and shall otherwise comply with applicable laws regarding corporate names.  The articles of incorporation of the association and the bylaws adopted by the association shall contain provisions not inconsistent with applicable law including but not limited to this article or with the declaration as may be required by this article or by the declaration and as may be deemed appropriate or desirable for the proper management and administration of the association. The term "member" shall include a shareholder in the event the association is a business corporation or issues stock. Membership shall continue during the period of ownership by such lot owner.
  2. Prior to the first conveyance of a property owners' association lot, the declarant shall cause the first board directors to be duly appointed, the officers to be elected, and the organization of the association to be effectuated.
  3. True and correct copies of the articles of incorporation and bylaws of the association and all amendments thereto shall be maintained at the principal and the registered offices of the association and at the sales office of the declarant so long as the declarant has the right to control the association pursuant to the instrument; and copies thereof shall be furnished to any lot owner on request upon payment of a reasonable charge therefor. (Code 1981, § 44-3-227 , enacted by Ga. L. 1994, p. 1879, § 1; Ga. L. 2004, p. 560, § 11.)

JUDICIAL DECISIONS

Failure to incorporate prior to filing restrictive covenants. - In a homeowner's suit against an HOA, challenging the enforceability of restrictive covenants because the HOA was not incorporated when the covenants were recorded as required by O.C.G.A. § 44-3-227(a) , additional findings were needed regarding whether the HOA was in substantial compliance with the Georgia Property Owners' Association Act, O.C.G.A. § 44-3-220 et seq., specifically O.C.G.A. § 44-3-233 . Howell v. Lochwolde Homeowners Ass'n, 355 Ga. App. 678 , 845 S.E.2d 410 (2020).

44-3-228. Presence of quorums at meetings.

Unless the instrument or bylaws provide otherwise, a quorum shall be deemed present throughout any meeting of the members of the association if persons entitled to cast more than one-third of the votes are present at the beginning of the meeting. Unless the instrument or bylaws specify a larger percentage, the presence of persons entitled to cast one-half of the votes of the board of directors shall constitute a quorum for the transaction of business at any meeting of the board.

(Code 1981, § 44-3-228 , enacted by Ga. L. 1994, p. 1879, § 1; Ga. L. 2004, p. 560, § 12.)

44-3-229. Persons deemed to be "lot owner."

If the instrument provides that any member of the board of directors or any officer of the association must be a lot owner, then, notwithstanding Code Section 44-3-221, the term "lot owner" in such context shall, unless the instrument otherwise provides, be deemed to include, without limitation, any shareholder, director, officer, partner in, or trustee of any person who is, either alone or in conjunction with any other person or persons, a lot owner. Any individual who would not be eligible to serve as a member of the board of directors or officer were he or she not a shareholder, director, officer, partner in, or trustee of such a person shall be deemed to have disqualified himself or herself from continuing in office if he or she ceases to have any such affiliation with that person.

(Code 1981, § 44-3-229 , enacted by Ga. L. 1994, p. 1879, § 1.)

44-3-230. Frequency of meetings; notice.

Meetings of the members of the association shall be held in accordance with the provisions of the association's bylaws and in any event shall be called not less frequently than annually. Notice shall be given to each lot owner at least 21 days in advance of any annual or regularly scheduled meeting and at least seven days in advance of any other meeting and shall state the time, place, and, for any special meeting, purpose of such meeting. Such notice shall be delivered personally or sent by United States mail, postage prepaid, statutory overnight delivery, or issued electronically in accordance with Chapter 12 of Title 10, the "Uniform Electronic Transactions Act," to all lot owners of record at such address or addresses as designated by such lot owners or, if no other address has been so designated, at the address of their respective lots. At the annual meeting, comprehensive reports of the affairs, finances, and budget projections of the association shall be made to the lot owners.

(Code 1981, § 44-3-230 , enacted by Ga. L. 1994, p. 1879, § 1; Ga. L. 1995, p. 10, § 44; Ga. L. 2004, p. 560, § 13; Ga. L. 2009, p. 698, § 2/HB 126.)

The 2009 amendment, effective July 1, 2009, substituted "Uniform Electronic Transactions Act" for "Georgia Electronic Records and Signatures Act" in the middle of the third sentence.

44-3-231. Powers and duties of association; legal actions against agent or employee of association.

  1. Except to the extent prohibited by the instrument and subject to any restrictions and limitations specified therein, the association shall have the power to:
    1. Employ, retain, dismiss, and replace agents and employees to exercise and discharge the powers and responsibilities of the association;
    2. Make or cause to be made additional improvements on and as a part of the common area; and
    3. Grant or withhold approval of any action by one or more lot owners or other persons entitled to occupancy of any lot if such action would change the exterior appearance of any lot, or any structure thereon, or of any other portion of the development or elect or provide for the appointment of an architectural control committee to grant or withhold such approval.
  2. Except to the extent prohibited by the instrument and subject to any restrictions and limitations specified therein, the association shall have the power to grant easements, leases, and licenses through or over the common area, to accept easements, leases, and licenses benefiting the development or any portion thereof, and to acquire or lease property in the name of the association.  Property so acquired by the association upon the recordation of the deed thereto or other instrument granting the same and designating property as common area shall, for all purposes including without limitation taxation, be a part of the common area.  The association shall also have the power to acquire, lease, and own in its own name property of any nature, real, personal, or mixed, tangible or intangible; to borrow money; and to pledge, mortgage, or hypothecate all or any portion of the property of the association for any lawful purpose within the association's inherent or expressly granted powers. Any third party dealing with the association shall be entitled to rely in good faith upon a certified resolution of the board of directors of the association authorizing any such act or transaction as conclusive evidence of the authority and power of the association so to act and of full compliance with all restraints, conditions, and limitations, if any, upon the exercise of such authority and power.
  3. The association shall have the power to amend the instrument, the articles of incorporation, and the bylaws of the association in such respects as may be required to conform to mandatory provisions of this article or of any other applicable law without a vote of the lot owners.
  4. In addition to any other duties and responsibilities as this article or the instrument may impose, the association shall keep:
    1. Detailed minutes of all meetings of the members of the association and of the board of directors;
    2. Detailed and accurate financial records, including itemized records of all receipts and expenditures; and
    3. Any books and records as may be required by law or be necessary to reflect accurately the affairs and activities of the association.
  5. This Code section shall not be construed to prohibit the grant or imposition of other powers and responsibilities to or upon the association by the instrument.
  6. Except to the extent otherwise expressly required by this article, by Chapter 2 or 3 of Title 14, by the instrument, by the articles of incorporation, or by the bylaws of the association, the powers inherent in or expressly granted to the association may be exercised by the board of directors, acting through the officers, without any further consent or action on the part of the lot owners.
  7. A tort action alleging or founded upon negligence or willful misconduct by any agent or employee of the association or in connection with the conditions of any portion of the instrument which the association has the responsibility to maintain shall be brought against the association.  No lot owner shall be precluded from bringing such an action by virtue of his membership in the association.  A judgment against the association arising from a tort action shall be a lien against the assets of the association.
  8. The association shall have the capacity, power, and standing to institute, intervene, prosecute, represent, or defend in its own name litigation or administrative or other proceedings of any kind concerning claims or other matters relating to any portion of the lots or common area which the association has the responsibility to administer, repair, or maintain. (Code 1981, § 44-3-231 , enacted by Ga. L. 1994, p. 1879, § 1.)

JUDICIAL DECISIONS

Actions against owners' associations. - In a personal injury action filed by owners of a parcel of land in a community against the community owners' association, a restrictive covenant which shifted the duty to inspect the community's common areas from the association to owners of parcels in the community was not void as against public policy on the ground that O.C.G.A. § 44-3-231(g) of the Georgia Property Owners' Association Act (Act) pronounced a public policy against precluding owners from bringing tort actions against owners' associations; § 44-3-231(g) concededly did not apply to the action because the covenant was recorded before the Act became effective, the Act reflected a policy of deference toward parties' freedom to contract by making § 44-3-231(g) applicable only where a recorded declaration affirmatively stated such an intention, and the covenant at issue did not violate § 44-3-231(g), which simply identified the proper defendant in certain tort claims against owners' associations. Hayes v. Lakeside Vill. Owners Ass'n, 282 Ga. App. 866 , 640 S.E.2d 373 (2006).

Property association had standing to intervene. - Property owners' association ("POA") was a "party in interest" under 11 U.S.C. § 1109 and had standing to intervene in a contested matter that was brought by an LLC that purchased property from a developer's ("debtor's") Chapter 11 bankruptcy estate, to determine ownership of common areas in a subdivision the debtor developed, because a ruling in favor of a trustee who was appointed under the debtor's bankruptcy plan that title to the common areas did not pass to the POA could have affected the POA's right to exist; even in the absence of injury to the POA itself, the POA had organizational standing to intervene on behalf of the POA's members. Sea Island Acquisition, LLC v. Barnett (In re Sea Island Co.), Bankr. (Bankr. S.D. Ga. July 30, 2014).

Authority of association to enter into agreement for recreational facilities. - In a suit challenging a homeowners association's declaration amendment allowing it to enter into an agreement with a nearby private swim and tennis club, the trial court erred by not granting the association's summary judgment because even without the amendment, the association was authorized, for the common benefit of all homeowners, to accept an easement granting the homeowners access to recreational facilities, and to assess them their pro rata share of the ongoing cost of the easement. Amberfield Homeowners Ass'n v. Young, 346 Ga. App. 29 , 813 S.E.2d 618 (2018).

44-3-232. Assessments against lot owners as constituting lien in favor of association; additional charges against lot owners; procedure for foreclosing lien; obligation to provide statement of amounts due.

  1. All sums lawfully assessed by the association against any lot owner or property owners' association lot, whether for the share of the common expenses pertaining to that lot, fines, or otherwise, and all reasonable charges made to any lot owner or lot for materials furnished or services rendered by the association at the owner's request to or on behalf of the lot owner or lot, shall, from the time the sums became due and payable, be the personal obligation of the lot owner and constitute a lien in favor of the association on the lot prior and superior to all other liens whatsoever except:
    1. Liens for ad valorem taxes on the lot;
    2. The lien of any first priority mortgage covering the lot and the lien of any mortgage recorded prior to the recording of the declaration; or
    3. The lien of any secondary purchase money mortgage covering the lot, provided that neither the grantee nor any successor grantee on the mortgage is the seller of the lot.

      The recording of the declaration pursuant to this article shall constitute record notice of the existence of the lien, and no further recordation of any claim of lien for assessments shall be required.

  2. To the extent that the instrument provides, the personal obligation of the lot owner and the lien for assessments shall also include:
    1. A late or delinquency charge not in excess of the greater of $10.00 or 10 percent of the amount of each assessment or installment thereof not paid when due;
    2. At a rate not in excess of 10 percent per annum, interest on each assessment or installment thereof and any delinquency or late charge pertaining thereto from the date the same was first due and payable;
    3. The costs of collection, including court costs, the expenses required for the protection and preservation of the lot, and reasonable attorney's fees actually incurred; and
    4. The fair rental value of the lot from the time of the institution of an action until the sale of the lot at foreclosure or until judgment rendered in the action is otherwise satisfied.
  3. Not less than 30 days after notice is sent by certified mail or statutory overnight delivery, return receipt requested, to the lot owner both at the address of the lot and at any other address or addresses which the lot owner may have designated to the association in writing, the lien may be foreclosed by the association by an action, judgment, and court order for foreclosure in the same manner as other liens for the improvement of real property, subject to superior liens or encumbrances, but any such court order for judicial foreclosure shall not affect the rights of holders of superior liens or encumbrances to exercise any rights or powers afforded to them under their security instruments. The notice provided for in this subsection shall specify the amount of the assessments then due and payable together with authorized late charges and the rate of interest accruing thereon. No foreclosure action against a lien arising out of this subsection shall be permitted unless the amount of the lien is at least $2,000.00. Unless prohibited by the instrument, the association shall have the power to bid on the lot at any foreclosure sale and to acquire, hold, lease, encumber, and convey the same. The lien for assessments shall lapse and be of no further effect, as to assessments or installments thereof, together with late charges and interest applicable thereto, four years after the assessment or installment first became due and payable.
  4. Any lot owner, mortgagee of a lot, person having executed a contract for the purchase of a lot, or lender considering the loan of funds to be secured by a lot shall be entitled upon request to a statement from the association or its management agent setting forth the amount of assessments past due and unpaid together with late charges and interest applicable thereto against that lot. Such request shall be in writing, shall be delivered to the registered office of the association, and shall state an address to which the statement is to be directed.  Failure on the part of the association, within five business days from the receipt of such request, to mail or otherwise furnish such statement regarding amounts due and payable at the expiration of such five-day period with respect to the lot involved to such address as may be specified in the written request therefor shall cause the lien for assessments created by this Code section to be extinguished and of no further force or effect as to the title or interest acquired by the purchaser or lender, if any, as the case may be, and their respective successors and assigns, in the transaction contemplated in connection with such request.  The information specified in such statement shall be binding upon the association and upon every lot owner. Payment of a fee not exceeding $10.00 may be required as a prerequisite to the issuance of such a statement if the instrument so provides.
  5. Nothing in this Code section shall be construed to prohibit actions maintainable pursuant to Code Section 44-3-223 to recover sums for which subsection (a) of this Code section creates a lien. (Code 1981, § 44-3-232 , enacted by Ga. L. 1994, p. 1879, § 1; Ga. L. 1995, p. 10, § 44; Ga. L. 2000, p. 1589, § 3; Ga. L. 2004, p. 560, § 14; Ga. L. 2005, p. 60, § 44/HB 95; Ga. L. 2008, p. 1135, § 2/HB 422.)

The 2008 amendment, effective July 1, 2008, added the third sentence in subsection (c).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Due process met. - Trial court properly granted a homeowners association summary judgment in a foreclosure action for failure to pay property assessments as although it appeared that the notice of the statutory lien was only sent to the property's address, it was undisputed that the defendant timely responded to the action, and appeared at the hearing on the motion for summary judgment; thus, the fundamental due process requirements of notice and hearing were satisfied. Adewumi v. Amelia Grove/Ashland Park Homeowners Ass'n, 337 Ga. App. 275 , 787 S.E.2d 761 (2016).

Failure to show late fees were liquidated damages. - Trial court erred in granting summary judgment to the property owners association as to late fee damages because the association failed to show that the late fees provision in the declaration constituted liquidated damages rather than an impermissible penalty. Northside Bank v. Mountainbrook of Bartow County Homeowners Ass'n, 338 Ga. App. 126 , 789 S.E.2d 378 (2016).

Cited in Amberfield Homeowners Ass'n v. Young, 346 Ga. App. 29 , 813 S.E.2d 618 (2018).

44-3-232.1. Right of and procedure for certain property owners to take control of association when declarant fails to meet certain obligations.

  1. Notwithstanding and prior to the usual expiration of the period of the declarant's right to control the association pursuant to any property owners' association instruments, the association's articles of incorporation, or the association's bylaws, the right to control may pass to the property owners as provided in this Code section if the declarant fails to do any of the following:
    1. Incorporate or maintain an annual registration pursuant to subsection (a) of Code Section 44-3-227;
    2. Cause the board of directors to be duly appointed and the officers to be elected pursuant to subsection (b) of Code Section 44-3-227;
    3. Maintain and make available to owners, upon written request, a list of the names and business or home addresses of the association's current directors and officers;
    4. Call meetings of the members of the association in accordance with the provisions of the association's bylaws at least annually pursuant to Code Section 44-3-230;
    5. Prepare an annual operating budget, establish the annual assessment, and distribute such budget and notice of assessment to the owners in accordance with the condominium instruments no later than 30 days after the beginning of the association's fiscal year; or
    6. Pay property taxes on common property of the association for two or more years.
  2. In the event that the declarant fails to meet one or more of the obligations of this Code section, then any owner, acting individually or jointly with other owners, may send the declarant written notice of the failure to comply with such requirements and provide the declarant a 30 day opportunity to cure the failure; and such notice shall be sent by certified mail or statutory overnight delivery to the declarant's principal office. If the declarant fails to cure any or all deficiencies identified in the notice within 30 days of such notice, then any owner, acting individually or jointly with other owners, shall have standing individually, and not solely through a derivative action, to institute an action in the superior court of the county in which any portion of the property owner's association is located in order to obtain a declaratory judgment to grant the owner or owners control of the association by ordering an election and setting the terms thereof, or issuing any other orders appropriate to transfer control of the association. The superior court shall have authority to hold a hearing and issue a summary ruling on said action at any time designated by the court not earlier than 20 days after the service thereof, unless the parties consent in writing to an earlier trial. No discovery shall be had unless ordered by the court for good cause. In addition, the superior court shall be authorized to issue a summary ruling on the conveyance of any intended common areas or other property in the common interest community to the association or other appropriate entity. If the owner or owners prevail in such action, then the superior court shall award to the owner or owners all reasonable attorney's fees and costs incurred for the prosecution of such action. This Code section shall not be the basis for any liability against any party or agent of any party outside of the exclusive remedies provided herein. (Code 1981, § 44-3-232.1 , enacted by Ga. L. 2017, p. 352, § 4/SB 46.)

Effective date. - This Code section became effective July 1, 2017.

JUDICIAL DECISIONS

Suit was not action for control. - In a homeowner's suit against an HOA, challenging the enforceability of restrictive covenants because the HOA was not incorporated when the covenants were recorded as required by O.C.G.A. § 44-3-227(a) , additional findings were needed regarding whether the HOA was in substantial compliance with the Georgia Property Owners' Association Act, O.C.G.A. § 44-3-220 et seq., specifically O.C.G.A. § 44-3-233 . O.C.G.A. § 44-3-232.1 did not apply because the homeowners had not commenced an action to gain control over the HOA. Howell v. Lochwolde Homeowners Ass'n, 355 Ga. App. 678 , 845 S.E.2d 410 (2020).

44-3-233. Liberal construction of article; substantial compliance; curing of defects by amendment.

The provisions of this article and of an instrument recorded pursuant thereto shall be liberally construed in favor of the valid establishment of property owners' association pursuant to this article with respect to the submitted property. Substantial compliance with the requirements of this article for the establishment of a property owners' association shall suffice to being property described in an instrument recorded pursuant to this article within the purview and application of this article; and any defects in such instrument or want of conformity with this article may be cured by an amendment thereto duly executed by the association and recorded or, upon application of any lot owner, with notice to the declarant, the association, and all other lot owners, by decree of the court.

(Code 1981, § 44-3-233 , enacted by Ga. L. 1994, p. 1879, § 1.)

JUDICIAL DECISIONS

Substantial compliance determination required. - In a homeowner's suit against an HOA, challenging the enforceability of restrictive covenants because the HOA was not incorporated when the covenants were recorded as required by O.C.G.A. § 44-3-227(a) , additional findings were needed regarding whether the HOA was in substantial compliance with the Georgia Property Owners' Association Act, O.C.G.A. § 44-3-220 et seq., specifically O.C.G.A. § 44-3-233 . Howell v. Lochwolde Homeowners Ass'n, 355 Ga. App. 678 , 845 S.E.2d 410 (2020).

44-3-234. Application of article.

The limitations provided in subsection (b) and paragraphs (1), (2), and (4) of subsection (d) of Code Section 44-5-60 shall not apply to any covenants contained in any instrument created pursuant to or submitted to this article.

(Code 1981, § 44-3-234 , enacted by Ga. L. 1994, p. 1879, § 1.)

44-3-235. Applicability of article.

  1. This article shall apply to all property which is submitted to this article.  This article shall also apply to any association of owners subject to a recorded declaration of covenants upon property, which covenants are administered by an owners' association in which membership is mandatory for all owners of lots in the development, which declaration is amended in accordance with Code Section 44-3-222 in order to submit the property owners' association to this article; provided, however, that any amendment must conform the instrument creating the property owners' association to this article, and the property owners' development shall thereafter be deemed to be submitted to this article.
  2. This article shall not apply to associations created pursuant to Article 3 of this chapter, the "Georgia Condominium Act," except to the extent that a property owners' development created under this article includes a condominium, together with other real property, as provided in paragraph (9) of Code Section 44-3-221.
  3. This article shall not be construed to affect the validity of any instrument recorded before or after July 1, 1994, but benefits derived from or based upon this article may only be claimed by developments submitted to this article. (Code 1981, § 44-3-235 , enacted by Ga. L. 1994, p. 1879, § 1; Ga. L. 2004, p. 560, § 15.)

JUDICIAL DECISIONS

Declaration amendment restricting leasing property in HOA. - Trial court's grant of summary judgment to the homeowners' association was proper because two-thirds of homeowners voted to restrict leasing in their neighborhood; thus, an amendment to the declaration challenged by the plaintiff complied with O.C.G.A. § 44-3-226(a) and the plaintiff did not have an unfettered right to lease the plaintiff's property thereafter. Pasha v. Battle Creek Homeowners Ass'n, 350 Ga. App. 433 , 829 S.E.2d 618 (2019).

ARTICLE 7 SPECIALIZED LAND TRANSACTIONS

Effective date. - This article became effective July 1, 2009.

44-3-250. Itemized reporting of expenses by developers.

Any developer that directly manages a homeowners' or condominium owners' association whose annual assessment fee is $500.00 or more in a development or subdivision with 20 or more homes shall provide a report itemizing the expenses for such homeowners' or condominium owners' association to each homeowner or condominium owner not later than 60 days after the end of the year for which fees were assessed. This Code section shall not apply to any development that has been made a property owners' development in accordance with Article 6 of this chapter, the "Georgia Property Owners' Association Act."

(Code 1981, § 44-3-250 , enacted by Ga. L. 2009, p. 326, § 1/HB 528.)

CHAPTER 4 DETERMINATION OF BOUNDARIES

Article 1

Processioning.

Article 2

Coordinate System.

Cross references. - Data required to be included in maps or plats recorded with clerk of superior court, § 15-6-67 .

County surveyor, Ch. 7, T. 36.

Professional engineers and land surveyors, Ch. 15, T. 43.

RESEARCH REFERENCES

Surveyor's Failure to Exercise Due Care in Making Survey, 11 POF2d 397.

Change in Shoreline by Accretion or Avulsion, 21 POF2d 147.

Malicious Design and Construction of Fence, 22 POF2d 683.

Agreement of Adjoining Landowners Fixing Common Boundary, 34 POF2d 317.

Permissive Possession or Use of Land as Defeating Claim of Adverse Possession or Prescriptive Easement, 68 POF3d 239.

Proof of Adjoining Landowner's Malicious or Unreasonable Construction of Fence, 73 POF3d 1.

Proof of Accretion or Avulsion in Title and Boundary Disputes over Additions to Riparian Land, 73 POF3d 167.

Proof of Boundary Established by Parol Agreement or Acquiescence of Adjoining Landowners, 82 POF3d 227.

ARTICLE 1 PROCESSIONING

Administrative Rules and Regulations. - Technical standards for property surveys, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of State Board of Registration for Professional Engineers and Land Surveyors, Chapter 180-7.

JUDICIAL DECISIONS

Applicability to lands in cities and towns. - Law authorizes proceedings thereunder to mark land lines of rural land, but not of lands located inside the corporate limits of cities or towns. In actions to recover land, whether rural or city, when title is otherwise shown, acquiescence by acts or declarations for seven years in a dividing line by adjacent owners establishes such line as the true line. Former Code 1933, § 85-1602 (see O.C.G.A. § 44-4-6) was applicable in such cases. Veal v. Barber, 197 Ga. 555 , 30 S.E.2d 252 (1944).

Applicable only to rural divisions. - It is a misapplication of statutory law to use the law for ascertaining boundaries between town lots and an adjacent tract, these laws being intended for operation upon the boundaries dividing rural lands only. Christian v. Weaver, 79 Ga. 406 , 7 S.E. 261 (1887).

Processioners' duty is to mark existing lines, not establish new ones. - Processioners are not to run and mark lines which at some previous time were located and established. Processioners may seek and find lines already existing, but cannot bring into existence any which have not been before designated on the surface of the earth. Lines merely drawn on paper, or in the minds of contracting parties are not ready for the search or services of processioners. Standard Oil Co. v. Altman, 173 Ga. 777 , 161 S.E. 353 (1931).

It is the duty of the processioners together with the surveyor to run and mark anew the original line between the lots as set out in the application, subject to all the rules and regulations set forth in statute, as construed by the courts. Welch v. Haley, 83 Ga. App. 492 , 64 S.E.2d 364 (1951).

Surveyor and processioners have no authority to make and establish new lines, but their duty is to trace and mark anew old lines or those that can be taken as having been formerly located and established. Welch v. Haley, 83 Ga. App. 492 , 64 S.E.2d 364 (1951).

It is the province and duty of the processioners and surveyor in a processioning proceeding to run and mark anew a line or lines as the lines actually exist. Processioners have no authority under the law to mark new lines. Greenway v. Altman, 89 Ga. App. 557 , 80 S.E.2d 89 (1954).

Processioners can function even when established boundaries not marked in entirety. - While it is the duty of processioners to mark anew established lines, and not to locate the line as the line originally ought to have been laid out, with the result that the processioners cannot mark anew lines which have never in a legal sense been established, this does not mean that when established enclosing boundaries are not physically marked in their entirety, processioners cannot function. Byrd v. McLucas, 194 Ga. 40 , 20 S.E.2d 597 (1942).

Processioning determines boundaries, not title. - Since the object of the summary processioning laws is to settle disputes of boundary lines between coterminous landowners, and the proceeding is not designed as a substitute for an action in ejectment to settle title, which is not directly involved, it will be presumed that the processioners would not undertake to exercise jurisdiction to pass upon or determine any question involving a disputed title, but will confine themselves solely to the fixing of boundaries between the adjacent claimants, leaving undetermined any question relating to conflicting claims as to the title itself. Osborne v. Thompson, 154 Ga. App. 215 , 267 S.E.2d 852 (1980).

Processioners must rely on corners, landmarks, and lines of demarcation where they exist. - Even though the course and extent of the lines themselves may not have been physically marked out in their entirety upon the earth's surface, if there should exist a sufficient number of physically established corners or landmarks, the mere connecting of which by straight lines would suffice to complete the boundaries, or if there be an established line of demarcation, such as an abandoned roadbed of a railroad, and if parallel boundaries of the railroad right of way can be actually determined by courses and distances with respect thereto, it would be the duty of processioners, to so ascertain and establish the courses and distances, but respecting always any rights had under actual possession, as defined by former Code 1933, § 85-1603 (see O.C.G.A. § 44-4-7). Byrd v. McLucas, 194 Ga. 40 , 20 S.E.2d 597 (1942).

Land need not be completely measured nor marked in particular way. - Nothing in the statute makes any requirement respecting the placing of line or corner markers or requires that such markers be placed on any particular interval or spacing and nothing in the law as the law presently exists requires that every foot or inch of a line be drawn on the face or surface of the earth, or that the processioners or a majority of the processioners actually walk over or along the entire line without omitting any interval in so doing. Hackle v. Bowen, 89 Ga. App. 799 , 81 S.E.2d 294 (1954); Chapman v. Joyce, 155 Ga. App. 129 , 270 S.E.2d 336 (1980).

Lines need only be located with some definiteness. - All that is required of the processioners and the surveyor is that the lines be traced and marked anew so as to locate the lines with some definiteness. Chapman v. Joyce, 155 Ga. App. 129 , 270 S.E.2d 336 (1980).

Use of illegal or erroneous method to locate line. - Fact that processioners may have used an erroneous or illegal or improper method in ascertaining the location of the line would not subject their return to dismissal, but would merely authorize a jury finding against the line as run. Chapman v. Joyce, 155 Ga. App. 129 , 270 S.E.2d 336 (1980).

Processioners' plat and return prima facie evidence of boundary. - Landowner made a prima facie case as to the location of a boundary by introducing the plat and return of the processioners. Nichols v. Purvis, 178 Ga. App. 826 , 344 S.E.2d 692 (1986).

When dispute is between two adjoining landowners, a survey of other boundaries is unnecessary. Nichols v. Purvis, 178 Ga. App. 826 , 344 S.E.2d 692 (1986).

Protest to proceedings under § 44-2-77 . - Former Code 1933, § 60-217 (see O.C.G.A. § 44-2-77 ) stated that the judge, or the examiner with the approval of the judge, may require the land to be surveyed by some competent surveyor after due notice to the adjoining landowners, who, if dissatisfied with the survey, may file a protest with the court, whereupon the issues thus made would be tried as in case of a protest to the return of land processioners as authorized by statute. Harris v. Ernest L. Miller Co., 213 Ga. 748 , 101 S.E.2d 715 (1958).

Testimony by petitioner's own surveyor. - When no survey such as provided for in former Code 1933, § 60-217 (see O.C.G.A. § 44-2-77 ) was ordered, but the petitioner introduced in evidence the testimony and survey of the petitioner's own surveyor, who testified as to the location of the land lines, corners, and landmarks of the property, the evidence offered was competent and not subject to the objection that the petitioner's survey did not comply with that statute or other statutory provisions. Harris v. Ernest L. Miller Co., 213 Ga. 748 , 101 S.E.2d 715 (1958).

Line found by processioners not authorized by evidence. - When the evidence on the trial of a processioning proceeding is not sufficient to authorize the establishment of the line between conterminous owners of adjacent land lots as located by the processioners, it is nevertheless error to dismiss the entire proceeding on the ground that it is the province of the processioners to survey and mark anew established lines as those lines actually exist and that the processioners are without authority to run a new line, since the evidence as a whole authorizes the jury to establish such dividing line other than as located by the processioners. Rodgers v. Beavers, 76 Ga. App. 16 , 45 S.E.2d 74 (1947).

When evidence sufficient for verdict, dismissal is error. - When the evidence was sufficient to have authorized a verdict determining the rights of the parties in the premises, the dismissal of the proceedings was error. Rodgers v. Beavers, 76 Ga. App. 16 , 45 S.E.2d 74 (1947).

Jurisdiction. - Court of Appeals, rather than the Supreme Court, had jurisdiction over a processioning action because processioning actions are statutory in nature and not intended to establish title. Elder v. Merritt, 204 Ga. App. 163 , 418 S.E.2d 774 (1992).

Writ of error lies to Court of Appeals, not to the Supreme Court to correct the judgment of the superior court in a proceeding instituted under former Civil Code 1910, § 3817 et seq. (see O.C.G.A. § 44-4-1 et seq.). Elkins v. Merritt, 146 Ga. 647 , 92 S.E. 51 (1917); Guarantee Trust & Banking Co. v. Dickson, 148 Ga. 311 , 96 S.E. 561 (1918).

Cited in Edenfield v. Lanier, 203 Ga. 348 , 46 S.E.2d 582 (1948); Edenfield v. Lanier, 206 Ga. 696 , 58 S.E.2d 188 (1950); Dean v. Jackson, 219 Ga. 552 , 134 S.E.2d 601 (1964); Holmes v. Blount, 245 Ga. 757 , 267 S.E.2d 228 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Article fails to mention costs. - Statute enumerates the various duties of the ordinary (now probate judge) and requires that the ordinary (now probate judge) record the actions of the processioners. However, it fails to set the costs of the ordinary (now probate judge) for performing such acts. 1950-51 Op. Att'y Gen. p. 269.

RESEARCH REFERENCES

ALR. - Establishment of boundary line by oral agreement or acquiescence, 69 A.L.R. 1430 ; 113 A.L.R. 421 .

Boundary under conveyance of land bordering on railroad right of way, 85 A.L.R. 404 .

Property rights in respect of building, fence, or other structure placed upon another's land through mistake as to boundary or location, 130 A.L.R. 1034 .

Presumption that description by reference to highway carries fee to center thereof, as affected by presence of water system or other apparatus under highway, 147 A.L.R. 667 .

Adverse possession involving ignorance or mistake as to boundaries - modern views, 80 A.L.R.2d 1171.

Boundaries: measurement in horizontal line or along surface or contour, 80 A.L.R.2d 1208.

Encroachment of trees, shrubbery, or other vegetation across boundary line, 65 A.L.R.4th 603.

Sufficiency of showing, in establishing boundary by parol agreement, that boundary was uncertain or in dispute before agreement, 72 A.L.R.4th 132.

44-4-1 through 44-4-10.

Reserved. Repealed by Ga. L. 2014, p. 695, § 4/HB 790, effective July 1, 2014.

Editor's notes. - This article consisted of Code Sections 44-4-1 through 44-4-10, relating to processioning, and was based on Laws 1798, Cobb's 1851 Digest, p. 716; Laws 1799, Cobb's 1851 Digest, p. 717-718; Laws 1818, Cobb's 1851 Digest, p. 719; Laws 1850, Cobb's 1851 Digest, p. 719; Ga. L. 1853-54, p. 76, § 1; Orig. Code 1863, §§ 2352-2361; Code 1868, §§ 2349-2358; Code 1873, §§ 2384-2393; Code 1882, §§ 2384-2393; Civil Code 1895, §§ 3243-3252; Ga. L. 1901, p. 39, § 1; Ga. L. 1905, p. 83, § 1; Civil Code 1910, §§ 3817-3826; Ga. L. 1912, p. 70, § 1; Ga. L. 1929, p. 167, § 1; Code 1933, §§ 85-1601 through 85-1610; Ga. L. 1953, Jan.-Feb. Sess., p. 202, §§ 1, 2; Ga. L. 1956, p. 326, § 1; Ga. L. 1982, p. 3, § 44; Ga. L. 2011, p. 99, §§ 80, 81/HB 24.

ARTICLE 2 COORDINATE SYSTEM

Editor's notes. - Ga. L. 1985, p. 650, § 1, effective July 1, 1985, repealed the prior Article 2 and enacted the current Article 2. The Act had the effect of rewriting and redesignating the Code sections in the prior Article 2, as shown in the following table:

Current Prior 44-4-20 ............................. 44-4-20 44-4-21 ............................. 44-4-23 44-4-22 ............................. 44-4-22 44-4-23 ............................. 44-4-24 44-4-24 ............................. 44-4-21 44-4-25 ............................. None 44-4-26 ............................. 44-4-25 44-4-27 ............................. None 44-4-28 ............................. None 44-4-29 ............................. 44-4-26 44-4-30 ............................. None 44-4-31 ............................. None

The current Article 2 Code sections listed in this table have been treated as amending the corresponding Code sections from the prior article. All Code sections in the current article not corresponding to a Code section in the prior article are treated as wholly new Code sections.

44-4-20. Designation of Georgia Coordinate System and Georgia Coordinate System of 1985; East and West Zones.

  1. The systems of plane coordinates which have been established by the National Ocean Survey/National Geodetic Survey, formerly the United States Coast and Geodetic Survey, or its successors for defining and stating the geographic positions or locations of points on the surface of the earth within the State of Georgia are hereafter to be known and designated as the "Georgia Coordinate System" and the "Georgia Coordinate System of 1985."
  2. For the purpose of the use of these systems, the state is divided into an "East Zone" and a "West Zone":
    1. The area now included in the following counties shall constitute the East Zone: Appling, Atkinson, Bacon, Baldwin, Brantley, Bryan, Bulloch, Burke, Camden, Candler, Charlton, Chatham, Clinch, Coffee, Columbia, Dodge, Echols, Effingham, Elbert, Emanuel, Evans, Franklin, Glascock, Glynn, Greene, Hancock, Hart, Jeff Davis, Jefferson, Jenkins, Johnson, Laurens, Liberty, Lincoln, Long, McDuffie, McIntosh, Madison, Montgomery, Oglethorpe, Pierce, Richmond, Screven, Stephens, Taliaferro, Tattnall, Telfair, Toombs, Treutlen, Ware, Warren, Washington, Wayne, Wheeler, Wilkes, and Wilkinson; and
    2. The area now included in the following counties shall constitute the West Zone: Baker, Banks, Barrow, Bartow, Ben Hill, Berrien, Bibb, Bleckley, Brooks, Butts, Calhoun, Carroll, Catoosa, Chattahoochee, Chattooga, Cherokee, Clark, Clay, Clayton, Cobb, Colquitt, Cook, Coweta, Crawford, Crisp, Dade, Dawson, Decatur, DeKalb, Dooly, Dougherty, Douglas, Early, Fannin, Fayette, Floyd, Forsyth, Fulton, Gilmer, Gordon, Grady, Gwinnett, Habersham, Hall, Haralson, Harris, Heard, Henry, Houston, Irwin, Jackson, Jasper, Jones, Lamar, Lanier, Lee, Lowndes, Lumpkin, Macon, Marion, Meriwether, Miller, Mitchell, Monroe, Morgan, Murray, Muscogee, Newton, Oconee, Paulding, Peach, Pickens, Pike, Polk, Pulaski, Putnam, Quitman, Rabun, Randolph, Rockdale, Schley, Seminole, Spalding, Stewart, Sumter, Talbot, Taylor, Terrell, Thomas, Tift, Towns, Troup, Turner, Twiggs, Union, Upson, Walker, Walton, Webster, White, Whitfield, Wilcox, and Worth.

      (Ga. L. 1945, p. 218, § 1; Ga. L. 1985, p. 650, § 1.)

Cross references. - Description of boundaries of state, § 50-2-1 et seq.

44-4-21. Names of East and West Zones.

  1. As established for use in the East Zone, the Georgia Coordinate System or the Georgia Coordinate System of 1985 shall be named; and, in any land description in which it is used, it shall be designated the "Georgia Coordinate System East Zone" or the "Georgia Coordinate System of 1985 East Zone."
  2. As established for use in the West Zone, the Georgia Coordinate System or the Georgia Coordinate System of 1985 shall be named; and, in any land description in which it is used, it shall be designated the "Georgia Coordinate System West Zone" or the "Georgia Coordinate System of 1985 West Zone." (Ga. L. 1945, p. 218, § 2; Code 1981, § 44-4-21 , enacted by Ga. L. 1985, p. 650, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 12 Am. Jur. 2d, Boundaries, § 53.

44-4-22. Alternative plane coordinates for expressing location of a point for Georgia Coordinate System and Georgia Coordinate System of 1985.

The plane coordinate values for a point on the earth's surface, used to express the geographic position or location of such point in the appropriate zone of this system, shall consist of two distances expressed in U.S. Survey feet and decimals of a foot when using the Georgia Coordinate System and expressed in either meters and decimals of a meter or, following conversion as provided in Code Section 44-4-28, in American Survey feet and decimals of a foot when using the Georgia Coordinate System of 1985. One of these distances, to be known as the "x-coordinate," shall give the position in an east-and-west direction; the other, to be known as the "y-coordinate," shall give the position in a north-and-south direction. These coordinates shall be made to depend upon and conform to plane rectangular coordinate values for the monumented points of the North American Horizontal Geodetic Control Network as published by the National Ocean Survey/National Geodetic Survey, formerly the United States Coast and Geodetic Survey, or its successors, and whose plane coordinates have been computed on the systems defined in this article. Any such control monument may be used for establishing a survey connection to either Georgia Coordinate System.

(Ga. L. 1945, p. 218, § 3; Ga. L. 1985, p. 650, § 1; Ga. L. 1990, p. 168, § 1.)

44-4-23. Description of land extending from one zone to another.

When any tract of land to be defined by a single description extends from one into the other of the above coordinate zones, the positions of all points on its boundaries may be referred to either of the two zones, the zone which is used being specifically named in the description.

(Ga. L. 1945, p. 218, § 4; Code 1981, § 44-4-23 , enacted by Ga. L. 1985, p. 650, § 1.)

44-4-24. Zones precisely defined.

  1. For purposes of more precisely defining the Georgia Coordinate System, the following definition of the United States Coast and Geodetic Survey, now National Ocean Survey/National Geodetic Survey, is adopted:
    1. The "Georgia Coordinate System East Zone" is a transverse Mercator projection of the Clarke spheroid of 1866, having a central meridian eighty-two degrees ten minutes west of Greenwich, on which meridian the scale is set one part in 10,000 too small. The origin of coordinates is at the intersection of the meridian eighty-two degrees ten minutes west of Greenwich and the parallel thirty degrees north latitude. This origin is given the coordinates: x = 500,000 feet and y = 0 feet; and
    2. The "Georgia Coordinate System West Zone" is a transverse Mercator projection of the Clarke spheroid of 1866, having a central meridian eighty-four degrees ten minutes west of Greenwich, on which meridian the scale is set one part in 10,000 too small. The origin of coordinates is at the intersection of the meridian eighty-four degrees ten minutes west of Greenwich and the parallel thirty degrees north latitude. This origin is given the coordinates: x = 500,000 feet and y = 0 feet.
  2. For purposes of more precisely defining the Georgia Coordinate System of 1985, the following definition by the National Ocean Survey/National Geodetic Survey is adopted:
    1. The "Georgia Coordinate System of 1985 East Zone" is a transverse Mercator projection of the North American Datum of 1983, having a central meridian eighty-two degrees ten minutes west of Greenwich, on which central meridian the scale is set one part in 10,000 too small. The origin of coordinates is at the intersection of the central meridian eighty-two degrees ten minutes west of Greenwich and the parallel thirty degrees north latitude. This origin is given the coordinates: x = 200,000 meters and y = 0.000 meters; and
    2. The "Georgia Coordinate System of 1985 West Zone" is a transverse Mercator projection of the North American Datum of 1983, having a central meridian eighty-four degrees ten minutes west of Greenwich, on which central meridian the scale is set one part in 10,000 too small. The origin of coordinates is at the intersection of the central meridian eighty-four degrees ten minutes west of Greenwich and the parallel thirty degrees north latitude. This origin is given the coordinates: x = 700,000 meters and y = 0.000 meters. (Ga. L. 1945, p. 218, § 5; Code 1981, § 44-4-24 , enacted by Ga. L. 1985, p. 650, § 1.)

44-4-25. Recordation of coordinates of point prohibited unless connected by survey to monumented horizontal control station.

No coordinates based on either Georgia Coordinate System purporting to define the position of a point on a land boundary shall be presented to be recorded in any public land records or deed records unless such point has been connected by survey to a monumented horizontal control station that is identified and has been established in conformity with the standards of accuracy and specifications as prepared and published by the Federal Geodetic Control Committee of the United States Department of Commerce. Standards and specifications of the Federal Geodetic Control Committee or its successors in force on the date of said survey shall apply. The publishing of the existing control stations, or the acceptance with intent to publish the newly established control stations, by the National Ocean Survey/National Geodetic Survey will constitute evidence of adherence to the Federal Geodetic Control Committee specifications.

(Code 1981, § 44-4-25 , enacted by Ga. L. 1985, p. 650, § 1; Ga. L. 1986, p. 10, § 44.)

44-4-26. Use of terms limited.

The use of the term "Georgia Coordinate System East Zone," "Georgia Coordinate System of 1985 East Zone," "Georgia Coordinate System West Zone," or "Georgia Coordinate System of 1985 West Zone" on any map, report of survey, or other document shall be limited to coordinates based on the Georgia Coordinate Systems as defined in this article.

(Ga. L. 1945, p. 218, § 6; Code 1981, § 44-4-26 , enacted by Ga. L. 1985, p. 650, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 12 Am. Jur. 2d, Boundaries, § 70.

44-4-27. Use of terms "Grid North, Georgia East Zone" and "Grid North, Georgia West Zone."

The term "Grid North, Georgia East Zone" refers to the fixed north direction in the East Zone, being Geodetic North for the central meridian eighty-two degrees ten minutes west of Greenwich. The term "Grid North, Georgia West Zone" refers to the fixed north direction in the West Zone, being Geodetic North for the central meridian eighty-four degrees ten minutes west of Greenwich. The applicable Grid North term and the basis of orientation shall appear on maps of survey that are purported oriented to a Georgia Coordinate System zone.

(Code 1981, § 44-4-27 , enacted by Ga. L. 1985, p. 650, § 1.)

44-4-28. Conversion of distances between meters and feet.

Any conversion of distances between the meter and the American Survey foot will be based upon the length of the meter (exactly) equals 39.37 inches or 3.2808333333 1/3 feet.

(Code 1981, § 44-4-28 , enacted by Ga. L. 1985, p. 650, § 1.)

44-4-29. Use of system not mandatory.

Nothing contained in this article shall require any purchaser or mortgagee to rely on a description, any part of which depends exclusively upon the Georgia Coordinate System or the Georgia Coordinate System of 1985. Nothing in this article shall be so construed as to require any person, firm, or corporation to use these systems of coordinates to obtain or secure a legal description of land or real estate.

(Ga. L. 1945, p. 218, § 7; Code 1981, § 44-4-29 , enacted by Ga. L. 1985, p. 650, § 1.)

44-4-30. Validation of use of Georgia Coordinate System.

  1. Any legal description prepared under the provisions of the Georgia Coordinate System provided by an Act approved March 6, 1945 (Ga. L. 1945, p. 218), and continued as a part of this Code until July 1, 1985, shall not be invalid.
  2. Any continual use of legal descriptions prepared under the terms of the Georgia Coordinate System provided by an Act approved March 6, 1945 (Ga. L. 1945, p. 218), and continued as a part of this Code until July 1, 1985, which have been recorded or filed in official records within the State of Georgia, shall not be invalid. (Code 1981, § 44-4-30 , enacted by Ga. L. 1985, p. 650, § 1.)

Code Commission notes. - Pursuant to § 28-9-5 , in 1985, "July 1, 1985," was substituted for "the effective date of this article" in subsection (a) and for "the effective date of this article," in subsection (b).

44-4-31. Use of Georgia Coordinate System prohibited after January 1, 1990.

The Georgia Coordinate System provided for in the Act approved March 6, 1945 (Ga. L. 1945, p. 218), shall not be used after January 1, 1990; the Georgia Coordinate System of 1985 will be the sole system after said date.

(Code 1981, § 44-4-31 , enacted by Ga. L. 1985, p. 650, § 1.)

CHAPTER 5 ACQUISITION AND LOSS OF PROPERTY

Article 1

Grants from State.

Article 2

Conveyances.

Article 3

Covenants and Warranties.

Article 4

Gifts Generally.

Part 1

I NTER VIVOS GIFTS .

Part 2

G IFTS CAUSA MORTIS .

Article 5

The Georgia Transfers to Minors Act.

Article 6

Revised Uniform Anatomical Gifts.

Article 7

Prescription.

Article 8

Escheat [Repealed].

Article 9

Forfeiture.

Article 10

Dedication.

RESEARCH REFERENCES

Procurement of Purchaser of Real Estate, 4 POF2d 225.

Payment Made for Unexercised Option to Purchase Rather Than as Down Payment, 9 POF2d 495.

Racial Discrimination in Sale of Real Estate, 14 POF2d 511.

Real Property Contracts - Specific Performance with Abatement of Purchase Price, 19 POF3d 543.

Real Estate Broker's Misrepresentation or Nondisclosure as to Condition or Value of Realty, 39 POF3d 309.

Real Estate Purchaser's Rights and Remedies Where Seller is Unable to Convey Marketable Title, 52 POF3d 429.

Proof of Circumstances Establishing Purchaser's Abandonment of Real Estate Contract, 56 POF3d 335.

Optionee's Timely Exercise of Option to Purchase Realty, 60 POF3d 255.

Condemnation of Rural Property for Highway Purposes, 8 Am. Jur. Trials 57.

Condemnation of Urban Property, 11 Am. Jur. Trials 189.

Condemnation of Easements, 22 Am. Jur. Trials 743.

Landowner's Evidence of Market Value in Eminent Domain Proceeding, 60 Am. Jur. Trials 447.

Condemnation of Leasehold Interests, 96 Am. Jur. Trials 211.

ARTICLE 1 GRANTS FROM STATE

Law reviews. - For survey of Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).

RESEARCH REFERENCES

ALR. - Grant, reservation, or exception as creating separate and independent legal estate in solid minerals or as passing only incorporeal privilege or license, 66 A.L.R.2d 978.

Validity and effect of provision in deed attempting to make reservation or exception in favor of grantor's spouse, 52 A.L.R.3d 753.

44-5-1. Origin of title to land.

The title to all lands originates in grants from the Government and, since its independence, from the state.

(Orig. Code 1863, § 2322; Code 1868, § 2319; Code 1873, § 2350; Code 1882, § 2350; Civil Code 1895, § 3210; Civil Code 1910, § 3798; Code 1933, § 85-301.)

JUDICIAL DECISIONS

When grant from state introduced, no proof of possession required. - When a grant from the state is introduced to show origin of title, no proof of possession is required. It is when the chain of title is not connected with a grant from the state that possession in one of the grantors in the chain must be shown. Ryals v. Wilson, 152 Ga. 757 , 111 S.E. 414 (1922).

Cited in United States v. Patterson, 206 F.2d 345 (5th Cir. 1953).

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Public Lands, §§ 3 et seq., 76, 77, 48 et seq. 72 Am. Jur. 2d, States, Territories, and Dependencies, §§ 64, 65.

C.J.S. - 73A C.J.S., Public Lands, § 86 et seq. 73B C.J.S., Public Lands, §§ 249, 250, 264 et seq., 296, 297.

44-5-2. How land in state held.

All realty in this state is held under the state as the original owner thereof. It is free from all rent or service and is limited only by the right of eminent domain which remains in the state.

(Orig. Code 1863, § 2200; Code 1868, § 2195; Code 1873, § 2221; Code 1882, § 2221; Civil Code 1895, § 3051; Civil Code 1910, § 3623; Code 1933, § 85-202.)

Cross references. - State ownership of wildlife found in state, § 27-1-3 .

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Eminent Domain, §§ 1 et seq., 20. 28 Am. Jur. 2d, Estates, § 7. 63A Am. Jur. 2d, Public Lands, §§ 3, 118 et seq. 72 Am. Jur. 2d, States, Territories, and Dependencies, § 64 et seq.

C.J.S. - 29A C.J.S., Eminent Domain, §§ 3, 21. 73B C.J.S., Public Lands, §§ 249, 250, 264 et seq. 81A C.J.S., States, § 263.

ALR. - Right of public in shore of inland navigable lake between high- and low-water marks, 40 A.L.R.3d 776.

44-5-3. Form of grants; substantial compliance.

The form of grants heretofore used in this state is established, and a substantial compliance with such form shall be held sufficient.

(Orig. Code 1863, § 2323; Code 1868, § 2320; Code 1873, § 2351; Code 1882, § 2351; Civil Code 1895, § 3211; Civil Code 1910, § 3799; Code 1933, § 85-302.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Public Lands, §§ 3 et seq., 76, 77, 118 et seq.

C.J.S. - 73B C.J.S., Public Lands, § 264 et seq.

44-5-4. Correctable errors in grants.

The following errors in the issuing and recording of grants may be corrected:

  1. Any error in the name or residence of the grantee; or in the location, character, or boundary of the land; or in any other matter or thing connected with the application for or issuing of the grant;
  2. Any error in recording or transcribing the names of applicants for draws or the names of fortunate drawers in the several land lotteries, or any omission by any of the officers or on the part of any of the agents of the state, or any other mistake in recording the grant; or
  3. Any other error whereby the true grantee is deprived of or jeopardized in his right.

    (Laws 1827, Cobb's 1851 Digest, p. 656; Laws 1828, Cobb's 1851 Digest, p. 657; Laws 1837, Cobb's 1851 Digest, p. 658; Ga. L. 1851-52, p. 247, § 1; Code 1863, § 2324; Code 1868, § 2321; Code 1873, § 2352; Code 1882, § 2352; Civil Code 1895, § 3212; Civil Code 1910, § 3800; Code 1933, § 85-303.)

JUDICIAL DECISIONS

Amendment of section in 1837 unconstitutional. - Georgia Laws 1837, p. 658, authorizing and requiring the Governor and the Secretary of State, Surveyor and Comptroller General to correct errors in grants and to issue alias grants, was held to be unconstitutional so far as the rights of third persons, other than the state and the original grantee are concerned. Hilliard v. Doe, 7 Ga. 172 (1849).

Grant valid although uncorrected, and cannot be "collaterally" attacked. - Nowhere is it intimated that the grant is not to be deemed valid as long as the grant remains uncorrected - unannulled. It does not give any countenance to the idea that a grant may be "collaterally" attacked. Vickery v. Scott, 20 Ga. 795 (1856); Houston v. State, 124 Ga. 417 , 52 S.E. 757 (1905).

RESEARCH REFERENCES

Am. Jur. 2d. - 13 Am. Jur. 2d, Cancellation of Instruments, §§ 6, 31 et seq. 63A Am. Jur. 2d, Public Lands, §§ 11, 120 et seq., 124, 128 et seq. 66 Am. Jur. 2d, Reformation of Instruments, §§ 1, 3, 28, 30, 48, 69, 70. 72 Am. Jur. 2d, States, Territories, and Dependencies, § 67.

C.J.S. - 26A C.J.S., Deeds, §§ 43, 53 et seq. 73B C.J.S., Public Lands, §§ 264 et seq.

44-5-5. Application to Governor for correction of errors; notice to interested parties; evidence of error or mistake; order for correction of errors.

In all cases where errors in issuing or recording grants are sought to be corrected, an application shall be made in writing to the Governor showing that notice in writing of the nature and time of the application has been served upon every person who may be in any manner interested in the question. If no objection is filed and satisfactory evidence of the error or mistake is produced and submitted in writing, the Governor may pass an order requiring the error to be corrected and, if necessary, requiring a new grant to be issued upon delivery of the first grant for cancellation.

(Laws 1828, Cobb's 1851 Digest, p. 657; Laws 1843, Cobb's 1851 Digest, p. 658; Laws 1845, Cobb's 1851 Digest, p. 659; Code 1863, § 2325; Code 1868, § 2322; Code 1873, § 2353; Code 1882, § 2353; Civil Code 1895, § 3213; Civil Code 1910, § 3801; Code 1933, § 85-304.)

JUDICIAL DECISIONS

Best evidence in respect to written notice upon parties in interest is to be procured by getting a certified copy of the proceedings from the Governor's office, and as the presumption is that the Governor did the Governor's duty, the defendant will not be heard to deny that the defendant had notice of the proceedings to correct a grant by defendant's own oath as a witness, until the defendant has exhausted the better evidence which the certified copy would afford. Williams v. Goodall, 60 Ga. 482 (1878).

Grant not subject to collateral attack. - If a grant for land issued from the state to one who was not the fortunate drawer in a lottery, that fact cannot be shown collaterally on the trial of an action of ejectment, but the original grant should be corrected by a proceeding instituted for that purpose, in accordance with the laws of the state. Roe v. Doe, 37 Ga. 560 (1868).

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Public Lands, §§ 11, 128 et seq. 66 Am. Jur. 2d, Reformation of Instruments, §§ 1, 3, 28, 30, 48, 69, 70. 72 Am. Jur. 2d, States, Territories, and Dependencies, § 67.

C.J.S. - 73B C.J.S., Public Lands, § 282 et seq.

44-5-6. When correction refused.

If objections are filed to the proceedings instituted pursuant to Code Section 44-5-5 and it appears that the proposed correction will interfere with the vested rights of other bona fide claimants, the Governor shall refuse to make such correction and shall leave the parties to their judicial remedies.

(Orig. Code 1863, § 2326; Code 1868, § 2323; Code 1873, § 2354; Code 1882, § 2354; Civil Code 1895, § 3214; Civil Code 1910, § 3802; Code 1933, § 85-305.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Public Lands, §§ 11, 128 et seq.

C.J.S. - 73B C.J.S., Public Lands, § 282 et seq.

44-5-7. Trial in superior court.

If it is unclear whether the proposed correction would interfere with the vested rights of others, the Governor may cause an issue to be made and certify the same to the superior court of the county where the land is located, requiring the court to cause the issue to be tried before a jury and have its verdict certified to him.

(Orig. Code 1863, § 2327; Code 1868, § 2324; Code 1873, § 2355; Code 1882, § 2355; Civil Code 1895, § 3215; Civil Code 1910, § 3803; Code 1933, § 85-306.)

RESEARCH REFERENCES

ALR. - Loss of easement by adverse possession, or nonuser, 1 A.L.R. 884 ; 66 A.L.R. 1099 ; 98 A.L.R. 1291 ; 25 A.L.R.2d 1265.

44-5-8. Filing and preserving papers and evidence.

All the papers and evidence upon every application made pursuant to Code Section 44-5-5 shall be filed and preserved in the office of the Governor.

(Orig. Code 1863, § 2329; Code 1868, § 2326; Code 1873, § 2357; Code 1882, § 2357; Civil Code 1895, § 3216; Civil Code 1910, § 3804; Code 1933, § 85-307.)

JUDICIAL DECISIONS

Best evidence of notice under former Code 1873, § 2353 (see O.C.G.A. § 44-5-5 ) was certified copy of proceedings from executive office. Williams v. Goodall, 60 Ga. 482 (1878).

44-5-9. Advertising prior to issuing corrected grant where original lost.

If the applicant for a corrected grant is not able to produce the original grant to be canceled, the Governor may issue the corrected grant after advertising for six months, at the expense of the applicant, for any objection to be filed.

(Laws 1837, Cobb's 1851 Digest, p. 658; Code 1863, § 2330; Code 1868, § 2327; Code 1873, § 2358; Code 1882, § 2358; Civil Code 1895, § 3217; Civil Code 1910, § 3805; Code 1933, § 85-308.)

RESEARCH REFERENCES

Am. Jur. 2d. - 13 Am. Jur. 2d, Cancellation of Instruments, §§ 6, 31 et seq. 52 Am. Jur. 2d, Lost and Destroyed Instruments, § 1 et seq.

44-5-10. Effect of corrected grant; notation of correction.

  1. All corrected grants shall take effect from the time of the issuance of the original grant but shall not affect the vested rights of bona fide purchasers without notice.
  2. Corrected grants shall bear upon their face a notation of the correction made and the date of the executive order under which it was made.

    (Orig. Code 1863, § 2331; Code 1868, § 2328; Code 1873, § 2359; Code 1882, § 2359; Civil Code 1895, § 3218; Civil Code 1910, § 3806; Code 1933, § 85-309.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Public Lands, § 128 et seq.

C.J.S. - 26A C.J.S., Deeds, § 43.

44-5-11. Grounds for setting aside grants.

Upon a writ of scire facias, grants issued by the state may be set aside by the superior court of the county where the land is located on the ground:

  1. That they were obtained by fraud or willful misrepresentations to the officers of the state by the grantee or those in privity with him;
  2. Of collusion between the grantee and the officers of the state; or
  3. Of fraud, accident, or mistake by the officers of the state, which fraud, accident, or mistake was known to the grantee.

    (Orig. Code 1863, § 2332; Code 1868, § 2329; Code 1873, § 2360; Code 1882, § 2360; Civil Code 1895, § 3219; Civil Code 1910, § 3807; Code 1933, § 85-310.)

JUDICIAL DECISIONS

Writ of scire facias can only be resorted to by state, not private citizen. - Without legislation, the courts could not acquire jurisdiction by process of scire facias over disputed questions relative to grants. This difficulty was met by the adoption of this statute, and now there can be no doubt that the state can, in the state's own name and in the state's own right, resort to the writ of scire facias in order to effect a repeal of a grant improvidently issued. It is equally true, however, that there is an entire absence of legislation conferring upon a private citizen the right to institute such a proceeding in the citizen's own name under any circumstances. Calhoun v. Cawley, 104 Ga. 335 , 30 S.E. 773 (1898) (see O.C.G.A. § 44-5-11 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Public Lands, §§ 5 et seq., 98, 105, 120 et seq., 124. 72 Am. Jur. 2d, States, Territories, and Dependencies, §§ 66, 67.

C.J.S. - 73B C.J.S., Public Lands, §§ 268 et seq., 279, 282 et seq.

44-5-12. Impeachment of grants; grounds; effect of irregularities or misnomer.

Grants may be impeached before the courts where they are:

  1. Void upon their face;
  2. Issued without authority of law or against a prohibition in a law; or
  3. Issued for property to which the state had no title.

    However, mere irregularities in the proceedings to obtain grants shall not be inquired into nor may a mistake in the name of the grantee be proved by parol.

    (Ga. L. 1857, p. 58, § 1; Code 1863, § 2333; Code 1868, § 2330; Code 1873, § 2361; Code 1882, § 2361; Civil Code 1895, § 3220; Civil Code 1910, § 3808; Code 1933, § 85-311.)

JUDICIAL DECISIONS

Grant from state cannot be set aside in proceeding to which state is not party. Parker v. Hughes, 25 Ga. 374 (1858) (case distinguished from Dart v. Orme, 41 Ga. 376 (1870), in Calhoun v. Cawley, 104 Ga. 335 , 30 S.E. 773 (1898)).

Parol evidence admissible to show proper name if patent ambiguity. - While a mistake in the name of a grantee of land from the state cannot be proved by parol when it is offered in evidence, yet if there was a patent ambiguity, parol testimony was admissible to show the proper name. Ferrell v. Hurst, 68 Ga. 132 (1881).

Parol evidence admissible where latent ambiguity exists. - Grant was issued to a certain person. There was no such person. This made a latent ambiguity, and aliunde evidence was admissible to show who was the person meant. Bowen v. Slaughter, 24 Ga. 338 , 71 Am. Dec. 135 (1858).

In the case of a latent ambiguity, parol evidence is admissible, not to prove a mistake in the name of the grantee, but to give effect to the grant, by showing the person intended as the grantee. Walker v. Wells, 25 Ga. 141 , 71 Am. Dec. 164 (1858); Brooking v. Dearmond, 27 Ga. 58 (1859); Roe v. Doe, 32 Ga. 348 (1861).

Grant cannot be collaterally impeached by proof that the grant was issued through mistake to the wrong person. Martin v. Anderson, 21 Ga. 301 (1857).

Grant issued under "head-right laws". - Grant under the "head-right laws," which is apparently issued conformably with law, is not open to collateral attack. Houston v. State, 124 Ga. 417 , 52 S.E. 757 (1905) ("Head-right Acts," contained in former Code 1895, §§ 3223-3236, were repealed by Ga. L. 1909, pp. 115, 116).

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Public Lands, §§ 5 et seq., 98, 105, 120 et seq., 124. 72 Am. Jur. 2d, States, Territories, and Dependencies, §§ 66, 67.

C.J.S. - 73B C.J.S., Public Lands, §§ 268 et seq., 282 et seq.

44-5-13. Grants by implication; presumptions favor grants.

A grantee of lands or a franchise takes nothing by implication but is confined to the terms of his grant; but every presumption is in favor of a grant.

(Orig. Code 1863, § 2334; Code 1868, § 2331; Code 1873, § 2362; Code 1882, § 2362; Civil Code 1895, § 3221; Civil Code 1910, § 3809; Code 1933, § 85-312.)

JUDICIAL DECISIONS

Grant to maintain turnpike road strictly construed in favor of public. - Grant to a company incorporating them to construct and maintain a turnpike road, whether it be of property or franchises, is to be construed strictly in favor of the public, and nothing passes but what is granted in clear and explicit terms. Vernon Shell Rd. Co. v. Mayor of Savannah, 95 Ga. 387 , 22 S.E. 625 (1895).

Authority to extend railroad into city not found. - An Act authorizing a railroad "to extend their road from any point at or in the City of Savannah to the island of Tybee" does not authorize the railroad to extend their road into the city, in a direction differing from that to Tybee Island, and to lay their track through the entire length of one of the streets, with a grade requiring deep excavations and high embankments. Savannah, A. & G.R.R. v. Shields, 33 Ga. 601 (1863).

RESEARCH REFERENCES

Am. Jur. 2d. - 63A Am. Jur. 2d, Public Lands, §§ 3 et seq., 124.

C.J.S. - 73B C.J.S., Public Lands, § 278.

ALR. - Reservation in grant of land of right to hunt and fish with like right to the grantee, as limiting the right of the grantee actual owners of the land, 32 A.L.R. 1533 .

Release of power of appointment of property, 76 A.L.R. 1430 .

Width of way created by express grant, reservation, or exception not specifying width, 28 A.L.R.2d 253.

Validity and effect of provision in deed attempting to make reservation or exception in favor of grantor's spouse, 52 A.L.R.3d 753.

Liability for interference with franchise, 97 A.L.R.3d 890.

44-5-14. Presumption of grant on 20 years' possession.

When the land is subject to entry and grant, 20 years' possession of land under a claim of right shall authorize the courts to presume a grant.

(Orig. Code 1863, § 2335; Code 1868, § 2332; Code 1873, § 2363; Code 1882, § 2363; Civil Code 1895, § 3222; Civil Code 1910, § 3810; Code 1933, § 85-313.)

Cross references. - Conferring title after 20 years' adverse possession, § 44-5-163 .

JUDICIAL DECISIONS

Allegations sufficient to satisfy requirements. - Bill alleging that the complainant and its predecessors in title have been in possession for 20 to 50 years, and that such possession has been public, continuous, open, notorious, exclusive, uninterrupted, and peaceable, and accompanied by a claim of right, satisfies this and other sections on the subject. Western Union Tel. Co. v. Georgia R.R. & Banking Co., 227 F. 276 (S.D. Ga. 1915).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 7, 8. 63A Am. Jur. 2d, Public Lands, § 77.

C.J.S. - 73B C.J.S., Public Lands, § 267.

ALR. - Writing as essential to color of title in adverse occupant of land, 2 A.L.R. 1457 .

ARTICLE 2 CONVEYANCES

Cross references. - Real estate transfer taxes, § 48-6-1 et seq.

RESEARCH REFERENCES

ALR. - Effect of designating grantee in deed or mortgage by firm name, 1 A.L.R. 564 ; 8 A.L.R. 493 .

Parol evidence to prove title to real property when the title is only collaterally involved, 1 A.L.R. 1143 .

Test of conveyance as quitclaim or otherwise, 3 A.L.R. 945 .

Bona fides of purchaser of note on an executory consideration, performance of which is a condition precedent, 3 A.L.R. 987 ; 100 A.L.R. 1357 .

Specific performance of land contract where there is a deed blank as to grantee in chain of title, 4 A.L.R. 408 .

Time for performance of contract for sale or exchange of land where time fixed by contract has been waived, 4 A.L.R. 815 .

Property included in a lease of premises described by street number, 8 A.L.R. 673 .

What are "minerals" within deed, lease, or license, 17 A.L.R. 156 ; 86 A.L.R. 983 .

Validity and effect of deed to "heirs" of living person, 22 A.L.R. 713 .

Understatement by vendor of real property as to yearly taxes, 29 A.L.R. 621 .

Validity and effect of deed executed in blank as to name of grantee, 32 A.L.R. 737 ; 175 A.L.R. 1294 .

Taking or remaining in possession under executory contract for the purchase of land as waiver of right to complain of defects in or failure of vendor's title, 34 A.L.R. 1321 .

Effect of unauthorized delivery or fraudulent procurement of escrow on title or interest in property, 48 A.L.R. 405 ; 54 A.L.R. 1246 .

Questions arising in connection with possibilities of reverter, 51 A.L.R. 1473 .

Quantum of estate passing to grantee as affected by language in deed purporting to express his intention that property is to go to third person upon his death, 52 A.L.R. 540 .

Validity, construction, and effect of provision in real estate mortgage as to rents and profits, 55 A.L.R. 1020 ; 87 A.L.R. 625 ; 91 A.L.R. 1217 .

Duty of purchaser of real property to disclose to the vendor facts or prospects affecting the value of the property, 56 A.L.R. 429 .

Marketable title, 57 A.L.R. 1253 ; 81 A.L.R.2d 1020.

Rule that particular description in deed prevails over general description, 72 A.L.R. 410 .

Deed of one acquiring vendor's title as meeting vendor's obligation, 109 A.L.R. 182 .

Right of vendee prior to time fixed by contract for conveyance to complain of encumbrances or defects in title, 109 A.L.R. 242 .

Validity and effect of deed which purports to convey specified acreage or quantity of land out of a larger tract, with or without a right of selection expressed, 117 A.L.R. 1071 .

Inconsistency between description of land in instruments conveying same or affecting title thereto and description in another instrument referred to therein, 134 A.L.R. 1041 .

Effect of provision in deed purporting to except or reserve a right in the grantor in respect of land or interest which he does not own, 136 A.L.R. 644 .

Reformation on ground of mutual mistake regarding character or extent of estate or title imported by language used in instrument, 141 A.L.R. 826 .

Rights or interests covered by quitclaim deed, 162 A.L.R. 556 .

Effectiveness of reservation of vendor's crop rights in land contract in absence of such reservation in deed later executed, 8 A.L.R.2d 565.

Nature of deed which may be required of vendor who is unable to convey title for which he has contracted, 13 A.L.R.2d 1462.

Who are within gift or grant to "offspring,", 23 A.L.R.2d 842.

Width of way created by express grant, reservation, or exception not specifying width, 28 A.L.R.2d 253.

Conveyance of real property to mortgagee or lienholder as constituting "sale or exchange" rendering owner liable for commissions to broker having exclusive agency or exclusive right to sell, 46 A.L.R.2d 1116.

Measure of vendee's recovery in action for damages for vendor's delay in conveying real property, 74 A.L.R.2d 578.

Deeds: meaning of term "dwelling" or "dwelling house" or "house," as used in the conveyance or exception or reservation clauses, 38 A.L.R.3d 1419.

Property owner's liability for unpaid taxes following acquisition of property by another at tax sale, 100 A.L.R.3d 593.

Restrictive covenants as to height of structures or buildings, 1 A.L.R.4th 1021.

Liability to real-property purchaser for negligent appraisal of property's value, 21 A.L.R.4th 867.

Option to purchase real property as affected by optionor's receipt of offer for, or sale of, larger tract which includes the optioned parcel, 34 A.L.R.4th 1217.

Construction and effect of provision in contract for sale of realty by which purchaser agrees to take property "as is" or in its existing condition, 8 A.L.R.5th 312.

44-5-30. Requisites of deed to lands; inquiry into consideration.

Except for documents electronically filed as provided for in Chapter 12 of Title 10 and Part 1 of Article 1 of Chapter 2 of this title, a deed to lands shall be an original document, in writing, signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness. It shall be delivered to the purchaser or his or her representative and be made on a good or valuable consideration. The consideration of a deed may always be inquired into when the principles of justice require it.

(Laws 1785, Cobb's 1851 Digest, p. 164; Code 1863, § 2649; Code 1868, § 2648; Code 1873, § 2690; Code 1882, § 2690; Civil Code 1895, § 3599; Civil Code 1910, § 4179; Code 1933, § 29-101; Ga. L. 2012, p. 173, § 1-35/HB 665; Ga. L. 2015, p. 937, § 1/HB 322.)

The 2012 amendment, effective July 1, 2012, substituted "Except for documents electronically filed as provided for in Chapter 12 of Title 10 and Part 1 of Article 1 of Chapter 2 of this title, a deed to lands shall be an original document," for "A deed to lands must be" in the first sentence; and, in the second sentence, substituted "shall" for "must" and inserted "or her".

The 2015 amendment, effective July 1, 2015, substituted "attested by an officer as provided in Code Section 44-2-15, and attested by one other witness" for "and attested by at least two witnesses" at the end of the first sentence.

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Application and definition of "deed". - Requisites of "a deed to lands" have been defined in this section, thus indicating a recognition, as other courts have defined, that the word "deed" is one of wide application and of definition other than a narrow one whereby lands are conveyed. This is true, although when used in this state it is usually understood in the more limited and restricted sense as referring to land conveyances. Powell v. Powell, 196 Ga. 694 , 27 S.E.2d 393 (1943).

Deed ineligible for recordation. - Deed was materially altered when an attachment containing the description of one of two parcels of property was removed, the deed was ineligible for recordation, and the buyer's failure to object to the recording of the altered deed did not support a finding that the buyer accepted the altered deed without objection as: (1) the seller did not re-sign the deed and it was not re-attested; (2) the buyer was not sent the altered deed or land description; (3) there was no evidence that the buyer consented to the alteration or that the buyer otherwise agreed to accept only one parcel of land; (4) the delivery of the altered deed to the bank's attorney was not constructive delivery to the buyer as the attorney represented the bank and the buyer had not authorized the attorney to accept and retain the recorded deed on the buyer's behalf; and (5) the buyer never received a copy of the altered deed or land description before or after the deed was recorded. Z & Y Corp. v. Indore C. Stores, Inc., 282 Ga. App. 163 , 638 S.E.2d 760 (2006).

Intention of parties. - Crucial test to determine whether deed conveys title to, or creates an easement in, land is the intention of the parties, which is determined by looking to the whole deed, and not merely upon disjointed parts of the deed; the recitals in the deed, the contract, the subject matter, the object, purpose, and nature of restrictions or limitations, and the attendant facts and circumstances of the parties at the time of making the deed are to be considered. Rogers v. Pitchford, 181 Ga. 845 , 184 S.E. 623 (1936).

Livery of seisin is no longer necessary in this state. Gresham v. Webb, 29 Ga. 320 (1859).

Valid and binding deed. - Limited warranty deed signed by the seller, which contained a description of two parcels of property, was valid and binding between the parties and the seller's failure to read the deed did not affect the conveyance of title as: (1) the seller signed the deed without reading the deed; (2) the seller's signature was notarized; (3) the deed was delivered to the buyer; and (4) there was no allegation that the seller could not read or that the buyer defrauded the seller or otherwise prevented the seller from reading the deed before the seller signed the deed. Z & Y Corp. v. Indore C. Stores, Inc., 282 Ga. App. 163 , 638 S.E.2d 760 (2006).

Deed not recorded if not executed in manner prescribed. - Penalty for failure to execute the deed in the manner prescribed by law is a refusal to admit the deed to record. Hoover v. Mobley, 198 Ga. 68 , 31 S.E.2d 9 (1944).

Deed not executed in precisely the manner prescribed in O.C.G.A. § 44-5-30 is not properly recordable and therefore does not give constructive notice to all the world. Duncan v. Ball, 172 Ga. App. 750 , 324 S.E.2d 477 (1984).

Fraudulent deed was facially regular and operated to release security interest. - A 2003 warranty deed that operated to release a prior lender's security interest in the property was not a forgery but was signed by someone fraudulently assuming the authority of an officer of the prior lender and was regular on the deed's face. Therefore, a subsequent lender that foreclosed on the property and purchased the property at the foreclosure sale was a bona fide purchaser for value entitled to take the property free of the prior lender's security interest. Deutsche Bank Nat'l Trust Co. v. JP Morgan Chase Bank, N.A., 307 Ga. App. 307 , 704 S.E.2d 823 (2010).

Bankruptcy impact on improperly recorded deed. - Chapter 7 discharge was not barred by 11 U.S.C. § 727(a)(2). The quitclaim deed by which the debtor transferred the debtor's interest in the marital residence to the debtor's spouse was valid under O.C.G.A. § 44-5-30 despite having been recorded in the wrong county, and the transfer did not occur within a year of the bankruptcy filing. Marvin Hewatt Enters. v. Kyu Sup Mun (In re Kyu Sup Mun), 458 Bankr. 628 (Bankr. N.D. Ga. 2011).

Cited in Sutton v. Aiken, 62 Ga. 733 (1879); Sterling v. Park, 129 Ga. 309 , 58 S.E. 828 , 121 Am. St. R. 224 , 13 L.R.A. (n.s.) 298, 12 Ann. Cas. 201 (1907); Morehead v. Allen, 131 Ga. 807 , 63 S.E. 507 (1909); Thrower v. Baker, 144 Ga. 372 , 87 S.E. 301 (1915); Coles v. Mozley, 148 Ga. 21 , 95 S.E. 963 (1918); Gammage v. Perry, 29 Ga. App. 427 , 116 S.E. 126 (1923); Newsom v. Reynolds Chevrolet Co., 43 Ga. App. 376 , 158 S.E. 763 (1931); Parker v. Wellons, 43 Ga. App. 721 , 160 S.E. 109 (1931); Carder v. Arundel Mtg. Co., 47 Ga. App. 309 , 170 S.E. 312 (1933); Charles Broadway Rouss, Inc. v. First Nat'l Bank, 180 Ga. 244 , 178 S.E. 732 (1935); Lovett v. H.C. Arnall Merchandise Co., 182 Ga. 356 , 185 S.E. 315 (1936); Armour Fertilizer Works v. Maxwell, 186 Ga. 801 , 199 S.E. 120 (1938); First Nat'l Bank v. Harmon, 186 Ga. 847 , 199 S.E. 223 (1938); Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807 , 7 S.E.2d 737 (1940); Atkinson v. England, 194 Ga. 854 , 22 S.E.2d 798 (1942); Avary v. Avary, 202 Ga. 22 , 41 S.E.2d 314 (1947); Warwick v. Ocean Pond Fishing Club, 206 Ga. 680 , 58 S.E.2d 383 (1950); Dodson v. Phagan, 227 Ga. 480 , 181 S.E.2d 366 (1971); Top Quality Homes, Inc. v. Jackson, 231 Ga. 844 , 204 S.E.2d 600 (1974); Dawson v. Keitt, 232 Ga. 10 , 205 S.E.2d 309 (1974); Smith v. Smith, 145 Ga. App. 816 , 244 S.E.2d 917 (1978); Moister v. Citizens Trust Bank (In re Truitt), 11 Bankr. 15 (Bankr. N.D. Ga. 1981); Management Assistance, Inc. v. Computer Dimensions, Inc., 546 F. Supp. 666 (N.D. Ga. 1982); Barkley v. National Sec. Fire & Cas. Co., 170 Ga. App. 17 , 315 S.E.2d 923 (1984); Gay v. First Nat'l Bank, 184 Ga. App. 340 , 361 S.E.2d 492 (1987); Sewell v. OK Oil, Inc., 203 Ga. App. 701 , 417 S.E.2d 408 (1992); Hopkins v. Virginia Highland Assocs., 247 Ga. App. 243 , 541 S.E.2d 386 (2000); Jackson v. Tolliver, 277 Ga. 58 , 586 S.E.2d 321 (2003).

Writing

Law favors title to realty being evidenced by written instruments; conversely, the law does not favor title to realty being evidenced by parol agreements. Freeman v. Saxton, 243 Ga. 571 , 255 S.E.2d 28 (1979).

Sale of standing timber. - Since standing timber is realty, the sale of standing timber must be in writing. Foy v. Scott, 197 Ga. 138 , 28 S.E.2d 107 (1943).

Signing

Grantor's signature made by another. - Signature of a grantor to a deed made by another in the grantor's presence and at the grantor's request is a valid execution of the instrument and would bind the grantor, especially when the deed was delivered. Guthrie v. Gaskins, 171 Ga. 303 , 155 S.E. 185 (1930).

If grantor's name and mark appear in instrument, section complied with. - Under this statute, the signature, or mark of one unable to make a signature need not be at the end of the instrument, nor need the name and the mark be in immediate proximity to each other. If, in the body of the instrument, the name of the grantor and the grantor's mark appear and the latter is made for the purpose of adopting the instrument as the grantor's act, this statute will be sufficiently complied with. Horton v. Murden, 117 Ga. 72 , 43 S.E. 786 (1903) (see O.C.G.A. § 44-5-30 ).

Inquiry notice established following signature on waiver. - Even though recorded, an unsigned security deed did not provide constructive notice to a bona fide purchaser under O.C.G.A. §§ 44-5-30 and 44-14-33 as in effect in 2014 when the security deed was recorded. However, the security deed referenced and incorporated a waiver, which was properly executed and attested, and the waiver referenced and incorporated the security deed and, thus, the security deed and waiver were effective under Georgia law to provide inquiry notice to a subsequent purchaser and, accordingly, the trustee could not avoid the defendant's interest because the trustee did not qualify as a bona fide purchaser of real property. Kelley v. USAA Fed. Sav. Bank (In re Jones), 580 Bankr. 916 (Bankr. M.D. Ga. 2017).

No contract formed when no signature. - With respect to objections to debtor's motion to sell property free and clear of liens and other interests, one objector's claimed easement interest failed because no contract was ever formed, it was not signed by both makers of document, and it was not attested by a second witness as required by Georgia law, and another objector who relied on a sales contract encountered the same problem of failing to comply with formalities, including two witnesses. In re Flyboy Aviation Props., LLC, 501 Bankr. 828 (Bankr. N.D. Ga. 2013).

Attestation

Requirement of two witnesses is to be taken to apply to a "perfect deed," which on recordation will be constructive notice to all the world. In this respect, this statute does not change the common law. Gardner, Dexter & Co. v. Moore, Trimble & Co., 51 Ga. 268 (1874) (see O.C.G.A. § 44-5-30 ).

Requirement of two witnesses is to be taken to apply to a "perfect deed," which on recordation will be constructive notice to all the world. Citizens' Bank v. Taylor, 169 Ga. 203 , 149 S.E. 861 (1929).

Unattested deed not void. - Phrase "a deed to lands must be in writing, signed by the maker, attested by at least two witnesses" is a statement of a requirement of law necessary to be met in order to entitle a deed to record, and does not declare that, unless so attested, a deed is void. Hoover v. Mobley, 198 Ga. 68 , 31 S.E.2d 9 (1944).

Unattested deed valid as between parties. - As between the parties, a deed is valid though attested by but one witness. Downs v. Yonge, 17 Ga. 295 (1855); Lowe v. Allen, 68 Ga. 225 (1881).

Deed without witnesses is legal and binding between the parties thereto, and those claiming under the parties as mere volunteers. Citizens' Bank v. Taylor, 169 Ga. 203 , 149 S.E. 861 (1929); Hoover v. Mobley, 198 Ga. 68 , 31 S.E.2d 9 (1944).

It has been held that, as between the two parties, a deed is valid, though attested by but one witness. But the requirement as to two witnesses is to be taken to apply to a "perfect deed," which on recordation will be constructive notice to all the world. Worley v. Planters' Cotton Oil Co., 180 Ga. 81 , 178 S.E. 289 (1935).

Although a deed transferring the Chapter 7 debtor's interest in an office building to the debtor's spouse lacked a witness and was thus defective under Georgia law, the transfer remained valid as between the debtor and the spouse. Thus, the debtor's failure to schedule an interest in the office building was not a false oath for purposes of denying the debtor's discharge. In re Knight, 574 Bankr. 800 (Bankr. N.D. Ga. 2017).

Unattested deed cannot constitute constructive notice. - Registry of a deed not attested, or not proved or acknowledged according to law, is not constructive notice to a subsequent purchaser. Citizens' Bank v. Taylor, 169 Ga. 203 , 149 S.E. 861 (1929).

Deed not properly attested or acknowledged, as required by statute, is ineligible for recording and, even if recorded, does not constitute constructive notice. Higdon v. Gates, 238 Ga. 105 , 231 S.E.2d 345 (1976).

Pecuniarily interested party is disqualified from witnessing a deed's execution. Hoover v. Mobley, 198 Ga. 68 , 31 S.E.2d 9 (1944).

Pecuniary interest must exist at time of execution. - To render ineffective for that purpose a recorded instrument relied on as "constructive notice" to the public because an official witness was pecuniarily interested, such pecuniary interest must be shown to have existed at the time of the execution of the instrument. Worley v. Planters' Cotton Oil Co., 180 Ga. 81 , 178 S.E. 289 (1935).

Attesting clause reciting delivery raises presumption deed delivered. - When a deed was duly attested by two witnesses, one of whom was an official so authorized by law, and the attesting clause recited delivery, this was sufficient to raise a prima facie presumption that the deed was delivered. Grice v. Grice, 197 Ga. 686 , 30 S.E.2d 183 (1944).

Loan modification agreement does not require attestation. - There was no merit to a Chapter 13 debtor's claim that the debtor was allowed under 11 U.S.C. § 506 to treat $31,900 in deferred principal that was addressed in a loan modification agreement the debtor signed as unsecured debt because the agreement created a junior lien on the debtor's residence that was unsecured; the debtor's logic was flawed by several mistaken assumptions about Georgia law, including the debtor's belief that the loan modification agreement had to be attested or acknowledged pursuant to O.C.G.A. § 44-5-30 , and because a security deed the debtor signed secured both deferred and non-deferred principal of a bank's secured claim, the entire balance was protected from modification by 11 U.S.C. § 1322. Mendez v. Wells Fargo Home Mortg. (In re Mendez), Bankr. (Bankr. N.D. Ga. Jan. 6, 2016).

Agreement properly construed as valid deed. - Trial court did not err by determining that the original Redemption Agreement could be construed as a valid deed because O.C.G.A. §§ 44-2-15 and 44-5-30 do not provide that unless so attested, a deed is void and O.C.G.A. § 44-5-33 provides that no prescribed form is essential to the validity of a deed to lands. Bagwell v. Trammel, 297 Ga. 873 , 778 S.E.2d 173 (2015).

Delivery
1. Essentiality

Without delivery, a deed conveys no title. Maddox v. Gray, 75 Ga. 452 (1885).

Deed that is not delivered does not operate to convey title out of the grantor thereof merely because of the deed's proper execution. Plowden v. Plowden, 52 Ga. App. 741 , 184 S.E. 343 (1935).

Delivery of a deed is essential to the conveyance of title thereby. Hall v. Metropolitan Life Ins. Co., 192 Ga. 805 , 16 S.E.2d 576 (1941).

Deed passes no title unless and until delivered. Brown v. Brown, 192 Ga. 852 , 16 S.E.2d 853 (1941).

Delivery is essential to the passing of the title by a deed. Foy v. Scott, 197 Ga. 138 , 28 S.E.2d 107 (1943).

Delivery of deed essential to validity. - Delivery to the grantee named in a deed to land is essential to the deed's validity. Daniel v. Stinson, 179 Ga. 701 , 177 S.E. 590 (1934), later appeal, 193 Ga. 844 , 20 S.E.2d 257 (1942).

Delivery of a deed to land is essential to the deed's validity as a conveyance. Calhoun v. Dowdy, 207 Ga. 584 , 63 S.E.2d 373 (1951).

Delivery of a deed conveying realty is essential to the deed's validity. Kirby v. Johnson, 208 Ga. 190 , 65 S.E.2d 811 (1951).

Trial court did not err in denying the niece's motion for directed verdict under O.C.G.A. § 9-11-50(a) as some evidence supported the finding that the deed naming the niece as grantee was never delivered to the niece as required under O.C.G.A. § 44-5-30 ; there was evidence that the original deed was found in the decedent's safe deposit box and that the key to the box had been in the decedent's control when the decedent died. Robinson v. Williams, 280 Ga. 877 , 635 S.E.2d 120 (2006).

Grantor defrauding creditors may question deed's delivery and validity. - Doctrine that the grantor in a deed made for the purpose of hindering, delaying, or defrauding the grantor's creditors, or one claiming in the grantor's right, cannot be heard to question the validity of such deed does not apply if the deed is not in fact delivered. Fuller v. Fuller, 211 Ga. 201 , 84 S.E.2d 665 (1954).

As to what constitutes delivery, see Puett v. Strickland, 144 Ga. 193 , 86 S.E. 547 (1915).

Enforcement of foreclosure provision barred by lack of delivery. - Trial court did not err in finding that the foreclosure provisions of the deed to secure debt could not be enforced because the deed had never been delivered and recorded. Jones v. Phillips, 227 Ga. App. 94 , 488 S.E.2d 692 (1997).

Foreclosure sale. - Principle that, for title to real property to pass, a deed must be delivered, applies in the case of a foreclosure sale. Gooden v. Buffalo Sav. Bank, 21 Bankr. 456 (Bankr. N.D. Ga. 1982).

2. Acceptance

Delivery is complete only when the deed is accepted. Plowden v. Plowden, 52 Ga. App. 741 , 184 S.E. 343 (1935).

Delivery by the grantor necessarily includes acceptance by the grantee. Stallings v. Newton, 110 Ga. 875 , 36 S.E. 227 (1900). (See also answer of court in Beardsley v. Hilson, 94 Ga. 50 , 20 S.E. 272 (1894), to contrary dictum in Ross v. Campbell, 73 Ga. 309 (1884)).

Delivery of a deed is essential to the deed's validity and it is complete only when the deed is accepted. The delivery may be actual or constructive. The record of a properly attested deed purporting on the deed's face to have been delivered is prima facie or presumptive evidence of delivery which, of course, is rebuttable. Domestic Loans of Wash., Inc. v. Wilder, 113 Ga. App. 803 , 149 S.E.2d 717 (1966).

When delivery and acceptance of deed complete. - Delivery of a deed is complete as against the maker at the moment when the deed is in the hands or in the power of a grantee or donee or some one for the grantee, with the consent of the grantor and with the intention that the grantee shall hold the deed as a muniment of title. National Fire Ins. Co. v. Thompson, 51 Ga. App. 625 , 181 S.E. 101 (1935); First Nat'l Bank v. Kelly, 190 Ga. 603 , 10 S.E.2d 66 (1940); Giuffrida v. Knight, 210 Ga. 128 , 78 S.E.2d 29 (1953).

Delivery of a deed is complete as against the maker only when the deed is in the hands of or in the power of the grantee or some one authorized to act for the grantee, with the consent of the grantor, and with the intention that the grantee hold the deed as a muniment of title. Keesee v. Collum, 208 Ga. 382 , 67 S.E.2d 120 (1951).

Delivery may be to third person. - Deed by a father to his minor child may be delivered by the grantor to a third person for the child. First Nat'l Bank v. Kelly, 190 Ga. 603 , 10 S.E.2d 66 (1940).

Delivery of a deed to another, to be delivered on certain conditions to the grantee, was in escrow under former Code 1933, § 29-105 (see O.C.G.A. § 44-5-42 ). But the second delivery by the escrowee to the grantee, and not the first by the grantor to the escrowee, was the one rendering the conveyance valid and complete and under which title past. Foy v. Scott, 197 Ga. 138 , 28 S.E.2d 107 (1943).

While it is true that to be valid a deed must be delivered, such delivery does not have to be to the grantee personally. The deed may be received by another authorized to do so by the grantee or may be received by a third person whose actions are later ratified by the grantee. Barrett v. Simmons, 235 Ga. 600 , 221 S.E.2d 25 (1975).

Grantor's death revokes agency. - Deed delivered to a third person, as agent of the grantor, to be kept by the third person and delivered to the grantees after the grantor's death, was not a present deed of the grantor, and the death of the grantor revoked the agency, thus preventing effectual delivery. Cooper v. Littleton, 197 Ga. 381 , 29 S.E.2d 606 (1944).

Sufficient acceptance and control of deed by debtor. - Bankruptcy debtor fraudulently transferred an interest of the debtor in a parent's residence since the parent delivered the deed of the property to the debtor by recording the deed and notifying the debtor and the debtor accepted the deed by asserting control over the property by transferring the debtor's interest to a sibling. Howell v. Trawick (In re Norton), Bankr. (Bankr. N.D. Ga. Aug. 15, 2014).

3. Intent

Mere manual delivery to grantee is insufficient, unless intention to surrender dominion is also present. Grice v. Grice, 197 Ga. 686 , 30 S.E.2d 183 (1944).

Mere manual transition of a paper to the obligee, without a mutual intent to give validity to the paper, but with a mutual intent to the contrary, does not constitute delivery. Peacock v. Horne, 159 Ga. 707 , 126 S.E. 813 (1925).

Mere manual delivery to the grantee is not sufficient if the intention of the grantor to surrender dominion is not present. Keesee v. Collum, 208 Ga. 382 , 67 S.E.2d 120 (1951).

Intent of grantor to reserve locus penitentiae. - When one executes a deed, the true test of delivery of a deed of conveyance is whether or not the grantor intended to reserve to oneself the locus penitentiae. Giuffrida v. Knight, 210 Ga. 128 , 78 S.E.2d 29 (1953).

Intent gathered from circumstances under which delivery made. - Question of the completed and effectual delivery of a deed is one of the intent of the grantor, and this intent to irretrievably part with control of the deed is to be gathered from the circumstances under which the delivery was made. Stinson v. Daniel, 193 Ga. 844 , 20 S.E.2d 257 (1942).

4. When Made

Delivery must be in the lifetime of the grantor. Hill v. Hill, 149 Ga. 509 , 101 S.E. 121 (1919).

Delivery, actual or constructive, must be made during the lifetime of the grantor. Daniel v. Stinson, 179 Ga. 701 , 177 S.E. 590 (1934), later appeal, 193 Ga. 844 , 20 S.E.2d 257 (1942).

Delivery of a deed must be made during the lifetime of the grantor. Hall v. Metropolitan Life Ins. Co., 192 Ga. 805 , 16 S.E.2d 576 (1941).

Delivery, to be effectual, must be made in the lifetime of the grantor. Stinson v. Daniel, 193 Ga. 844 , 20 S.E.2d 257 (1942).

Leaving the deed in the trunk of a car that was left to the grantee. - Father's unrecorded 2004 deed of a family home place to one of his sons was ineffective because it was not delivered to the son as required by O.C.G.A. § 44-5-30 , but was placed in the trunk of the father's car until the father's death in 2009, when he left the car to his son. Johnson v. Johnson, 327 Ga. App. 604 , 760 S.E.2d 618 (2014).

Delivery to third person, handed to grantee after grantor's death, effectual. - While it is true that a delivery, to be effectual, must be made during the lifetime of the grantor, it is not here ruled that the delivery would be ineffectual if the paper did not actually reach the grantee until after the grantor's death, provided the latter in the grantor's lifetime had actually delivered the paper to a third person for the purpose of having the paper handed to the actual grantee, though this latter act was not consummated until after the grantor's death. Stinson v. Daniel, 193 Ga. 844 , 20 S.E.2d 257 (1942).

5. Presumptions

No presumption of delivery found. - There was no presumption that a deed was delivered merely because of the deed's execution before two witnesses, one of whom was an officer authorized to attest deeds, since the deed was never recorded during the grantor's lifetime, was found attached to the grantor's will, which was executed the same day, among the grantor's papers after the grantor's death and in a locked box to which no one but the grantor had access, and where the grantor retained possession of the premises and treated the premises as the grantor's own. Plowden v. Plowden, 52 Ga. App. 741 , 184 S.E. 343 (1935).

When deed executed and recorded, delivery presumed. - When a deed properly executed and recorded purports on the deed's face to have been delivered, delivery will be presumed. Shelton v. Edenfield, 148 Ga. 128 , 96 S.E. 3 (1918); Garnett v. Royal Ins. Co., 23 Ga. App. 432 , 98 S.E. 363 (1919).

When the deed is properly executed, recited delivery, and an entry of record appears, in the absence of rebutting evidence, these facts are sufficient to prove delivery of the deed. Daniel v. Stinson, 179 Ga. 701 , 177 S.E. 590 (1934), later appeal, 193 Ga. 844 , 20 S.E.2d 257 (1942).

When a deed introduced in evidence showed that the deed had been recorded, this raised a prima facie presumption of delivery. Grice v. Grice, 197 Ga. 686 , 30 S.E.2d 183 (1944).

Fact that deeds to secure debt were duly witnessed, recited delivery, and were properly recorded raised a prima facie presumption of delivery. Fuller v. Fuller, 213 Ga. 103 , 97 S.E.2d 306 (1957).

Presumption of delivery rebuttable. - Act of registering a deed does not amount necessarily to a delivery. When placed on record by the grantor or by the grantor's direction, it is only prima facie evidence of delivery, and it may be explained or rebutted. Presumption of delivery is not conclusive as between the parties to the instrument. Daniel v. Stinson, 179 Ga. 701 , 177 S.E. 590 (1934), later appeal, 193 Ga. 844 , 20 S.E.2d 257 (1942).

Formal execution of the deed raises a prima facie presumption that the deed was delivered. This presumption is rebuttable. Stinson v. Daniel, 193 Ga. 844 , 20 S.E.2d 257 (1942).

Though the grantor by reserving a life interest in the property raised a prima facie presumption of delivery, such presumption, like the presumption from the execution of a deed or the record thereof, is one that may be rebutted. Keesee v. Collum, 208 Ga. 382 , 67 S.E.2d 120 (1951).

Though a presumption of delivery arises from the due attestation and registration of a deed, such presumption may be rebutted by proof that the deed was never delivered. Fuller v. Fuller, 211 Ga. 201 , 84 S.E.2d 665 (1954).

When evidence raises conflict, jury decides issue. - Presumptions in favor of the delivery of a deed arising from the deed's possession by the grantee, the deed's due recordation, the deed's attestation by an officer, and the possession of the premises conveyed under the deed are evidence of delivery, but, since these presumptions are rebuttable ones, the evidence of an unimpeached witness that the deed was not delivered raises a conflict between such presumptive evidence of delivery and such direct evidence of nondelivery, which can only be decided by the jury. National Fire Ins. Co. v. Thompson, 51 Ga. App. 625 , 181 S.E. 101 (1935).

While the due registration of a deed is presumptive evidence of the deed's delivery, this presumption is rebuttable, and when evidence is introduced which would authorize the jury to find that this presumption has been rebutted and that the deed has not been delivered, an issue of fact is thereby made and it is the sole province of the jury to decide that issue. Allen v. Bemis, 193 Ga. 556 , 19 S.E.2d 516 (1942).

6. Jury Questions

Whether deed delivered question for jury. - Whether the facts constitute a delivery of the deed is a question of law; whether such facts exist is a question for the jury. Stinson v. Daniel, 193 Ga. 844 , 20 S.E.2d 257 (1942).

Undisputed facts demand directed verdict. - Whether a deed has in fact been delivered is a question for the jury, unless the proof is so complete and undisputed that a verdict is demanded thereunder for one or the other party. National Fire Ins. Co. v. Thompson, 51 Ga. App. 625 , 181 S.E. 101 (1935).

Whether the facts constitute a delivery of a deed is a question of law; whether such facts exist is a question for the jury. When the undisputed facts are insufficient to constitute a delivery of the deed, the court need not submit the issue of delivery to the jury. Giuffrida v. Knight, 210 Ga. 128 , 78 S.E.2d 29 (1953).

7. Jury Findings

Grantee's act may constitute ratification of delivery. - Evidence demanded a finding that the grantee had exercised acts of ownership over the property and had ratified the delivery of the deed thereto by the grantee's execution of an affidavit and notice endeavoring to stop a levy on the property. McKenzie v. Alston, 58 Ga. App. 849 , 200 S.E. 518 (1938).

Evidence sufficient to support finding of nondelivery. - When it was shown that a deed was made, and that the grantor said that the land belonged to the grantee, but it was proved that the deed never was recorded, and was found by the grantee among the papers of the grantor after the grantor's death, there was no sufficient evidence of delivery, and a verdict finding against a title set up under such a deed was correct. Hall v. Metropolitan Life Ins. Co., 192 Ga. 805 , 16 S.E.2d 576 (1941).

Evidence that, though the grantor, three days before the grantor's death, intended to give the grantor's four children equal parts of a cash fund and to deliver separate deeds to three of the children, but before the grantor had done so the grantor became ill, saying, "I will fix the rest tomorrow, I have got to lay down, put them all up," and pursuant to this direction the cash and deeds were returned to the grantor's trunk, authorized the jury, under the circumstances, to find that the maker did not intend to surrender dominion over the deed. Keesee v. Collum, 208 Ga. 382 , 67 S.E.2d 120 (1951).

Consideration
1. Value

Good consideration sufficient. - Valuable consideration is not necessarily required; a good consideration is sufficient. Byrd v. Byrd, 44 Ga. 258 (1871); Boyd v. Sanders, 148 Ga. 839 , 98 S.E. 490 (1919).

Deed based upon no consideration stands as a voluntary conveyance. Finch v. Woods, 113 Ga. 996 , 39 S.E. 418 (1901); American Ins. Co. v. Bagley, 6 Ga. App. 736 , 65 S.E. 787 (1909).

Failure of consideration. - Seal raises presumption of consideration at the time the contract was entered into, but not that the consideration has not since failed either wholly or in part, and while want of consideration cannot be pleaded, failure may. Parrott v. Baker, 82 Ga. 364 , 9 S.E. 1068 (1889); Sivell v. Hogan, 119 Ga. 167 , 46 S.E. 67 (1903).

Delivery of deed to father, in consideration of affection, evidence of delivery to infant son. - When a grantor executes and delivers to the father of an infant of tender years, in consideration of love and affection, a deed conveying to the infant son of the father title to a described tract of land, delivery to the father and his possession of the deed is evidence of delivery to the infant. Montgomery v. Reeves, 167 Ga. 623 , 146 S.E. 311 (1929).

Promise to pay constitutes consideration and a failure to pay the consideration promised, although it constitutes a breach, does not render the conveyance invalid for lack of consideration. Barrett v. Simmons, 235 Ga. 600 , 221 S.E.2d 25 (1975).

Failure to pay creates liability. - Fact that the consideration is not actually paid does not render void the conveyance, but creates a liability upon the purchaser, which may be enforced in an action at law. Morris v. Johnson, 219 Ga. 81 , 132 S.E.2d 45 (1963).

Debt liability is valuable consideration. - When a married woman entitled to certain undistributed funds from her deceased father's estate, and having on hand certain money derived from the same source, died leaving her husband and their minor children as her only heirs at law, and the husband became guardian of the persons and property of the children, and took possession of the money on hand and used the money individually, the father became individually liable to the children for their distributive shares of the money left by their mother; where, before the children attained majority, the father, having married again, executed, without a court order, a deed purporting to convey described realty to the children in payment of the debt, such liability was a valuable consideration for the deed. First Nat'l Bank v. Kelly, 190 Ga. 603 , 10 S.E.2d 66 (1940).

Exchange of an undivided one-fifth interest for a life estate was a valuable consideration; and where a substantial part of the consideration has not failed, the grantor's remedy would not be cancellation, but an action for damages for the breach of partial failure of consideration. Cordell v. Cordell, 206 Ga. 214 , 56 S.E.2d 251 (1949).

2. Inquiry

Consideration of a deed is always a legitimate subject of inquiry and the true consideration may be proved by parol evidence. Sawyer v. Foremost Dairy Prods., Inc., 176 Ga. 854 , 169 S.E. 115 (1933).

Consideration may be inquired into when the principles of justice so require. Alexander v. Dinwiddie, 214 Ga. 441 , 105 S.E.2d 451 (1958).

Statement as to consideration merely by way of recital. - Ordinarily, if the statement in a deed as to a consideration is merely by way of recital, the actual consideration of the deed is subject to explanation. But if the consideration is referred to in the deed in such a way as to make it one of the terms or conditions of the contract, it cannot be varied by parol. This statement, in connection with the rule against permitting the terms of a written contract to be changed by parol, will serve to reconcile a number of rulings where evidence has been admitted to show what was the consideration of the deed or contract with others in which it has been rejected. As illustrations of cases of the first character mentioned, see Horn v. Ross & Leitch, 20 Ga. 210 , 65 Am. Dec. 621 (1856); Burke v. Napier, 106 Ga. 327 , 32 S.E. 134 (1898); Stone v. Minter, 111 Ga. 45 , 36 S.E. 321 , 50 L.R.A. 356 (1900); Martin v. White, 115 Ga. 866 , 42 S.E. 279 (1902); Goette v. Sutton, 128 Ga. 179 , 57 S.E. 308 (1907); Southern Bell Tel. & Tel. Co. v. Smith, 129 Ga. 558 , 59 S.E. 215 (1907); Pavlovski v. Klassing, 134 Ga. 704 , 68 S.E. 511 (1910). For cases of the latter character, see Atlas Tack Co. v. Exchange Bank, 111 Ga. 703 , 36 S.E. 939 (1900); Wellmaker v. Wheatley, 123 Ga. 201 , 51 S.E. 436 (1905); Louisville & N.R.R. v. Holland, 132 Ga. 173 , 63 S.E. 898 (1909); Louisville & N.R.R. v. Willbanks, 133 Ga. 15 , 65 S.E. 86 , 24 L.R.A. (n.s.) 374, 17 Ann. Cas. 860 (1909); Coldwell Co. v. Cowart, 138 Ga. 233 , 75 S.E. 425 (1912). See also Young v. Young, 150 Ga. 515 , 104 S.E. 149 (1920); Sikes v. Sikes, 162 Ga. 302 , 133 S.E. 239 (1926).

If the statement in a deed as to a consideration is merely by way of recital, the actual consideration of the deed is subject to explanation; but if the consideration is referred to in the deed in such a way as to make it one of the terms or conditions of the contract, it cannot be varied by parol. Shapiro v. Steinberg, 179 Ga. 18 , 175 S.E. 1 (1934).

As between the parties to the contract, the consideration of a deed can generally be inquired into whenever the principles of justice require it, if the consideration is expressed in the instrument merely by way of recital, and not in such a manner as to make it one of the terms and conditions of the deed, and when the consideration is expressed only by way of recital, it is permissible to show by parol testimony that the true consideration is in fact different from that expressed in the deed. Stonecypher v. Georgia Power Co., 183 Ga. 498 , 189 S.E. 13 (1936).

Consideration of a deed when stated merely by recital may always be inquired into when the principles of justice require it. Guffin v. Kelly, 191 Ga. 880 , 14 S.E.2d 50 (1941).

When the consideration is expressed merely by way of recital, it is permissible to show by parol evidence that the real consideration is in fact different from that expressed in the instrument. McCann v. Glynn Lumber Co., 199 Ga. 669 , 34 S.E.2d 839 (1945).

When the consideration in a deed is expressed merely by way of recital, it is permissible to show by parol testimony that the true consideration is in fact different from that expressed in the instrument, but when the consideration is so expressed as to make it one of the terms and conditions of the deed, one of the parties thereto cannot, under the guise of inquiring into its consideration, alter the terms of the instrument. Taylor v. Ross, 74 Ga. App. 750 , 41 S.E.2d 330 (1947).

When expressed only by way of recital, parol evidence is admissible to show that the true consideration of the deed is in fact different from the one stated merely by way of recital. However, one of the parties to a deed cannot, under the guise of inquiring into the deed's consideration, engraft upon the instrument a new condition or covenant which imposes an additional affirmative obligation upon the other party. Awtrey v. Awtrey, 225 Ga. 666 , 171 S.E.2d 126 (1969).

Parol evidence admissible when consideration in dispute. - When a deed on the deed's face does not show itself to be complete, certain, and unambiguous, parol evidence is admissible to show the actual consideration for the deed, and this is true when the consideration is in dispute, as this may always be inquired into when the principles of justice require it. Knight v. Munday, 152 Ga. App. 406 , 263 S.E.2d 188 (1979).

If consideration is not stated in deed, parol evidence may be received to prove the consideration. Shapiro v. Steinberg, 179 Ga. 18 , 175 S.E. 1 (1934).

Inquiry by fraudulent grantor. - Principles of justice neither require nor allow an inquiry at the instance of fraudulent grantor. Parrott v. Baker, 82 Ga. 364 , 9 S.E. 1068 (1889).

Party cannot vary expressly stated consideration. - Party may not, under the guise of inquiring into the consideration of a deed, contradict or vary by parol evidence the consideration expressly stated in the deed. Zorn v. Robertson, 237 Ga. 395 , 228 S.E.2d 804 (1976).

Parol evidence of different consideration not admissible. - One of the parties to a deed cannot, under the guise of inquiring into the deed's consideration, alter the terms of the instrument, and when proof of a consideration different from the one expressed would have the effect of altering the terms and conditions imposed by the deed, it is not permissible to set up by parol another and different consideration for the purpose of showing a failure of the latter. Stonecypher v. Georgia Power Co., 183 Ga. 498 , 189 S.E. 13 (1936).

If an instrument states the consideration, not merely by way of recital, but in such a way as to constitute it a part of the terms and conditions of the agreement itself, then it is not permissible, even under the guise of inquiring into the consideration, to set up a new and different consideration, and in this way to incidentally modify the terms and conditions of the written contract, but this rule does not have application where a total lack or a total failure of consideration is shown in which event the instrument can be attacked irrespectively of how or in what manner the consideration may be expressed. Pittman v. Pittman, 196 Ga. 397 , 26 S.E.2d 764 (1943).

Party may not vary affirmative obligations. - Suit for damages for breach of an oral agreement cannot be maintained when, in order to establish such an agreement, it is necessary to vary the terms of a deed by imposing additional affirmative obligations upon one of the parties to the instrument. Awtrey v. Awtrey, 225 Ga. 666 , 171 S.E.2d 126 (1969).

Although deed purports to have valuable consideration, the deed may be shown to be voluntary only. Roop Grocery Co. v. Gentry, 195 Ga. 736 , 25 S.E.2d 705 (1943).

Parol evidence showing voluntary deed of gift. - When a deed from an insured to a third person is relied on as showing that the insured was not sole owner of the property at the time of the fire, it may be shown by parol to be a voluntary deed of gift, notwithstanding a recital in the deed of a monetary consideration. Pooser v. Norwich Union Fire Ins. Soc'y, Ltd., 51 Ga. App. 962 , 182 S.E. 44 (1935).

Whether a deed which expresses as a consideration love and affection and a small sum of money is a voluntary conveyance depends upon the intention of the parties, and this intention is to be ascertained by an inquiry into all the facts and circumstances at the time of the deed's execution, which will throw light upon the question as to whether the deed was executed as the consummation of a sale or as the evidence of a gift. Mercantile Nat'l Bank v. Aldridge, 233 Ga. 318 , 210 S.E.2d 791 (1974).

Statute of frauds is not violated by showing that consideration is performance of parol agreement. Duggan v. Dennard, 171 Ga. 622 , 156 S.E. 315 (1930).

Evidence on positive instructions and statements of deed of maker properly considered. - When the evidence was not as material to the intention of the maker as the evidence was to the positive instructions and statements of the maker of the deed to incorporate certain provisions therein, the evidence may be properly considered. Ward v. Ward, 176 Ga. 849 , 169 S.E. 120 (1933).

Allegations sufficient to show necessity for inquiry. - Allegations of a petition seeking payment of the balance due on a note made by the seller of a business which the defendant-purchaser assumed and agreed to pay when defendant purchased the assets of the business were sufficient to show the necessity for an inquiry into the consideration for the contract. Alexander v. Dinwiddie, 214 Ga. 441 , 105 S.E.2d 451 (1958).

Subsequent parol agreement cannot make deed to secure particular debt security for other debts. - It would be competent to introduce evidence to show that the actual consideration of a deed at the time of the deed's execution covered not only the securing of the debt then due but also the securing of future advances to be made. But if, when the deed was made, it was to secure a particular debt, it could not be made a security for other debts by a subsequent parol agreement. Hester v. Gairdner, 128 Ga. 531 , 58 S.E. 165 (1907); Neal v. Neal, 153 Ga. 44 , 111 S.E. 387 (1922).

When consideration not ambiguous, error to admit parol evidence to show parties' intention. - Timber lease, as properly construed, granted the right to cut and remove all the timber of stated kinds and dimensions on the described tract of land, at and for a stipulated price per 1,000 feet, subject only to the expiration of the lease on a date therein fixed, and did not limit the amount of timber that might be so cut by recital of a certain consideration, and the judge erred in holding that the contract was ambiguous on the point at issue, and in admitting over appropriate objection parol evidence offered to show an intention of the parties that only a certain quantity of timber could be so cut and removed under the right granted. McCann v. Glynn Lumber Co., 199 Ga. 669 , 34 S.E.2d 839 (1945).

Description
1. Applicability of Definiteness Requirement

Applicability to contract for sale of land. - Same rule requiring definiteness of description in deed for land is applicable to a contract for the sale or purchase of land. Haygood v. Duncan, 204 Ga. 540 , 50 S.E.2d 214 (1948).

Deed void for failure of description. - Trial court did not err in granting summary judgment to siblings in the siblings' action to set aside a quitclaim deed that their father had made to their sister prior to the father's death as the deed did not meet the necessary formality requirements since the deed did not contain a description of the property that was purportedly transferred; the fact that a third page was attached which had a property description was not sufficient to satisfy the formality requirements as there was no reference in the body of the deed to an attachment, and the third page did not reference itself as an attachment or appendix to the deed. Field v. Mednikow, 279 Ga. App. 380 , 631 S.E.2d 395 (2006).

2. Test as to Sufficiency

Test of sufficiency of the description of property contained in a deed is whether or not the description discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to so that the land's identification is practicable. Gainesville M.R.R. v. Tyner, 204 Ga. 535 , 50 S.E.2d 108 (1948); Haygood v. Duncan, 204 Ga. 540 , 50 S.E.2d 214 (1948).

Test as to the sufficiency of the description of property contained in a deed is whether or not the deed discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that the land's identification is practicable, but when the descriptive averments are so indefinite and uncertain that no particular tract or quantity of land is described thereby or pointed out with certainty by the instrument itself, the description must be held defective and therefore insufficient to pass title. Smith v. Wilkinson, 208 Ga. 489 , 67 S.E.2d 698 (1951).

When descriptions so indefinite that lands cannot be located, deed void. - When the description in a deed is indefinite, and contains no descriptive terms by the use of which the lands intended to be conveyed can be definitely located and identified, such deed is fatally defective and void. Laurens County Bd. of Educ. v. Stanley, 187 Ga. 389 , 200 S.E. 294 (1938), later appeal, 188 Ga. 581 , 4 S.E.2d 164 (1939).

Deed purporting to convey land, which is so indefinite in description that the land is incapable of being located, is inoperative either as a conveyance of title or as color of title. Stanley v. Laurens County Bd. of Educ., 188 Ga. 581 , 4 S.E.2d 164 (1939).

3. Key to Location

Deed furnishing key to land's identification not void. - Deed to land will not be declared void for uncertainty of description, if the description is certain, or if the deed furnishes the key to the identification of the land intended to be conveyed by the grantor. Smith v. Federal Land Bank, 181 Ga. 1 , 181 S.E. 149 (1935).

Deed is not void for the want of description if the deed furnishes the key to the identification of the land intended to be conveyed. Laurens County Bd. of Educ. v. Stanley, 187 Ga. 389 , 200 S.E. 294 (1938), later appeal, 188 Ga. 581 , 4 S.E.2d 164 (1939).

Deed is sufficient to pass title, and will not be declared void for uncertainty of description, if the descriptive averments contained therein are certain, or if the averments afford a key by which the land can be definitely located by the aid of extrinsic evidence. Gainesville M.R.R. v. Tyner, 204 Ga. 535 , 50 S.E.2d 108 (1948); Smith v. Wilkinson, 208 Ga. 489 , 67 S.E.2d 698 (1951).

Deed to land will not be declared void for uncertainty of description if the deed furnishes a key for the identification of the land intended to be conveyed. Sharpe v. Savannah River Lumber Corp., 211 Ga. 570 , 87 S.E.2d 398 (1955), later appeal, 213 Ga. 72 , 97 S.E.2d 303 (1957).

When deed admissible in evidence. - When the description in a deed furnishes a key which, when aided by parol evidence, can fit the description, the deed is admissible in evidence. Dorsey v. Dorsey, 189 Ga. 662 , 7 S.E.2d 273 (1940).

Key must locate boundaries at time of conveyance's execution. - Insofar as the identity of the land attempted to be conveyed is concerned, the key must lead to the establishment and the location of the boundaries as of the time of the execution of the conveyance; a survey to be made in the future does not do so. Laurens County Bd. of Educ. v. Stanley, 187 Ga. 389 , 200 S.E. 294 (1938), later appeal, 188 Ga. 581 , 4 S.E.2d 164 (1939).

Key to location must be found in instrument itself. - When a key is relied upon for descriptive purposes, either in a deed or in a contract for the sale of land, the key to be used for that purpose must be found in the instrument itself, and not elsewhere. Smith v. Wilkinson, 208 Ga. 489 , 67 S.E.2d 698 (1951).

Seal

Under this statute, a deed to lands is not required to be under seal. Vizard v. Moody, 119 Ga. 918 , 47 S.E. 348 (1904); Atlanta, K. & N. Ry. v. McKinney, 124 Ga. 929 , 53 S.E. 701 , 110 Am. St. R. 215 , 6 L.R.A. (n.s.) 436 (1906); Henderson v. Howard, 147 Ga. 371 , 94 S.E. 251 (1917); Patterson v. Burns, 150 Ga. 198 , 103 S.E. 241 (1920); United Leather Co. v. Proudfit, 151 Ga. 403 , 107 S.E. 327 (1921); Bank of Manchester v. Birmingham Trust & Sav. Co., 156 Ga. 486 , 119 S.E. 603 (1923); Citizens & S. Bank v. Farr, 164 Ga. 880 , 139 S.E. 658 (1927) (see O.C.G.A. § 44-5-30 ).

Deed under seal not binding when under unsealed power of attorney. - Deed under seal is not binding on a grantor when signed by a person under an alleged power of attorney from the grantor, which power is itself not under seal. Pollard & Co. v. Gibbs, 55 Ga. 45 (1875); Lynch v. Poole, 138 Ga. 303 , 75 S.E. 158 (1912); Neely & Co. v. Stevens, 138 Ga. 305 , 75 S.E. 159 (1912); Henderson v. Howard, 147 Ga. 371 , 94 S.E. 251 (1917).

Authority to fill in names in blanks left by grantor need not be under seal. Bowen v. Gaskins, 144 Ga. 1 , 85 S.E. 1007 (1915).

Petition to Cancel or Void Deed

Petition found to set out cause of action. - It is essential to the validity of a deed that the deed be delivered, and a petition brought by the administrator seeking cancellation of the deed in which the deceased grantor had conveyed certain property, while reserving a life estate for the grantor, on the grounds that the deed had not been delivered by the grantor during the grantor's lifetime, set out a cause of action. Childs v. Mitchell, 204 Ga. 542 , 50 S.E.2d 216 (1948).

Petition for the cancellation of a deed, alleging that a mother, the owner of described realty, executed a voluntary deed to her children giving the children a remainder interest, when in fact she intended to execute a will, and alleging that she has retained possession of the deed and continued in possession of the land since the deed's execution, is sufficient to set forth a cause of action. Kirby v. Johnson, 208 Ga. 190 , 65 S.E.2d 811 (1951).

Petition seeking to cancel two security deeds, which alleged that the deeds were executed without any consideration, that the deeds, though recorded, had never been delivered to the grantee, and that the defendant had never had possession of the properties described in the deeds, stated a cause of action, though it was alleged in the petition that the grantor executed the deeds for the purpose of hindering, delaying, and defrauding the grantor's creditors. Fuller v. Fuller, 211 Ga. 201 , 84 S.E.2d 665 (1954).

Deed made in consideration of promise to support grantor canceled where appears grantee insolvent. - An absolute deed made in consideration of a promise by the grantee to support the grantor for life may be canceled by the superior court in the exercise of the court's equitable powers on a petition brought by the grantor for this purpose when it is made to appear that the grantee has breached the grantee's agreement and is insolvent, and this does not contravene the rule prevailing in this state that an absolute deed of conveyance will not, at the instance of the grantor, be canceled merely because of a breach by the grantee of a promise made by the grantee, in consideration of which the deed was executed. Schneider v. Smith, 189 Ga. 704 , 7 S.E.2d 76 (1940).

Deed executed by one non compos mentis, but not adjudged insane, is voidable, and can be so declared at the instance of one's heirs in a suit brought for that purpose. Simpson v. Simpson, 180 Ga. 645 , 180 S.E. 126 (1935).

Deed found void for indefiniteness. - Tax deed purporting to convey a designated number of acres "more or less," which did not purport to designate the eastern boundary, was void for indefiniteness in the description. Holloway v. Key, 188 Ga. 423 , 4 S.E.2d 167 (1939).

Deed found not void for failure of description. - When a deed headed, "State of Georgia, ________ County," named the grantor as a resident of that county, and described the land by giving the lot number, the district, and the names of the adjoining landowners on all sides, recited that the described land was "known as [grantor] home place," and was recorded in the deed records of the county, it was not void for the failure of the description to state the county and the state in which the land was located. Dorsey v. Dorsey, 189 Ga. 662 , 7 S.E.2d 273 (1940).

Parties. - Grantor and grantee are indispensable parties in an action for cancellation of a deed. Tabernacle Baptist Church v. Dorsey, 247 Ga. 675 , 278 S.E.2d 378 (1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 87 et seq. 72 Am. Jur. 2d, Statute of Frauds, § 221.

C.J.S. - 26A C.J.S., Deeds, § 19 et seq.

ALR. - Description with reference to highway as carrying title to center or side of highway, 2 A.L.R. 6 ; 49 A.L.R.2d 982.

Deposit of deed in mail as a delivery, 5 A.L.R. 1664 .

Validity and effect of deed to "heirs" of living person, 22 A.L.R. 713 .

Severance of title or rights to oil and gas in place from title to surface, 29 A.L.R. 586 ; 146 A.L.R. 880 .

Reservation of vendor's lien as preventing severance of estate in mineral from estate in surface by deed otherwise having that effect, 29 A.L.R. 618 .

Sufficiency of certificate of acknowledgment, 29 A.L.R. 919 .

Conclusiveness of manual delivery of deed to grantee as an effective legal delivery, 56 A.L.R. 746 ; 141 A.L.R. 305 .

Marketable title, 57 A.L.R. 1253 ; 81 A.L.R.2d 1020.

Acknowledgment or oath over telephone, 58 A.L.R. 604 .

Conveyance in consideration of support as creating lien or charge upon the land conveyed, 64 A.L.R. 1250 .

Execution of deed in respective or fiduciary capacity as estoppel of one in his individual capacity, 64 A.L.R. 1556 .

Value of property as factor in determining whether deed intended as mortgage, 90 A.L.R. 953 ; 89 A.L.R.2d 1040.

Undelivered deed or escrow, pursuant to oral contract, as satisfying Statute of Frauds, 100 A.L.R. 196 .

Presumption of delivery where deed is given by grantor to third person or comes into possession of grantee through third person, 124 A.L.R. 462 .

Delivery of a deed without manual transfer or record, 129 A.L.R. 11 ; 87 A.L.R.2d 787.

Delivery of deed as conditioned on obtaining signature of another as grantor, 140 A.L.R. 265 .

Death, or extinction of corporate existence, of grantee, or one of the grantees, prior to execution of deed, 148 A.L.R. 252 .

Delivery of deed or mortgage by one or more but not all of the grantors or mortgagors, 162 A.L.R. 892 .

Validity and effect of deed executed in blank as to name of grantee, 175 A.L.R. 1294 .

Effect of supplying of description of property conveyed after manual delivery of deed or mortgage, 11 A.L.R.2d 1372.

Knowledge or notice of inadequacy of consideration for conveyance in chain of title as affecting bona fide status of purchaser, 42 A.L.R.2d 1088.

Conveyance of real property to mortgagee or lienholder as constituting "sale or exchange" rendering owner liable for commissions to broker having exclusive agency or exclusive right to sell, 46 A.L.R.2d 1116.

Presumption of consideration from revenue stamps on deed, 51 A.L.R.2d 1004.

What constitutes acceptance of deed by grantee, 74 A.L.R.2d 992.

Description with reference to highway as carrying title to center or side of highway, 49 A.L.R.2d 982.

Party walls and party-wall agreements as affecting marketability of title, 81 A.L.R.2d 1020.

Sufficiency of delivery of deed where grantor retains, or recovers, physical possession, 87 A.L.R.2d 787.

Value of property as factor in determining whether deed was intended as mortgage, 89 A.L.R.2d 1040.

What constitutes a "structure" within restrictive covenant, 75 A.L.R.3d 1095.

44-5-31. Requisites of deed to personalty; necessity for deed.

A deed to personalty needs no attesting witness to make it valid; in other respects, the principles applicable to deeds to lands are applicable to deeds to personalty. However, generally a deed is not necessary to convey title to personalty.

(Orig. Code 1863, § 2655; Code 1868, § 2654; Code 1873, § 2696; Code 1882, § 2696; Civil Code 1895, § 3606; Civil Code 1910, § 4186; Code 1933, § 29-108.)

JUDICIAL DECISIONS

Cited in Larkin v. City of Darien, 69 Ga. 727 (1882); Haas & Howell v. Godby, 33 Ga. App. 218 , 125 S.E. 897 (1924); A.O. Blackmar Co. v. NCR, 64 Ga. App. 739 , 14 S.E.2d 153 (1941).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 97 et seq.

C.J.S. - 33 C.J.S., Exchange of Property, § 29.

44-5-32. Requisites of instruments other than deeds.

Every bond for title, bond to reconvey realty, contract to sell or to convey realty or any interest therein and every transfer or assignment of any of such instruments shall, except as between the parties thereto, be executed with the same formality as is required for the execution of deeds conveying realty.

(Ga. L. 1921, p. 157, § 1; Code 1933, § 29-114.)

Law reviews. - For comment on Chase v. Endsley, 165 Ga. 292 , 140 S.E. 876 (1927), see 1 Ga. L. Rev. No. 3, p. 49 (1927).

JUDICIAL DECISIONS

Grantor in possession under bond can lease timber rights when grantee's security not impaired. - Grantor, who was in possession of timberland under a bond for title, could lease the timber rights, and, so long as the grantor remained in possession, extend the term of the lease so long as the security of the grantee was not impaired. Chisem v. Kirby-Evans Material Co., 209 Ga. 342 , 72 S.E.2d 305 (1952).

Cited in Mangum v. Jones, 205 Ga. 661 , 54 S.E.2d 603 (1949).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 1, 4.

44-5-33. Form of deed.

No prescribed form is essential to the validity of a deed to lands or personalty. If the deed is sufficient in itself to make known the transaction between the parties, no want of form will invalidate it.

(Laws 1768, Cobb's 1851 Digest, p. 163; Laws 1785, Cobb's 1851 Digest, p. 164; Code 1863, § 2651; Code 1868, § 2650; Code 1873, § 2692; Code 1882, § 2692; Civil Code 1895, § 3602; Civil Code 1910, § 4182; Code 1933, § 29-104.)

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Deed sufficient if makes known transaction between parties. - If the deed is sufficient in itself to make known the transaction between the parties, no want of form will invalidate the deed. Very informal instruments have been held sufficient under this statute to pass title. Horton v. Murden, 117 Ga. 72 , 43 S.E. 786 (1903); Caraker v. Brown, 152 Ga. 677 , 111 S.E. 51 (1922). See also Sterling v. Park, 129 Ga. 309 , 58 S.E. 828 , 121 Am. St. R. 224 , 13 L.R.A. (n.s.) 298, 12 Ann. Cas. 201 (1907); Price v. Gross, 148 Ga. 137 , 96 S.E. 4 (1918); Nasworthy v. James, 152 Ga. 368 , 110 S.E. 7 (1921) (see O.C.G.A. § 44-5-33 ).

Form found sufficient in Caldwell v. Hammons, 40 Ga. 342 (1869); Allgood v. State, 87 Ga. 668 , 13 S.E. 569 (1891); Vizard v. Moody, 119 Ga. 918 , 47 S.E. 348 (1904); Georgia & A. Ry. v. Shiver, 121 Ga. 708 , 49 S.E. 700 (1905); Reeves v. Allgood & Co., 133 Ga. 835 , 67 S.E. 81 (1910); Swint v. Swint, 147 Ga. 467 , 94 S.E. 571 (1917); Boyd v. Sanders, 148 Ga. 839 , 98 S.E. 490 (1919); Nasworthy v. James, 152 Ga. 368 , 110 S.E. 7 (1921); Crider v. Woodward, 162 Ga. 743 , 135 S.E. 95 (1926), later appeal, 165 Ga. 407 , 141 S.E. 76 (1927); Citizens & S. Bank v. Farr, 164 Ga. 880 , 139 S.E. 658 (1927).

Valid and binding deed. - Limited warranty deed signed by the seller, which contained a description of two parcels of property, was valid and binding between the parties and the seller's failure to read the deed did not affect the conveyance of title as: (1) the seller signed the deed without reading the deed; (2) the seller's signature was notarized; (3) the deed was delivered to the buyer; and (4) there was no allegation that the seller could not read or that the buyer defrauded the seller or otherwise prevented the seller from reading the deed before the seller signed it. Z & Y Corp. v. Indore C. Stores, Inc., 282 Ga. App. 163 , 638 S.E.2d 760 (2006).

Cited in O'Neill v. Myers, 148 Ga. App. 749 , 252 S.E.2d 638 (1979); Vineville Capital Group, LLC v. McCook, 329 Ga. App. 790 , 766 S.E.2d 156 (2014).

Language

Technical terms not necessary to create estate. - No particular form is essential to the validity of a deed, and technical words are not necessary to create an estate in land. On the other hand, such an estate will not be created by the mere use of technical terms, if from the instrument construed as a whole it is apparent that the parties did not so intend. P.H. Snook & Austin Furn. Co. v. Steiner & Emery, 117 Ga. 363 , 43 S.E. 775 (1903).

Deed conveying property described, but not containing formal language, sufficient. - When a debtor gave a security deed to the debtor's creditor which did not contain formal language, but did convey the property described in the deed, the deed was sufficient to invest the creditor with such title that the creditor could execute a valid reconveyance to the debtor for the purpose of levy and sale. Woodward v. La Porte, 181 Ga. 731 , 184 S.E. 280 (1936).

Signature

Signature upon note related to deed by internal references applicable to entire contract. - Note and a security deed were so related by internal references that the signature upon the note should, as between the parties and in equity, be treated as applying to the entire contract, including the part contained in the security deed. Cocke v. Bank of Dawson, 180 Ga. 714 , 180 S.E. 711 (1935).

Inquiry notice established following signature on waiver. - Even though recorded, an unsigned security deed did not provide constructive notice to a bona fide purchaser under O.C.G.A. §§ 44-5-30 and 44-14-33 as in effect in 2014 when the security deed was recorded. However, the security deed referenced and incorporated a waiver, which was properly executed and attested, and the waiver referenced and incorporated the security deed and, thus, the security deed and waiver were effective under Georgia law to provide inquiry notice to a subsequent purchaser and, accordingly, the trustee could not avoid the defendant's interest because the trustee did not qualify as a bona fide purchaser of real property. Kelley v. USAA Fed. Sav. Bank (In re Jones), 580 Bankr. 916 (Bankr. M.D. Ga. 2017).

Attestation

As between parties, deed binding without witnesses. - In order that a deed may be properly entered of record, it must be executed in the presence of at least two witnesses, but, as between the parties, the deed is binding without witnesses. Blue Ridge Apt. Co. v. Telfair Stockton & Co., 205 Ga. 552 , 54 S.E.2d 608 (1949).

Assumption that deed attested when appears duly recorded. - When it appears that a deed was duly recorded, it will be assumed that the deed was properly executed and attested. Tietjen v. Meldrim, 172 Ga. 814 , 159 S.E. 231 (1931).

Agreement properly construed as valid deed. - Trial court did not err by determining that the original Redemption Agreement could be construed as a valid deed because O.C.G.A. §§ 44-2-15 and 44-5-30 do not provide that unless so attested, a deed is void and O.C.G.A. § 44-5-33 provides that no prescribed form is essential to the validity of a deed to lands. Bagwell v. Trammel, 297 Ga. 873 , 778 S.E.2d 173 (2015).

Intent

Deed cannot convey title without language indicating intent to transfer. - Function of a deed is to convey title in presenti, and this cannot be accomplished without the use of language indicating an intention to transfer title. Horton v. Murden, 117 Ga. 72 , 43 S.E. 786 (1903); Caldwell v. Caldwell, 140 Ga. 736 , 79 S.E. 853 (1913). See also Bell v. McDuffie, 71 Ga. 264 (1883).

Necessity of language not dispensed with by law. - This statute does not dispense with the necessity of using language indicating an intention of the maker to convey a present estate in specific land to a named grantee. Caldwell v. Caldwell, 140 Ga. 736 , 79 S.E. 853 (1913); Tyson v. Hutchinson, 164 Ga. 661 , 139 S.E. 519 (1927) (see O.C.G.A. § 44-5-33 ).

Description
1. Sufficiency

Test as to the sufficiency of the description of property contained in a deed is whether or not the deed discloses with sufficient certainty what the intention of the grantor was with respect to the quantity and location of the land therein referred to, so that the land's identification is practicable. Gainesville M.R.R. v. Tyner, 204 Ga. 535 , 50 S.E.2d 108 (1948).

Description of the land in a deed must be sufficiently certain to effect the means of identification. A deed lacking in such certainty of description, standing alone, is inoperative either as a conveyance of title or as color of title. Allen v. Smith, 169 Ga. 395 , 150 S.E. 584 (1929).

Description of the property conveyed in a deed is sufficiently certain when the description shows the intention of the grantor as to what property is conveyed and makes the property's identification practicable. Holder v. Jordan Realty Co., 170 Ga. 764 , 154 S.E. 353 (1930).

2. Key to Identification

Deed not void if deed affords key by which land definitely located. - Deed is sufficient to pass title, and will not be declared void for uncertainty of description, if the descriptive averments contained therein are certain, or if the averments afford a key by which the land can be definitely located by the aid of extrinsic evidence. Gainesville M.R.R. v. Tyner, 204 Ga. 535 , 50 S.E.2d 108 (1948).

Descriptive words in a deed, to be sufficient as a key, must lead unerringly to the land in question. Savannah River Lumber Corp. v. Sharpe, 213 Ga. 72 , 97 S.E.2d 303 (1957).

Key must locate boundaries at time of conveyance's execution. - Insofar as the identity of the land attempted to be conveyed is concerned, the key must lead to the establishment and the location of the boundaries as of the time of the execution of the conveyance. McMichael Realty & Ins. Agency, Inc. v. Tysinger, 155 Ga. App. 131 , 270 S.E.2d 88 (1980).

Provision in a deed for a subsequent survey does not cure indefinite description. McMichael Realty & Ins. Agency, Inc. v. Tysinger, 155 Ga. App. 131 , 270 S.E.2d 88 (1980).

Identification may be supplied by extrinsic evidence. Holder v. Jordan Realty Co., 170 Ga. 764 , 154 S.E. 353 (1930).

No identification key furnished where demarcation line between lands not established. - Deed which purported to convey "all of the river swamp land" located on a larger tract of land was not sufficient to furnish a key to identification when the verbal testimony was not sufficient to establish a line of demarcation between "river swamp lands" and other lands. Savannah River Lumber Corp. v. Sharpe, 213 Ga. 72 , 97 S.E.2d 303 (1957).

No action on purchase option when no key to land's identification. - Neither specific performance, nor damages for its breach, will be decreed in an action on a written option to purchase land since the land is so vaguely described that the writing furnishes no key to the land's identification. McMichael Realty & Ins. Agency, Inc. v. Tysinger, 155 Ga. App. 131 , 270 S.E.2d 88 (1980).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 12 et seq.

C.J.S. - 26A C.J.S., Deeds, § 34 et seq.

ALR. - Effect of designating grantee in deed or mortgage by firm name, 1 A.L.R. 564 ; 8 A.L.R. 493 .

Validity and effect of deed to "heirs" of living person, 22 A.L.R. 713 .

Validity and effect of deed executed in blank as to name of grantee, 32 A.L.R. 737 ; 175 A.L.R. 1294 .

Sufficiency and construction of description in deed or mortgage as "all" of grantor's property, or "all" of his property in certain locality, 55 A.L.R. 162 .

Acknowledgment or oath over telephone, 58 A.L.R. 604 .

Sufficiency of execution of instrument by agent or attorney in fact in name of principal without his own name appearing, 96 A.L.R. 1251 .

Fee simple conditional, 114 A.L.R. 602 .

Time limitation for attack on tax title as affected by defective description of property in the assessment or the tax deed, 133 A.L.R. 570 .

Validity and effect of deed which identifies tract conveyed only by reference to its area and a specified corner or other part of a larger tract from which it is to be taken, 139 A.L.R. 1180 .

Deed or mortgage as affected by uncertainty of description of excepted area, 162 A.L.R. 288 .

Record of instrument without sufficient acknowledgment as notice, 59 A.L.R.2d 1299.

44-5-34. Construction of inconsistent clauses in deed; ascertainment of intention of parties.

If two clauses in a deed are utterly inconsistent, the former shall prevail; but the intention of the parties should, if possible, be ascertained from the whole instrument and carried into effect.

(Orig. Code 1863, § 2656; Code 1868, § 2655; Code 1873, § 2697; Code 1882, § 2697; Civil Code 1895, § 3607; Civil Code 1910, § 4187; Code 1933, § 29-109.)

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Cited in Maxwell v. Hoppie, 70 Ga. 152 (1882); West v. Randle, 79 Ga. 28 , 3 S.E. 454 (1887); McDonough v. Martin, 88 Ga. 675 , 16 S.E. 59 , 18 L.R.A. 343 (1892); Bray v. McGinty, 94 Ga. 192 , 21 S.E. 284 (1894); Baxter v. Mattox, 106 Ga. 344 , 32 S.E. 94 (1898); Rogers v. Highnote, 126 Ga. 740 , 56 S.E. 93 (1906); Cobb v. Wrightsville & T.R.R., 129 Ga. 377 , 58 S.E. 862 (1907); Lewman v. Owens, 132 Ga. 484 , 64 S.E. 544 (1909); Aiken v. Wallace, 134 Ga. 873 , 68 S.E. 937 (1910); Walker v. Walker, 139 Ga. 547 , 77 S.E. 795 (1913); Parker v. Smith, 140 Ga. 789 , 80 S.E. 12 (1913); Stamey v. McGinnis, 145 Ga. 226 , 88 S.E. 935 (1916); Shewmake v. Robinson, 148 Ga. 287 , 96 S.E. 564 (1918); Stanley v. Reeves, 149 Ga. 151 , 99 S.E. 376 (1919); Keith v. Chastain, 157 Ga. 1 , 121 S.E. 233 (1923); Simpson v. Powell & Co., 158 Ga. 516 , 123 S.E. 741 (1924); White v. Cook, 171 Ga. 663 , 156 S.E. 657 (1931); Moore v. Moore, 188 Ga. 314 , 4 S.E.2d 18 (1939); Bienvenu v. First Nat'l Bank, 193 Ga. 101 , 17 S.E.2d 257 (1941); English v. Davis, 195 Ga. 89 , 23 S.E.2d 394 (1942); Mendenhall v. Holtzclaw, 198 Ga. 95 , 31 S.E.2d 171 (1944); Padgett v. Hatton, 200 Ga. 209 , 36 S.E.2d 664 (1946); Sampson v. General Elec. Supply Corp., 78 Ga. App. 2 , 50 S.E.2d 169 (1948); Chance v. Buxton, 177 F.2d 297 (5th Cir. 1949); Stanley v. Greenfield, 207 Ga. 390 , 61 S.E.2d 818 (1950); Floyd v. Carswell, 211 Ga. 36 , 83 S.E.2d 586 (1954); McVay v. Anderson, 221 Ga. 381 , 144 S.E.2d 741 (1965); Conyers v. Fulton County, 117 Ga. App. 649 , 161 S.E.2d 347 (1968); Corley v. Parson, 233 Ga. 845 , 213 S.E.2d 693 (1975); DOT v. Knight, 238 Ga. 225 , 232 S.E.2d 72 (1977); Hardman v. Dahlonega-Lumpkin County Chamber of Commerce, 238 Ga. 551 , 233 S.E.2d 753 (1977); Latham Homes Sanitation, Inc. v. CSX Transp., Inc., 245 Ga. App. 573 , 538 S.E.2d 107 (2000).

Rules of Construction

Each part of deed given effect, if possible. - Trend of the modern authorities is toward the restriction of the rule that when there are two utterly inconsistent clauses in a deed, the former must prevail; each part of a deed is given effect, if possible. Skinner v. Bearden, 77 Ga. App. 325 , 48 S.E.2d 574 (1948).

Inconsistency, to be void, must be totally inconsistent, it must destroy the estate; if it only fetters it or qualifies it, it is still good. Aetna Ins. Co. v. Brodinax, 48 F. 892 (C.C.S.D. Ga. 1883), aff'd, 128 U.S. 236, 9 S. Ct. 61 , 32 L. Ed. 445 (1888). See also Central R.R. & Banking Co. v. Mayor of Macon, 43 Ga. 605 (1871); White v. Hopkins, 80 Ga. 154 , 4 S.E. 863 (1887); Burnett v. Summerlin, 110 Ga. 349 , 35 S.E. 655 (1900).

Granting clause in a deed does not control other clauses. Cole v. Thrasher, 246 Ga. 683 , 272 S.E.2d 696 (1980).

Conveying clause prevails over habendum clause. - All the provisions of a deed should be given effect and made to harmonize when possible, but if there should be any repugnancy between the conveying clause and the habendum clause, the conveying clause will prevail. Guess v. Morgan, 196 Ga. 265 , 26 S.E.2d 424 (1943).

Particular description prevails over general one. - When a deed contains two descriptions of the land conveyed, one general and the other particular, if there is any repugnance, the particular description will prevail. Harlan v. Ellis, 198 Ga. 678 , 32 S.E.2d 389 (1944).

Most material and certain part of description prevails. - In construing conveyances of land, effect is to be given to every part of the description, if practicable, but if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances of the description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as false or mistaken. What is most material and most certain in a description shall prevail over that which is less material and less certain. Patrick v. Sheppard, 182 Ga. 788 , 187 S.E. 379 (1936).

Distances and computed contents yield to ascertained boundaries and monuments. - In construing a deed to land, that which is most material and most certain should prevail over that which is less material and less certain, and distances and computed contents should yield to ascertained boundaries and monuments. Stewart v. Latimer, 197 Ga. 735 , 30 S.E.2d 633 (1944).

Extrinsic evidence can aid court in fitting description to property. - Description of the land is not too indefinite if the court can, with the aid of extrinsic evidence which does not add to, enlarge, or in any way change the description, fit it to the property conveyed by the deed. Patrick v. Sheppard, 182 Ga. 788 , 187 S.E. 379 (1936).

Description by plat controls over descriptive words. - When the descriptive clauses in a deed contain particular words of description, and also refer to a plat, and the plat is more definite than the particular words of description, the description by plat shall control as to the property conveyed. Patrick v. Sheppard, 182 Ga. 788 , 187 S.E. 379 (1936).

Prior or contemporaneous oral agreement fixing different metes and bounds not competent evidence. - While extrinsic evidence may in a proper case be admitted for the purpose of applying a description to subject matter, it is not competent to show that there was an oral agreement between the grantor and the grantee in a deed of conveyance, made prior to or contemporaneously with the deed's execution, fixing metes and bounds different from those specifically set forth in the deed itself. Stewart v. Latimer, 197 Ga. 735 , 30 S.E.2d 633 (1944).

Deeds are to be taken most strongly against the agent or contractor, inasmuch as the instinct of self-preservation will always make men sufficiently careful to protect themselves - verba fortius accipiuntur contro proferentem. Harmon v. First Nat'l Bank, 50 Ga. App. 3 , 176 S.E. 833 (1934).

Construction favoring grantee preferred. - When all other means of ascertaining the true construction of a deed fail, and a doubt still remains, that construction is rather to be preferred which is most favorable to the grantee. Harmon v. First Nat'l Bank, 50 Ga. App. 3 , 176 S.E. 833 (1934).

As to construction of bill of sale, see Felder v. Middleton Hdwe. Co., 66 Ga. App. 572 , 18 S.E.2d 574 (1942).

Effect of § 44-5-60 on easements. - After the State Highway Department obtained a right-of-way over a strip of land, and the plaintiff's predecessor in title reserved a parking easement, the parties to the 1954 conveyance intended an appurtenant easement in favor of the land. Thus, the trial court erred in granting the Department of Transportation's motion for summary judgment because the limitation period of O.C.G.A. § 44-5-60(b) applies to restrictive covenants not easements such as in this case. Brown v. DOT, 195 Ga. App. 262 , 393 S.E.2d 36 (1990).

Parties' Intention

Controlling rule is to ascertain intention of parties to deed. - In the construction of deeds, as well as other contracts, the paramount, essential, and controlling rule is to ascertain the intention of the parties. If that intention is plain from the language of the deed as a whole, and the intention contravenes no rule of law, the deed should be given effect, regardless of mere literal repugnancies in different clauses of the conveyance. Aycock v. Williams, 185 Ga. 585 , 196 S.E. 54 (1938); Guess v. Morgan, 196 Ga. 265 , 26 S.E.2d 424 (1943).

In the construction of deeds, as well as other contracts, the paramount, essential, and controlling rule is to ascertain the intention of the parties. If that intention is plain from the language of the deed as a whole, and the intention contravenes no rule of law, the deed should be given effect. Moore v. Wells, 212 Ga. 446 , 93 S.E.2d 731 (1956).

In the construction of deeds, as well as other contracts, the paramount, essential, and controlling rule is to ascertain the intention of the parties. Prescott v. Herring, 212 Ga. 571 , 94 S.E.2d 417 (1956).

Cardinal rule for the construction of a deed is to ascertain the intention of the parties. The whole instrument is to be construed together, so as to give effect, if possible, to the entire deed, and in this way ascertain from the instrument's terms the real intention of the parties; and the construction which will uphold a deed in whole and in every part is to be preferred. Leavell v. State Hwy. Dep't, 121 Ga. App. 112 , 173 S.E.2d 124 (1970).

Determining whether grant is easement or fee. - Grant, whether of easement or fee, should be construed to carry out intentions of parties. Georgia Power Co. v. Leonard, 187 Ga. 608 , 1 S.E.2d 579 (1939).

When the plaintiffs contended that the issuance of a notice of interim trail use or abandonment authorizing the conversion of a railroad line for use as a public recreational trail under the National Trail Systems Act exceeded the scope of an easement and, thus, was a Fifth Amendment taking, the court applied Georgia law and determined that, with respect to one parcel, the railroad acquired title in fee simple, not just an easement limited to rail use, because the railroad satisfied the elements of adverse possession when the railroad constructed and used a rail line adjacent to the parcel. Further, the railroad possessed the property for more than 20 years and, thus, acquired title to the property as opposed to a mere easement to use the property. Hardy v. United States, 127 Fed. Cl. 1 (Fed. Cl. May 4, 2016).

In a class action in which the plaintiffs contended that the plaintiffs owned disputed parcels in fee simple and that issuance of a notice of interim trail use or abandonment authorizing conversion of a railroad line for use as a public recreational trail under the National Trail Systems Act exceeded the scope of their easements and, thus, was a Fifth Amendment taking, the court, applying Georgia law, determined that the grantors intended to convey easements, not fee simple interests, because the deeds provided that a strip of land would be designated as a right-of-way for railroad or for any other use, the consideration described in the deeds was nominal, and the phrase "for any other use" referred only to uses related to railroad purposes. Hardy v. United States, 127 Fed. Cl. 1 (Fed. Cl. May 4, 2016).

Intention of parties crucial test in determining whether instrument grants easement or title. - In determining whether an instrument grants an easement in, or conveys title to, land, the crucial test is the intention of the parties, and the whole instrument must be looked to, and recitals in the instrument, subject matter, object, purpose, and nature of restrictions or limitations, if any, or the absence of such, and attendant facts and circumstances of the parties at the time of making the instrument are all to be considered. Danielsville & Comer Tel. Co. v. Sanders, 209 Ga. 144 , 71 S.E.2d 226 (1952).

Substance, rather than technical nicety in the location of clauses in a deed, is controlling, the intention of the parties being the cardinal rule of construction. Cole v. Thrasher, 246 Ga. 683 , 272 S.E.2d 696 (1980).

Deed construed as whole. - One of the most important rules in the construction of deeds is to so construe the deeds that no part or words shall be rejected. The courts lean to such a construction as reconciles the different parts, and reject the construction which leads to a contradiction. Of course, a deed or other contract should be construed as a whole, and in its entirety, in order to find the true intention of the parties. Skinner v. Bearden, 77 Ga. App. 325 , 48 S.E.2d 574 (1948).

In construing a deed, effect must be given, if practicable, to every part of the description of the land conveyed, and if two clauses in a deed are utterly inconsistent, the former shall prevail, but the intention of the parties from the whole instrument should, if possible, be ascertained and carried into effect. Prescott v. Herring, 212 Ga. 571 , 94 S.E.2d 417 (1956).

Doctrine of repugnant clauses is not favored; the terms of the whole instrument are to be construed together to give effect to the entire deed and to uphold the intention of the grantor. Cole v. Thrasher, 246 Ga. 683 , 272 S.E.2d 696 (1980).

If intent obvious, repugnant parts of description rejected. - Trend of modern authorities is to give effect to every part of a deed if possible, and if this cannot be done, and there is an obvious intent derivable from the face of the instrument, the tendency is to reject only superadded parts which are repugnant thereto, if it can be done without violating some rule of law. Thompson v. Hill, 137 Ga. 308 , 73 S.E. 640 (1912). See also Hatton v. Johnson, 157 Ga. 313 , 121 S.E. 404 (1924); Clark v. Robinson, 162 Ga. 395 , 134 S.E. 72 (1926); Holder v. Jordan Realty Co., 163 Ga. 645 , 136 S.E. 907 (1927).

In construing conveyances of land, effect is to be given to every part of the description, if practicable, but if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances of description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as false or mistaken. What is most material and most certain in a description shall prevail over that which is less material and less certain. Prescott v. Herring, 212 Ga. 571 , 94 S.E.2d 417 (1956).

Court looks at surrounding facts. - Recitals in a deed are inconsistent or repugnant, the first recital does not necessarily prevail over the latter, but the whole language of the deed is to be construed together in order that the true construction may be ascertained; in such a case, the court will look into the surrounding facts, and will adopt that construction which is the most definite and certain, and which will carry out the evident intention of the parties. Stewart v. Latimer, 197 Ga. 735 , 30 S.E.2d 633 (1944); Floral Hills Memory Gardens, Inc. v. Robb, 227 Ga. 470 , 181 S.E.2d 373 (1971).

Recitals in a deed, the contract, the subject matter, the object, purposes, and nature of the restrictions or limitations, if any, or the absence of such, and the attendant facts and circumstances of the parties at the time of the making of the conveyance are all to be considered in arriving at the intention of the parties. Jackson v. Rogers, 205 Ga. 581 , 54 S.E.2d 132 (1949).

Poorly drawn contract not defeated when intent discoverable. - When the contract was admittedly poorly drawn, this alone would not defeat the contract's purpose if the parties intended that the plaintiff retain title until the purchase money was paid. However unskillfully a deed may be prepared, it is the duty of the courts to discover and give effect, if possible, to the intent of the parties. Skinner v. Bearden, 77 Ga. App. 325 , 48 S.E.2d 574 (1948).

OPINIONS OF THE ATTORNEY GENERAL

"And/or" clause interpreted. - Clause "and/or her daughter" in a deed would be interpreted to pass a free title to the taxpayer and her daughter as equal tenants in common. 1965-66 Op. Att'y Gen. No. 66-148.

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S. - 26A C.J.S., Deeds, § 188 et seq.

ALR. - Rule that particular description in deed prevails over general description, 72 A.L.R. 410 .

Conflict between granting and habendum clauses as to estate conveyed, 84 A.L.R. 1054 ; 58 A.L.R.2d 1374.

Phrase "from and after" death of life beneficiary as affecting character of remainder as vested or contingent, 103 A.L.R. 598 .

Meaning of term "issue" when used as a word of purchase, 117 A.L.R. 691 .

Reference in deed or mortgage to proportion of larger tract, inconsistent with other terms descriptive of property covered, 127 A.L.R. 1040 .

Deed as conveying fee or easement, 136 A.L.R. 379 .

Water as within term "minerals" in deed, lease, or license, 148 A.L.R. 780 .

Rules as to interpretation of description of real property as applicable to description in judgment, 150 A.L.R. 773 .

Validity of reservation of oil and gas or other mineral rights in deed of land, as against objection of repugnancy to the grant, 157 A.L.R. 485 .

Use of word "joint" or "jointly" in provision of deed other than the granting or habendum clause as indicating intent to create a joint tenancy rather than one in common between the grantees, 157 A.L.R. 566 .

Judgment based on construction of instrument as res judicata of its validity, 164 A.L.R. 873 .

Construction and effect of provision of deed for sharing of profits in event of discovery of minerals, oil, or gas, 173 A.L.R. 1104 .

Construction and application of provision of deed, mortgage, lease, or land contract covering personal property on, attached or used in connection with the premises, 175 A.L.R. 404 .

Construction and application of covenant restricting use of property to "residence" or "residential purposes", 175 A.L.R. 1191 .

What constitutes oil or gas "royalty," or "royalties," within language of conveyance, exception, reservation, devise, or assignment, 4 A.L.R.2d 492.

Written matter as controlling printed matter in construction of deed, 37 A.L.R.2d 820.

Oil and gas as "minerals" within deed, lease, or license, 37 A.L.R.2d 1440.

Quantum or character of estate or interest created by language providing premises as a home, or giving or granting same for such use, 45 A.L.R.2d 699.

Description with reference to highway as carrying title to center or side of highway, 49 A.L.R.2d 982.

Conflict between granting and habendum clauses as to estate conveyed, 58 A.L.R.2d 1374.

Construction and effect of provision for payment of damages to "crops" or "growing crops" in mineral deed or lease, or in conveyance of pipeline or other underground easement, 87 A.L.R.2d 235.

Value of property as factor in determining whether deed was intended as mortgage, 89 A.L.R.2d 1040.

Estate created by deed to one and his "blood heirs" or "blooded heirs,", 89 A.L.R.2d 1222.

Deed to railroad company as conveying fee or easement, 6 A.L.R.3d 973.

Time to which condition of remainderman's death refers, under gift or grant to one for life or term of years and then to remainderman, but if remainderman dies without issue, then over to another, 26 A.L.R.3d 407.

Which of conflicting descriptions in deeds or mortgages of fractional quantity of interest intended to be conveyed prevails, 12 A.L.R.4th 795.

May easement or right of way be appurtenant where servient tenement is not adjacent to dominant, 15 A.L.R.7th 1.

44-5-35. Apportionment of price for deficiency in number of acres; rescission.

In a sale of lands, if the purchase is per acre, a deficiency in the number of acres may be apportioned in the price. If the sale is by the tract or the entire body, a deficiency in the quantity sold cannot be apportioned. If the sale is by a quantity of acres with the qualification "more or less" added, any deficiency is not apportionable unless the deficiency is so great as to constitute a willful deception or mistake amounting to fraud. In this event, the purchaser may demand a rescission of the sale or an apportionment of the purchase price.

(Orig. Code 1863, § 2598; Code 1868, § 2600; Code 1873, § 2642; Code 1882, § 2642; Civil Code 1895, § 3542; Civil Code 1910, § 4122; Code 1933, § 29-201; Ga. L. 1983, p. 3, § 33.)

Law reviews. - For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

There is no room for holding that this statute modified the previous existing rule. Walton v. Ramsey, 50 Ga. 618 (1874); Finney v. Morris, 116 Ga. 758 , 42 S.E. 1020 (1902) (see O.C.G.A. § 44-5-35 ).

When section applies. - Statute deals with matter of deficiency of quantity of land under three sets of circumstances: (1) where the sale is made by the acre; (2) where it is by the entire tract or body; (3) where the quantity is specified as "more or less." Kendall v. Wells, 126 Ga. 343 , 55 S.E. 41 (1906); Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625 , 165 S.E. 884 (1932) (see O.C.G.A. § 44-5-35 ).

Cited in Rigdon v. Barfield, 194 Ga. 77 , 20 S.E.2d 587 (1942); Farrar v. Vanpelt, 96 Ga. App. 244 , 99 S.E.2d 738 (1957); U.S. Life Title Ins. Co. v. Hutsell, 164 Ga. App. 443 , 296 S.E.2d 760 (1982).

Applicability

Bulk sale of fertilizer. - Statute does not apply to a sale in bulk of fertilizer. Navassa Guano Co. v. Commercial Guano Co., 93 Ga. 92 , 18 S.E. 1000 (1894) (see O.C.G.A. § 44-5-35 ).

Sale of growing timber. - Statute does not apply to a sale of timber growing upon land, when there is no deficiency in the quantity of land, but only a misrepresentation as to quantity and character of timber. Martin v. Harwell, 115 Ga. 156 , 41 S.E. 686 (1902) (see O.C.G.A. § 44-5-35 ).

When vendor lacks title, title defect exists rather than deficiency. - When a certain tract of land is described in a contract of sale by definite boundaries, and it later appears that the vendor has no title to a portion of the tract contained within the described boundaries, this is a defect in the vendor's title rather than a deficiency in quantity. Lawton v. Byck, 217 Ga. 676 , 124 S.E.2d 369 (1962), later appeal, 218 Ga. 858 , 131 S.E.2d 176 (1963).

When a certain tract of land was described in a contract of sale by definite boundaries, and it later appeared that the vendor had no title to a portion of the tract contained within the described boundaries, this was a defect in the vendor's title, as contemplated by former Code 1933, § 29-202 (see O.C.G.A. § 44-5-36 ), rather than a deficiency in quantity, as contemplated by former Code 1933, § 29-201 (see O.C.G.A. § 44-5-35 ). Lunsford v. King, 132 Ga. App. 749 , 209 S.E.2d 27 (1974); Etheridge v. Fried, 183 Ga. App. 842 , 360 S.E.2d 409 (1987).

Section not applicable when purchaser seeks to mark notes "satisfied" on ground title has failed. - When a purchaser of land sought to have delivered up and marked as "satisfied" certain notes given by the purchaser for deferred payments, on the ground that title to certain of the land so purchased had failed, the issue as to whether or not it was a sale by the tract or by the acre was not involved; in such a case the applicable law was that contained in former Code 1933, § 29-202 (see O.C.G.A. § 44-5-36 ) and not in former Code 1933, § 29-201 (see O.C.G.A. § 44-5-35 ). Miller v. Minhinnette, 185 Ga. 490 , 195 S.E. 425 (1938).

Not applicable when sued purchaser sets up defense that vendor cannot make title. - When a purchaser under a bond for title does not hold possession of all the land described in the bond, and is sued on notes representing the unpaid purchase price, the purchaser is permitted to set up as a defense the fact that the purchaser holds possession of only a part and that the vendor cannot make title to the other part, and that, as a consequence of the defect in the title, the purchaser is entitled to a reduction in the purchase price; this statute having no application. Pope v. Williams, 70 Ga. App. 834 , 29 S.E.2d 808 (1944) (see O.C.G.A. § 44-5-35 ).

Vendee in "undisturbed possession" cannot defeat vendor's action on same ground. - Vendee in "undisturbed possession" of lands cannot defeat an action by the vendor for the purchase price of the lands on the ground that the vendor did not have good title to such lands. McConnell v. White, 91 Ga. App. 92 , 85 S.E.2d 75 (1954).

Material breach of contract as to title to portion of tract entitles purchaser to rescission. - Contract of sale of a tract of land described therein as measuring a certain number of feet in width and in depth binds the obligor to make title to the entire tract so described, and if the obligor has no title to a portion of the land, this is a material breach of the contract, entitling the purchaser to a rescission of the contract of sale at the purchaser's election. Coppage v. King, 96 Ga. App. 192 , 99 S.E.2d 541 (1957).

If vendee takes portion of land, proportion of price abated. - When land described by metes and bounds is sold and the vendor has no title to a part of the land, the vendee, if the vendee elects to take the remaining portion to which the vendor has title, can have an abatement of the price proportionate to the value of that which the vendor cannot convey. O'Farrell v. Willoughby, 171 Ga. 149 , 154 S.E. 911 (1930).

Sale by Acre

Whether sale is by acre or tract determined by examining instrument. - All preliminary negotiations must be said to be merged in the deed which is accepted by the purchaser, and whether a sale was made by the tract must be determined from an examination of the instrument. Kytle v. Collins, 67 Ga. App. 98 , 19 S.E.2d 754 (1942).

Whether sale is by acre or tract depends upon whether land quantity of essence of contract. - Proper solution of the question whether a sale of land is by the tract or by the acre depends upon whether the quantity of land is of the essence of the contract. If, after a description of a tract of land which otherwise identifies the premises either by metes and bounds or by monuments, there appears a statement of the quantity of the land as so many acres more or less, such a sale would be a sale by the tract, but where in a conveyance the usual reference to the land as "all that tract or parcel of land," etc., or "a tract of land" is omitted and the first statement as to the land is a covenant to sell a definite and exact number of acres of land, neither more nor less, the description thereafter following not stating any metes or bounds, it must be adjudged that the quantity of land being first mentioned is of the essence of the contract. Roberts v. Groover, 156 Ga. 386 , 119 S.E. 696 (1923).

When a deed is so worded as to show that the number of acres is made the essence of the contract, it will be taken as evidencing a sale by the acre and not by the tract. Kytle v. Collins, 67 Ga. App. 98 , 19 S.E.2d 754 (1942).

Description cannot defeat covenant to sell exact number of acres. - Description of land which merely enables one to find and measure the number of acres precisely defined and fixed by the contract cannot defeat the covenant to sell an exact number of acres. Roberts v. Groover, 156 Ga. 386 , 119 S.E. 696 (1923).

When deed showed sale by tract, parol evidence to contrary incompetent and insufficient. - When deed showed a sale of land by the tract, under the facts as disclosed by the record, parol evidence, to the effect that the land was offered for sale and was bid off by the purchaser at a named price per acre, was incompetent and insufficient to show that the sale was by the acre. Kytle v. Collins, 67 Ga. App. 98 , 19 S.E.2d 754 (1942).

Fraud held immaterial to recovery. - In a sale by number of acres, the question of fraud is immaterial to recovery. Kytle v. Collins, 67 Ga. App. 98 , 19 S.E.2d 754 (1942).

Apportionment for deficiency made. - Generally, if land is sold by the acre, an apportionment for a deficiency is to be made proportionate to the number of acres in the deficiency. Kendall v. Wells, 126 Ga. 343 , 55 S.E. 41 (1906).

Apportionment for deficiency in acreage bargained for and purchased. - When it is certain that appellant bargained for and paid $440.00 per acre for 718 acres precisely, not "more or less," based on a calculation of acres and not on the description of a tract, and appellant did not get 718 acres in appellant's purchase, then obviously a mistake was made; and since appellant bargained and paid for 718 acres, appellant is entitled to apportionment under O.C.G.A. § 44-5-35 . Boswell v. Bryans, 159 Ga. App. 724 , 285 S.E.2d 74 (1981).

Deficiency provision not applicable to administrator's sale. - Doctrine of caveat emptor applies to administrators' sales. Therefore, the provision of this statute for apportionment of the purchase price on account of a deficiency of acreage in a sale of land where the purchase is by the acre has no application to an administrator's sale. Greer v. McDonald, 141 Ga. 309 , 80 S.E. 1002 (1914); McKinnon & McCarthy v. Sheffield, 149 Ga. 219 , 99 S.E. 855 (1919) (see O.C.G.A. § 44-5-35 ).

In sale of timber upon land sold per acre, deficiency in acres may be apportioned to the price, and this is true though both parties have an equal opportunity to judge as to the number of acres. Martin v. Peddy, 120 Ga. 1079 , 48 S.E. 420 (1904).

For cases where sale of land by acre found, see Strickland v. Hutchinson, 123 Ga. 396 , 51 S.E. 348 (1905); Bentley v. Barrett, 26 Ga. App. 527 , 106 S.E. 815 (1921); Roberts v. Groover, 156 Ga. 386 , 119 S.E. 696 (1923).

Sale by Tract

"By tract or entire body" defined. - Sale "by the tract or entire body," as the words are used in this statute, means where a tract or body of land is sold as such, and not at so much per acre according to the acres which it may contain. Thus, if a tract of land should be described in a bond for title by metes and bounds, or by some descriptive name or designation which would describe it as a whole, and the number of acres should merely be stated as an additional description, this would be a sale by the tract or entire body. Turner v. Rives, 75 Ga. 606 (1885); Walker v. Bryant, 112 Ga. 412 , 37 S.E. 749 (1900); Strickland v. Hutchinson, 123 Ga. 396 , 51 S.E. 348 (1905) (see O.C.G.A. § 44-5-35 ).

If sale in gross intended, mere mention of acres not covenant on quantity. - If the sale is intended to be in gross, the authorities are unanimous in holding that the mere mention of acres, or of feet, after certain other descriptions, such as metes and bounds, is not a covenant as to the quantity to be conveyed. Land Trust Co. v. Morgan, 22 Ga. App. 388 , 95 S.E. 1006 (1918); Holliday v. Ashford, 163 Ga. 505 , 136 S.E. 524 (1927), later appeal, 169 Ga. 237 , 149 S.E. 790 (1929).

Deficiency in land sold is primary issue. - It is only when there is a deficiency in the quantity of land sold that it becomes material to inquire whether or not it was a sale by the tract. Washington Mfg. Co. v. Wickersham, 201 Ga. 635 , 40 S.E.2d 206 (1946).

When deficiency cannot be apportioned. - If sale of land is by the tract, deficiency in the acreage cannot be apportioned. Baker v. Corbin, 148 Ga. 267 , 96 S.E. 428 (1918); Appleby v. Tomlinson, 31 Ga. App. 771 , 122 S.E. 93 (1924).

Deficiency apportioned when fraud is shown. Finney v. Morris, 116 Ga. 758 , 42 S.E. 1020 (1902); White v. Adams, 7 Ga. App. 764 , 68 S.E. 271 (1910); Milner v. Tyler, 9 Ga. App. 659 , 71 S.E. 1123 (1911).

If a sale of land is by the tract rather than by the acre, a deficiency in the acreage cannot be apportioned in the absence of actual or moral fraud on the part of the vendor. Bivins v. Tucker, 41 Ga. App. 771 , 154 S.E. 820 (1930).

In a sale of land by the tract, and not by the acre, a deficiency in the number of acres specified, there being no fraud alleged, is no ground for an apportionment of the purchase price. Security Loan & Abstract Co. v. Marchman, 41 Ga. App. 808 , 154 S.E. 822 (1930).

For cases when sale by tract found, see Longino v. Latham, 93 Ga. 274 , 20 S.E. 308 (1893); Maxwell v. Willingham, 101 Ga. 55 , 28 S.E. 672 (1897); White v. Adams, 7 Ga. App. 764 , 68 S.E. 271 (1910); Rawlings v. Cohen, 143 Ga. 726 , 85 S.E. 851 (1915); Mayo v. Bowen, 26 Ga. App. 539 , 106 S.E. 596 (1921).

Quantity Specified as "More or Less"

Sale of land containing "approximate" number of acres sale in gross. - Sale of all the sawmill timber on a bounded tract of land containing "approximately 100 acres in timber" is a sale of timber in gross. Kendall v. Wells, 126 Ga. 343 , 55 S.E. 41 (1906).

Clause "approximately 100 acres" means the same as 100 acres, "more or less". Stockburger v. Brooker, 33 Ga. App. 676 , 127 S.E. 663 (1925).

Section not applicable to sale by metes and bounds. - Contention that any shortage in land sold is taken care of by the phrase "more or less" in the acreage description is without merit since this statute does not apply to sales of land by metes and bounds; further, description by metes and bounds controls over the quantity specified in the deed. McConnell v. White, 91 Ga. App. 92 , 85 S.E.2d 75 (1954) (see O.C.G.A. § 44-5-35 ).

Deed describing premises by giving boundaries and estimating area conveys all land embraced in calls. - Deed which described the premises, giving the boundaries and estimating the area as containing a certain number of acres, "more or less," conveys all the land embraced in the calls, although the acreage may exceed the estimate. McDonald v. Taylor, 200 Ga. 445 , 37 S.E.2d 336 (1946).

Words "more or less" do not give a superior right of apportionment for a deficiency than exists without those words. To so hold would reduce the provisions of this statute to an absurdity. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625 , 165 S.E. 884 (1932) (see O.C.G.A. § 44-5-35 ).

Words "more or less" protect the seller against a small deficiency when there is an approximation to the quantity of acres mentioned. Kendall v. Wells, 126 Ga. 343 , 55 S.E. 41 (1906).

Words cover any deficiency not so gross as to amount to deception or fraud. - In a conveyance of land by the tract the qualifying words "more or less" will cover any deficiency not so gross as to justify the suspicion of willful deception or mistake amounting to fraud; in this event, the deficiency is apportionable. Perkins Mfg. Co. v. Williams, 98 Ga. 388 , 25 S.E. 556 (1896); Baker v. Corbin, 148 Ga. 267 , 96 S.E. 428 (1918); Wimpee v. Burt, 148 Ga. 418 , 96 S.E. 993 (1918); Mayo v. Bowen, 26 Ga. App. 539 , 106 S.E. 596 (1921).

Principle not affected by the existence of legal fraud. Wylly v. Gazan, 69 Ga. 506 (1882).

Omission of "more or less" does not prevent purchaser from claiming apportionment for gross deficiency. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625 , 165 S.E. 884 (1932).

No apportionment if both parties may inspect land, and both act in good faith. - If a lot of land is sold in a body as containing a certain area "more or less," and both parties have an equal opportunity to judge for themselves, and both act in good faith, a deficiency in the quantity sold will not be apportioned. Walton v. Ramsey, 50 Ga. 618 (1874).

If a purchaser has equal opportunities with the vendor for discovering the contents of a lot sold, the purchaser is bound to avail oneself of those opportunities. If the purchaser fails to do so, and on account of the purchaser's own gross negligence the purchaser is injured, relief will not be granted to the purchaser. Wylly v. Gazan, 69 Ga. 506 (1882).

When vendor is guilty of actual fraud in representing area, the rule is different. Kendall v. Wells, 126 Ga. 343 , 55 S.E. 41 (1906); Rosenthal v. Gordon, 142 Ga. 682 , 83 S.E. 511 (1914); Black v. Chapman, 33 Ga. App. 509 , 126 S.E. 877 (1925).

When a lot of land is sold in a body as containing a certain area, "more or less," and both parties have an equal opportunity to judge for themselves, and both act in good faith, a deficiency in the quantity sold will not be apportioned. But if the vendor, in the consummation of the sale, is guilty of actual fraud in representing the area, the result is different, and the land will be apportioned. Dorsett v. Roberds, 172 Ga. 545 , 158 S.E. 236 (1931).

If a lot of land is sold in a body as containing a frontage of a certain number of feet, "more or less," and both parties have equal opportunity to judge for themselves, and both act in good faith, a deficiency in the quantity sold will not be apportioned; aliter where the vendor in the course of the sale is guilty of actual fraud in representing the frontage. Halliburton v. Collier, 75 Ga. App. 316 , 43 S.E.2d 339 (1947).

When sale by tract, parol evidence not admissible to show sale by acre. - When a written contract covered the tract as a whole, although it may have contained more than the number of acres specified, parol evidence is not admissible to show that the tract was at a given price per acre, there being no allegation of fraud in the writing and no attempt to reform the allegation. Turner v. Rives, 75 Ga. 606 (1885).

When a bond for title recited that the obligor had sold to the obligee a definitely described lot of land, containing a specified number of acres, "more or less," for a designated sum, parol evidence was not admissible to show that the sale of the land was "by the acre" and not "by the tract." Walker v. Bryant, 112 Ga. 412 , 37 S.E. 749 (1900).

Parol evidence admissible to determine number of acres. - In case the words "more or less" are used, parol evidence is admissible to determine the number of acres. Kirkland v. Brewton, 32 Ga. App. 128 , 122 S.E. 814 (1924).

Deception or Fraud
1. Actual Fraud

Actual fraud or great deficiency necessary to obtain apportionment where words "more or less" used. - Principle recognized by this statute is that if there is actual fraud and deception on the part of the vendor of land sold with the words "more or less," or the deficiency is so great as to be evidence of it, then the deficiency may be apportioned, but not otherwise. Finney v. Morris, 116 Ga. 758 , 42 S.E. 1020 (1902) (see O.C.G.A. § 44-5-35 ).

When the words "more or less" are used, the deficiency must be so great as that a mere comparison of the quantity stated in the description and the actual quantity will suffice to suggest fraud. When these words are not used, this is not so. But the existence of actual fraud or gross mistake amounting to fraud, in order to obtain an apportionment, is necessary in either case. Kendall v. Wells, 126 Ga. 343 , 55 S.E. 41 (1906).

When land sold by tract, actual fraud must be shown. - When the vendee desires, in a suit against the vendor in a sale in gross, to claim compensation for a deficiency in quantity, the vendee must allege that in making the contract of sale the vendor was guilty of actual fraud in misrepresenting the quantity. Emlen v. Roper, 133 Ga. 726 , 66 S.E. 934 (1910); Williams v. Smith Bros., 135 Ga. 335 , 69 S.E. 480 (1910); Kirkland v. Brewton, 32 Ga. App. 128 , 122 S.E. 814 (1924).

When land is sold by the tract, and described in the conveyance as so many acres "more or less," a deficiency in the number of acres actually conveyed to the purchaser will not authorize an apportionment in the price agreed to be paid, if the purchaser admits that there was no intentional fraud upon the part of the vendor. Keiley v. Citizens' Sav. Bank & Trust Co., 173 Ga. 11 , 159 S.E. 527 (1931).

It is only in cases of actual fraud that a purchaser of land sold by the tract, and described in the deed as so many acres, "more or less," can have the price which the purchaser agreed to pay for the land apportioned because of a deficiency in the number of acres actually conveyed to the purchaser. Hancock v. Nashville Inv. Co., 128 Ga. App. 58 , 195 S.E.2d 674 (1973); Waters v. Groover, 138 Ga. App. 276 , 226 S.E.2d 74 (1976); McIntyre v. Varner, 156 Ga. App. 529 , 275 S.E.2d 90 (1980).

Legal fraud not sufficient. - Sale is by the tract and not by the acre when the specification of the number of acres is only words of description, and to authorize an apportionment for a shortage of acreage, actual fraud must be shown; legal fraud is not sufficient. Kytle v. Collins, 67 Ga. App. 98 , 19 S.E.2d 754 (1942).

Constructive fraud insufficient. - In a sale in gross, former Civil Code 1910, § 4622 (see O.C.G.A. § 23-2-51 ), which defined constructive fraud, was inapplicable, and, standing alone, would not be proper to be given in a charge to the jury. Kirkland v. Brewton, 32 Ga. App. 128 , 122 S.E. 814 (1924).

An allegation that the defendant knew that the acreage was short, "or by the exercise of ordinary diligence should have known of such shortage," is a charge of constructive knowledge only, and it requires more than this to make a case of actual fraud. Bivins v. Tucker, 41 Ga. App. 771 , 154 S.E. 820 (1930).

Right to apportionment is not assignable by the vendee transferring to the purchaser of the land from the vendee bond for title given by the vendor. Morehead v. Ayers, 136 Ga. 488 , 71 S.E. 798 (1911).

Burden is upon the vendee to show that the vendor perpetrated actual fraud upon the vendee, though the amount of the deficiency in acreage is a circumstance to which the jury may look, together with all the other evidence, in determining whether there was actual fraud or not. Milner v. Tyler, 9 Ga. App. 659 , 71 S.E. 1123 (1911).

Material representation, falsely made to induce sale, with knowledge of the representation's falsity, is actual fraud. Cates v. Owens, 87 Ga. App. 270 , 73 S.E.2d 345 (1952).

Material representation amounting to fraud. - Actual fraud must be alleged and proved, and a material representation falsely made by the vendor to a vendee to induce a sale, and made with the knowledge of the representation's falsity, amounts to actual fraud. Stockburger v. Brooker, 33 Ga. App. 676 , 127 S.E. 663 (1925).

An allegation that the vendor's representation at the time of the sale as to the width of the lot was false within the vendor's knowledge, and was acted on by the vendee to the vendee's injury, is a charge of actual fraud. If the vendee was fraudulently induced to buy a lot of width less than the vendor represented it to be, the vendee was entitled to a reduction of the purchase money in the proportion that the deficiency in frontage bore to the frontage bargained for. Halliburton v. Collier, 75 Ga. App. 316 , 43 S.E.2d 339 (1947).

Representation made recklessly, without regard to truth, for purpose of effecting sale. - An allegation that representations were made recklessly and negligently and without regard to the truth and for the purpose of effecting the sale and obtaining the petitioner's money shows a sufficient ground of recovery. Bivins v. Tucker, 41 Ga. App. 771 , 154 S.E. 820 (1930).

2. Suspicion of Fraud

Suspicion arises out of comparison of quantities and magnitude of deficiency. - Plaintiff must show both such deficiency in the acreage as will justify a suspicion of fraud and actual fraud. The suspicion must arise out of a comparison of quantities and out of the magnitude of the resulting deficiency. The same facts which justify the suspicion may prove the fraud, prima facie. Estes v. Odom, 91 Ga. 600 , 18 S.E. 355 (1893); Kendall v. Wells, 126 Ga. 343 , 55 S.E. 41 (1906).

By showing a deficiency, a prima facie case of fraud is made to the extent of raising a suspicion. The same facts which justify the suspicion may prove the fraud, prima facie. The suspicion must arise out of a comparison of quantities and out of the magnitude of the resulting deficiency. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625 , 165 S.E. 884 (1932).

Suspicion arises more quickly when farming land purchased. - When the land is purchased with the view of cultivating the land for farming purposes, the suspicion of mistake amounting to fraud as to the acreage would arise more quickly. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625 , 165 S.E. 884 (1932).

3. Previous Knowledge of Land

Knowledge of boundaries not, in itself, notice of acreage contained. - Knowledge of boundaries need not involve knowledge of acreage or superficial area, and was not, in itself, notice of what the tract contained. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625 , 165 S.E. 884 (1932).

When deficiency great, recovery not precluded by previous knowledge. - When the deficiency was more than could be fairly covered by the use of the words "more or less," previous knowledge of the land or of the land's boundaries, would not preclude the vendee from a recovery for fraudulent misrepresentations of quantity. Stockburger v. Brooker, 33 Ga. App. 676 , 127 S.E. 663 (1925).

Recovery for actual fraudulent misrepresentation not precluded by previous knowledge. - Previous knowledge of the land or of the land's boundaries would not preclude the vendee from recovering from a fraudulent misrepresentation of quantity, if, without fault on the vendee's part, the vendee was actually deceived and defrauded by the misrepresentation. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625 , 165 S.E. 884 (1932).

Previous knowledge of the land or of the land's boundaries would not preclude the vendee from recovering from fraudulent misrepresentation of quantity, if, without fault on the vendee's part, the vendee was actually deceived and defrauded by the misrepresentation, provided the deficiency was more than could be fairly covered in the given instance by the phrase "more or less." Cates v. Owens, 87 Ga. App. 270 , 73 S.E.2d 345 (1952).

No fraud when equal opportunity to ascertain acreage, and no trick or artifice. - Representation made by a landlord to a tenant as to the number of acres in a tract does not constitute fraud if the tenant had equal opportunity with the landlord of ascertaining the number of acres in the tract, and if the landlord did not by trick or artifice prevent the tenant from ascertaining the size of the tract. The fact that the tenant had no way of measuring the tract or no opportunity of measuring the tract does not show that the tenant did not have an equal opportunity with the landlord of ascertaining the tract's size. Bailey v. Tifton Buick Co., 44 Ga. App. 652 , 162 S.E. 646 (1932).

4. Jury Questions

Question of whether sale by tract or by acre left to jury. - When the deed in question is subject to two possible interpretations, i.e., (1) the sale was a sale by the tract; or (2) the sale was a sale by the acre, and a jury could have found either, this question should have been left to the jury, and the trial court was not authorized to decide the question as to whether or not the deficiency was not so gross as to justify the suspicion of willful deception, or mistake amounting to fraud. Pennington v. Wynne, 149 Ga. App. 151 , 253 S.E.2d 830 (1979).

Whether property is sold by the tract, or is sold by the acre so as to entitle the purchaser to an apportionment of the price for deficiency of acreage, is usually a jury question. Boswell v. Bryans, 159 Ga. App. 724 , 285 S.E.2d 74 (1981).

Question whether deficiency so gross as to raise suspicion of fraud is for jury. - It is a question for the jury whether, under all the circumstances of the particular case, the deficiency is so gross as to justify the suspicion of fraud, in which event the vendee would be entitled to an apportionment of the price according to relative value. James v. Elliott, 44 Ga. 237 (1871); Bryan v. Yates, 7 Ga. App. 712 , 67 S.E. 1048 (1910); Mayo v. Bowen, 26 Ga. App. 539 , 106 S.E. 596 (1921).

It is a question of fact to be decided by a jury, on all the circumstances of the particular case, whether the deficiency in a given instance is so gross as to raise a suspicion of mistake amounting to fraud. Marchman v. Security Loan & Abstract Co., 45 Ga. App. 625 , 165 S.E. 884 (1932).

Exception may arise in extraordinary cases which afford no room for difference of opinion. Perkins Mfg. Co. v. Williams, 98 Ga. 388 , 25 S.E. 556 (1896).

5. Remedies

Vendee may demand either rescission or apportionment of price. If the vendee preferred to keep the land and have compensation for the deficiency by reducing the purchase price by the amount sustained in consequence of the vendor's fraud, the vendee was entitled, upon a tender of the balance of the purchase money, to go into a court of equity and insist upon specific performance. Seegar v. Smith, 78 Ga. 616 , 3 S.E. 613 (1887).

Damage remedy generally pro rata part of purchase money paid with interest. - In actions for recovery for deficiency in land, the measure of damages generally is the pro rata part of the purchase money paid or to be paid for deficiency with interest. It is not less than this. However, if a part of such property may be of greater value than other portions, this is not necessarily a fixed rule. Halliburton v. Collier, 75 Ga. App. 316 , 43 S.E.2d 339 (1947).

Right to rescind waived. - When the vendee continued in unqualified possession and use of the property until and including the date of the trial, approximately two years from the time of discovery of the fraud, there is no error in holding that the right of rescission was waived, and directing a verdict in favor of the plaintiff and against the plea. Carson v. Blair, 31 Ga. App. 60 , 121 S.E. 517 (1923), cert. denied, 31 Ga. App. 811 , S.E. (1924).

6. Illustrative Cases

Allegation sufficient to charge actual fraud, and to submit question of deficiency to jury. - When it was alleged that the defendant, with the intent to defraud the plaintiffs, represented to the plaintiffs that a certain tract of land which the defendant offered to sell to the plaintiffs, and which the defendant did sell to the plaintiffs, contained 109 acres, when the defendant knew the defendant did not own more than half of the acreage represented, and when it was alleged that the plaintiffs, believing and relying on the defendant's false representations as to the acreage of the tract, purchased the land from the defendant, which was described as containing 109 acres, more or less, but which in fact contained only 49.9 acres, these allegations were sufficient to charge the defendant with actual fraud, and the deficiency in quantity was so gross as to authorize submission of the question of fraud to a jury. Cates v. Owens, 87 Ga. App. 270 , 73 S.E.2d 345 (1952).

Sufficient deficiency to prove mistake amounting to fraud. - When a deed recited that the number of acres conveyed was 102 1/2, "more or less," and there was a proved deficiency of approximately 41 acres, this deficiency was so gross as to warrant the jury in believing that there was a mistake amounting to fraud. Owens v. Durham, 9 Ga. App. 179 , 70 S.E. 989 (1911).

When the owner of improved farm land shows the land to one who desires to purchase the land for farming purposes, and the owner represents that the land contains 75 acres, points out two of the boundary lines, which are exceedingly long, and leads the prospective purchaser to believe that the other boundary lines are correspondingly long, when in fact the owner knows that the land does not contain 75 acres, and makes such representations and points out such boundaries for the purpose of willfully and knowingly deceiving the prospective purchaser, and does so deceive the purchaser, and the latter, relying upon such representations, purchases the land, when the tract in fact contains only about 44 acres, the purchaser may obtain an apportionment of the purchase price on account of fraud. Black v. Chapman, 33 Ga. App. 509 , 126 S.E. 877 (1925).

RESEARCH REFERENCES

ALR. - Recovery by vendee of money paid under mistake of fact as to vendor's title, 36 A.L.R. 482 .

Implied covenant in conveyance with reference to map, plat, or blueprint as to size of remaining lots or against further subdivision thereof, 57 A.L.R. 764 .

Legal significance and effect of phrase "more or less" in a deed of real property, 70 A.L.R. 368 .

Statute of frauds as affecting right to reformation of deed or mortgage so as to enlarge or restrict the land or interest covered, 86 A.L.R. 448 .

Effect of action as an election of remedy or choice of substantive rights in case of fraud in sale of property, 123 A.L.R. 378 .

Validity and effect of deed which identifies tract conveyed only by reference to its area and a specified corner or other part of a larger tract from which it is to be taken, 139 A.L.R. 1180 .

Rules as to interpretation of description of real property as applicable to description in judgment, 150 A.L.R. 773 .

Relief, by way of rescission or adjustment of purchase price, for mutual mistake as to quantity of land, where contract of sale fixes compensation at a specified rate per acre or other area unit, 153 A.L.R. 4

Relief by way of rescission or adjustment of purchase price for mutual mistake as to quantity of land, where the sale is in gross, 1 A.L.R.2d 9.

Specific performance at instance of purchaser with abatement for vendor's misrepresentation as to matters other than quantity or title, 7 A.L.R.2d 1331.

Sufficiency of description in standing timber deed or contract, 35 A.L.R.2d 1422.

Broker's liability to prospective purchaser for refund of deposit or earnest money where contract fails because of defects in vendor's title, 38 A.L.R.2d 1382.

Measure and element of damages recoverable from vendor where there has been a mistake as to amount of land conveyed, 94 A.L.R.3d 1091.

44-5-36. Purchaser's remedies for loss of land due to title defect.

If the purchaser loses part of his land from a defect of title, he may claim according to the relative value of the land so lost either a rescission of the purchase contract or a reduction of the price.

(Orig. Code 1863, § 2599; Code 1868, § 2601; Code 1873, § 2643; Code 1882, § 2643; Civil Code 1895, § 3544; Civil Code 1910, § 4124; Code 1933, § 29-202.)

Law reviews. - For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Cited in Ruff v. Copeland, 137 Ga. 56 , 72 S.E. 506 (1911); Roberts v. Groover, 156 Ga. 386 , 119 S.E. 696 (1923); Riehle v. Bank of Bullochville, 158 Ga. 171 , 123 S.E. 124 (1924); Holliday v. Ashford, 163 Ga. 505 , 136 S.E. 524 (1927); Ashford v. Holliday, 169 Ga. 237 , 149 S.E. 790 (1929); Dorsett v. Roberds, 172 Ga. 545 , 158 S.E. 236 (1931); Washington Mfg. Co. v. Wickersham, 201 Ga. 635 , 40 S.E.2d 206 (1946); Norris v. Coffee, 206 Ga. 759 , 58 S.E.2d 812 (1950); Farrar v. Vanpelt, 96 Ga. App. 244 , 99 S.E.2d 738 (1957); Pennington v. Wynne, 149 Ga. App. 151 , 253 S.E.2d 830 (1979); Ware v. Durham, 246 Ga. 84 , 268 S.E.2d 668 (1980); McClure v. Turner, 165 Ga. App. 380 , 301 S.E.2d 304 (1983); Safeco Title Ins. Co. v. Citizens & S. Nat'l Bank, 190 Ga. App. 809 , 380 S.E.2d 477 (1989).

Applicability

No application to purchaser's attorney. - Statute clearly deals with the rights of a purchaser against the vendor, not purchaser's attorney. Durham v. Ware, 153 Ga. App. 701 , 266 S.E.2d 342 , aff'd, 246 Ga. 84 , 268 S.E.2d 668 (1980) (see O.C.G.A. § 44-5-36 ).

Negligent attorney liable for actual damages. - An attorney at law employed to examine title to real estate who negligently fails to report an existing title imperfection is liable to the client for the actual damages sustained as a result of the attorney's negligence. Durham v. Ware, 153 Ga. App. 701 , 266 S.E.2d 342 , aff'd, 246 Ga. 84 , 268 S.E.2d 668 (1980).

When vendor lacks title, title defect exists rather than deficiency. - When a certain tract of land is described in a contract of sale by definite boundaries, and it later appears that the vendor has no title to a portion of the tract contained within the described boundaries, this is a defect in the vendor's title rather than a deficiency in quantity. Lawton v. Byck, 217 Ga. 676 , 124 S.E.2d 369 (1962), later appeal, 218 Ga. 858 , 131 S.E.2d 176 (1963).

When a certain tract of land was described in a contract of sale by definite boundaries, and it later appeared that the vendor had no title to a portion of the tract contained within the described boundaries, this was a defect in the vendor's title, as contemplated by former Code 1933, § 29-202 (see O.C.G.A. § 44-5-36 ), rather than a deficiency in quantity, as contemplated by former Code 1933, § 29-201 (see O.C.G.A. § 44-5-35 ). Lunsford v. King, 132 Ga. App. 749 , 209 S.E.2d 27 (1974); Etheridge v. Fried, 183 Ga. App. 842 , 360 S.E.2d 409 (1987).

Section applicable when purchaser seeks to mark notes "satisfied" on ground title has failed. - When a purchaser of land sought to have delivered up and marked as "satisfied" certain notes given by the purchaser for deferred payments, on the ground that title to certain of the land so purchased had failed, the issue as to whether or not it was a sale by the tract or by the acre was not involved; in such a case the applicable law was that contained in former Code 1933, § 29-202 (see O.C.G.A. § 44-5-36 ), and not the provision of former Code 1933, § 29-201 (see O.C.G.A. § 44-5-35 ). Miller v. Minhinnette, 185 Ga. 490 , 195 S.E. 425 (1938).

Applicable when sued purchaser sets up defense that vendor cannot make title. - When a purchaser under a bond for title did not hold possession of all the land described in the bond, and was sued on notes representing the unpaid purchase price, the purchaser was permitted to set up as a defense the fact that the purchaser held possession of only a part and that the vendor cannot make title to the other part, and that, as a consequence of the defect in the title, the purchaser was entitled to a reduction in the purchase price, former Code 1933, § 29-201 (see O.C.G.A. § 44-5-35 ) having no application. Pope v. Williams, 70 Ga. App. 834 , 29 S.E.2d 808 (1944).

Provision on breach of bond for title inapplicable unless all land lost. - When a purchaser lost only a part of the land from a defect in title, the purchaser's remedy was fixed by this section; it would seem that § 44-5-67 did not apply unless all the land was lost. McConnell v. White, 91 Ga. App. 92 , 85 S.E.2d 75 (1954).

Remedies

Breach of contract as to title to portion of land entitles purchaser to rescission. - Contract of sale of a tract of land described therein as measuring a certain number of feet in width and in depth binds the obligor to make title to the entire tract so described, and if the obligor has no title to a portion of the land, this is a material breach of the contract, entitling the purchaser to a rescission of the contract of sale at the purchaser's election. Coppage v. King, 96 Ga. App. 192 , 99 S.E.2d 541 (1957).

"Relative value" defined. - Expression "relative value" means relative value with the purchase price as a base value of the whole, for the reason that, when rescission is not sought, the only remedy is a reduction in purchase price. Any other interpretation might result in the recovery by a purchaser of more than the purchase price, if the land lost was worth more at the time of the breach of contract or bond than the whole land originally bargained for. McConnell v. White, 91 Ga. App. 92 , 85 S.E.2d 75 (1954).

Deduction from agreed price in proportion to tract's value as represented, and true value. - When a lot of land is sold by number tract, and one of the boundaries is misrepresented, whereby the purchaser fails to get some of the land the purchaser bought, the deduction to be made from the agreed price, in an action for the purchase money, is generally in proportion to the value of the tract with the boundaries as represented, and its value with the true boundaries, computing value as at the time when the sale was made. Woodstock Village v. Fowler, 154 Ga. App. 82 , 267 S.E.2d 558 (1980).

Damage remedy in deficiency actions generally pro rata part of purchase money paid with interest. - In actions for recovery for deficiency in land, the measure of damages generally is the pro rata part of the purchase money paid or to be paid for deficiency with interest. It is not less than this. However, if a part of such property may be of greater value than other portions, this is not necessarily a fixed rule. Halliburton v. Collier, 75 Ga. App. 316 , 43 S.E.2d 339 (1947).

Measure of damage for breach by insurer under policy insuring title against encumbrances or encroachments is the difference between the value of the property when purchased with the encumbrance or encroachment thereon, and the value of the property as the value would have been if there had been no such encumbrance or encroachment. Beaullieu v. Atlanta Title & Trust Co., 60 Ga. App. 400 , 4 S.E.2d 78 (1939).

Effect of constructive knowledge of prior recorded deed. - Purchaser's right to recover damages is not defeated by constructive knowledge of prior recorded deed. Lunsford v. King, 132 Ga. App. 749 , 209 S.E.2d 27 (1974); Mansell v. Pappas, 156 Ga. App. 272 , 274 S.E.2d 588 (1980), aff'd, 165 Ga. App. 568 , 302 S.E.2d 114 (1983).

In action for purchase price, vendees can set off value of land lost. - When a vendor agrees to sell a designated tract of land to another and points out to the latter its boundaries, and the purchaser relies upon the representations of the vendor as to the boundaries, and where such boundaries include lands to which the vendor has no title, in consequence of which the purchaser loses the land, the purchaser, when sued on the notes given for the purchase money, can set off at law the value of the portion of the land so lost against the purchase money. This would be true whether the misrepresentations were designedly made by the vendor to deceive the purchaser, or were innocently made, if the vendee relied upon such misrepresentations in making the purchase and was thereby damaged. Halliburton v. Collier, 75 Ga. App. 316 , 43 S.E.2d 339 (1947).

If the vendors are unable to put the title to any portion of the lands described by metes and bounds in the vendees and put the vendees in undisturbed possession thereof, the vendees in an action by the vendors for the purchase price may set off the value of that portion to which title and possession cannot be given by the vendors. McConnell v. White, 91 Ga. App. 92 , 85 S.E.2d 75 (1954).

Defect in title found. - There was a defect in title of a lot conveyed to an insured as the builder that conveyed the lot did not have superior title to a portion of the lot. Wilkinson Homes, Inc. v. Stewart Title Guar. Co., 271 Ga. App. 577 , 610 S.E.2d 187 (2005).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 184 et seq.

ALR. - Doctrine of after-acquired title as between one who took before and one who took after common grantor or mortgagor acquired title, 25 A.L.R. 83 .

Recovery by vendee of money paid under mistake of fact as to vendor's title, 36 A.L.R. 482 .

Remedy of grantee in possession under deed with covenants of title, independently of those covenants, where the grantor's title is defective, 50 A.L.R. 180 ; 65 A.L.R. 1142 .

Outstanding right of dower as breach of covenant of title or against encumbrances in deed or mortgage of real estate, 141 A.L.R. 482 .

Marketability of title as affected by fact that grantor or mortgagor in chain of title acquired complete or perfect title after conveyance, 163 A.L.R. 437 .

Specific performance at instance of purchaser with abatement for vendor's misrepresentation as to matters other than quantity or title, 7 A.L.R.2d 1331.

Broker's liability to prospective purchaser for refund of deposit or earnest money where contract fails because of defects in vendor's title, 38 A.L.R.2d 1382.

Measure and element of damages recoverable from vendor where there has been a mistake as to amount of land conveyed, 94 A.L.R.3d 1091.

Application of provision in land purchase agreement that it shall be null unless marketable title is delivered, where defect in title is created or permitted by vendor subsequent to execution of agreement, 13 A.L.R.4th 927.

44-5-37. Applicability of Code Sections 53-2-112 through 53-2-114 to elections under or against deed.

The principles of Code Sections 53-2-112 through 53-2-114 relating to elections shall also apply to deeds.

(Orig. Code 1863, § 3096; Code 1868, § 3108; Code 1873, § 3165; Code 1882, § 3165; Civil Code 1895, § 4016; Civil Code 1910, § 4613; Code 1933, § 37-505.)

Cross references. - Equitable principles governing elections between benefits, § 23-1-24 .

44-5-38. Effect of recital in deed of receipt of purchase money.

Recital in a deed that the purchase money has been received does not estop the maker from denying the fact and proving the contrary.

(Orig. Code 1863, § 2657; Code 1868, § 2656; Code 1873, § 2698; Code 1882, § 2698; Civil Code 1895, § 3608; Civil Code 1910, § 4188; Code 1933, § 29-110.)

JUDICIAL DECISIONS

Recital of payment of purchase money in deed or other contract does not estop maker from denying the fact and proving the contrary. McCann v. Glynn Lumber Co., 199 Ga. 669 , 34 S.E.2d 839 (1945).

Failure to pay creates liability. - Fact that the consideration is not actually paid does not render void the conveyance but creates a liability upon the purchaser which may be enforced in an action at law. Morris v. Johnson, 219 Ga. 81 , 132 S.E.2d 45 (1963).

Recital that amount paid subject to inquiry to show amount charged to purchaser's account. - Recital in a written contract of sale of personalty that a specified amount of the purchase money was paid in cash on or before delivery of the property, leaving a stated balance to be covered by notes for installments of so much per month, is subject to inquiry and explanation to the extent of showing that what is described as the initial payment was not in fact received, but was charged to the account of the purchaser as a subsisting and unconditional liability. Newsom v. Reynolds Chevrolet Co., 43 Ga. App. 376 , 158 S.E. 763 (1931).

When statement on consideration is by way of recital, actual consideration is subject to explanation; but if the consideration is referred to in the deed in such way as to make the consideration one of the terms or conditions of the contract, the consideration cannot be varied by parol. Shapiro v. Steinberg, 179 Ga. 18 , 175 S.E. 1 (1934).

Parole evidence not permissible to modify terms and conditions of contract. - If an instrument states the consideration, not merely by way of recital, but in such a way as to constitute the consideration a part of the terms and conditions of the agreement itself, then and in such event it is not permissible, even under the guise of inquiring into the consideration, to set up a new and different consideration, and in this way to incidentally modify the terms and conditions of the written contract. This rule does not apply where a total lack or a total failure of consideration is shown, in which event the instrument can be attacked irrespective of how or in what manner the consideration may be expressed. Pittman v. Pittman, 196 Ga. 397 , 26 S.E.2d 764 (1943).

When consideration not ambiguous, error to admit parol evidence to show parties' intention. - Timber lease, as properly construed, granted the right to cut and remove all the timber of stated kinds and dimensions on the described tract of land, at and for a stipulated price per 1,000 feet, subject only to the expiration of the lease on a date therein fixed, and did not limit the amount of timber that might be so cut by recital of a certain consideration, and the judge erred in holding that the contract was ambiguous on the point at issue, and in admitting over appropriate objection parol evidence offered to show an intention of the parties that only a certain quantity of timber could be so cut and removed under the right granted. McCann v. Glynn Lumber Co., 199 Ga. 669 , 34 S.E.2d 839 (1945).

Cited in Bonner v. Metcalf, 58 Ga. 236 (1877); Parrott v. Baker, 82 Ga. 364 , 9 S.E. 1068 (1889); Coldwell Co. v. Cowart, 138 Ga. 233 , 75 S.E. 425 (1912); Gammage v. Perry, 29 Ga. App. 427 , 116 S.E. 126 (1923); Carder v. Arundel Mtg. Co., 47 Ga. App. 309 , 170 S.E. 312 (1933).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 86. 28 Am. Jur. 2d, Estoppel and Waiver, § 11 et seq.

ALR. - Estoppel of grantee or mortgagee as to amount of prior mortgage recited, 141 A.L.R. 1184 .

Estoppel of oil and gas lessee to deny lessor's title, 87 A.L.R.2d 602.

44-5-39. Binding effect of covenants on grantee who accepts deed.

When a grantee accepts a deed, he is bound by the covenants contained therein even though the deed has not been signed by him.

(Civil Code 1895, § 3600; Civil Code 1910, § 4180; Code 1933, § 29-102; Ga. L. 1967, p. 592, § 1.)

History of section. - This Code section is derived from the decision in Georgia S.R.R. v. Reeves, 64 Ga. 492 (1879).

Law reviews. - For article, "Condominium and Home Owner Associations: Formation and Development," see 24 Emory L.J. 977 (1975). For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For comment on Phillips v. Naff, 332 Mich. 389, 52 N.W.2d 158 (1952), see 15 Ga. B.J. 71 (1952).

JUDICIAL DECISIONS

Owner may sell land subject to reservations or restrictions for benefit of adjoining owned property. - Owner of a fee has the right to sell the owner's land subject to such reservations or restrictions as the owner may see fit to impose, provided the reservations are not contrary to public policy, and such reservations or restrictions create an easement, or servitude in the nature of an easement, upon the land conveyed for the benefit of the adjoining property of which the grantor remains the owner, and a grantee from the former owner who imposes the restriction is entitled to the same remedy for its enforcement as was the grantor. Cawthon v. Anderson, 211 Ga. 77 , 84 S.E.2d 66 (1954).

Parties may contract away or extend property rights. - Two parties may contract away their rights or extend their rights as the parties please regarding the use of real property so long as public policy is not violated. Winslette v. Keeler, 220 Ga. 100 , 137 S.E.2d 288 (1964).

Covenant must concern land and grantee must have notice. - It is only necessary that covenant concern land or use, and that grantee has notice of it for the covenant to be enforceable against the grantee. Reeves v. Comfort, 172 Ga. 331 , 157 S.E. 629 (1931).

Obligation must be clearly expressed or clearly implied. Yaughn v. Harper, 151 Ga. 187 , 106 S.E. 100 (1921).

When it is plainly stated in the defendant's deed the purposes for which the property could be used, the parties excluded the property from use for any other purpose. Taylor v. Smith, 221 Ga. 55 , 142 S.E.2d 918 (1965).

Covenant to maintain subdivision's quality not void. - Covenant to maintain the high quality of a subdivision is not harmful to the public welfare, nor so vague and indefinite as to be void. Winslette v. Keeler, 220 Ga. 100 , 137 S.E.2d 288 (1964).

Purchaser of land is conclusively charged with notice of restrictive agreements or covenants contained in a deed which constitutes one of the muniments of the purchaser's own title, and generally this is true, whether the deed containing such covenants is recorded or not. Reeves v. Comfort, 172 Ga. 331 , 157 S.E. 629 (1931).

Compliance with restrictive covenants required. - Trial court properly entered an injunction against a husband and wife requiring them, as homeowners and members of a neighborhood property owners association, to remove a chain link fence that was not allowed pursuant to the association's covenants, and the association did not waive enforcement, nor did estoppel apply to grant the husband and wife exception from the association's rules. Wright v. Piedmont Prop. Owners Ass'n, 288 Ga. App. 261 , 653 S.E.2d 846 (2007).

Buyer of subdivision property was bound by covenants restricting the use and development of certain defined common areas because the lender from whom the buyer purchased the property took a deed under power of sale that recited that the property was subject to the covenants. Under O.C.G.A. § 44-5-39 , the lender agreed to be bound by the covenants. Interchange Drive, LLC v. Nusloch, 311 Ga. App. 552 , 716 S.E.2d 603 (2011).

Purchaser with benefit of covenant shall bear burden. - When a covenant is entered into and the covenant is for the benefit of the purchaser, the seller gets an enhanced price for the seller's land, and if seller reserves or requires a benefit for the seller and the seller's assigns, the seller gets present value therefor. In either case, the covenant becomes in effect a part of the estate itself, and whoever takes the estate in one case should have the benefit and in the other should bear the burden. Reeves v. Comfort, 172 Ga. 331 , 157 S.E. 629 (1931).

Presumption of full use of easement right-of-way. - Recorded subdivision plats and deeds to subdivision lots created a legal rebuttable presumption that "reasonably necessary use," "fair," or "reasonable enjoyment" of the easement required the full use of the right-of-way or street as platted and dedicated, and plaintiff-grantee failed to rebut the presumption in an action to enjoin clear-cutting of the right-of-way. Montana v. Blount, 232 Ga. App. 782 , 504 S.E.2d 447 (1998).

Grantee succeeds to all of grantor's rights and liabilities. - When the grantee accepts a warranty deed from the grantor and enters thereunder, the grantee succeeds to all the rights and liabilities of the grantor in regard to the latter's equity in the property. Williams v. Joel, 89 Ga. App. 329 , 79 S.E.2d 401 (1953).

When a security deed, and the power of sale therein contained, were assigned by the original grantee to a new grantee with the same formality of execution as to the deed itself, the power of sale therein contained was one which might properly be exercised by the second grantee in the foreclosure proceedings. Williams v. Joel, 89 Ga. App. 329 , 79 S.E.2d 401 (1953).

Effect of accord and satisfaction on obligation. - Accord and satisfaction evidenced by warranty deed wipes out an antecedent pecuniary obligation. Waters v. Lanier, 116 Ga. App. 471 , 157 S.E.2d 796 (1967).

Grantee taking property by deed containing agreement to pay debt personally liable. - Remote grantee of mortgaged property, who takes by a deed in which the grantee agrees to pay a debt, is personally liable to the mortgagee if the intermediate grantor took only subject to the debt and was not personally liable for the debt. Somers v. Avant, 244 Ga. 460 , 261 S.E.2d 334 (1979); Carr v. Nodvin, 178 Ga. App. 228 , 342 S.E.2d 698 (1986).

Lessee and assigns bound by covenant for payment of rent. - When a lease for a period of years is duly executed by the lessor with the statutory formalities required for a deed, and the lessee accepts the lease, has it recorded, and enters into possession thereunder, the lessee and the lessee's assigns will be bound by a covenant therein for the payment of a specified sum as monthly rental, even though the lessee did not sign the instrument. Such a lease is not unilateral and void for the reason contended, that the provision for the payment of rent is not binding on the lessee. Shell Petro. Corp. v. Stallings, 51 Ga. App. 351 , 180 S.E. 654 (1935).

Subtenant not liable to lessor's assignee for original lessee's nonpayment. - Subtenant in possession of premises is not liable in an action ex delicto to one to whom the original lessor subsequently sold the property and assigned the original lease, on account of nonpayment of rents, under an alleged "conspiracy" between the subtenant and the original lessee to remain in possession without payment of rents or other compensation. Shell Petro. Corp. v. Stallings, 51 Ga. App. 351 , 180 S.E. 654 (1935).

Covenants not destroyed merely because land more valuable under changed conditions. - Court of equity will not strike down and destroy covenants merely because under the changed condition of a particular subdivision or adjoining subdivisions the lots of land would be more valuable and would yield more taxes to the government if the present owners of the lots in this subdivision could use their land for other than residential purposes. Cawthon v. Anderson, 211 Ga. 77 , 84 S.E.2d 66 (1954).

Intention to make covenant severable. - When intention to make special covenant severable is denoted, such intention renders covenant separate. Davies v. Blasingame, 181 Ga. 128 , 181 S.E. 763 (1935).

Breach of covenant which is sole consideration of absolute deed, with covenantor's insolvency authorizes cancellation, although the deed contains no condition on the happening of which the estate is to determine; on principle, the relief would also extend to recovery of possession of the land. Arrington v. Arrington, 189 Ga. 725 , 7 S.E.2d 665 (1940).

Condition subsequent, breach of which causes title's forfeiture, not created. - When a deed did not expressly state a condition that the breach thereof should cause forfeiture of the estate granted, a clause as to providing a home and necessaries of life for the grantor might, by acceptance of the deed and entry of possession thereunder, become binding upon the grantee as a covenant, but the deed did not create a condition subsequent, the breach of which would cause a forfeiture or termination of title conveyed by the deed. Arrington v. Arrington, 189 Ga. 725 , 7 S.E.2d 665 (1940).

Period of limitation in breach of covenant action is 20 years. - When, as under the common law, a grantee accepts a deed and thereby, without the necessity of an entry, becomes bound by the covenants therein, and the instrument is under seal, the period of limitation in an action for a breach of the covenant is 20 years. Motz v. Alropa Corp., 192 Ga. 176 , 15 S.E.2d 237 (1941).

Cited in Wadley Lumber Co. v. Lott, 130 Ga. 135 , 60 S.E. 836 (1908); Stanley v. Reeves, 149 Ga. 151 , 99 S.E. 376 (1919); Renfroe v. Alden, 164 Ga. 77 , 137 S.E. 831 (1927); Phillips v. Blackwell, 164 Ga. 856 , 139 S.E. 547 (1927); Peebles v. Perkins, 165 Ga. 159 , 140 S.E. 360 (1927); Field v. Hargis, 169 Ga. 670 , 151 S.E. 379 (1930); Dye v. Dye, 176 Ga. 72 , 166 S.E. 861 (1932); Interstate Inv. Co. v. McCullough, 188 Ga. 206 , 3 S.E.2d 733 (1939); Austell Bank v. National Bondholders Corp., 188 Ga. 757 , 4 S.E.2d 913 (1939); Ramsey v. Kitchen, 192 Ga. 535 , 15 S.E.2d 877 (1941); Peppers v. Peppers, 194 Ga. 10 , 20 S.E.2d 409 (1942); Grice v. Grice, 197 Ga. 686 , 30 S.E.2d 183 (1944); Lawson v. Lewis, 205 Ga. 227 , 52 S.E.2d 859 (1949); Moore v. Wells, 212 Ga. 446 , 93 S.E.2d 731 (1956); Howard v. Perkins, 229 Ga. 279 , 191 S.E.2d 46 (1972); Boxwood Corp. v. Berry, 144 Ga. App. 351 , 241 S.E.2d 297 (1977); Antill v. Sigman, 240 Ga. 511 , 241 S.E.2d 254 (1978); Flake v. Fulton Nat'l Bank, 146 Ga. App. 40 , 245 S.E.2d 330 (1978); Sellers v. Citizens & S. Nat'l Bank, 177 Ga. App. 85 , 338 S.E.2d 480 (1985); Argyle Realty Co. v. Cobb County School Dist., 259 Ga. 654 , 386 S.E.2d 161 (1989); Southeast Toyota Distribs., Inc. v. Fellton, 212 Ga. App. 23 , 440 S.E.2d 708 (1994); Lanier v. Burnette, 245 Ga. App. 566 , 538 S.E.2d 476 (2000); Casey v. Wachovia Bank, N.A., 273 Ga. 140 , 539 S.E.2d 503 (2000).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 157 et seq.

C.J.S. - 26A C.J.S., Deeds, § 198 et seq.

ALR. - Outstanding title or claim in grantee as breach of covenant in deed, 10 A.L.R. 441 .

Effect on validity and character of instrument in form of deed, of provisions therein indicating an intention to postpone or limit the rights of grantee until after the death of grantor, 11 A.L.R. 23 ; 31 A.L.R.2d 532.

Severance of title or rights to oil and gas in place from title to surface, 29 A.L.R. 586 ; 146 A.L.R. 880 .

Reservation of vendor's lien as preventing severance of estate in mineral from estate in surface by deed otherwise having that effect, 29 A.L.R. 618 .

Reservation in grant of land of right to hunt and fish with like right to the grantee, as limiting the right of the grantee actual owners of the land, 32 A.L.R. 1533 .

Acquiescence by purchaser of lot in restricted district in violations of restrictions as to some lots as waiver of right to insist upon it as to others, 46 A.L.R. 372 ; 85 A.L.R. 936 .

Quantum of estate granted by a deed as affected by covenant, 47 A.L.R. 869 .

Continued use of property for burial purposes as a condition subsequent of a conveyance of dedication of land for that purpose, 47 A.L.R. 1174 .

Reservation by grantor of the right to require payment for existing party wall when used, 52 A.L.R. 494 .

Structure intended as an outbuilding, but temporarily used as a residence, as breach of restrictive covenant respecting character or cost of residence, 60 A.L.R. 253 .

Measure of damages for breach of covenants of title in conveyances or mortgages of real property, 61 A.L.R. 10 ; 100 A.L.R. 1194 .

What is a "manufacturing" business or enterprise within covenant restricting the use of real property, 81 A.L.R. 1047 .

Deed as superseding, or merging, provisions of antecedent contract imposing obligations upon the vendor, 84 A.L.R. 1008 ; 38 A.L.R.2d 1310.

Period of duration of covenant restricting use of real property when not expressly stated, 95 A.L.R. 458 .

Fee simple conditional, 114 A.L.R. 602 .

Character as a conditional limitation or condition subsequent, or as a covenant, of provision or recital in deed a purchase for which land is to be used, as affected by fact that deed was voluntary or for a merely nominal consideration, 116 A.L.R. 76 .

Construction and application of restrictive covenants relating specifically to schools, 124 A.L.R. 448 .

"Tourist home" or tourist camp as violation of restrictive covenant as to use of real property, 127 A.L.R. 853 .

Character as condition, limitation, covenant, or trust of provision in deed as to purpose for which property is to be used as affected by introduction with word "provided" or its derivatives, 135 A.L.R. 1135 .

Delivery of deed as conditioned on obtaining signature of another as grantor, 140 A.L.R. 265 .

Building restrictions, by covenant or condition in deed or by zoning regulation, as applied to religious groups, 148 A.L.R. 367 .

Benefit of provision in deed which limits or qualifies grant or reservation of mineral rights, as passing to subsequent grant or encumbrancer of land, upon the theory that it is a covenant running with the land, or upon the ground that it creates an interest in the land and passes as such, 151 A.L.R. 818 .

Validity of reservation of oil and gas or other mineral rights in deed of land, as against objection of repugnancy to the grant, 157 A.L.R. 485 .

Provision of building restriction which permits garage or other outbuilding as applicable to lot on which there is no other building, 162 A.L.R. 1098 .

Easement or servitude or restrictive covenant as affected by sale for taxes, 168 A.L.R. 529 .

Computation of number or percentage of owners signing restrictive agreement affecting real property, 173 A.L.R. 316 .

Construction and application of covenant restricting use of property to "residence" or "residential purposes,", 175 A.L.R. 1191 .

Validity and effect of deed executed in blank as to name of grantee, 175 A.L.R. 1294 .

Change of neighborhood in restricted district as affecting restrictive covenant; decisions since 1927, 4 A.L.R.2d 1111.

Omission from deed of restrictive covenant imposed by general plan of subdivision, 4 A.L.R.2d 1364.

Oral agreement restricting use of real property as within statute of frauds, 5 A.L.R.2d 1316.

Use of property by college fraternity or sorority as violation of restrictive covenant, 7 A.L.R.2d 436.

Effectiveness of reservation of vendor's crop rights in land contract in absence of such reservation in deed later executed, 8 A.L.R.2d 565.

Estoppel of mortgagee to contest the mortgagor's title, 11 A.L.R.2d 1397.

Church as violation of covenant restricting use of property, 13 A.L.R.2d 1239.

Personal covenant in recorded deed as enforceable against grantee's lessee or successor, 23 A.L.R.2d 520.

Maintenance, use, or grant of right of way over restricted property as violation of restrictive covenant, 25 A.L.R.2d 904.

"Fronting" of corner lot on both streets or on only one, within restrictive covenant, 30 A.L.R.2d 559.

Covenant in conveyance requiring erection of dwelling as prohibiting use of property for business or other nonresidential purpose, 32 A.L.R.2d 1207.

Building side line restrictive covenants, 36 A.L.R.2d 861.

Validity of provision of will or conveyance limiting alienation to certain individuals or those of a limited class, 36 A.L.R.2d 1437.

Deed as superseding or merging provisions of antecedent contract imposing obligations upon the vendor, 38 A.L.R.2d 1310.

Validity of provisions of will or deed prohibiting, penalizing, or requiring marriage to one of a particular religious faith, 50 A.L.R.2d 740.

Deed as imposing upon vendee obligations additional to, or as superseding or merging obligations imposed by, antecedent contract, 52 A.L.R.2d 647.

What constitutes acceptance of deed by grantee, 74 A.L.R.2d 992.

Use of premises for parking place as violation of restrictive covenant, 80 A.L.R.2d 1258.

Construction and effect of restrictive covenant in deed or conveyance specifically prohibiting or limiting the keeping of animals, such as livestock, fowl, etc., on the premises, 89 A.L.R.2d 990.

Validity, construction, and effect of contractual provision regarding future revocation or modification of covenant restricting use of real property, 4 A.L.R.3d 570.

Covenant restricting use of land, made for purpose of guarding against competition, as running with land, 25 A.L.R.3d 897.

Zoning or other public restrictions on the use of property as affecting rights and remedies of parties to contract for the sale thereof, 39 A.L.R.3d 362.

Covenant in deed restricting material to be used in building construction, 41 A.L.R.3d 1290.

Meaning of terms "city," "town," or the like as employed in restrictive covenants not to compete, 45 A.L.R.3d 1339.

Validity and effect of provision in deed attempting to make reservation or exception in favor of grantor's spouse, 52 A.L.R.3d 753.

Use of property for multiple dwellings as violating restrictive covenant permitting property to be used for residential purposes only, 99 A.L.R.3d 985.

Restrictive covenants as to height of structures or buildings, 1 A.L.R.4th 1021.

Validity, construction, and effect of restrictive covenants as to trees and shrubbery, 13 A.L.R.4th 1346.

Validity of zoning or building regulations restricting mobile homes or trailers to established mobile home or trailer parks, 17 A.L.R.4th 106.

Validity and construction of restrictive covenant prohibiting or governing outside storage or parking of housetrailers, motor homes, campers, vans, and the like, in residential neighborhoods, 32 A.L.R.4th 651.

Radio or television aerials, antennas, towers, or satellite dishes or discs as within terms of covenant restricting use, erection, or maintenance of such structures upon residential property, 76 A.L.R.4th 498.

Easement, servitude, or covenant as affected by sale for taxes, 7 A.L.R.5th 187.

44-5-40. Conveyance of future interests or estates.

Future interests or estates are descendible, devisable, and alienable in the same manner as estates in possession. Vested interests in property stemming from the approval of land disturbance, building, construction, or other development plans, permits, or entitlements in accordance with a schedule or time frame approved or adopted by the local government shall be descendible, devisable, and alienable in the same manner as estates in possession.

(Orig. Code 1863, § 2650; Code 1868, § 2649; Code 1873, § 2691; Code 1882, § 2691; Civil Code 1895, § 3601; Civil Code 1910, § 4181; Code 1933, § 29-103; Ga. L. 1994, p. 364, § 1; Ga. L. 2008, p. 210, § 3/HB 1283; Ga. L. 2009, p. 8, § 44/SB 46.)

The 2008 amendment, effective July 1, 2008, added the last sentence.

The 2009 amendment, effective April 14, 2009, part of an Act to revise, modernize, and correct the Code, revised punctuation in the last sentence of this Code section.

Editor's notes. - Ga. L. 1994, p. 364, § 3, not codified by the General Assembly, provides: "This Act is intended to clarify and codify the law regarding the alienability of future interests."

Ga. L. 2008, p. 210, § 1, not codified by the General Assembly, provides: "(a) The General Assembly finds that the railroads and their rights of way in Georgia:

"(1) Are essential to the continued viability of this state;

"(2) Are valuable resources which must be preserved and protected;

"(3) Are essential for the economic growth and development of this state;

"(4) Provide a necessary means of transporting raw materials, agricultural products, other finished products, and consumer goods and are also essential for the safe passage of hazardous materials;

"(5) Relieve congestion on the highways and keep dangerous products and materials off our highways;

"(6) Are vital for national defense and national security; and

"(7) Provide the most energy efficient means of transportation through this state, thus minimizing air pollution and fuel consumption.

"(b) The purpose of this Act is to protect the rights of way of railroads from loss by claims of adverse possession or other claims by prescription and to recognize the dimensions of these rights of way as they were identified and defined nearly 100 years ago."

Law reviews. - For article discussing problems in construction of instrument conveying gift to a group or class, see 6 Ga. St. B.J. 169 (1969). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 243 (1994). For comment criticizing Franks v. Sparks, 217 Ga. 117 , 121 S.E.2d 27 (1961), holding right of entry not alignable or assignable, see 24 Ga. B.J. 363 (1962).

JUDICIAL DECISIONS

Grantor may convey present estate by deed, although possession postponed. - If the intention by the grantor is to convey a present estate, although possession is postponed until the death of the grantor, the instrument is a deed. Martin v. Smith, 211 Ga. 600 , 87 S.E.2d 406 (1955).

When grantor retains exclusive life control over lands. - Deed containing this reservation: "This conveyance is made with the distinct reservation by the grantor that she retains for herself an exclusive control of all of said lands as long as she may live, and to have the right to use them as her own and as she sees fit, including the working and selling of timber during the remainder of her natural life," is a warranty deed, and not a will. Martin v. Smith, 211 Ga. 600 , 87 S.E.2d 406 (1955).

Title to bare possibility of future interest cannot be transferred immediately. - Bare possibility of future inheritance from a living person is not a "future interest or estate," the title to which can be transferred immediately. Harper v. Harper, 241 Ga. 19 , 243 S.E.2d 74 (1978).

Contingency or possibility cannot be sold, unless present right to future benefit. - Future interest may be conveyed by deed. However, a bare contingency or possibility may not be the subject of sale, unless there shall exist a present right in the person selling to a future benefit. Shockley v. Storey, 185 Ga. 790 , 196 S.E. 702 (1938).

Possibility of reverter assignable. - Under a will which gave lands to a certain devisee but contained a provision that, if the devisee died without issue, the land should revert to the testator's estate, the heirs at law of the testator took such a contingent estate therein as was assignable during the lifetime of the devisee. Shockley v. Storey, 185 Ga. 790 , 196 S.E. 702 (1938).

Remainder may be assigned or conveyed. - Remainder is an estate in land, and whether vested or contingent, may be freely assigned and conveyed. Darnell v. Holtzclaw, 260 Ga. 891 , 401 S.E.2d 521 (1991).

Vested remainder is a present estate; only the possession is postponed. Darnell v. Holtzclaw, 260 Ga. 891 , 401 S.E.2d 521 (1991).

Vested remainder found. - Trial court erred in the court's construction of a deed because the deed was clear as written and, as such, the heir received a one-third undivided interest in the property, and the executor individually and the estate each received a one-third undivided interest as the vested remaindermen who each received an interest in the property under O.C.G.A. § 44-6-66 . Wilkes v. Fraser, 324 Ga. App. 642 , 751 S.E.2d 455 (2013).

Contingent remainder to certain person transmissible. - Descendible interest is created in a contingent remainder when the person or persons to take are certain, but the gift is contingent upon the happening of a certain event, and an interest that is descendible is usually otherwise transmissible. Raney v. Smith, 242 Ga. 809 , 251 S.E.2d 554 (1979).

Power to appoint remainderman by will cannot be exercised by deed. - When a deed granted a life estate and at the same time conferred upon the grantee power to appoint by will the person or persons to take in the remainder, the appointment could be made by will only, and an attempt to exercise the power by a deed was ineffectual, and a grantee under the deed had no interest which the grantee could convey to another in virtue of the appointment attempted in the deed. Newton v. Bullard, 181 Ga. 448 , 182 S.E. 614 (1935).

Deed to person not in esse. - Deed to immediate estate in land to a person not in esse is absolutely void. Bank of Graymont v. Kingery, 170 Ga. 771 , 154 S.E. 355 (1930).

Cited in Lufburrow v. Koch, 75 Ga. 448 (1885); West v. Anderson, 187 Ga. 587 , 1 S.E.2d 671 (1939); Yancey v. Grafton, 197 Ga. 117 , 27 S.E.2d 857 (1943); Chance v. Buxton, 177 F.2d 297 (5th Cir. 1949); Seymour v. Presley, 239 Ga. 572 , 238 S.E.2d 347 (1977); Chattahoochee Holdings, Inc. v. Marshall, 146 Ga. App. 658 , 247 S.E.2d 167 (1978); Henderson v. Collins, 245 Ga. 776 , 267 S.E.2d 202 (1980).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 211 et seq.

C.J.S. - 26A C.J.S., Deeds, §§ 25, 26.

ALR. - Quantum of estate passing to grantee as affected by language in deed purporting to express his intention that property is to third person upon his death, 52 A.L.R. 540 .

Delivery of deed to third person to be delivered to grantee after grantor's death, 52 A.L.R. 1222 .

Fee simple conditional, 114 A.L.R. 602 .

Effect on validity and character of instrument in form of deed of provisions therein indicating an intention to postpone or limit the rights of grantee until after the death of grantor, 31 A.L.R.2d 532.

Implication of right of life tenant to entrench upon or dispose of corpus from language contemplating possible diminution or elimination of gift over, 31 A.L.R.3d 6.

Validity and effect of provision in deed attempting to make reservation or exception in favor of grantor's spouse, 52 A.L.R.3d 753.

44-5-41. Voidance and ratification of conveyance to or by a minor.

A deed, security deed, bill of sale to secure debt, or any other conveyance of property or interest in property to or by a minor is voidable unless such minor has become emancipated by operation of law or pursuant to Article 10 of Chapter 11 of Title 15. If a minor has conveyed property or an interest in property, the minor may void the conveyance upon arrival at the age of 18; and, if the minor makes another conveyance at that time, it will void the first conveyance without reentry or repossession. If property or an interest in property has been conveyed to a minor and, after arrival at the age of 18, the minor retains the possession or benefit of the property or interest in property, the minor shall have thereby ratified or affirmed the conveyance.

(Orig. Code 1863, § 2653; Code 1868, § 2652; Code 1873, § 2694; Code 1882, § 2694; Civil Code 1895, § 3604; Civil Code 1910, § 4184; Code 1933, § 29-106; Ga. L. 1966, p. 291, § 2; Ga. L. 1969, p. 640, § 2; Ga. L. 1972, p. 193, § 3; Ga. L. 2006, p. 141, § 7/HB 847; Ga. L. 2013, p. 294, § 4-49/HB 242.)

The 2013 amendment, effective January 1, 2014, substituted "Article 10" for "Article 6" near the end of the first sentence. See Editor's notes for applicability.

Cross references. - Capacity of minors to enter into contracts, § 13-3-20 et seq.

Editor's notes. - Georgia Laws 1972, p. 193, § 10, effective July 1, 1972, provided that the purpose of the Act was to reduce the age of legal majority from 21 years of age to 18 years of age so that all persons, upon reaching the age of 18, would have the rights, privileges, powers, duties, responsibilities, and liabilities previously applicable to persons 21 years of age or over. The section further provided that the Act was not to be construed to have the effect of changing the age from 21 to 18 with respect to any legal instrument or court decree in existence prior to the effective date of the Act when the instrument referred only to "the age of majority" or words of similar import, except that any guardianship of the person or property of a minor under the provisions of Code 1933, T. 49, whether such guardianship was created by court order or decree entered before or after the effective date of the Act or under the will of a testator which was executed after the effective date of the Act, would terminate when the ward for whom such guardianship was created reached 18 years of age.

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Law reviews. - For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 79 (2006). For comment on Ware v. Mobley, 190 Ga. 249 , 9 S.E.2d 67 (1940), see 3 Ga. B.J. 65 (1940).

JUDICIAL DECISIONS

Effect of use of "void" in this section. - Prior law was unaffected by fact that 1933 codifiers used word "voidable" instead of "void." Ware v. Mobley, 190 Ga. 249 , 9 S.E.2d 67 (1940) commented on in 3 Ga. B.J. 65 (1940).

Provisions on voidance of contract and deed construed in pari materia. - Former Code 1933, § 20-201 (see O.C.G.A. § 13-3-20 ), which declared that generally the contract of an infant was voidable, and former Code 1933, § 29-106 (see O.C.G.A. § 44-5-41 ), which contained the declaration that the deed of an infant was voidable at the infant's pleasure on majority, should be construed in pari materia. Ware v. Mobley, 190 Ga. 249 , 9 S.E.2d 67 (1940) commented on in 3 Ga. B.J. 65 (1940).

Right of disaffirmance applies to executed as well as to executory contracts. Gonackey v. General Accident, Fire & Life Assurance Corp., 6 Ga. App. 381 , 65 S.E. 53 (1909).

Deed of an infant is voidable upon infant's disaffirmance during minority or within a reasonable time after attaining majority. Merritt v. Jowers, 184 Ga. 762 , 193 S.E. 238 (1937).

Infant may act against immediate grantee and subsequent purchaser. - One who, while an infant, executes a deed to real property may in a proper case, upon reaching majority, disapprove the act, not only as against the immediate grantee, but also as against a subsequent bona fide purchaser. Ware v. Mobley, 190 Ga. 249 , 9 S.E.2d 67 (1940) commented on in 3 Ga. B.J. 65 (1940).

Infant's duty to disaffirm is not dependent upon other party's doing anything under the deed. Bentley v. Greer, 100 Ga. 35 , 27 S.E. 974 (1896).

"Reasonable time" to disaffirm depends on facts of case. - Infant may disaffirm the deed within a reasonable time after attaining majority, and if the infant fails to do so, the right of avoidance on the ground of infancy will be lost. What is a "reasonable time" will depend upon the facts of each case, but will not be longer than seven years after the disability is removed. Nathans v. Arkwright, 66 Ga. 179 (1880); McGarrity v. Cook, 154 Ga. 311 , 114 S.E. 213 (1922).

"Reasonable time" is jury question. - What is a reasonable time within which to disaffirm a deed made during minority after attainment of majority is a question for the jury upon the facts of each particular case, but will not be longer than seven years after the attainment of majority. Merritt v. Jowers, 184 Ga. 762 , 193 S.E. 238 (1937).

Surrender of consideration required. - No attempted repudiation under deed can be effective unless accompanied by surrender of consideration acquired by the minor thereunder as may still remain in the minor's hands. Merritt v. Jowers, 184 Ga. 762 , 193 S.E. 238 (1937).

Grantor's statement that deed would stand upon receipt of consideration amounts to ratification. - Statement by grantor, after reaching majority, that if the promised consideration which the grantor never received was paid the grantor would let the deed stand amounted to ratification, in the absence of proof that the consideration was paid. Ware v. Mobley, 190 Ga. 249 , 9 S.E.2d 67 (1940) commented on in 3 Ga. B.J. 65 (1940).

After affirmance, an infant will be estopped from avoiding a deed on the ground of infancy at the date of the deed's execution. McGarrity v. Cook, 154 Ga. 311 , 114 S.E. 213 (1922).

Estoppel by conduct or admission imputable to infant reaching age of discretion. - Waivers or estoppels are not ordinarily imputable against infants, but an estoppel by conduct or admission can be imputed to an infant who has reached an age of discretion when fraud can be imputed against the infant. Nichols v. English, 223 Ga. 227 , 154 S.E.2d 239 (1967).

Cited in Beckworth v. Beckworth, 255 Ga. 241 , 336 S.E.2d 782 (1985); Harris v. Burrell, 159 Bankr. 365 (Bankr. M.D. Ga. 1993).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 162. 42 Am. Jur. 2d, Infants, § 45 et seq.

C.J.S. - 26A C.J.S., Deeds, § 145 et seq.

ALR. - Fraud or undue influence in conveyance from child to parent, 11 A.L.R. 735 .

Rights of mortgagee or conditional vendor under a mortgage or conditional sale contract executed by an infant, against the property covered, in the hands of a third person to whom it has been conveyed or transferred by the infant, 69 A.L.R. 1371 .

44-5-42. Delivery of deed to third party as escrow; possession as proof of delivery.

A deed delivered to a third party, to be delivered on certain conditions to the grantee, is an escrow. Possession of that deed by the grantee is presumptive proof of a delivery, but that presumption may be rebutted.

(Orig. Code 1863, § 2652; Code 1868, § 2651; Code 1873, § 2693; Code 1882, § 2693; Civil Code 1895, § 3603; Civil Code 1910, § 4183; Code 1933, § 29-105.)

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For note discussing problems with profits generated by escrow account, and proposing federal legislative reform, see 10 Ga. St. B.J. 618 (1974).

JUDICIAL DECISIONS

Section must be construed with other sections on delivery. - While this statute provides that possession of the deeds by the grantee is presumptive proof of the deed's delivery, which may be rebutted, it is silent both as to character of the evidence by which this is to be done, and circumstances which will overcome the presumption. This statute, therefore, must be construed with other portions of the Code having relation to the subject. Lewis v. Board of Comm'rs, 70 Ga. 486 (1883); Mays v. Shields, 117 Ga. 814 , 45 S.E. 68 (1903) (see O.C.G.A. § 44-5-42 ).

Delivery of deed is essential to validity and is complete only when deed is accepted. The delivery may be actual or constructive. The record of a properly attested deed purporting on the deed's face to have been delivered is prima facie or presumptive evidence of delivery which, of course, is rebuttable. Domestic Loans of Wash., Inc. v. Wilder, 113 Ga. App. 803 , 149 S.E.2d 717 (1966).

Deed delivered to third person to be delivered to grantee constitutes escrow. - An escrow, ex vi termini, is a deed delivered to some third person, to be delivered by the third person to the grantee upon performance of some precedent condition by the grantee or another, or the happening of some event. If delivered to the grantee or the grantee's agent, the delivery is complete, and the paper is not an escrow. Duncan v. Pope, 47 Ga. 445 (1872); Moore v. Farmers' Mut. Ins. Ass'n, 107 Ga. 199 , 33 S.E. 65 (1899); Heitmann v. Commercial Bank, 6 Ga. App. 584 , 65 S.E. 590 (1909); Adams v. Hatfield, 17 Ga. App. 680 , 87 S.E. 1099 (1916).

Rule has no application to ordinary contracts in writing. Adams v. Hatfield, 17 Ga. App. 680 , 87 S.E. 1099 (1916).

If deed remains in control of maker, it is not strictly an escrow. Anderson v. Goodwin, 125 Ga. 663 , 54 S.E. 679 (1906).

Person to whom deed delivered must be agent of both parties. - In every case of an escrow, the person to whom the deed is delivered must, by mutual consent, be constituted the agent of both parties. If one is made merely the agent or attorney of the grantor, there would be no escrow, and the instrument would be recoverable by the grantor, since possession of the depository would remain merely that of the principal. It is equally true that if one is made merely the agent or attorney of the grantee, there would be no escrow since, if such attorneyship or agency is not such as to include the very subject matter of obtaining the conveyance for the grantee, delivery to such an agent or attorney would be altogether futile, while if the attorneyship or agency is such as to include the very matter of obtaining the conveyance for the grantee, the delivery to such a person would operate instantly to pass title into the principal, the same as if there were a delivery to the principal personally. Brown v. Brown, 192 Ga. 852 , 16 S.E.2d 853 (1941).

Grantee's possession not conclusive of fact of delivery. - Even if the deed comes into possession of the grantee, that possession is by no means conclusive of the fact of delivery. Pooser v. Norwich Union Fire Ins. Soc'y, Ltd., 51 Ga. App. 962 , 182 S.E. 44 (1935).

Presumption of delivery. - Fact that deed was found in possession of grantee only raises presumption of delivery. Grice v. Grice, 197 Ga. 686 , 30 S.E.2d 183 (1944).

No constructive delivery. - Delivery of an altered deed to a bank's attorney was not constructive delivery to the buyer as the attorney represented the bank and the buyer had not authorized the attorney to accept and retain the recorded deed on the buyer's behalf. Z & Y Corp. v. Indore C. Stores, Inc., 282 Ga. App. 163 , 638 S.E.2d 760 (2006).

Admissibility of deed in grantee's custody. - Deed coming from grantee's custody, coupled with possession of property conveyed, is admissible in evidence. Tippins v. Lane, 184 Ga. 331 , 191 S.E. 134 (1937).

Failure of conditions eliminates existence of conveyance. - After a deed was delivered to the city's attorney to hold until certain conditions as to establishment of a park could be met, because the conditions for transfer of title were not met, no conveyance was made. The fact that the city fenced the area and charged an admission fee does not overcome the intentions of the parties as to the conditions on which the city would become the owner of the streets. Cedeno v. Lockwood, Inc., 250 Ga. 799 , 301 S.E.2d 265 (1983).

Cited in Equitable Mtg. Co. v. Butler, 105 Ga. 555 , 31 S.E. 395 (1898); Foy v. Scott, 197 Ga. 138 , 28 S.E.2d 107 (1943); Spence v. Brown, 198 Ga. 566 , 32 S.E.2d 297 (1944); Morris v. Johnson, 219 Ga. 81 , 132 S.E.2d 45 (1963).

OPINIONS OF THE ATTORNEY GENERAL

Constructive delivery of a warranty deed may be effected by delivery to an escrow agent within 120 days after execution of the sales contract for purposes of statute, provided all of the following elements are present: (1) the escrow agent must be the agent of both the seller and the buyer, not just that of the seller; (2) the seller must release all control over the warranty deed when the seller delivers the deed to the escrow agent; (3) the escrow agent must be instructed to deliver the warranty deed to the buyer on the happening of a specific future event involving monetary consideration; (4) the escrow agent must be able to enforce the covenants and warranties found in former Code 1933, § 29-301 (see O.C.G.A. § 44-5-60 ) on behalf of the buyer; and (5) the real estate transaction must be properly recorded to put the world on notice of the buyer's equitable interest in realty. 1974 Op. Att'y Gen. No. U74-17.

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 116. 28 Am. Jur. 2d, Escrow, § 47.

C.J.S. - 26A C.J.S., Deeds, §§ 389, 390.

ALR. - Garnishment of money in escrow, 10 A.L.R. 741 .

Parol evidence rule as applied to escrow agreement, 49 A.L.R. 1529 .

Delivery of deed to third person to be delivered to grantee after grantor's death, 52 A.L.R. 1222 .

Rights and remedies where depositary fails or refuses to deliver instrument or property placed in escrow, notwithstanding performance of conditions of delivery, 95 A.L.R. 293 .

Undelivered deed or escrow, pursuant to oral contract, as satisfying Statute of Frauds, 100 A.L.R. 196 .

Duty and liability of escrow holder as affected by time of performance of, or offer to perform, conditions upon which delivery was to be made by him, 107 A.L.R. 948 .

Relation back of title or interest embraced in escrow instrument upon final delivery or performance of condition, 117 A.L.R. 69 .

Presumption of delivery where deed is given by grantor to third person or comes into possession of grantee through third person, 124 A.L.R. 462 .

Delivery of deed as conditioned on obtaining signature of another as grantor, 140 A.L.R. 265 .

Conclusiveness of manual delivery of deed to grantee as an effective legal delivery, 141 A.L.R. 305 .

Delivery of deed or mortgage by one or more but not all of the grantors or mortgagors, 162 A.L.R. 892 .

Who must bear loss resulting from defaults or speculations of escrow holder, 15 A.L.R.2d 870.

Sufficiency of delivery of deed where grantor retains, or recovers, physical possession, 87 A.L.R.2d 787.

Rights in funds representing "escrow" payments made by mortgagor in advance to cover taxes or insurance, 50 A.L.R.3d 697.

44-5-43. Effect of adverse possession on making of deed.

A deed to lands which is made while the lands are held adversely to the maker of the deed is not void.

(Ga. L. 1859, p. 24, § 1; Code 1863, § 2654; Code 1868, § 2653; Code 1873, § 2695; Code 1882, § 2695; Civil Code 1895, § 3605; Civil Code 1910, § 4185; Code 1933, § 29-107.)

Cross references. - Nature of title by prescription, § 44-5-160 et seq.

JUDICIAL DECISIONS

Section changes the rule of common law and the Statute of Henry VIII. Gresham v. Webb, 29 Ga. 320 (1859); Reed v. Janes, 84 Ga. 380 , 11 S.E. 401 (1890); Tucker v. McArthur, 103 Ga. 409 , 30 S.E. 283 (1898) (see O.C.G.A. § 44-5-43 ).

Section applies to sales of all kinds of property. Downing Lumber Co. v. Medlin & Sundy, 136 Ga. 665 , 72 S.E. 22 (1911) (see O.C.G.A. § 44-5-43 ).

Cited in Booth v. Young, 149 Ga. 276 , 99 S.E. 886 (1919); Chattanooga Iron & Coal Corp. v. Shaw, 157 Ga. 869 , 122 S.E. 597 (1924); Williamson v. Key, 179 Ga. 502 , 176 S.E. 373 (1934); Delray, Inc. v. Reddick, 194 Ga. 676 , 22 S.E.2d 599 (1942).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 162.

ALR. - Grantor's continued possession of land after execution of deed as notice of his claim adverse to title conveyed, 105 A.L.R. 845 .

Possession of mortgagor or successor in interest as adverse to purchaser at foreclosure sale, 38 A.L.R.2d 348.

44-5-44. Estoppel from claiming adversely to own deed.

The maker of a deed cannot subsequently claim adversely to his deed under a title acquired after the making thereof. He is estopped from denying his right to sell and convey the property treated in the deed.

(Orig. Code 1863, § 2658; Code 1868, § 2657; Code 1873, § 2699; Code 1882, § 2699; Civil Code 1895, § 3609; Civil Code 1910, § 4189; Code 1933, § 29-111.)

Law reviews. - For comment on Perkins v. Rhodes, 192 Ga. 331 , 15 S.E.2d 426 (1941), see 4 Ga. B.J. 41 (1941). For comment criticizing Franks v. Sparks, 217 Ga. 117 , 121 S.E.2d 27 (1961), holding right of entry not alignable or assignable, see 24 Ga. B.J. 363 (1962).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Statute recognizes and declares a fundamental rule of the law of estoppel. Fleming & Co. v. Ray, 86 Ga. 533 , 12 S.E. 944 (1891); Morrison v. Whiteside, 116 Ga. 459 , 42 S.E. 729 (1902) (see O.C.G.A. § 44-5-44 ).

What one induces another to regard as true is the truth as between them, if the party who acts has been misled by the conduct or statements of the other. American Freehold Land Mtg. Co. of London, Ltd. v. Walker, 119 Ga. 341 , 46 S.E. 426 (1904). See also Baker v. Davis, 127 Ga. 649 , 57 S.E. 62 (1907); Gammage v. Perry, 29 Ga. App. 427 , 116 S.E. 126 (1923); Bradshaw v. Estill, 157 Ga. 171 , 121 S.E. 385 (1924).

Absolute deed divests grantor of right of possession, as well as of legal title, and when grantor is found in possession after delivery of the grantor's deed, it is a fact inconsistent with the legal effect of the deed, and is suggestive that the grantor still retains some interest in the premises. Chandler v. Georgia Chem. Works, 182 Ga. 419 , 185 S.E. 787 (1936).

Grantee takes after-acquired title. - When the language of a deed purports to convey and warrant the full and absolute title, the fact that only the then owned equity of redemption may have been all the title which at that time could and did pass would not change the legal effect of the language of the conveyance itself. Under such language, the grantee not only immediately takes all title that the grantor then owned, but, under such an instrument, the grantee could await the time and tide of future events so as to thereafter appropriate all additional title that the grantor might subsequently acquire. Federal Land Bank v. Bank of Lenox, 192 Ga. 543 , 16 S.E.2d 9 (1941).

If a vendor conveys land by deed to a vendee before the vendor has title personally, and afterwards the vendor acquires title, the vendor's subsequent title inures to the benefit of the vendee, and a complete title is vested in the vendee the moment the vendor acquires title. Guy v. Poss, 212 Ga. 724 , 95 S.E.2d 682 (1956).

Cited in McIntosh v. Williams, 45 Ga. App. 801 , 165 S.E. 854 (1932); Veazey v. Sinclair Ref. Co., 66 Ga. App. 730 , 19 S.E.2d 53 (1942); Darling Stores Corp. v. William Beatus, Inc., 68 Ga. App. 869 , 24 S.E.2d 805 (1943); Franks v. Sparks, 217 Ga. 117 , 121 S.E.2d 27 (1961); Chastain v. Consolidated Credit Corp., 113 Ga. App. 225 , 147 S.E.2d 807 (1966); Scarbor v. Scarbor, 226 Ga. 323 , 175 S.E.2d 6 (1970); Darden v. Darden, 227 Ga. 647 , 182 S.E.2d 480 (1971); United States v. Williams, 441 F.2d 637 (5th Cir. 1971); Harper v. Harper, 241 Ga. 19 , 243 S.E.2d 74 (1978); Chattahoochee Holdings, Inc. v. Marshall, 146 Ga. App. 658 , 247 S.E.2d 167 (1978).

Applicability

Estoppel by deed applies to maker of deed. It does not ordinarily apply to the grantee. Hughes v. Cobb, 195 Ga. 213 , 23 S.E.2d 701 (1942).

Word "deed" refers to deed to property to which grantor has no title nor estate. Shockley v. Storey, 185 Ga. 790 , 196 S.E. 702 (1938).

Section applies to mortgages as well as deeds. Federal Land Bank v. Bank of Lenox, 192 Ga. 543 , 16 S.E.2d 9 (1941) (see O.C.G.A. § 44-5-44 ).

Section does not apply to quitclaim deeds. Morrison v. Whiteside, 116 Ga. 459 , 42 S.E. 729 (1902); Taylor v. Wainman, 116 Ga. 795 , 43 S.E. 58 (1902); Baxter & Co. v. Camp, 126 Ga. 354 , 55 S.E. 1036 (1906); Marchant v. Young, 147 Ga. 37 , 92 S.E. 863 (1917) (see O.C.G.A. § 44-5-44 ).

This statute is not extended so as to also cover quitclaim deeds. Federal Land Bank v. Bank of Lenox, 192 Ga. 543 , 16 S.E.2d 9 (1941) (see O.C.G.A. § 44-5-44 ).

Section not applicable to conveyance not covering full title. - This rule does not apply to a conveyance limited to such right, title, and interest as the grantee has in a designated estate or premises, or a conveyance which on the conveyance's face is only a bare contingency or possibility, or when such a conveyance does not purport to cover the full title. Federal Land Bank v. Bank of Lenox, 192 Ga. 543 , 16 S.E.2d 9 (1941) (see O.C.G.A. § 44-5-44 ).

This statute has no application whatever to year's support for widows provided by the laws of Georgia. Grant v. Sosebee, 169 Ga. 658 , 151 S.E. 336 (1929) (see O.C.G.A. § 44-5-44 ).

Section inapplicable when no representation grantor conveys adversely to representation in earlier deed. - Doctrines of estoppel by deed and after-acquired title are not applicable when later deed makes no representation, express or implied, that the grantor claims and conveys anything adversely to an express or implied representation made in an earlier deed. ITT Rayonier, Inc. v. Hack, 254 Ga. 324 , 328 S.E.2d 542 (1985).

Section inapplicable to grantor's lack of capacity. - Doctrine of after-acquired property as codified in O.C.G.A. § 44-5-44 was properly found to be inapplicable in an action seeking to set aside a conveyance by a decedent and the decedent's spouse to their child's spouse on the ground that the decedent lacked capacity to execute the deed because the doctrine could not be used to transfer title or to remedy flaws in the legal requirements for the creation of a property interest; the doctrine did not address or cure the invalidity of the conveyance of the decedent's ownership interest as a result of the decedent's lack of capacity. Smith v. Smith, 281 Ga. 380 , 637 S.E.2d 662 (2006).

Illustrative Cases

When deed cannot pass title under power of sale, after-inherited interest passes by estoppel. - If for any reason a deed would not operate to pass title under a power of sale in a will, then if the maker of the deed afterwards inherited an interest in the premises that interest would pass by virtue of the maker's deed, on the principle of estoppel. Parker v. Jones, 57 Ga. 204 (1876); Terry v. Rodahan, 79 Ga. 278 , 5 S.E. 38 , 11 Am. St. R. 420 (1887).

Seller of lots estopped from asserting claim adverse to purchasers' rights designated on plat. - When an owner of land sells a part of the land in lots for residential purposes, the sales being made with reference to a plat by which another part of the land is designated as a park, and when the purchasers in buying rely upon the plat, the seller is estopped from asserting a claim adverse to the right of the purchasers, or the purchasers' assigns, to have the land restricted to use as a park and to share such use. Caffey v. Parris, 186 Ga. 303 , 197 S.E. 898 (1938).

Benefit of after-acquired title inures to grantee of bond for title interest. - Conveyance by which the grantor transfers "his bond for title interest" in the land described, together with all of grantor's "right, title, and interest" therein, for the purpose of securing a debt owing by the grantor to the grantee, is one under which the benefit of an after-acquired independent title inures to the benefit of the grantee, and the grantor and those holding under the grantor are estopped thereafter to claim the after-acquired title as against the grantee when the debt so secured remains unpaid. This is true although the conveyance contains no express covenant of warranty. Perkins v. Rhodes, 192 Ga. 331 , 15 S.E.2d 426 (1941), for comment, see 4 Ga. B.J. 41 (1941).

When grantor in first security deed reacquires property, junior security deed attaches as first claim. - When the grantor in a first security deed reacquired the property by purchasing the property at a sale under a power contained in the deed, a junior security deed made to another by the same grantor immediately attached as a first claim upon the property, and constituted an encumbrance thereon as against a subsequent grantee of the purchaser, notwithstanding the second security deed may show upon the deed's face that it is a junior deed. Bowlin v. Hemphill, 180 Ga. 435 , 179 S.E. 341 (1935).

Title under first trust deed reacquired by grantor inures to beneficiary of second deed. - When a property owner gives a deed of trust, reciting on its face that it is a second deed of trust, and when the property is purchased by a third person at a foreclosure sale under the first deed of trust, and through mesne conveyance is reacquired by the grantor, the title so reacquired inures to the beneficiary of the second deed of trust. Federal Land Bank v. Bank of Lenox, 192 Ga. 543 , 16 S.E.2d 9 (1941).

Mortgagor of individual property cannot later allege property not mortgagor. - In a proceeding to foreclose a mortgage, one cannot be permitted to allege that the property so mortgaged by the mortgagor as the mortgagor's own individual property was not the mortgagor's property, but was trust property which the mortgagor had no right to mortgage. Martin v. Citizens' Bank, 177 Ga. 871 , 171 S.E. 711 (1933).

When junior mortgage given priority, mortgagee cannot be divested in sale under first lien. - When a mortgagor creates a lien on property when no title exists in the mortgagor, or where the mortgagor's title is subject to a superior lien, and there is an express or implied representation by the mortgagor whereby the mortgagor asserts the priority of the junior mortgage, the mortgagor would be estopped from buying in the property at a sale under the first lien, so as to divest the junior mortgagee. Federal Land Bank v. Bank of Lenox, 192 Ga. 543 , 16 S.E.2d 9 (1941).

RESEARCH REFERENCES

ALR. - Tender of deed as condition precedent to action for purchase price or on note therefor, 35 A.L.R. 108 .

Failure to record or delay in recording an instrument affecting real property as basis of estoppel in favor of credit not directly within protection of recording acts, 52 A.L.R. 183 .

Rule of estoppel by conveyance or transfer to set up title subsequently acquired by grantor or transferrer as applicable to conveyance or transfer by executor, administrator, or testament trustee, 93 A.L.R. 231 .

Grantor's continued possession of land after execution of deed as notice of his claim adverse to title conveyed, 105 A.L.R. 845 .

Estoppel of wife (or her privies) who joins in husband's deed or mortgage to assert title or interest, other than dower homestead rights, superior to that of grantee or mortgagee, 107 A.L.R. 309 .

Nature of conveyance or covenants which will create estoppel to assert after-acquired title in real property, 144 A.L.R. 554 .

Estoppel of oil and gas lessee to deny lessor's title, 87 A.L.R.2d 602.

44-5-45. When ancient deed admissible without proof of execution.

Reserved. Repealed by Ga. L. 2011, p. 99, § 82/HB 24, effective January 1, 2013.

Editor's notes. - This Code section was based on Orig. Code 1863, § 2659; Code 1868, § 2658; Code 1873, § 2700; Code 1882, § 2700; Civil Code 1895, § 3610; Civil Code 1910, § 4190; Code 1933, § 29-112. For comparable provisions, see § 24-8-803 .

Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

44-5-46. Establishment of copy of deed upon loss of original; effect of copy.

If an original deed is lost, a copy may be established by the superior court of the county where the land is located; and when the copy is established, it shall have all the effect of the original.

(Laws 1785, Cobb's 1851 Digest, p. 166; Laws 1799, Cobb's 1851 Digest, p. 463; Code 1863, § 2660; Code 1868, § 2659; Code 1873, § 2701; Code 1882, § 2701; Civil Code 1895, § 3611; Civil Code 1910, § 4191; Code 1933, § 29-113.)

JUDICIAL DECISIONS

Jurisdiction under prior law. - Prior to statute's codification, matter lay in common jurisdiction of county's superior and inferior courts. Perkins v. Perkins, 21 Ga. 13 (1857) (see O.C.G.A. § 44-5-46 ).

When action for land predicated upon lost deed, proof of original must be established. - When, in an action for land, the right of the plaintiffs is predicated upon an alleged lost and unrecorded deed, proof of the existence of a genuine original must be established before secondary evidence relating thereto is admissible. Latham v. Fowler, 199 Ga. 648 , 34 S.E.2d 870 (1945), later appeal, 201 Ga. 68 , 38 S.E.2d 732 (1946).

Evidence sufficient to prove deed. - Maker may prove the deed, without the necessity of calling the attesting witnesses, and if the record has also been destroyed, subsequent possession of the deed by one who derived title from the grantee under it is sufficient to establish delivery thereof. Fletcher v. Horne, 75 Ga. 134 (1885).

Evidence not sufficient to prove deed. - Evidence of a statement by a defendant that the defendant knew a deed as alleged by the plaintiffs was in existence in which the father and his children were grantees is not sufficient to establish the deed for the reason that such as an admission is too indefinite to properly identify and establish the existence of any particular deed. Latham v. Fowler, 199 Ga. 648 , 34 S.E.2d 870 (1945).

When, in an effort to establish a lost and unrecorded deed, a certified copy of a petition, filed by the plaintiffs' father (holder of a life estate under the alleged deed) to sell for reinvestment, with an attached typewritten copy of what purported to be the alleged unrecorded deed, is admitted in evidence, the evidence does not establish that in fact a genuine deed has been executed, nor does the fact that the petition asserted that the plaintiffs' father had a life interest and the children had a remainder interest in the land make the assertion therein a declaration against the interest of the plaintiffs' father. Latham v. Fowler, 199 Ga. 648 , 34 S.E.2d 870 (1945), later appeal, 201 Ga. 68 , 38 S.E.2d 732 (1946).

Judgment establishing copy admissible in proceedings if original admissible. - Judgment of a superior court establishing a copy of a lost deed is, when properly authenticated, admissible in any proceeding where the original deed would be admissible. Leggett v. Patterson, 114 Ga. 714 , 40 S.E. 736 (1902); Drawdy v. Musselwhite, 150 Ga. 723 , 105 S.E. 298 (1920).

Copy of copy has same force. - Properly authenticated copy of a copy of a deed, established under the provisions of this statute, has the same force as the copy of which it is made. McLanahan v. Blackwell, 119 Ga. 64 , 45 S.E. 785 (1903) (see O.C.G.A. § 44-5-46 ).

Judgment binding upon parties, and upon grantor's heirs where administrator party. - Judgment establishing a copy of an alleged lost original constitutes a conclusive determination that a genuine original had in fact existed as the act and deed of the alleged grantor, and, as an adjudication to that effect, is binding upon the parties in that proceeding, and upon heirs at law of the alleged deceased grantor when the administrator was a party defendant therein. Milner v. Allgood, 184 Ga. 288 , 191 S.E. 132 (1937).

Appellate jurisdiction not in Supreme Court. - Proceeding to establish a copy of a lost deed did not constitute an action respecting title to land; hence appellate jurisdiction was not in the Supreme Court. Loftin v. Carroll County Bd. of Educ., 195 Ga. 689 , 25 S.E.2d 293 (1943).

Cited in Loftin v. Carroll County Bd. of Educ., 70 Ga. App. 315 , 28 S.E.2d 372 (1943); Fletcher v. Fletcher, 209 Ga. 184 , 71 S.E.2d 219 (1952).

RESEARCH REFERENCES

C.J.S. - 76 C.J.S., Records, § 43.

ALR. - Right of action to restore lost deed, 31 A.L.R. 552 .

44-5-47. Liability of purchaser for costs of conveyance.

Without an expressed stipulation to the contrary, a purchaser must pay the costs of the conveyance.

(Civil Code 1895, § 3528; Civil Code 1910, § 4108; Code 1933, § 29-115.)

History of section. - This Code section is derived from the decision in French, Richards & Co. v. Robinson, 78 Ga. 701 , 3 S.E. 902 (1887).

JUDICIAL DECISIONS

Express stipulation as to closing costs not found. - Trial court erred in granting summary judgment to the closing attorney on the alleged client's fraud claim as genuine issues of material fact existed about whether the closing attorney made misrepresentations to the alleged client regarding the sale of timber from the estate of the alleged client's father; one example involved the closing attorney's successful effort to get the alleged client to pay the closing costs associated with the conveyance of timber, even though statutory law directed that the purchaser was to pay such costs absent an express stipulation to the contrary and no such express stipulation existed. Mays v. Askin, 262 Ga. App. 417 , 585 S.E.2d 735 (2003).

Cited in Lively v. Munday, 201 Ga. 409 , 40 S.E.2d 62 (1946).

44-5-48. Deeds conveying interest in real property used as commercial landfill.

  1. All deeds conveying an interest in real property which has been used as a commercial landfill shall include notice of the landfill operations, the date the landfill operations commenced and terminated, if known, a legal description of the actual location of the landfill, and a description of the type of materials which have been deposited in the landfill. As used in this Code section, "commercial landfill" means an area where materials have been deposited for a fee.
  2. This Code section applies only to those parties who have knowledge of the landfill operations when conveying real property.
  3. Any seller of real property who willfully violates the provisions of this Code section shall be liable to the purchaser for treble damages for any losses sustained by the purchaser as a result of the sale. (Code 1981, § 44-5-48 , enacted by Ga. L. 1988, p. 821, § 2.)

Cross references. - Prohibition on construction activity on abandoned landfills, § 8-6-1 et seq.

ARTICLE 3 COVENANTS AND WARRANTIES

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979).

RESEARCH REFERENCES

ALR. - Liability of former owner of real estate because of a violation of statute or ordinance relating to condition of premises, 8 A.L.R. 356 .

Extent of lessee's obligation under express covenant as to repairs, 20 A.L.R. 782 ; 45 A.L.R. 12 .

Restriction forbidding manufacture or sale of liquor as breach of covenant of title or against encumbrances, or as negativing marketable title, 51 A.L.R. 1460 .

Reservation by grantor of the right to require payment for existing party wall when used, 52 A.L.R. 494 .

Tea room or other place of refreshment as violation of restrictive covenant against use of premises for mercantile or business purposes, or limiting its use to residential purposes, 57 A.L.R. 411 .

Implied covenant in conveyance with reference to map, plat, or blueprint as to size of remaining lots or against further subdivision thereof, 57 A.L.R. 764 .

Measure of damages for breach of covenants of title in conveyances or mortgages of real property, 61 A.L.R. 10 ; 100 A.L.R. 1194 .

Assignment of lease as breach of covenant against subletting, 79 A.L.R. 1379 .

Validity of provisions of instrument creating legal estate attempting to exempt it from claims of creditors, 80 A.L.R. 1007 .

Deed or mortgage of real estate as affecting right to oil and gas or royalty interest under existing lease, 94 A.L.R. 660 ; 140 A.L.R. 1280 .

School as violation of restrictive covenant relating to use of real property, 98 A.L.R. 390 .

Personal liability of covenantor for breach of restrictive covenant by grantee of property, 98 A.L.R. 779 .

Garage or filling station as breach of restrictive covenant, 99 A.L.R. 541 .

When does statute of limitations commence to run against action for breach of covenant against encumbrances, 99 A.L.R. 1050 .

Liability of grantor in deed with covenants, for expense of grantee's successful litigation with third party, 105 A.L.R. 729 .

Use of cemetery grounds for purposes other than interment, 130 A.L.R. 130 .

Restrictive covenants as applicable to land itself apart from buildings, 155 A.L.R. 528 .

Covenant restricting "erection," "construction," etc., as including limitation on use structure, 155 A.L.R. 1007 .

Building restrictions specifying minimum cost in dollars as affected by change in gold content or purchasing power of dollar, 161 A.L.R. 1131 .

Rights or interests covered by quitclaim deed, 162 A.L.R. 556 .

After-acquired title rule as applicable to title acquired by grantor through enforcement of mortgage or lien, 168 A.L.R. 1149 .

Decree or judgment subject to direct attack in chain of title as rendering title unmerchantable, 9 A.L.R.2d 710.

Controlling effect, as to building lines in restrictive covenants, as between provisions in deed and conflicting data on plat referred to therein, 21 A.L.R.2d 1262.

Building side line restrictive covenants, 36 A.L.R.2d 861.

Encroachment of structure on or over adjoining property or way as rendering title unmarketable, 47 A.L.R.2d 331.

Validity, construction, and effect of land sale contract providing that title must be satisfactory to purchaser, 47 A.L.R.2d 455.

Binding effect on tenant holding over of covenants in expired lease, 49 A.L.R.2d 480.

Use of premises for parking place as violation of restrictive covenant, 80 A.L.R.2d 1258.

Reservation or exception in deed in favor of stranger, 88 A.L.R.2d 1199.

Construction and effect of restrictive covenant in deed or conveyance specifically prohibiting or limiting the keeping of animals, such as livestock, fowl, etc., on the premises, 89 A.L.R.2d 990.

Incidental use of dwelling for business or professional purposes as violation of covenant restricting use to residential purposes, 21 A.L.R.3d 641.

Liability of builder-vendor or other vendor of new dwelling for loss, injury, or damage occasioned by defective condition thereof, 25 A.L.R.3d 383.

Covenant restricting use of land, made for purpose of guarding against competition, as running with land, 25 A.L.R.3d 897.

Covenant in deed restricting material to be used in building construction, 41 A.L.R.3d 1290.

Vendor and purchaser: marketability of title as affected by lien dischargeable only out of funds to be received from purchaser at closing, 53 A.L.R.3d 678.

Construction and operation of parking-space provision in shopping-center lease, 56 A.L.R.3d 596.

Restrictive covenants as to height of structures or buildings, 1 A.L.R.4th 1021.

Liability of vendor of existing structure for property damage sustained by purchaser after transfer, 18 A.L.R.4th 1168.

Community residence for mentally disabled persons as violation of restrictive covenant, 41 A.L.R.4th 1216.

Construction and application of restrictive covenants to the use of signs, 61 A.L.R.4th 1028.

Construction and effect of provision in contract for sale of realty by which purchaser agrees to take property "as is" or in its existing condition, 8 A.L.R.5th 312.

44-5-59. Covenant running with the land between property owner and third party.

Except as provided in Code Section 44-5-60 and excluding covenants recorded on property solely by the property's owner, which shall run with the title to the land, a covenant runs with the land when, for consideration and as reflected in a duly recorded instrument found in the applicable chain of title, a property owner and a third party agree to such covenant, the property is adequately described in such covenant, and such covenant does not run for more than 20 years.

(Code 1981, § 44-5-59 , enacted by Ga. L. 2013, p. 776, § 1/HB 175.)

Effective date. - This Code section became effective July 1, 2013. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2013, p. 776, § 2/HB 175, not codified by the General Assembly, provides that this Code section shall apply to covenants recorded on or after July 1, 2013.

Law reviews. - For annual survey on real property, see 65 Mercer L. Rev. 233 (2013).

44-5-60. Effect of zoning laws; covenants and scenic easements for use of public; renewal of certain covenants; costs.

  1. The purchaser of lands obtains with the title, whether conveyed to him at public or private sale, all the rights which any former owner of the land under whom he claims may have had by virtue of any covenants of warranty of title, of quiet enjoyment, or of freedom from encumbrances contained in the conveyance from any former grantor unless the transmission of such covenants with the land is expressly prohibited in the covenant itself.
  2. Notwithstanding subsection (a) of this Code section, covenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws nor in those areas in counties for which zoning laws have been adopted; provided, however, that whenever a zoning ordinance, upon its initial enactment by a county or municipality, expressly acknowledges the continuing application of a covenant restricting lands to certain uses within that jurisdiction, any such covenant, if created prior to zoning laws being adopted by that county or municipality, shall continue to be effective in such jurisdiction until the expiration of such covenant in accordance with its terms.
  3. The limitation provided in subsection (b) of this Code section shall not apply with respect to any covenant or scenic easement in favor of or for the benefit of the United States or any department, bureau, or agency thereof; this state or any political subdivision thereof; or any corporation, trust, or other organization holding land for the use of the public, but only with respect to such covenants and scenic easements running in favor of or for the benefit of the land so held for the use of the public. Such covenants and scenic easements shall run in perpetuity.
    1. Notwithstanding the limitation provided in subsection (b) of this Code section, covenants restricting lands to certain uses affecting planned subdivisions containing no fewer than 15 individual plots shall automatically be renewed beyond the period provided for in subsection (b) of this Code section unless terminated as provided in this subsection. Each such renewal shall be for an additional 20 year period, and there shall be no limit on the number of times such covenants shall be renewed.
    2. To terminate a covenant as provided in paragraph (1) of this subsection, at least 51 percent of the persons owning plots affected by such covenant shall execute a document containing a legal description of the entire area affected by the covenant, a list of the names of all record owners of plots affected by the covenant, and a description of the covenant to be terminated, which may be incorporated by reference to another recorded document. By signing such document, each such person shall verify that he or she is a record owner of property affected by the covenant. Such document shall be recorded in the office of the clerk of the superior court of the county where the land is located no sooner than but within two years prior to the expiration of the initial 20 year period or any subsequent 20 year period. The clerk of the superior court shall index the document under the name of each record owner appearing in the document.
    3. No covenant that prohibits the use or ownership of property within the subdivision may discriminate based on race, creed, color, age, sex, or national origin.
    4. Notwithstanding any other provision of this Code section or of any covenants with respect to the land, no change in the covenants which imposes a greater restriction on the use or development of the land will be enforced unless agreed to in writing by the owner of the affected property at the time such change is made.
      1. Notwithstanding and prior to the usual expiration of the period of covenants restricting land to certain uses affecting planned subdivisions containing no fewer than 15 individual plots as provided for by this subsection, the right to control any entity formed for the purpose of enforcing such covenants may pass to the subdivision plot owners as provided in this paragraph if such entity fails to do any of the following:
        1. Incorporate or maintain an annual registration pursuant to the terms of the covenants;
        2. Cause the board of directors to be duly appointed and the officers to be elected pursuant to the terms of the covenants;
        3. Maintain and make available to owners, upon written request, a list of the names and business or home addresses of the entity's current directors and officers;
        4. Call meetings of the members of the entity in accordance with the provisions of the covenants;
        5. Prepare an annual operating budget, establish the annual assessment, and distribute such budget and notice of assessment to plot owners in accordance with the provisions of the covenants no later than 30 days after the beginning of the entity's fiscal year; or
        6. Pay property taxes on common property in the planned subdivision for two or more years.
      2. In the event that an entity formed for the purpose of enforcing covenants restricting land to certain uses fails to meet one or more of the obligations of this paragraph, then any plot owner, acting individually or jointly with other plot owners, may send such entity written notice of the failure to comply with such requirements and provide the entity a 30 day opportunity to cure the failure; and such notice shall be sent by certified mail or statutory overnight delivery to the entity's principal office. If the entity fails to cure any or all deficiencies identified in the notice within 30 days of such notice, then any plot owner, acting individually or jointly with other plot owners, shall have standing individually, and not solely through a derivative action, to institute an action in the superior court of the county in which any portion of the entity is located in order to obtain declaratory judgment to grant the plot owner or owners control of the entity by ordering an election and setting the terms thereof, or issuing any other orders appropriate to transfer control of the entity. The superior court shall have authority to hold a hearing and issue a summary ruling on said action at any time designated by the court not earlier than 20 days after the service thereof, unless the parties consent in writing to an earlier trial. No discovery shall be had unless ordered by the court for good cause. In addition, the superior court shall be authorized to issue a summary ruling on the conveyance of any intended common areas or other property in the common interest community to the association or other appropriate entity. If the plot owner or owners prevail in such action, then the superior court shall award to the plot owner or owners all reasonable attorney's fees and costs incurred for the prosecution of such action. This paragraph shall not be the basis for any liability against any party or agent of any party outside of the exclusive remedies provided herein.
  5. To the extent provided in the covenants, the obligation for the payment of assessments and fees arising from covenants shall include the costs of collection, including reasonable attorney's fees actually incurred.

    (Orig. Code 1863, § 2661; Code 1868, § 2660; Code 1873, § 2702; Code 1882, § 2702; Civil Code 1895, § 3612; Civil Code 1910, § 4192; Code 1933, § 29-301; Ga. L. 1935, p. 112, § 1; Ga. L. 1962, p. 540, § 1; Ga. L. 1971, p. 814, § 1; Ga. L. 1990, p. 384, § 1; Ga. L. 1991, p. 334, § 1; Ga. L. 1993, p. 782, § 1; Ga. L. 2008, p. 1135, § 2A/HB 422; Ga. L. 2012, p. 692, § 2/HB 728; Ga. L. 2017, p. 352, § 5/SB 46.)

The 2008 amendment, effective July 1, 2008, added subsection (e).

The 2012 amendment, effective July 1, 2012, added the proviso at the end of subsection (b).

The 2017 amendment, effective July 1, 2017, added paragraph (d)(5).

Cross references. - Time limitations on bringing action for breach of restrictive covenants, § 9-3-29 .

Right of purchaser at judicial sale to enforce covenants of warranty running with land which are incorporated into previous title deeds, § 9-13-177 .

Right of action by alienee of property for continuance of nuisance for which alienee of property causing nuisance is responsible, § 41-1-5 .

Georgia Property Owners' Association Act, §§ 44-3-220 and 44-3-234 .

Editor's notes. - Ga. L. 2012, p. 692, § 1/HB 728, not codified by the General Assembly, provides that: "The General Assembly finds that current law, Code Section 44-5-60, relating to covenants running with the land, is vague and is in fact silent as to the treatment of covenants which were created prior to a county or municipality adopting zoning laws. The General Assembly finds that during its 1935 session it provided for covenants running with the land terminating at a point certain when municipalities had adopted zoning laws and that in its 1962 session it further provided for covenants running with the land terminating at a point certain in those areas of counties for which zoning laws had been adopted. However, the General Assembly finds that at no point has this body pronounced how covenants running with the land which were created prior to the existence of zoning laws should be treated, and therefore it is the intent of the General Assembly to clarify and correct the current vagaries in the law."

Law reviews. - For article discussing options to purchase realty in Georgia, with respect to restrictive covenants, see 8 Ga. St. B.J. 229 (1971). For annual survey on law of real property, see 42 Mercer L. Rev. 389 (1990). For annual survey article on real property law, see 52 Mercer L. Rev. 383 (2000). For annual survey on real property, see 65 Mercer L. Rev. 233 (2013). For survey article on real property law, see 67 Mercer L. Rev. 193 (2015). For annual survey on real property, see 71 Mercer L. Rev. 241 (2019). For note, "Regulation of Artificial Lakes and Recreational Subdivisions in Georgia," recommending methods for future regulation, see 8 Ga. St. B.J. 580 (1972). For note, "Restrictive Covenants: A Need For Reappraisal of the Limitations Period," see 17 Ga. St. B.J. 137 (1981). For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 198 (1993). For comment, "Injunction Remedy for Breach of Restrictive Covenants: An Economic Analysis," see 45 Mercer L. Rev. 543 (1993).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

O.C.G.A. § 44-5-60 deals with restrictions and not easements. Hendley v. Overstreet, 253 Ga. 136 , 318 S.E.2d 54 (1984).

O.C.G.A. § 44-5-60(b) only applied to land in cities and counties subject to zoning laws, and neither § 44-5-60(b) nor any other law limited the enforceability of covenants to only a single 20-year term or precluded their eventual renewal upon the expiration of that period. When covenants expressly provided for automatic renewal at successive 10-year intervals unless two-thirds of the residents objected, the question of retroactive application did not arise, and since the covenants authorized an association to sanction a resident for covenant violations, a trial court did not err in refusing to grant an interlocutory injunction prohibiting the association from enforcing the sanction. Sweeney v. Landings Ass'n, 277 Ga. 761 , 595 S.E.2d 74 (2004).

O.C.G.A. §§ 9-3-29 and 44-5-30 limit the enforceability of restrictive covenants and hence are inapplicable to a cause of action which is based upon the alleged existence of easements. Estate of Seamans v. True, 247 Ga. 721 , 279 S.E.2d 447 (1981).

Scope of subsection (b) of O.C.G.A. § 44-5-60 applies to "use restrictions" and, further, to "building restrictions," as those appear in restrictive covenants, because both restrictive covenants and zoning ordinances contain building and use restrictions. Matera Investors, Inc. v. Sunset Lake Fishing & Hunting Club, 696 F. Supp. 1510 (M.D. Ga. 1988).

No mention of particular uses. - Grantor's reserved rights or interest in land were not rendered unenforceable since the deed contained no language stating that the fee owner had to use the land for any particular uses, but rather stated that the fee owner could put the owner's land to any use whatsoever as long as the use did not violate the grantor's rights under the deed. Matera Investors, Inc. v. Sunset Lake Fishing & Hunting Club, 696 F. Supp. 1510 (M.D. Ga. 1988).

The 1993 amendment of subsection (d) of O.C.G.A. § 44-5-60 providing an automatic continuation of covenants could not be applied retrospectively. Appalachee Enters., Inc. v. Walker, 266 Ga. 35 , 463 S.E.2d 896 (1995), overruled on other grounds, Bickford v. Yancey Dev. Co., 276 Ga. 814 , 585 S.E.2d 78 (2003).

Covenant on the development corporation's property dating from 1977 requiring a minimum lot size of two acres was not renewed by O.C.G.A. § 44-5-60(d)(1), which was enacted in 1993, because § 44-5-60(d)(1) did not apply retroactively; as a result, the covenant expired in 1997. Bickford v. Yancey Dev. Co., 258 Ga. App. 371 , 574 S.E.2d 349 (2002), aff'd, 276 Ga. 814 , 585 S.E.2d 78 (2003).

The 1993 revision to O.C.G.A. § 44-5-60(d)(1), providing for the automatic 20-year renewal of restrictive covenants affecting subdivisions containing 15 or more plots, applies only to those restrictive covenants that are established under law after July 1, 1993; as for all restrictive covenants established before July 1, 1993, those covenants are governed by O.C.G.A. § 44-5-60(b) , and thus are deemed unenforceable after a period of 20 years. Bickford v. Yancey Dev. Co., 276 Ga. 814 , 585 S.E.2d 78 (2003).

Application to covenants statute postdates. - There is no abridgment of constitutional rights when statute is applied to covenants it postdates. House v. James, 232 Ga. 443 , 207 S.E.2d 201 (1974) (see O.C.G.A. § 44-5-60 ).

Cited in Rowan v. Newbern, 32 Ga. App. 363 , 123 S.E. 148 (1924); Warlick v. Rome Loan & Fin. Co., 194 Ga. 419 , 22 S.E.2d 61 (1942); Delray, Inc. v. Reddick, 194 Ga. 676 , 22 S.E.2d 599 (1942); Davies v. Curry, 230 Ga. 190 , 196 S.E.2d 382 (1973); Home Mart Bldg. Ctrs., Inc. v. Wallace, 144 Ga. App. 19 , 240 S.E.2d 582 (1977); Antill v. Sigman, 240 Ga. 511 , 241 S.E.2d 254 (1978); Rolleston v. Sea Island Properties, Inc., 254 Ga. 183 , 327 S.E.2d 489 (1985); Moreland v. Henson, 256 Ga. 685 , 353 S.E.2d 181 (1987); Benton v. Gaudry, 230 Ga. App. 373 , 496 S.E.2d 507 (1998); Arbor Station Homeowners Servs. v. Dorman, 255 Ga. App. 866 , 567 S.E.2d 102 (2002); CPI Phipps, LLC v. 100 Park Ave. Partners, L.P., 288 Ga. App. 614 , 654 S.E.2d 690 (2007); Atlanta Development Authority v. Clark Atlanta University, Inc., 298 Ga. 575 , 784 S.E.2d 353 (2016); Dockery v. Haedong Indus. Co., 355 Ga. App. 436 , 844 S.E.2d 496 (2020).

Covenants Running with Land
1. Creation

Owner of land, selling or leasing the land, may insist upon such covenants as the owner pleases, touching the use and mode of enjoyment of the land; the owner has a right to define the injury personally, and the party contracting with the owner must abide by the definition. Smith v. Pindar Real Estate Co., 187 Ga. 229 , 200 S.E. 131 (1938).

Owner may impose restrictions on portion of land sold for benefit of land retained. - If the owner of realty sells a portion thereof, imposing on a vendee restrictions relating to the use of the estate conveyed, a restriction is imposed for the benefit of the land retained, and an implied inhibition is created as to the use of the portion of the land conveyed, thus creating a covenant running with the land. O'Neill v. Myers, 148 Ga. App. 749 , 252 S.E.2d 638 (1979).

Covenant must relate to and concern interest created to run with land. - To constitute a covenant running with the land, there must first be an interest or estate therein granted, the covenant must relate to the interest or estate granted, and the act to be done must concern the interest created or title conveyed. If the covenant is of a collateral nature to the land, and is incapable in law of attaching to the interest or estate granted, it is a personal obligation, and will not bind or pass to assignees, even if the assignees are expressly named. Johnson v. Myers, 226 Ga. 23 , 172 S.E.2d 421 (1970).

Covenants could be automatically renewed. - Purchaser of a 10-acre lot in a subdivision was bound by restrictive covenants governing the cutting of trees and dividing of lots in the subdivision because the covenants had never been abolished and provided for their automatic renewal; O.C.G.A. § 44-5-60 did not prohibit renewal and render the covenants unenforceable. Gilbert v. Canterbury Farms, LLC, 346 Ga. App. 804 , 815 S.E.2d 303 (2018).

2. Effect

Covenant binds subsequent owner with or without notice. - When there is a covenant running with the land, then the covenant binds any subsequent owner thereof with or without notice, for the reason that the subsequent owner takes no greater title than the predecessor had to convey. O'Neill v. Myers, 148 Ga. App. 749 , 252 S.E.2d 638 (1979).

On appeal from an order in a declaratory judgment action, the trial court did not err in finding, upon cross-motions for summary judgment, that restrictive covenants which had been made applicable to the subdivision over 20 years earlier remained in effect and prohibited a buyer from re-subdividing certain tracts into residential lots with less than five acres, but did err in ruling that interpretation of the covenants was a legal matter for the court, rather than a factual matter for the jury. Britt v. Albright, 282 Ga. App. 206 , 638 S.E.2d 372 (2006), cert. denied, 2007 Ga. LEXIS 199 (Ga. 2007).

Both restrictions in deeds, and restrictions on plat mentioned in deed, binding. - Plaintiffs were entitled to the benefit of the express building line restrictions in the deeds in the defendant's chain of title, as well as the restrictions indicated by a dotted line on the plat mentioned in the deeds, and the defendants were charged with notice and bound by such restrictions. Jones v. Lanier Dev. Co., 190 Ga. 887 , 11 S.E.2d 11 (1940).

Enforcement of general warranty by subsequent grantee. - When a general warranty given by grantor and the grantor's cotenant to grantee did not expressly prohibit its transmission to subsequent owners, the subsequent grantee could sue the grantor and the grantor's cotenant for the breach of their general warranty. Northside Title & Abstract Co. v. Simmons, 200 Ga. App. 892 , 409 S.E.2d 885 , cert. denied, 200 Ga. App. 896 , 409 S.E.2d 885 (1991).

3. Enlargement

Restrictions on the use of real property will not be enlarged or extended by construction, and any doubt will be construed in favor of the grantee; when it is sought to restrict one in the use of one's own private property for any lawful purpose, the ground for such interference must be clear and indubitable. England v. Atkinson, 196 Ga. 181 , 26 S.E.2d 431 (1943).

Covenant plainly expressed cannot be broadened for the purchaser by parol proof of such an intention on the part of the covenantor. Miller v. Desverges, 75 Ga. 407 (1885).

Expired covenants not subject to automatic renewal. - Restrictive covenant, established in 1977, expired in 1997, and was no longer enforceable against any property owner in the subdivision; O.C.G.A. § 44-5-60(d)(1), the covenant automatic renewal law, did not apply retroactively to extend the covenant. Bickford v. Yancey Dev. Co., 276 Ga. 814 , 585 S.E.2d 78 (2003).

Homeowners not bound by change to association covenants. - In a HOA's action against homeowners for violation of a garage storage covenant, in which it was determined that the owners were not bound by the covenant under O.C.G.A. § 44-5-60(d)(4) or O.C.G.A. § 44-2-226(a), and the HOA dismissed the HOA's remaining claim, the owners were the prevailing party entitled to attorney fees under the declaration; however, the trial court did not err in denying attorney fees under O.C.G.A. § 9-15-14(b) . Marino v. Clary Lakes Homeowners Ass'n, 331 Ga. App. 204 , 770 S.E.2d 289 (2015).

4. Procedure

Subsequent purchaser of property benefited by mutual covenant entitled to enforce restriction. - When property is adjoined by a vacant lot and benefits by a mutual covenant to keep the vacant lot unenclosed and unimproved, subsequent purchasers of the property, who purchase by warranty deed conveying the property "with all appurtenances thereto," have the right to enforce in equity the restriction against enclosing or improving the vacant lot. Godfrey v. Huson, 180 Ga. 483 , 179 S.E. 114 (1935).

Subsequent grantee may, under mutual warranty deed, recover taxes paid. - When A and B make mutual warranty deeds to each other to separate pieces of property after the lien for taxes for the year has become fixed, a subsequent grantee from either may, under the warranty so made, recover the amount of any taxes such purchaser may have been forced to pay. An agreement that each should pay the taxes on their respective tracts is but an agreement to do that which they are already bound to do. McRae v. Sewell, 47 Ga. App. 290 , 170 S.E. 315 (1933).

Purchaser's action for breach maintainable against any grantor, if privy in estate. - Purchaser may maintain an action for breach of warranty against any grantor of the premises who is the purchaser's privy in estate, and the action may be maintained as well when a paramount outstanding title prevents one from obtaining possession, as when an ouster results from the necessity of yielding possession in response to such a paramount title. Quitman Furn. & Hdwe. Co. v. Rountree, 14 Ga. App. 382 , 80 S.E. 904 (1914). See also Smith v. Williams, 117 Ga. 782 , 45 S.E. 394 , 97 Am. St. R. 220 (1903); Croom v. Allen, 145 Ga. 347 , 89 S.E. 199 (1916).

An unrestricted express warranty of title being a covenant running with the land, a purchaser may maintain an action thereon against any prior grantor making such a warranty, if one is a privy in estate. McEntyre v. Merritt, 49 Ga. App. 416 , 175 S.E. 661 (1934).

Last grantee may sue any or all warrantors. - In an action for damages on account of a deficiency in acreage brought against a defendant who, on the date the property was conveyed to the plaintiff, had conveyed the property by warranty deed to the person conveying to the plaintiff, the general warranty of title in the deed executed by the defendant was a covenant running with the land, the benefit of which accrued to the plaintiff, even though the legal title had been taken by the defendant merely as an accommodation to the plaintiff's grantor, since the evidence failed to show that there was any agreement or understanding between the plaintiff and the defendant that the plaintiff was to occupy the status of grantor by taking over the contract made between the plaintiff and the defendant. Long v. Sullivan, 52 Ga. App. 318 , 183 S.E. 71 (1935).

When there has been a breach of the warranty of title to land, the last grantee has a right of action against, and may sue the grantee's immediate warrantor, the remote or original warrantor, or any intermediate warrantor, or any or all of them in one action. Smith v. Smith, 129 Ga. App. 618 , 200 S.E.2d 504 (1973).

Right to recover cannot exist in intermediate warrantor and last warrantee at same time. - In bringing an action for breach of the warranty of title, the last grantee has the right to select whom the grantee will name as the defendants, in much the same manner as a plaintiff may select which of the joint tortfeasors the plaintiff will sue, but the right to recover for a breach of warranty cannot exist in an intermediate warrantor and the last warrantee at the same time. Smith v. Smith, 129 Ga. App. 618 , 200 S.E.2d 504 (1973).

Suit for breach maintainable against vendor's vendor. - Suit for breach of warranty of title to land may be maintained not only against the plaintiff's vendor, but also against the vendor of the latter. Reese v. Manget, 53 Ga. App. 637 , 186 S.E. 880 (1936).

Intermediate covenantor mending breach entitled to recover from prior grantors. - While the right of action passes out of an intermediate warrantor when the warrantor relinquishes title to the land, and into the assignee, nevertheless, if it should occur that the intermediate covenantor is placed under the legal necessity of paying the lien, or mending the breach, and the intermediate covenantor actually does so, the right to recover for the amount paid out is thereby restored to the intermediate covenantor, and to that extent alone the intermediate covenantor is remitted to the intermediary's rights under the intermediary's own warranties from prior grantors, and the intermediate covenantor in turn may recover from them the amounts so paid. Robertson v. Webster, 79 Ga. App. 30 , 52 S.E.2d 511 (1949).

Restrictions based upon extraneous agreement must be established by clear evidence beyond reasonable doubt. - As a general rule, the owner of land in fee has the right to use the land for any lawful purpose. When neither the owner's deed nor any deed in the owner's chain of title contains any restrictions, but restrictions as to the land's use and alienation are sought to be placed thereon, based upon an extraneous agreement by a predecessor in title and by notice to the owner, the restrictions must be established by evidence that is clear and beyond a reasonable doubt. England v. Atkinson, 196 Ga. 181 , 26 S.E.2d 431 (1943).

Parol evidence generally inadmissible to vary effect of unrestricted covenant. - In the absence of fraud or mistake, parol evidence is generally inadmissible to contradict or vary the effect of an unlimited and unrestricted covenant in a deed generally warranting the title to the conveyed land. Long v. Sullivan, 52 Ga. App. 318 , 183 S.E. 71 (1935).

Equity may interpose injunction if clear breach, regardless of damages. - To warrant relief by an injunction in the case of a covenant restricting erections upon the premises conveyed, it is not essential that the plaintiff should show any actual damage resulting from the breach of covenant of which plaintiff complains, and if a clear breach is shown, equity may interpose its preventive aid regardless of the question of damages, since the covenantee is entitled to the benefit of the covenant. Smith v. Pindar Real Estate Co., 187 Ga. 229 , 200 S.E. 131 (1938).

Equity will interfere by injunction to prevent the breach of an express, negative covenant, even though no substantial injury is caused by such a breach, and will also interfere even though the damages, if any, may be recoverable at law. Smith v. Pindar Real Estate Co., 187 Ga. 229 , 200 S.E. 131 (1938).

Expiration of covenants. - Covenants that were adopted in 1975 expired in June 1995 after 20 years pursuant to subsection (b) of O.C.G.A. § 44-5-60 , and were not automatically renewed under subsection (d) of § 44-5-60 . Canterbury Forest Ass'n v. Collins, 243 Ga. App. 425 , 532 S.E.2d 736 (2000).

In an agreement by a private water company to provide water to the homes built in a subdivision, because the agreement constituted a restrictive covenant limiting each lot owner's options for obtaining water necessary for the use and enjoyment of his or her property, the terms of the agreement ceased to be enforceable in 2011 as the agreement expired after 20 years when the homeowners failed to renew the covenant as required by a former provision of this statute. Double Branches Ass'n v. Jones, 331 Ga. App. 159 , 770 S.E.2d 252 (2015).

5. Illustrative Cases

Covenant to build a party wall between two adjacent lots runs with each lot. Reidsville & S.E.R.R. v. Baxter, 13 Ga. App. 357 , 79 S.E. 187 (1913); Horne v. Macon Tel. Publishing Co., 142 Ga. 489 , 83 S.E. 204 , 1916B Ann. Cas. 1212 (1914).

Evidence failed to show implied general restriction. - On the issue whether there was an implied restriction, limiting the lots of the defendants to residential purposes, and precluding their building of a theater, there was no error in directing the verdict in their favor since the evidence failed to show such an implied general restriction. Jones v. Lanier Dev. Co., 190 Ga. 887 , 11 S.E.2d 11 (1940).

For a discussion of covenants which will run with the land, see Goldberg v. Varner, 72 Ga. App. 673 , 34 S.E.2d 722 (1945).

Compliance with expired covenants. - When landowners, unaware that restrictive covenants had expired, relied on an agreement to extend the covenants and took no action to enact new covenants or otherwise protect their property interests, such forbearance, combined with their continued compliance with and enforcement of the covenants, bound defendant and other landowners personally to comply with the covenants. Canterbury Forest Ass'n v. Collins, 243 Ga. App. 425 , 532 S.E.2d 736 (2000).

Expiration of 20 year period by operation of law. - Provisions in an easement agreement constituted restrictive covenants because the provisions barred the owner from using any portion of the owners' approximately two-acre property, except for part on which the owners' current building was located, for anything other than a driveway, thoroughfare, or parking lot; those provisions had therefore expired by operation of law, 20 years after creation. Davista Holdings, LLC v. Capital Plaza, Inc., 321 Ga. App. 131 , 741 S.E.2d 266 (2013).

Homeowners association's amendment to declaration of protective covenants imposed new restrictions and thus was inapplicable to property owner. - Trial court did not err in granting an owner summary judgment on a home owners association's counterclaims seeking an order requiring the owner to evict tenants and to pay fines for violating its declaration of protective covenants because O.C.G.A. § 44-5-60(d)(4) rendered an amendment to the declaration inapplicable to the owner since it imposed a greater restriction on the owner's use of the land to which the owner did not consent; the amendment, which prohibited the leasing of residences, went beyond a mere restriction on occupancy because it prohibited a specific use of the property, residential leasing, to anyone chosen by the owner, which was specifically within the owner's ownership rights when the property was purchased. Charter Club on the River Home Owners Assoc. v. Walker, 301 Ga. App. 898 , 689 S.E.2d 344 (2009), cert. denied, No. S10C0808, 2010 Ga. LEXIS 526 (Ga. 2010).

Covenants Not Running with Land

Statute provides the only means for preventing the rights prescribed from running with the land. Tucker v. McArthur, 103 Ga. 409 , 30 S.E. 283 (1898) (see O.C.G.A. § 44-5-60 ).

If covenant is personal, the covenant binds only original parties and those who assume the covenant's obligation, and upon a conveyance of the land, or a transfer of the lease, as the case may be, the transferee takes free of the obligation of any personal covenant appearing in the deed or lease. Talcott, Inc. v. Roy D. Warren Com., Inc., 120 Ga. App. 544 , 171 S.E.2d 907 (1969).

Warranty does not run with an article of personal property sold. Smith v. Williams, 117 Ga. 782 , 45 S.E. 394 , 97 Am. St. R. 220 (1903).

Zoning
1. Constitutionality

Impairment of contracts. - Statute is not violative of the federal and Georgia Constitutions for the impairment of contracts. Rowland v. Kellos, 236 Ga. 799 , 225 S.E.2d 302 (1976) (see O.C.G.A. § 44-5-60 ).

Broad zoning powers given to counties and municipalities override the state and federal constitutional provisions against the passage of laws impairing the obligation of contracts. Payne v. Borkat, 244 Ga. 615 , 261 S.E.2d 393 (1979).

Application of this statute to restrictive covenants in deeds created before the underlying statute was passed, so as to render those covenants unenforceable 20 years after the statute took effect, does not unconstitutionally impair the parties' right to contract. Payne v. Borkat, 244 Ga. 615 , 261 S.E.2d 393 (1979) (see O.C.G.A. § 44-5-60 ).

2. Scope

Statute should apply to both building and use restrictions, illustrated by the fact that both restrictive covenants and zoning ordinances contain building and use restrictions. Payne v. Borkat, 244 Ga. 615 , 261 S.E.2d 393 (1979) (see O.C.G.A. § 44-5-60 ).

Necessity of determining whether particular covenant prohibits building or use. - It is necessary in a given case to determine whether a particular restrictive covenant merely prohibits the erection of a building other than a residence (building restriction), or whether the covenant also prohibits the use of that structure for a nonresidential purpose (use restriction). Payne v. Borkat, 244 Ga. 615 , 261 S.E.2d 393 (1979).

Municipalities required to provide reasonable and adequate substitute for covenants. - This statute, which provides that restrictive covenants are void after the passage of 20 years in municipalities where zoning ordinances are in effect, requires municipalities to provide a reasonable and adequate substitute for covenants to protect the property interests of residents. City of Smyrna v. Parks, 240 Ga. 699 , 242 S.E.2d 73 (1978) (see O.C.G.A. § 44-5-60 ).

3. Retrospective Operation

Section not given retrospective operation. - Statute does not purport to have effect retrospectively, and the settled rule for the construction of statutes is not to give them a retrospective operation, unless the language so imperatively requires. Smith v. Pindar Real Estate Co., 187 Ga. 229 , 200 S.E. 131 (1938) (see O.C.G.A. § 44-5-60 ).

Existing covenant not terminated. - Statute, properly construed, was not intended to operate retrospectively, and would not have the effect of terminating a covenant that was already in existence as a valid and binding contract between the parties. Dooley v. Savannah Bank & Trust Co., 199 Ga. 353 , 34 S.E.2d 522 (1945) (see O.C.G.A. § 44-5-60 ).

Automatic covenant renewals valid. - Trial court erred in finding subdivision covenants did not renew because, while the original term of the covenants was restricted by the later passage of local zoning laws and O.C.G.A. § 44-5-60 , the automatic renewal provision in subsection (d) did not apply to the covenants; furthermore, the covenant provision for automatic renewal for 15-year terms, unless two-thirds of the property owners agreed to terminate or modify the covenants, was not contrary to law or public policy. Turtle Cove Prop. Owners Ass'n v. Jasper County, 255 Ga. App. 560 , 566 S.E.2d 368 (2002).

4. Period of Enforcement

Section limits period of enforcing covenants to 20 years. - This statute does not declare restrictive covenants running for more than 20 years to be void, but limits the period in which the covenants can be enforced to 20 years. McKinnon v. Neugent, 225 Ga. 215 , 167 S.E.2d 593 (1969) (see O.C.G.A. § 44-5-60 ).

When zoning laws in effect for 20 years. - Restrictive covenants which have run more than 20 years within a municipality or county in which zoning laws have been in effect for more than 20 years are rendered unenforceable. House v. James, 232 Ga. 443 , 207 S.E.2d 201 (1974).

Existing covenants rendered unenforceable 20 years after 1962 amendment. - Restrictive covenants in existence prior to the 1962 amendment to this statute in those areas of counties for which zoning laws have been adopted are rendered unenforceable beginning 20 years after the enactment of the amendment. Rowland v. Kellos, 236 Ga. 799 , 225 S.E.2d 302 (1976) (see O.C.G.A. § 44-5-60 ).

OPINIONS OF THE ATTORNEY GENERAL

Constructive delivery of a warranty deed may be effected by delivery to an escrow agent within 120 days after the execution of the sales contract, provided all of the following elements are present: (1) the escrow agent must be the agent of both the seller and the buyer, not just that of the seller; (2) the seller must release all control over the warranty deed when the seller delivers the deed to the escrow agent; (3) the escrow agent must be instructed to deliver the warranty deed to the buyer on the happening of a specific future event involving monetary consideration; (4) the escrow agent must be able to enforce the covenants and warranties found in former Code 1933, § 29-301 (see O.C.G.A. § 44-5-60 ) on behalf of the buyer; and (5) the real estate transaction must be properly recorded to put the world on notice of the buyer's equitable interest in the realty. 1974 Op. Att'y Gen. No. U74-17.

RESEARCH REFERENCES

Am. Jur. 2d. - 20 Am. Jur. 2d, Covenants, Conditions, and Restrictions, § 28 et seq. 23 Am. Jur. 2d, Deeds, § 237.

C.J.S. - 21 C.J.S., Covenants, § 73 et seq.

ALR. - Unfounded outstanding claims to or against real property as breach of covenants of deed, 5 A.L.R. 1084 .

Outstanding title or claim in grantee as breach of covenants in deed, 10 A.L.R. 441 .

Validity and effect of condition of dedication that remaining property shall not be subject to assessments for improvements, 16 A.L.R. 499 ; 37 A.L.R. 1357 .

Record of deed or contract for conveyance of one parcel with covenant or easement affecting another parcel owned by grantor constructive notice to subsequent purchaser or encumbrancer of latter parcel, 16 A.L.R. 1013 .

Equitable or incipient easement as breach of covenant against encumbrances, 16 A.L.R. 1066 .

Reservation in grant of land of right to hunt and fish with like right to the grantee, as limiting the right of the grantee actual owners of the land, 32 A.L.R. 1533 .

Affirmative covenants as running with land, 41 A.L.R. 1363 ; 102 A.L.R. 781 ; 118 A.L.R. 982 ; 68 A.L.R.2d 1022.

Encumbrance undischarged and unenforced as affecting rights and damages under a covenant against encumbrances, 44 A.L.R. 410 .

Breach of covenant which does not run with the land as affecting right of remote grantee to recover under separate covenant that does, 45 A.L.R. 513 .

Acquiescence by purchaser of lot in restricted district in violations of restrictions as to some lots as waiver of right to insist upon it as to others, 46 A.L.R. 372 ; 85 A.L.R. 936 .

Reservation by grantor of the right to require payment for existing party wall when used, 52 A.L.R. 494 .

Garage, or filling station, as breach of restrictive covenants, 54 A.L.R. 659 ; 99 A.L.R. 541 .

Change of neighborhood in restricted district as affecting enforcement of restrictive covenant, 54 A.L.R. 812 ; 4 A.L.R.2d 1111.

Restrictions on use of real property, or remedies in respect of them, as affected by zoning law, 54 A.L.R. 843 .

Part of structure that must be beyond line to amount to violation of building-line restriction, 55 A.L.R. 332 ; 172 A.L.R. 1324 .

Nature of conveyance or covenants which will create estoppel to assert after-acquired title or interest in real property, 58 A.L.R. 345 ; 144 A.L.R. 554 .

Encroachment of building upon adjoining property or street as breach of covenant in deed of property on which building is located, 60 A.L.R. 234 .

Structure intended as an outbuilding, but temporarily used as a residence, as breach of restrictive covenant respecting character or cost of residence, 60 A.L.R. 253 .

Express covenant restricting property conveyed as raising a corresponding implied covenant as to property retained by the grantor, 60 A.L.R. 1216 ; 144 A.L.R. 916 .

Easement as breach of covenant against encumbrances, 64 A.L.R. 1479 .

Right of one not otherwise damaged by violation of restrictive covenant to relief in equity or at law upon theory restriction reduced price received for property affected, 66 A.L.R. 1324 .

Rights in ditch company as appurtenance of land irrigated, 70 A.L.R. 1008 .

Change of conditions subsequent to judgment enforcing restrictive covenant, 76 A.L.R. 1358 .

Covenants in oil and gas lease as running with the land, 79 A.L.R. 496 .

What is a "manufacturing" business or enterprise within covenant restricting the use of real property, 81 A.L.R. 1047 .

Use of premises for physical treatment or other personal service as violation of covenant against use of property for "business" purposes, 97 A.L.R. 624 .

Personal liability of covenantor for breach of restrictive covenant by grantee of property, 98 A.L.R. 779 .

Measure of damages for breach of covenant of title in conveyance or mortgage of real property, 100 A.L.R. 1194 .

Character as a conditional limitation or condition subsequent, or as a covenant, of provision or recital in deed a purpose for which land is to be used, as affected by fact that was voluntary or for a merely nominal consideration, 116 A.L.R. 76 .

Restrictions on use of real property imposed by deed or plat as affected by antecedent mortgage or other lien upon the property or release from or enforcement thereof, 119 A.L.R. 1117 .

Validity and effect of reservation in deed of the right to proceeds, or part of the proceeds, of a future sale or condemnation of the property or part thereof, 123 A.L.R. 1474 .

Construction and application of restrictive covenants relating specifically to schools, 124 A.L.R. 448 .

Lodging or boardinghouse conducted as a business, or taking roomers or boarders as incidental to principal use of premises a home, as within prohibition of zoning statute or ordinance or restrictive covenant, 124 A.L.R. 1011 .

"Tourist home" or tourist camp as violation of restrictive covenant as to use of real property, 127 A.L.R. 853 .

Use of cemetery grounds for purposes other than interment, 130 A.L.R. 130 .

Outstanding right of dower as breach of covenant of title or against encumbrances in deed or mortgage of real estate, 141 A.L.R. 482 .

Provisions of deed restricting type of buildings or other use of property, as covenant or condition, 142 A.L.R. 197 .

Building restrictions, by covenant or condition in deed or by zoning regulation, as applied to religious groups, 148 A.L.R. 367 .

Benefit of provision in deed which limits or qualifies grant or reservation of mineral rights, as passing to subsequent grant or encumbrancer of land, upon the theory that it is a covenant running with the land, or upon the ground that it creates an interest in the land and passes as such, 151 A.L.R. 818 .

Restrictive covenants as applicable to land itself apart from buildings, 155 A.L.R. 528 .

Covenant restricting "erection," "construction," etc., as including limitation on use structure, 155 A.L.R. 1007 .

Provision of building restriction which permits garage or other outbuilding as applicable to lot on which there is no other building, 162 A.L.R. 1098 .

What amounts to constructive eviction which will support action for breach of covenant of warranty or for quiet enjoyment, 172 A.L.R. 18 .

Computation of number or percentage of owners signing restrictive agreement affecting real property, 173 A.L.R. 316 .

Construction and application of covenant restricting use of property to "residence" or "residential purposes", 175 A.L.R. 1191 .

Change of neighborhood in restricted district as affecting restrictive covenant; decisions since 1927, 4 A.L.R.2d 1111.

Continued value of restrictive covenant to the dominant owner in protection of his property from competition as basis for its enforcement notwithstanding changes of neighborhood conditions, 2 A.L.R.2d 601.

Restrictive covenants, conditions, or agreements in respect of real property discriminating against persons on account of race, color, or religion, 3 A.L.R.2d 466.

Omission from deed of restrictive covenant imposed by general plan of subdivision, 4 A.L.R.2d 1364.

Oral agreement restricting use of real property as within statute of frauds, 5 A.L.R.2d 1316.

Use of property by college fraternity or sorority as violation of restrictive covenant, 7 A.L.R.2d 436.

Garage as part of house with which it is physically connected within zoning regulations or restrictive covenant, 7 A.L.R.2d 593.

Time when statute of limitation starts to run against breach of covenant running with land and requiring affirmative acts by covenantor, 17 A.L.R.2d 1251.

Covenant of lessee to insure as running with the land, 18 A.L.R.2d 1051.

Covenant in conveyance requiring erection of dwelling as prohibiting use of property for business or other nonresidential purpose, 32 A.L.R.2d 1207.

Use of premises for parking place as violation of restrictive covenant, 80 A.L.R.2d 1258.

Covenant in lease to arbitrate, or to submit to appraisal, as running with the leasehold so as to bind assignee, 81 A.L.R.2d 804.

Conveyance "subject to" restrictions set forth in a recorded or other indicated instrument as imposing the restrictions on the land conveyed, 84 A.L.R.2d 780.

Reservation or exception in deed in favor of stranger, 88 A.L.R.2d 1199.

Hospital, sanitarium, home for aged, nursing home, or the like, as violation of restrictive covenant, 94 A.L.R.2d 726.

When statute of limitations starts to run against action for breach of covenant of warranty or of seisin, 95 A.L.R.2d 913.

Validity, construction, and effect of contractual provision regarding future revocation or modification of covenant restricting use of real property, 4 A.L.R.3d 570.

Construction of covenant or condition in conveyance of land relating to "permanent" maintenance of location of building or other structure, 7 A.L.R.3d 650.

Right of owners of parcels into which dominant tenement is or will be divided to use right of way, 10 A.L.R.3d 960.

Validity of provisions for amortization of nonconforming uses, 22 A.L.R.3d 1134.

Covenant restricting use of land, made for purpose of guarding against competition, as running with land, 25 A.L.R.3d 897.

Zoning or other public restrictions on the use of property as affecting rights and remedies of parties to contract for the sale thereof, 39 A.L.R.3d 362.

Validity and construction of restrictive covenant requiring consent to construction on lot, 40 A.L.R.3d 864.

Meaning of terms "city," "town," or the like as employed in restrictive covenants not to compete, 45 A.L.R.3d 1339.

Who may enforce restrictive covenant or agreement as to use of real property, 51 A.L.R.3d 556.

Change of neighborhood as affecting restrictive covenants precluding use of land for multiple dwelling, 53 A.L.R.3d 492.

Erection of condominium as violation of restrictive covenant forbidding erection of apartment houses, 65 A.L.R.3d 1212.

What constitutes a "structure" within restrictive covenant, 75 A.L.R.3d 1095.

Use of property for multiple dwellings as violating restrictive covenant permitting property to be used for residential purposes only, 99 A.L.R.3d 985.

Restrictive covenants as to height of structures or buildings, 1 A.L.R.4th 1021.

Validity, construction, and effect of restrictive covenants as to trees and shrubbery, 13 A.L.R.4th 1346.

Validity of zoning and building regulations restricting mobile homes or trailers to established mobile home or trailer parks, 17 A.L.R.4th 106.

Validity and construction of restrictive covenant prohibiting or governing outside storage or parking of housetrailers, motor homes, campers, vans, and the like, in residential neighborhoods, 32 A.L.R.4th 651.

Zoning: occupation of less than all dwelling units as discontinuance or abandonment of multifamily dwelling nonconforming use, 40 A.L.R.4th 1012.

Restrictive covenant limiting land use to "private residence" or "private residential purposes": interpretation and application, 43 A.L.R.4th 71.

Validity of provisions for amortization of nonconforming uses, 8 A.L.R.5th 391.

Waiver of right to enforce restrictive covenant by failure to object to other violations, 25 A.L.R.5th 123.

Laches or delay in bringing suit as affecting right to enforce restrictive building covenant, 25 A.L.R.5th 233.

44-5-61. Implied warranty of title.

In a sale of land there is no implied warranty of title.

(Civil Code 1895, § 3613; Civil Code 1910, § 4193; Code 1933, § 29-302.)

History of section. - This Code section is derived from the decisions in McDonald v. Beall, 55 Ga. 289 (1875) and McDonough & Co. v. Martin, 88 Ga. 675 , 16 S.E. 59 (1892).

Law reviews. - For article surveying contracts - Caveat Emptor and Merger by Deed, see 34 Mercer L. Rev. 76 (1982). For note discussing application of caveat emptor to home sales in Georgia, and nationwide trend toward recognition of implied warranties of workmanlike construction and habitability, see 29 Mercer L. Rev. 323 (1977).

JUDICIAL DECISIONS

There is no presumption that grantor has made express warranty in a sale of land. McEntyre v. Merritt, 44 Ga. App. 583 , 162 S.E. 424 (1932).

Doctrine of caveat emptor applies for any sale of land and there is no implied warranty as to the property. Reynolds v. Wilson, 121 Ga. App. 153 , 173 S.E.2d 256 (1970), overruled on other grounds, Holmes v. Worthey, 159 Ga. App. 262 , 282 S.E.2d 919 (1981).

Caveat emptor does not apply to subcontractors. - Subcontractors who construct the dwelling bear the relationship of independent contractors; therefore, subcontractors are not seller-builders, and caveat emptor does not apply. Welding Prods. v. S.D. Mullins Co., 127 Ga. App. 474 , 193 S.E.2d 881 (1972).

Negligent party in real estate sale not protected if no confidential relations. - In the sale of real estate and when there are no confidential relations alleged, the law will not protect a party in the party's own negligence. Westbrook v. Beusse, 79 Ga. App. 654 , 54 S.E.2d 693 (1949).

Benefit of after-acquired title inures to grantee of bond for title interest. - Conveyance by which the grantor transfers "his bond for title interest" in the land described, together with all of the grantor's "right, title, and interest" therein, for the purpose of securing a debt owing by the grantor to the grantee, is one under which the benefit of an after-acquired independent title inures to the benefit of the grantee, and the grantor and those holding under the grantor are estopped thereafter to claim the after-acquired title as against the grantee when the debt so secured remains unpaid. This is true although the conveyance contains no express covenant of warranty. Perkins v. Rhodes, 192 Ga. 331 , 15 S.E.2d 426 (1941).

Quality or condition of new house. - Law implies no warranties as to quality or condition of existing new house in favor of purchaser by the seller-builder. P.B.R. Enters., Inc. v. Perren, 158 Ga. App. 24 , 279 S.E.2d 292 (1981).

Duty to disclose defects when seller has special knowledge not apparent to purchaser. - Cause of action for fraud resulting from passive concealment of a defect in realty places upon the seller a duty to disclose defects in realty in situations since the seller has special knowledge not apparent to the purchaser; the seller must be aware that purchaser is acting under a misapprehension as to facts which would be important and would probably affect the purchaser's decision. P.B.R. Enters., Inc. v. Perren, 158 Ga. App. 24 , 279 S.E.2d 292 (1981).

Cited in Crawford v. State, 117 Ga. 247 , 43 S.E. 762 (1903); McLendon Bros. v. Finch, 2 Ga. App. 421 , 58 S.E. 690 (1907); Toomey v. Read & Gresham, 133 Ga. 855 , 67 S.E. 100 (1910); Lang v. Hall, 25 Ga. App. 118 , 102 S.E. 877 (1920); Martin v. Hight, 30 Ga. App. 603 , 118 S.E. 595 (1923); Thomas v. Hudson, 190 Ga. 622 , 10 S.E.2d 396 (1940); Monroe v. Goldberg, 80 Ga. App. 770 , 57 S.E.2d 448 (1950); Holmes v. Worthey, 159 Ga. App. 262 , 282 S.E.2d 919 (1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 237.

Builder-Vendor's Liability to Purchaser of New Dwelling for Breach of Implied Warranty of Fitness or Habitability, 50 POF3d 543.

C.J.S. - 33 C.J.S., Exchange of Property, § 9 et seq.

ALR. - Duty of vendor as to abstract of title, 52 A.L.R. 1460 .

Marketable title, 57 A.L.R. 1253 ; 81 A.L.R.2d 1020.

Doctrine of caveat emptor as applied to purchaser at judicial or executor's sale, 68 A.L.R. 659 .

Condemnation, proceeding therefor, or prospect thereof, as affecting marketability of title, 21 A.L.R.2d 792.

Validity, construction, and effect of land sale contract providing that title must be satisfactory to purchaser, 47 A.L.R.2d 455.

44-5-62. General warranty - Scope.

A general warranty of title against the claims of all persons includes covenants of a right to sell, of quiet enjoyment, and of freedom from encumbrances.

(Orig. Code 1863, § 2662; Code 1868, § 2661; Code 1873, § 2703; Code 1882, § 2703; Civil Code 1895, § 3614; Civil Code 1910, § 4194; Code 1933, § 29-303.)

JUDICIAL DECISIONS

ANALYSIS

General Consideration

This statute modifies the common law, in that the statute embraces in the term general warranty, by implication, certain specific warranties which the common law required to be express. Cheatham v. Palmer, 176 Ga. 227 , 167 S.E. 522 (1933) (see O.C.G.A. § 44-5-62 ).

This statute abolishes the technical rule of the common law which limited the assignee to real covenants. Tucker v. McArthur, 103 Ga. 409 , 30 S.E. 283 (1898) (see O.C.G.A. § 44-5-62 ).

General warranty of title is only a covenant against valid claims of all persons. - Although the general warranty of title covenants the right of quiet enjoyment and of freedom from encumbrances, it is only a covenant against the valid claims of all persons. Pease & Elliman Realty Trust v. Gaines, 160 Ga. App. 125 , 286 S.E.2d 448 (1981).

Covenant runs with the land. - Unless the covenant expressly negatives such transmission, a covenant of warranty of title of quiet enjoyment, and of freedom from encumbrances, made by any grantor, passes with the land to subsequent purchasers. McRae v. Sewell, 47 Ga. App. 290 , 170 S.E. 315 (1933).

An unrestricted express warranty of title being a covenant running with the land, a purchaser may maintain an action thereon against any prior grantor making such a warranty, if one is a privy in estate. McEntyre v. Merritt, 49 Ga. App. 416 , 175 S.E. 661 (1934).

While the right of action passes out of an intermediate warrantor when the warrantor relinquishes title to the land, and into the assignee, nevertheless, if it should occur that the intermediate covenantor is placed under the legal necessity of praying the lien, or mending the breach, and the intermediate covenantor actually does so, the right to recover for the amount paid out is thereby restored to the intermediate covenantor, and to that extent alone the intermediate covenantor remitted to the intermediary's rights under the intermediary's own warranties from prior grantees, and may in turn recover from the prior grantees the amounts so paid. Robertson v. Webster, 79 Ga. App. 30 , 52 S.E.2d 511 (1949).

Covenant relates only to title at time of execution. - Covenant of general warranty relates only to the title, and, as a general rule, only to the title as the title existed at the time the covenant was executed. Lifsey v. Finn, 40 Ga. App. 735 , 151 S.E. 392 (1930); Rabun Mineral & Dev. Co. v. Heyward, 171 Ga. 322 , 155 S.E. 324 (1930).

Transfer of rights by deed. - Mode of transfer of the covenantee's rights in regard to covenants is by deed. Tucker v. McArthur, 103 Ga. 409 , 30 S.E. 283 (1898).

Warrantors who may be sued. - When there has been a breach of the warranty of title to land the last grantee has a right of action against and may sue one's immediate warrantor, the remote or original warrantor, or any intermediate warrantor, or any or all of them in one action. Smith v. Smith, 129 Ga. App. 618 , 200 S.E.2d 504 (1973).

Right of action not affected by previous conveyance by grantor. - In an action by the grantee against the grantor in a warranty deed conveying the fee simple title to described land, for a breach of such warranty, the grantee's right of action is not affected because of the grantee's prior knowledge that such grantor did not own the entire tract conveyed, or that the grantor had conveyed a part thereof to another. Currin v. Milhollin, 53 Ga. App. 270 , 185 S.E. 380 (1936).

Warranty of seizin. - In order to recover on a warranty of seizin, the loss of seizin (that is, eviction) has to be proved. Cheatham v. Palmer, 176 Ga. 227 , 167 S.E. 522 (1933).

Zoning matters. - Traditional scope of a general warranty of title does not extend to include zoning matters. Barnett v. Decatur, 261 Ga. 205 , 403 S.E.2d 46 (1991).

Mere outstanding title not breach of warranty. - To constitute a breach of the covenant of warranty, or for quiet employment, an eviction or equivalent disturbance by title paramount must occur, and the mere existence of an outstanding paramount title will not constitute a breach. Hitchcock v. Tollison, 213 Ga. App. 477 , 444 S.E.2d 844 (1994).

Builder liable to title insurer for breach of warranty. - Doctrine of equitable subrogation applied, a title insurer had standing to sue a builder, and the builder was liable to the insurer for breach of warranty of title as the builder conveyed property to an insured by a general warranty deed that the builder did not own, there was a defect in the title, the insurer settled a dispute over title to the lot, and the dispute was not a boundary line dispute but concerned the failure of title to vest in the insured. Wilkinson Homes, Inc. v. Stewart Title Guar. Co., 271 Ga. App. 577 , 610 S.E.2d 187 (2005).

Builder's president not liable to title insurer for breach. - Builder's president was not liable, individually, to a title insurer for a breach of warranty of title deed as the builder was the sole grantor of the property and the president never, individually, owned the property or warranted the title. Wilkinson Homes, Inc. v. Stewart Title Guar. Co., 271 Ga. App. 577 , 610 S.E.2d 187 (2005).

No breach of warranty of title. - Although the third amended complaint asserted a new claim against the former landowner for breach of warranty of title, because the claim failed to state the nature of the former landowner's breach, the record was void of any evidence of the existence of a paramount title to the plaintiffs' land, or an eviction or equivalent disturbance as a result of a paramount title, and the plaintiffs had lived continuously in their home since 2008, any claim for breach of warranty of title had to fail. Lafontaine v. Alexander, 343 Ga. App. 672 , 808 S.E.2d 50 (2017).

Cited in Miller v. Desverges, 75 Ga. 407 (1885); Thrower v. Baker, 144 Ga. 372 , 87 S.E. 301 (1915); Croom v. Allen, 145 Ga. 347 , 89 S.E. 199 (1916); Sawyer Coal & Ice Co. v. Kinnett-Odom Co., 192 Ga. 166 , 14 S.E.2d 879 (1941); Echols v. Thompson, 211 Ga. 299 , 85 S.E.2d 423 (1955); Wright v. Piedmont Eng'r & Constr. Corp., 106 Ga. App. 401 , 126 S.E.2d 865 (1962); Walter L. Tally, Inc. v. Council, 109 Ga. App. 100 , 135 S.E.2d 515 (1964); Northside Title & Abstract Co. v. Simmons, 200 Ga. App. 892 , 409 S.E.2d 885 (1991); Benton v. Gaudry, 230 Ga. App. 373 , 496 S.E.2d 507 (1998).

Right to Sell

Statute enlarges the common law general warranty so as to include the covenant of right to convey. Allen v. Taylor, 121 Ga. 841 , 49 S.E. 799 (1905); White & Corbitt v. Stewart & Co., 131 Ga. 460 , 62 S.E. 590 , 15 Ann. Cas. 1198 (1908) (see O.C.G.A. § 44-5-62 ).

Quiet Possession

Loss of possession must be shown. - On a covenant for quiet possession, loss of possession has to be shown. Cheatham v. Palmer, 176 Ga. 227 , 167 S.E. 522 (1933).

Covenant of quiet enjoyment applies only to claims arising from a landlord's title and does not encompass a non-title constructive eviction defense. Thus, Jaraysi v. Sebastian, 318 Ga. App. 469 (2012), Myung Sung Presbyterian Church Inc. v. North American Assn. of Slavic Churches & Ministries Inc., 291 Ga. App. 808 (2008), and similar cases are disapproved to the extent they can be interpreted to hold otherwise. George v. Hercules Real Estate Services, Inc., 339 Ga. App. 843 , 795 S.E.2d 81 (2016).

Freedom from Encumbrances

All encumbrances at time of conveyance. - General warranty includes all encumbrances existing at the time of the conveyance of the property to which the property conveyed is subject. Cheatham v. Palmer, 176 Ga. 227 , 167 S.E. 522 (1933).

Conditions precedent. - On a covenant against encumbrances, the only conditions precedent to a right of action are the outstanding of a valid encumbrance at the date of the covenant affecting the property conveyed, and its discharge by the covenantee. Cheatham v. Palmer, 176 Ga. 227 , 167 S.E. 522 (1933).

When an alleged breach of warranty is based upon the existence of an outstanding encumbrance which it is the duty of the grantor to discharge, it is not necessary to allege or prove that the grantee in the deed has been evicted, or has lost possession of the property, nor is it necessary that the grantor be vouched into court to defend the title. Cheatham v. Palmer, 176 Ga. 227 , 167 S.E. 522 (1933).

Knowledge. - Because the purchaser knew about a road and knew that the road was being used before the purchaser closed on the property, this knowledge defeated the purchaser's claim for breach of warranty of title. Richitt v. Southern Pine Plantations, Inc., 228 Ga. App. 333 , 491 S.E.2d 528 (1997).

Floodwater detention easement breached general warranty of title. - In an action arising from the sale of property, the trial court erred in granting summary judgment to the sellers, contrary to both O.C.G.A. §§ 44-5-62 and 44-5-63 , as a floodwater detention easement burdened the property by permitting the impoundment of water on it to prevent flooding or increased water runoff on other property located downstream, and, even though the lake was certainly open and obvious, the same could not necessarily be said of the easement; moreover, a factual issue remained as damages, and although the buyers' constructive notice of the easement by reason of its recordation within the chains of title would provide a compelling reason for exempting the easement from operation of the warranty deed, O.C.G.A. § 44-5-63 provided otherwise. McMurray v. Housworth, 282 Ga. App. 280 , 638 S.E.2d 421 (2006).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 237.

C.J.S. - 33 C.J.S., Exchange of Property, § 9 et seq.

ALR. - Unfounded outstanding claims to or against real property as breach of covenants of deed, 5 A.L.R. 1084 .

Equitable or incipient easement as breach of covenant against encumbrances, 16 A.L.R. 1066 .

Affirmative covenants as running with land, 41 A.L.R. 1363 ; 102 A.L.R. 781 ; 118 A.L.R. 982 .

Encumbrance undischarged and unenforced as affecting rights and damages under a covenant against encumbrances, 44 A.L.R. 410 .

Duty of purchaser of real property to disclose to the vendor facts or prospects affecting the value of the property, 56 A.L.R. 429 .

Encroachment of building upon adjoining property or street as breach of covenant in deed of property on which building is located, 60 A.L.R. 234 .

Easement as breach of covenant against encumbrances, 64 A.L.R. 1479 .

Unpaid public improvement as constituting breach of covenant or a defect in the vendor's title, 72 A.L.R. 302 .

Garage or filling station as breach of restrictive covenant, 99 A.L.R. 541 .

Measure of damages for breach of covenant of title in conveyance or mortgage of real property, 100 A.L.R. 1194 .

Grantor's continued possession of land after execution of deed as notice of his claim adverse to title conveyed, 105 A.L.R. 845 .

Outstanding right of dower as breach of covenant of title or against encumbrances in deed or mortgage of real estate, 141 A.L.R. 482 .

What amounts to constructive eviction which will support action for breach of covenant of warranty or for quiet enjoyment, 172 A.L.R. 18 .

Use of property by college fraternity or sorority as violation of restrictive covenant, 7 A.L.R.2d 436.

Condemnation, proceeding therefor, or prospect thereof, as affecting marketability of title, 21 A.L.R.2d 792.

Validity, construction, and effect of land sale contract providing that title must be satisfactory to purchaser, 47 A.L.R.2d 455.

Party walls and party-wall agreements as affecting marketability of title, 81 A.L.R.2d 1020.

When statute of limitations starts to run against action for breach of covenant of warranty or of seizin, 95 A.L.R.2d 913.

44-5-63. General warranty - Defects known to purchaser.

In a deed, a general warranty of title against the claims of all persons covers defects in the title even if they are known to the purchaser at the time he takes the deed.

(Civil Code 1895, § 3615; Civil Code 1910, § 4195; Code 1933, § 29-304.)

History of section. - This Code section is derived from the decision in Miller v. Desverges, 75 Ga. 407 (1886).

Law reviews. - For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981). For survey article on real property law, see 59 Mercer L. Rev. 371 (2007).

JUDICIAL DECISIONS

This statute modifies the common law, in that the statute embraces in the term general warranty, by implication, certain specific warranties which the common law required to be express. Cheatham v. Palmer, 176 Ga. 227 , 167 S.E. 522 (1933) (see O.C.G.A. § 44-5-63 ).

Purchaser has right to rely on vendor's warranty. - When the purchaser had knowledge of the defect in the vendor's title, or of the fact that the vendor had formerly sold a portion of the land to another, purchaser although having such knowledge has a right to rely on the vendor's warranty. Currin v. Milhollin, 53 Ga. App. 270 , 185 S.E. 380 (1936).

Defects in title include liens and encumbrances. Osburn v. Pritchard, 104 Ga. 145 , 30 S.E. 656 (1898).

Outstanding title included. - "Defects in title" include an outstanding paramount title. McCall v. Wilkes, 121 Ga. 722 , 49 S.E. 722 (1905); Cummings v. Fleming & Hines, 30 Ga. App. 601 , 118 S.E. 593 (1923).

Allegations as to an outstanding paramount title in a third person are sufficient to set forth a cause of action to recover damages by reason of the breach of a covenant of warranty of title. Lee v. Austin, 209 Ga. 715 , 75 S.E.2d 426 (1953).

Taxes assessed after contract of sale not included. - Taxes assessed after a contract of sale of land, which the purchaser has covenanted to pay, and which the purchaser permits to remain unpaid, thus causing a sale of the land under a tax execution, do not constitute a defect in the title caused by the vendor under the covenant, and such defect in title is attributable to the purchaser's own fault, for which the vendor is not liable under the vendor's warranty. Lifsey v. Finn, 40 Ga. App. 735 , 151 S.E. 392 (1930).

Parol evidence inadmissible to contradict warranty. - Parol evidence to show an intention contradictory to that expressed by the warranty is not admissible. McCall v. Wilkes, 121 Ga. 722 , 49 S.E. 722 (1905).

Floodwater detention easement breached general warranty of title. - In an action arising from the sale of property, the trial court erred in granting summary judgment to the sellers, contrary to both O.C.G.A. §§ 44-5-62 and 44-5-63 , as a floodwater detention easement burdened the property by permitting the impoundment of water on it to prevent flooding or increased water runoff on other property located downstream, and, even though the lake was certainly open and obvious, the same could not necessarily be said of the easement; moreover, a factual issue remained as damages, and although the buyers' constructive notice of the easement by reason of its recordation within the chains of title would provide a compelling reason for exempting the easement from operation of the warranty deed, O.C.G.A. § 44-5-63 provided otherwise. McMurray v. Housworth, 282 Ga. App. 280 , 638 S.E.2d 421 (2006).

Cited in Godwin v. Maxwell, 106 Ga. 194 , 32 S.E. 114 (1898); Foute v. Elder, 109 Ga. 713 , 35 S.E. 118 (1900); Lowery v. Yawn, 111 Ga. 61 , 36 S.E. 294 (1900); Allen v. Taylor, 121 Ga. 841 , 49 S.E. 799 (1905); Taylor v. Allen, 131 Ga. 416 , 62 S.E. 291 (1908); Thrower v. Baker, 144 Ga. 372 , 87 S.E. 301 (1915); Peters v. Miller, 154 Ga. 500 , 114 S.E. 640 (1922); Finn v. Lifsey, 169 Ga. 599 , 150 S.E. 908 (1929); Federal Land Bank v. Bank of Lenox, 192 Ga. 543 , 16 S.E.2d 9 (1941); Hood v. Connell, 204 Ga. 782 , 51 S.E.2d 853 (1949); Lunsford v. King, 132 Ga. App. 749 , 209 S.E.2d 27 (1974); Mansell v. Pappas, 156 Ga. App. 272 , 274 S.E.2d 588 (1980).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 237.

C.J.S. - 33 C.J.S., Exchange of Property, § 9 et seq.

ALR. - Remedy of grantee in possession under deed with covenants of title, independently of an action on those covenants, where the grantor's title is defective, 65 A.L.R. 1142 .

Unpaid public improvement as constituting breach of covenant or a defect in the vendor's title, 72 A.L.R. 302 .

Remedies of grantor who has conveyed with covenants against third person asserting title or interest hostile to covenants, 97 A.L.R. 711 .

Validity, construction, and effect of land sale contract providing that title must be satisfactory to purchaser, 47 A.L.R.2d 455.

44-5-64. Action for breach of warranty - Burden of proof.

In actions for breach of warranty of title, the burden of proof is on the plaintiff except in cases where outstanding encumbrances have been paid off or possession has been yielded as a consequence of legal proceedings of which the warrantor had notice and an opportunity to defend.

(Civil Code 1895, § 3617; Civil Code 1910, § 4197; Code 1933, § 29-306.)

History of section. - This Code section is derived from the decisions in Leary v. Durham, 4 Ga. 593 (1848), and Amos v. Cosby, 77 Ga. 793 (1885).

Cross references. - Form to be used in action for breach of warranty in deed, § 9-10-203 .

JUDICIAL DECISIONS

Plaintiff's burden. - Statement in this statute that the burden of proof is on the plaintiff, except in the two instances mentioned, plainly indicates that they are not the only cases in which suit may be brought for a breach of warranty. When the warrantor has not been vouched or notified, so as to have an opportunity to defend, the bringing of suit by the holder of the outstanding title against the warrantee and obtaining judgment thereon would be of little advantage to the warrantor. In cases other than those specified, the plaintiff would carry the burden of showing that the adverse title was paramount, and that the plaintiff's eviction, or what was equivalent to eviction under it, was legal. Joyner v. Smith, 132 Ga. 779 , 65 S.E. 68 (1909) (see O.C.G.A. § 44-5-64 ).

In a suit for a breach of warranty, the burden is on the plaintiff to show eviction under an outstanding paramount title, or a superior lien upon the land. Roberts v. Hill, 78 Ga. App. 264 , 50 S.E.2d 706 (1948).

Yielding possession as consequence of legal proceedings. - Yielding possession of land by a vendee, as a result of a suit for trespass to the land and an injunction brought against the vendee by another which is predicated on a title paramount to the title under which the vendee claims, and the title was adjudicated in that plaintiff, constitutes such yielding of possession in consequence of legal proceedings, and when the warrantor had notice and an opportunity to defend, as affords the vendee a right of action against the vendee's warrantor for a breach of the warranty of title. Reese v. Manget, 53 Ga. App. 637 , 186 S.E. 880 (1936).

Showing of competing claim of title. - Trial court erred in granting summary judgment to the buyer in the buyer's suit against the sellers for breach of warranty of title to real property as the evidence, a letter to the buyer after the sale, showed only a competing claim of title to the property and not that the buyer was compelled to yield to an outstanding paramount title to the property. Whited v. Issenberg, 261 Ga. App. 787 , 584 S.E.2d 59 (2003).

Cited in Haines v. Fort, 93 Ga. 24 , 18 S.E. 994 (1893); McMullen v. Butler & Co., 117 Ga. 845 , 45 S.E. 258 (1903); Brooks v. Winkles, 139 Ga. 732 , 78 S.E. 129 (1913); Turner v. Tidwell, 141 Ga. 123 , 80 S.E. 901 (1913); Rowan v. Newbern, 32 Ga. App. 363 , 123 S.E. 148 (1924); Lee v. Austin, 209 Ga. 715 , 75 S.E.2d 426 (1953).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 237.

ALR. - Affirmative covenants as running with land, 41 A.L.R. 1363 ; 102 A.L.R. 781 ; 118 A.L.R. 982 .

What amounts to constructive eviction which will support action for breach of covenant of warranty or for quiet enjoyment, 172 A.L.R. 18 .

44-5-65. Action for breach of warranty - Necessity for offer to rescind; mitigation of damages.

To recover upon a breach of a covenant of warranty of title, the warrantee need not offer to rescind the deed. However, an offer by the warrantor to rescind the deed and a refusal by the warrantee should be considered in estimating damages.

(Orig. Code 1863, § 2666; Code 1868, § 2662; Code 1873, § 2704; Code 1882, § 3616; Civil Code 1895, § 3616; Civil Code 1910, § 4196; Code 1933, § 29-305.)

JUDICIAL DECISIONS

Cited in Mansell v. Pappas, 156 Ga. App. 272 , 274 S.E.2d 588 (1980).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 237.

44-5-66. Action for breach of warranty - Measure of damages.

Upon a breach of a covenant of warranty of title to land, the damages awarded should be the purchase money with interest thereon from the time of sale unless the jury determines, under the circumstances of the case, that the use of the premises was equal to the interest on the money and determines that an equitable setoff should be allowed. However, if valuable improvements have been made on the premises, the interest should be allowed.

(Orig. Code 1863, § 2889; Code 1868, § 2897; Code 1873, § 2948; Code 1882, § 2948; Civil Code 1895, § 3804; Civil Code 1910, § 4400; Code 1933, § 20-1412.)

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979).

JUDICIAL DECISIONS

Damages assessed at time of breach. - Covenant of warranty, if breached at all, is at least technically breached when the covenant is entered into and the damages are therefore to be assessed in accordance with the conditions as the conditions existed at that time. Teems v. City of Forest Park, 137 Ga. App. 733 , 225 S.E.2d 87 (1976).

General measure of damages on warranties of title to land is the same as on warranties of title to chattels in basing the recovery on the original consideration with interest, except that the jury is permitted to allow an equitable setoff of the value of the use of the premises against the interest on the purchase price, if they think, under all the circumstances, that the value of the use equals the interest. Cook v. Pollard, 50 Ga. App. 752 , 179 S.E. 264 (1935).

When the purchaser lost all title the purchaser received from the intermediate and immediate grantors (the warrantors), and purchased the outstanding title from the true owner, the measure of damages would be the purchase price paid to the warrantors sued with interest, and not the amount paid for the outstanding title by the purchaser, as in cases of the removal of an encumbrance. West v. Lee, 57 Ga. App. 873 , 197 S.E. 75 (1938).

On a breach of warranty of title to land, the measure of damages is the purchase money, with interest. Teems v. City of Forest Park, 137 Ga. App. 733 , 225 S.E.2d 87 (1976).

Grantor liable only to immediate grantee for expenses of defense of title. - Grantor of land is liable to the grantor's immediate grantee, who has been evicted, for the purchase money, with interest, and expenses incurred by the grantee in defending the title; but not for expenses incurred in a series of suits for breach of warranty by remote grantees, holding under, but not immediately from, the original grantee. Smith v. Williams, 117 Ga. 782 , 45 S.E. 394 , 97 Am. St. R. 220 (1903).

Limitation on amount recoverable from remote warrantor. - After a warrantee sued a remote warrantor, the warrantee could not recover more than the consideration the warrantee had paid, with interest. Smith v. Smith, 243 Ga. 56 , 252 S.E.2d 484 (1979).

Attorney fees are not allowed in a suit to recover damages if there is no allegation of deceit or fraud in the sale. Smith v. Williams, 117 Ga. 782 , 45 S.E. 394 , 97 Am. St. R. 220 (1903).

There is no authorization for an award of attorney fees under O.C.G.A. § 44-5-66 . Cary v. Guiragossian, 270 Ga. 192 , 508 S.E.2d 403 (1998).

Trial court did not err when the court granted summary judgment to a title insurer as to liability on the insurer's breach of warranty of title claim against a builder, but denied summary judgment as to attorney fees and litigation expenses, as neither O.C.G.A. § 44-5-66 nor the warranty deed authorized attorney fees; since the insurer did not allege fraud or deceit, in order to prevail on the insurer's bad faith claim for attorney fees under O.C.G.A. § 13-6-11 , the insurer had to prove that the builder acted in bad faith when it sold the property to the insureds. Wilkinson Homes, Inc. v. Stewart Title Guar. Co., 271 Ga. App. 577 , 610 S.E.2d 187 (2005).

Partial failure of title. - When a partial failure of title occurs, damages are fixed by a pro rata valuation. Rowan v. Newbern, 32 Ga. App. 363 , 123 S.E. 148 (1924).

Who has right to recover. - Right to recover for a breach of warranty cannot exist in an intermediate warrantor and the last warrantee at the same time. Smith v. Smith, 129 Ga. App. 618 , 200 S.E.2d 504 (1973).

Statute does not apply to an ousted donee of realty. Smith v. Smith, 243 Ga. 56 , 252 S.E.2d 484 (1979) (see O.C.G.A. § 44-5-66 ).

This statute was not intended to, and does not, cover situations where the property is received as a gift by deed or otherwise. The donee of realty takes with such gift the warranty which the donee's donor had and stands in the shoes of the donee's donor as to such warranty. To hold otherwise would give no recourse to an ousted donee against a remote grantor simply because the donee received the property as a gift by deed or devise without a monetary consideration. Smith v. Smith, 243 Ga. 56 , 252 S.E.2d 484 (1979) (see O.C.G.A. § 44-5-66 ).

Value if deed is of gift with covenants of warranty. - If the deed is one of gift, but the deed contains covenants of warranty, the value of the land at the time of the gift, with interest thereon, is the criterion of damages for breach of the warranty. Smith v. Smith, 243 Ga. 56 , 252 S.E.2d 484 (1979).

Cited in Lowery v. Yawn, 111 Ga. 61 , 36 S.E. 294 (1900); Whitlock v. Mozley & Co., 142 Ga. 305 , 82 S.E. 886 (1914); Neal v. Medlin, 36 Ga. App. 796 , 138 S.E. 254 (1927); Jackson v. Franklin, 179 Ga. 840 , 177 S.E. 731 (1934); Chance v. Buxton, 163 F.2d 989 (5th Cir. 1947); Lee v. Austin, 209 Ga. 715 , 75 S.E.2d 426 (1953); Echols v. Thompson, 211 Ga. 299 , 85 S.E.2d 423 (1955); Claxton v. Claxton, 214 Ga. 715 , 107 S.E.2d 320 (1959); Smith v. Smith, 129 Ga. App. 618 , 200 S.E.2d 504 (1973); Sachs v. Swartz, 233 Ga. 99 , 209 S.E.2d 642 (1974); Moss v. Twiggs, 260 Ga. 561 , 397 S.E.2d 707 (1990).

RESEARCH REFERENCES

Am. Jur. 2d. - 20 Am. Jur. 2d, Covenants, Conditions, and Restrictions, §§ 52, 65 et seq., 134 et seq.

C.J.S. - 17A C.J.S., Contracts, §§ 561, 562, 600 et seq, 610 et seq., 652, 665.

ALR. - Reduction of claim under contract as affecting right to interest, 89 A.L.R. 678 .

Compensation as alternative relief upon denial of rescission to purchaser of land, 175 A.L.R. 686 .

Right to recover, in action for breach of contract, expenditures incurred in preparation for performance, 17 A.L.R.2d 1300.

Vendor and purchaser: marketability of title as affected by lien dischargeable only out of funds to be received from purchaser at closing, 53 A.L.R.3d 678.

Effect of doubtful construction of will devising property upon marketability of title, 65 A.L.R.3d 450.

Measure and element of damages recoverable from vendor where there has been a mistake as to amount of land conveyed, 94 A.L.R.3d 1091.

44-5-67. Breach of bond for title to land; measure of damages.

Upon the breach of a bond for title to land, the value of the premises at the time of the breach with interest thereon should be the measure of damages. However, if the vendee has bought up the outstanding title, only the actual damage sustained by him may be recovered.

(Orig. Code 1863, § 2890; Code 1868, § 2898; Code 1873, § 2949; Code 1882, § 2949; Civil Code 1895, § 3805; Civil Code 1910, § 4401; Code 1933, § 20-1413.)

Law reviews. - For comment, "Georgia Installment Sale Contracts - A Time for Reform," see 39 Mercer L. Rev. 651 (1988).

JUDICIAL DECISIONS

Statute does not apply unless all the land is lost. McConnell v. White, 91 Ga. App. 92 , 85 S.E.2d 75 (1954) (see O.C.G.A. § 44-5-67 ).

Right of assignee on a bond are those held by the assignor. Peterson v. Harper, 13 Ga. App. 112 , 78 S.E. 942 (1913).

Vendee's option of treating vendor's resale as rescission or breach of bond. - Vendee has the option of treating a resale of property to a third person, before the vendor has fully rescinded the contract because of a default in payment by the vendee, either as a rescission of the sale or as a breach of the bond. Buck v. Duvall, 9 Ga. App. 656 , 72 S.E. 44 (1911).

Measure of damages. - Jury shall ascertain the value of the land at the time of the breach, and add interest thereon, and return the total amount in solido. Gibson v. Carreker, 82 Ga. 46 , 9 S.E. 124 (1889).

Setoff of the actual cost of purchasing a title is permitted in an action by the warrantor on a note. Hull v. Harris, 64 Ga. 309 (1879).

Bond for title is evidence, in a suit for breach of warranty in the deed, to show that the defendants were bound to make plaintiff a good warranty title. Clark v. Whitehead, 47 Ga. 516 (1873).

Cited in McLaren v. Irvin, 63 Ga. 275 (1879); Hull v. Harris, 64 Ga. 309 (1879).

RESEARCH REFERENCES

C.J.S. - 21 C.J.S., Covenants, § 80 et seq.

ALR. - Reduction of claim under contract as affecting right to interest, 89 A.L.R. 678 .

Measure and amount of damages recoverable under supersedeas bond in action involving recovery or possession of real estate, 9 A.L.R.3d 330.

Vendor and purchaser: marketability of title as affected by lien dischargeable only out of funds to be received from purchaser at closing, 53 A.L.R.3d 678.

Measure and element of damages recoverable from vendor where there has been a mistake as to amount of land conveyed, 94 A.L.R.3d 1091.

ARTICLE 4 GIFTS GENERALLY

Law reviews. - For article, "The Renewed Significance of Title in Dividing Marital Assets," see 16 (No. 6) Ga. St. B.J. 24 (2011).

RESEARCH REFERENCES

Proof of Decedent's Intent That Inter Vivos Gift to Heir Constitutes Advancement, 83 POF3d 295.

ALR. - Validity and construction of statutes discountenancing donations, testamentary or otherwise, between persons living in concubinage or otherwise sustaining immoral relations, 62 A.L.R. 286 .

Gift or grant in terms sufficient to carry the whole property absolutely as so operating where followed by a purported limitation over of property not disposed of by the first taker, 17 A.L.R.2d 7.

Validity and effect of provision in will or trust instrument, conditioning gift on beneficiary's assumption or retention of family name, 38 A.L.R.2d 1343.

Validity and effect of provision or condition against alienation in gift for charitable trust or to charitable corporation, 100 A.L.R.2d 1208.

Issuance of stock certificate to joint tenants as creating gift inter vivos, 5 A.L.R.4th 373.

PART 1 I NTER VIVOS GIFTS

Law reviews. - For article, "The Renewed Significance of Title in Dividing Marital Assets," see 16 (No. 6) Ga. St. B.J. 24 (2011).

RESEARCH REFERENCES

ALR. - Gift of debts of third person not evidenced by commercial instrument, 3 A.L.R. 933 ; 14 A.L.R. 707 .

Revocability of gift by one engaged person to the other on ground of undue influence, 33 A.L.R. 590 .

Gift of savings deposit by delivery of passbook, 40 A.L.R. 1249 ; 84 A.L.R. 558 .

Gift of interest in estate after decedent's death, 48 A.L.R. 223 .

When may gift by will or deed of trust be considered as one to a class, 75 A.L.R. 773 ; 61 A.L.R.2d 212.

Declarations or admissions by decedent while in possession of personal property that it belonged to another as sufficient evidence of latter's title in absence of sufficient evidence of gift or other transfer by decedent, 98 A.L.R. 755 .

Gift or trust by deposit of funds belonging to depositor in bank account in name of himself and another, 135 A.L.R. 993 ; 149 A.L.R. 879 .

Improvidence of donor as affecting validity of gift, 160 A.L.R. 1133 .

Nontransferable obligation as subject of gift by delivery, 161 A.L.R. 170 .

Rights of party to void marriage in respect of transfers or gifts to other in mistaken belief marriage was valid, 14 A.L.R.2d 918.

Who are within gift or grant to "offspring,", 23 A.L.R.2d 842.

Gift or grant to one upon marriage, if married, payable at marriage, or the like, as vested or contingent, 30 A.L.R.2d 127.

Gift of life insurance policy, 33 A.L.R.2d 273.

Donor's own check as subject of gift, 38 A.L.R.2d 594.

Rights and incidents where title to real property purchased with wife's funds is taken in spouses' joint names, 43 A.L.R.2d 917.

Gift of debt to debtor, 63 A.L.R.2d 259.

Person entitled to inter vivos grant or gift to "husband," "wife," or "widow,", 71 A.L.R.2d 1273.

Gift over by implication after estate during life or until marriage, where property is expressly given over at death and first taker marries, or vice versa, 73 A.L.R.2d 484.

Right of life tenant with power to anticipate or consume principal to dispose of it by inter vivos gift, 83 A.L.R.3d 135.

Establishment of "family" relationship to raise presumption that services were rendered gratuitously, as between persons living in same household but not related by blood or affinity, 92 A.L.R.3d 726.

Wills: gift to persons individually named but also described in terms of relationship to testator or another as class gift, 13 A.L.R.4th 978.

Rights in respect of engagement and courtship presents when marriage does not ensue, 44 A.L.R.5th 1.

44-5-80. Criteria for making valid inter vivos gift.

To constitute a valid inter vivos gift, the following criteria must be met:

  1. The donor must intend to give the gift;
  2. The donee must accept the gift; and
  3. The gift must be delivered or some act which under law is accepted as a substitute for delivery must be done.

    (Orig. Code 1863, § 2614; Code 1868, § 2615; Code 1873, § 2657; Code 1882, § 2657; Civil Code 1895, § 3564; Civil Code 1910, § 4144; Code 1933, § 48-101.)

Law reviews. - For article, "Multiple Party Accounts: Georgia Law Compared with the Uniform Probate Code," see 8 Ga. L. Rev. 739 (1974). For article, "Are We Witnessing the Erosion of Georgia's Separate Property Distinction?," see 13 Ga. St. B.J. 14 (2007). For article, "The Renewed Significance of Title in Dividing Marital Assets," see 16 (No. 6) Ga. St. B.J. 24 (2011). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012). For note discussing the treatment of joint bank accounts in Georgia, with regard to survivorship and testamentary effect, prior to the enactment of the Financial Institutions Code of Georgia, see 7 Ga. St. B.J. 370 (1971). For comment on Felder v. Felder, 71 Ga. App. 860 , 32 S.E.2d 550 (1944), see 7 Ga. B.J. 478 (1945).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Statute is merely a codification of the common law on the subject of gifts. Felder v. Felder, 71 Ga. App. 860 , 32 S.E.2d 550 (1944) (see O.C.G.A. § 44-5-80 ).

Requirements for validity of gift. - To make a valid gift there need be only a present intention to give and a complete renunciation of right by the giver over the thing given, and full delivery of possession as a gift. Mims v. Ross, 42 Ga. 121 (1871); Culpepper v. Culpepper, 18 Ga. App. 182 , 89 S.E. 161 (1916); Helmer v. Helmer, 159 Ga. 376 , 125 S.E. 849 , 37 A.L.R. 1137 (1924); Clark v. Bridges, 163 Ga. 542 , 136 S.E. 444 (1927).

Manifestation of an intention to make a present gift to another, and, in consummation of this intention, delivery of the property to or for the use of the intended donee, or some act indicating a renunciation of dominion in favor of the intended donee, are essentials of a gift, whether inter vivos or causa mortis. Moore v. Tiller, 61 F.2d 478 (5th Cir. 1932).

To make a valid gift there must be a present intention to give, and a complete renunciation of right, by the giver, over the thing given, without power of revocation, and a full delivery of possession as a gift inter vivos. Drake v. Wayne, 52 Ga. App. 654 , 184 S.E. 339 (1936); Bowen v. Holland, 182 Ga. 430 , 185 S.E. 720 (1936); McLendon v. Johnson, 69 Ga. App. 214 , 25 S.E.2d 53 (1943); Upchurch v. Upchurch, 76 Ga. App. 215 , 45 S.E.2d 855 (1947); Guest v. Stone, 206 Ga. 239 , 56 S.E.2d 247 (1949); Stewart v. Stewart, 228 Ga. 517 , 186 S.E.2d 746 (1972); Scott v. Stroud, 186 Ga. App. 869 , 369 S.E.2d 51 (1988); NeSmith v. Ellerbee, 203 Ga. App. 65 , 416 S.E.2d 364 (1992).

It is generally settled that there must be a present intention to give, full completion and execution of the gift by the donor, and acceptance of the gift by the donee, and furthermore that the donor must have renounced all dominion over the subject-matter of the gift in order to make the transaction binding. Mashburn v. Wright, 204 Ga. App. 718 , 420 S.E.2d 379 (1992).

In a divorce, a husband's claim that a sum the husband received from the father's corporation was a gift, he did not satisfy the burden of proving this assertion because: (1) while the father testified it was a gift, both the father and the corporation's accountant admitted it was paid to the husband as compensation; (2) the corporation prepared a tax form identifying the payment as compensation; (3) the father signed the appropriate tax return taking the payment as a tax deduction for monies paid to the husband; (4) no gift tax was paid on the payment, nor was a gift tax form reflecting the payment prepared or filed; and (5) the husband accepted the payment as compensation and so listed it on the husband's tax returns. Brock v. Brock, 279 Ga. 119 , 610 S.E.2d 29 (2005).

Possession remaining with donor. - When it appears that the donor has relinquished all dominion and control over property as owner and parted absolutely with title, the mere fact that the donee allows possession to remain with the donor will not necessarily defeat the gift. Mashburn v. Wright, 204 Ga. App. 718 , 420 S.E.2d 379 (1992).

Unconditional delivery evidenced. - Jury was authorized to believe plaintiff's testimony that the certificate of deposit was in decedent's home only because plaintiff left the certificate with decedent for safekeeping. The jury concluded from this and other evidence that the decedent had unconditionally surrendered dominion over the certificate of deposit during the decedent's life. Mashburn v. Wright, 204 Ga. App. 718 , 420 S.E.2d 379 (1992).

Gift operates immediately. - Gift inter vivos operates, if at all, in the donor's lifetime, immediately and irrevocably. It is a gift executed, and no further act of parties, no contingency of death or otherwise, is needed to give the gift effect. Drake v. Wayne, 52 Ga. App. 654 , 184 S.E. 339 (1936); Guest v. Stone, 206 Ga. 239 , 56 S.E.2d 247 (1949).

Delivery of property subject to be reclaimed by the donor at any time prior to the donor's death, or if full control or power over the property or fund vests in the donee only after the death of the donor, this does not constitute a valid gift inter vivos. Drake v. Wayne, 52 Ga. App. 654 , 184 S.E. 339 (1936); Guest v. Stone, 206 Ga. 239 , 56 S.E.2d 247 (1949); NeSmith v. Ellerbee, 203 Ga. App. 65 , 416 S.E.2d 364 (1992).

Burden of proof. - Burden is on the person claiming a gift to prove all the essential elements of a gift by clear and convincing evidence. Upchurch v. Upchurch, 76 Ga. App. 215 , 45 S.E.2d 855 (1947); Hise v. Morgan, 91 Ga. App. 555 , 86 S.E.2d 374 (1955); McGrew v. Cooper, 110 Ga. App. 347 , 138 S.E.2d 453 (1964); Parker v. Peavey, 198 Ga. App. 694 , 403 S.E.2d 213 (1991).

Burden is upon person alleging title by reason of gift to prove all essential elements of gift (intention of the donor, acceptance, and delivery) by clear and convincing evidence. Freeman v. Freeman, 162 Ga. App. 433 , 291 S.E.2d 770 (1982); Smith v. Fleming, 183 Ga. App. 342 , 358 S.E.2d 900 (1987).

Party seeking to prove title by gift must do so by clear and convincing evidence. Mashburn v. Wright, 204 Ga. App. 718 , 420 S.E.2d 379 (1992).

Presumption of gift not rebutted. - Check from parents, who formed a limited partnership, given to their child for a large sum was properly determined to have been a gift from the parents pursuant to O.C.G.A. §§ 44-5-80 and 44-5-84 , rather than a loan; the presumption under O.C.G.A. § 44-5-84 , together with other supportive circumstantial evidence, including that there was no contract or lending and no repayment had been required, provided support for that factual finding. Baker v. Baker, 280 Ga. 299 , 627 S.E.2d 26 (2006).

Presumption of undue influence applies to gifts. - When a relationship of dominance of one party exists, as is ordinarily the case when there is a fiduciary or confidential relation between the parties, the courts of equity hold that it raises a presumption of undue influence and throws upon the dominant party the burden of establishing the fairness of the transaction and that it was the free act of the other party. This principle has been generally applied to cases of settlements of property, especially gifts. Spikes v. Spikes, 89 Ga. App. 139 , 79 S.E.2d 21 (1953).

Assignment of insurance policy as gift. - When a brother then single took out insurance and made his sister the beneficiary and gave her the policy, but later married and desired to make his wife beneficiary, the gift to the sister was not perfected so as to be absolute and irrevocable and the insured had the right to change the beneficiary. Nally v. Nally, 74 Ga. 669 , 58 Am. R. 458 (1885).

Verbal assignment of a policy of life insurance by the insured, accompanied by words indicating an intention to give, and by a delivery of the policy, does not constitute a complete gift. Steele v. Gatlin, 115 Ga. 929 , 42 S.E. 253 , 59 L.R.A. 129 (1902).

Donor taking title in trust as gift. - When a parent purchases lands with the parent's own funds, and causes title to be made by the vendor to the parent as trustee for a minor daughter, this, in the absence of any valuable consideration as between these two, is equivalent to a gift of the land by the parent to the daughter. Cohen v. Parish, 105 Ga. 339 , 31 S.E. 205 (1898).

Parol gift of land. - Parol gift of land without more is ineffectual to pass title to the donee. Thaggard v. Crawford, 112 Ga. 326 , 37 S.E. 367 (1900).

To constitute a valid parol gift of land, it is necessary that the donee take possession under the gift, and that the donee make valuable improvements thereon upon the faith of the donor's promise, or declared intention, to make the gift. Frady v. Irvin, 245 Ga. 307 , 264 S.E.2d 866 (1980); Whitmire v. Watkins, 245 Ga. 713 , 267 S.E.2d 6 (1980).

Failure to allege improvements invalidates gift of land. - When a petition alleging that the plaintiff claimed title to certain lands under a parol gift from the plaintiff's father, construed most strongly against the petitioner, failed to allege that certain valuable improvements made by the plaintiff were made in pursuance of the terms of the gift during the lifetime of the alleged donor, it consequently failed to allege a completed gift. Kerr v. Kerr, 183 Ga. 573 , 189 S.E. 20 (1936).

Cited in Porter v. Allen, 54 Ga. 623 (1875); Jones v. Robinson, 172 Ga. 746 , 158 S.E. 752 (1931); Aultman v. Gibson, 172 Ga. 877 , 159 S.E. 285 (1931); Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807 , 7 S.E.2d 737 (1940); Knight v. Wingate, 205 Ga. 133 , 52 S.E.2d 604 (1949); Jackson v. Jackson, 206 Ga. 470 , 57 S.E.2d 602 (1950); Berry v. Berry, 208 Ga. 285 , 66 S.E.2d 336 (1951); State v. Hiers, 210 Ga. 348 , 80 S.E.2d 308 (1954); Swann v. Morris, 212 Ga. 460 , 93 S.E.2d 673 (1956); Abney v. West, 101 Ga. App. 450 , 114 S.E.2d 149 (1960); Wallace v. Moore, 219 Ga. 137 , 132 S.E.2d 37 (1963); Law v. State, 121 Ga. App. 106 , 173 S.E.2d 98 (1970); Leachmon v. Leachmon, 239 Ga. 780 , 238 S.E.2d 863 (1977); Crymes v. Crymes, 240 Ga. 721 , 242 S.E.2d 30 (1978); Talmadge v. Talmadge, 241 Ga. 609 , 247 S.E.2d 61 (1978); Gregory v. Gregory, 252 Ga. 154 , 312 S.E.2d 313 (1984); Scarbrough v. Honea, 174 Ga. App. 736 , 331 S.E.2d 80 (1985); Ansley v. Sunbelt Invs. Realty, Inc., 176 Ga. App. 693 , 337 S.E.2d 448 (1985); Hawes v. Emory Univ., 188 Ga. App. 803 , 374 S.E.2d 328 (1988); Avera v. Avera, 268 Ga. 4 , 485 S.E.2d 731 (1997).

Intent

Intention to make present gift required. - Necessary intention to give by the donor is the intention to make a present gift of the property, that is to transfer some present immediate interest, as distinguished from a mere intention to give in the future, or from a gift testamentary in character. Cannon v. Williams, 194 Ga. 808 , 22 S.E.2d 838 (1942); Tucker v. Addison, 265 Ga. 642 , 458 S.E.2d 653 (1995).

No intent to make present gift. - Decedent did not have the requisite intent to make an inter vivos gift of the decedent's certificates of deposit since the decedent had no intention to make a present gift of the certificates. NeSmith v. Ellerbee, 203 Ga. App. 65 , 416 S.E.2d 364 (1992).

Lack of intent negates gift. - Although there was delivery by the plaintiff and acceptance by the defendant, the transaction fell short of the elements of gift since there was no present intention to give. Gostin v. Scott, 80 Ga. App. 630 , 56 S.E.2d 778 (1949).

Intention alone insufficient. - To make the gift a valid one, it is not sufficient to show an intention to give; this intention must in all cases be followed either by manual delivery or some act indicating delivery. Burt v. Andrews, 112 Ga. 465 , 37 S.E. 726 (1900).

No particular form of words is necessary in making a gift as any language indicating an intention to give is sufficient. Ball v. Wallace, 32 Ga. 170 (1861).

Intention to give must be expressed. Culpepper v. Culpepper, 18 Ga. App. 182 , 89 S.E. 161 (1916).

Verbal expression is not necessary to prove an intention to give. Barfield v. Hilton, 238 Ga. 150 , 231 S.E.2d 755 (1977).

Intention may be ascertained other than by words. - Intention to give may be ascertained or may be made apparent or conveyed to the donee in other ways than by the use of verbal or written language. In some circumstances even the silence of a party may be evidence. Barfield v. Hilton, 238 Ga. 150 , 231 S.E.2d 755 (1977).

Subsequent acts and conduct admissible to show intention. - While intention at the time of the conveyances of the property controls and subsequent events cannot cut down an absolute gift to a trust, subsequent acts and conduct are admissible to show intention at the time of the transaction. Ashbaugh v. Ashbaugh, 222 Ga. 811 , 152 S.E.2d 888 (1966).

Proof of intention may be based on prior statement. - There may be a gift although proof of the existence of the intention at the time the gift is consummated may depend upon an utterance antedating the actual consummation of the gift by delivery. Mims v. Ross, 42 Ga. 121 (1871); Culpepper v. Culpepper, 18 Ga. App. 182 , 89 S.E. 161 (1916); Helmer v. Helmer, 159 Ga. 376 , 125 S.E. 849 , 37 A.L.R. 1137 (1924); Clark v. Bridges, 163 Ga. 542 , 136 S.E. 444 (1927).

Declarations of donor. - When the circumstances are not such as to negative delivery of a gift, declarations of the donor that the donor has given personal property to another living on the premises with the donor are sufficient to authorize a recovery by the donee. Banks v. Harvey, 98 Ga. App. 196 , 105 S.E.2d 341 (1958).

Deposit in account without delivery of passbook may lack intent. - Mere fact of the deposit of money in the name of a third person without the delivery of the passbook, or other evidence of intention to make a gift will not constitute a valid gift inter vivos, since this may have been done for any one of a number of reasons, each without donative purpose. Ward v. Sebren, 242 Ga. 782 , 251 S.E.2d 524 (1979).

Question of intention is for the jury. - See Roberts v. Griffith, 112 Ga. 146 , 37 S.E. 179 (1900).

Acceptance

Gift is incomplete until acceptance, and until acceptance, the gift is revocable and passes no title. Pooser v. Norwich Union Fire Ins. Soc'y, Ltd., 51 Ga. App. 962 , 182 S.E. 44 (1935).

Acceptance by the donee imports an actual acquiescence on the donee's part, except as provided in § 44-5-81 . Cannon v. Williams, 194 Ga. 808 , 22 S.E.2d 838 (1942).

Delivery

For real property, delivery of valid deed accomplishes delivery. - For real property, delivery is accomplished by delivery of an otherwise valid deed; delivery of the property itself is not required. McLemore v. Wilborn, 259 Ga. 451 , 383 S.E.2d 892 (1989).

Failure of delivery invalidates gift. - When a client directed the client's attorney to hold all moneys which the attorney might collect on a judgment, and to deliver this money to the client's nephew or the nephew's guardian as soon as one should qualify, and when the client died before the attorney had paid over these funds to the nephew or to the nephew's guardian, there was no valid gift of this money by the client to the nephew for lack of delivery of the subject matter of the gift to the donee. Rogers v. Carter, 177 Ga. 605 , 170 S.E. 868 (1933).

Decedent's acts of signing the signature cards and transferring the documents evidencing the certificates of deposit to the donee did not constitute a valid inter vivos gift because ownership of the certificates could not be transferred in that manner. NeSmith v. Ellerbee, 203 Ga. App. 65 , 416 S.E.2d 364 (1992).

Gift evidenced by writing dispenses with delivery. - Gift of personalty by parol must be accompanied by delivery and acceptance of the article given, and while a gift evidenced by an ordinary writing (as distinguished from a specialty) dispenses with the necessity for a delivery of the article, such a writing does not ordinarily, in the absence of actual or constructive delivery, dispense with the necessity for a "good consideration." Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807 , 7 S.E.2d 737 (1940).

Delivery of keys is constructive delivery of object. - Delivery of keys to personal property accompanied by a declaration that the donor is giving the property to the donee is sufficient evidence to sustain a finding that there has been a constructive delivery of the object. Banks v. Harvey, 98 Ga. App. 196 , 105 S.E.2d 341 (1958).

Deposit in joint account insufficient delivery. - Deposit of money in a bank in a joint checking account subject to demand of another when the depositor also retains the right to jointly or severally demand and receive the funds so deposited, nothing else appearing, is not such a surrender of dominion over the funds thus deposited as to satisfy the requirements of delivery for the making of a gift. Stewart v. Stewart, 228 Ga. 517 , 186 S.E.2d 746 (1972).

Deposit in safe deposit box insufficient delivery. - Deposit by the decedent of bearer bonds in a safe deposit box to which the decedent, the decedent's spouse, and child had access did not make an inter vivos gift to either the decedent's wife or child since there was no delivery as the decedent retained access to the box and could have removed the bonds at any time. Dismuke v. Abbott, 233 Ga. App. 844 , 505 S.E.2d 58 (1998).

Although a niece was a joint tenant with a decedent on the lease of a safe deposit box, there was no evidence that an inter vivos gift of the contents of the box was made to the niece under O.C.G.A. § 44-5-80 since the decedent retained access to the box, and the contents were subject to being reclaimed by the decedent at any time prior to the decedent's death. Furthermore, there was no evidence that full control or power over the property vested in the niece before the decedent's death or that the decedent renunciated dominion and transferred the property to the niece. Longstreet v. Decker, 312 Ga. App. 1 , 717 S.E.2d 513 (2011).

Delivery of chattels in sale of realty. - When chattels are delivered to the vendee of realty subsequent to the sale thereof, upon the vendee's representation that the chatels were included in the sale, when in fact the chatels were not so included, such delivery does not constitute a gift of the chattels. Gostin v. Scott, 80 Ga. App. 630 , 56 S.E.2d 778 (1949).

Transfer of stock without delivery of certificates insufficient. - Transfer of stock to an educational institution, without delivery of the certificates, does not constitute a gift; transfer is only a prima facie evidence of delivery. Southern Indus. Inst. v. Marsh, 15 F.2d 347 (5th Cir. 1926), cert. denied, 273 U.S. 747, 71 L. Ed. 872 , 47 S. Ct. 449 (1927).

Delivery of commercial paper without endorsement or assignment. - All kinds of personal property which are capable of manual delivery and of which the title either legal or equitable can be transferred by delivery may be the subject matter of a valid gift; accordingly, as to promissory notes, bills of exchange, checks, bonds, and other like choses in action, the equitable title to which may be transferred in the manner indicated, the gift may be sustained, even though the instruments are delivered without endorsement or assignment. Underwood v. Underwood, 43 Ga. App. 643 , 159 S.E. 725 (1931).

Delivery of forgiveness of debt. - Debt may be the subject of a gift by the creditor to the creditor's debtor, and is generally referred to as a forgiveness of the debt. The delivery may be accomplished by giving a receipt, even though not under seal and the debt is evidenced by a specialty, by surrendering the instrument evidencing the debt, or even by destroying it, if this is done with intent to cancel the debt; the fact that the creditor reserves the right to interest on the debt does not affect the validity of the gift. Croxton v. Barrow, 57 Ga. App. 1 , 194 S.E. 24 (1937).

Receipt issued by the creditor may constitute a gift of the debt. This is particularly true if the subject matter is not a physical thing, but is intangible because, being intangible, it is not susceptible of actual delivery. Croxton v. Barrow, 57 Ga. App. 1 , 194 S.E. 24 (1937).

Oral statement releasing debt insufficient. - An oral statement made by the payee to the maker of a note, that the payee releases the maker from the debt evidenced by the note was insufficient as a contract canceling the obligation or as a gift to the maker of the note, where the payee received no consideration for the promise to release the maker and there was no actual delivery or surrender of the note to the maker, or anything done which the law accepts in lieu of actual delivery. Taylor v. Taylor, 45 Ga. App. 735 , 165 S.E. 858 (1932).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, §§ 13, 16, 30.

C.J.S. - 38 C.J.S., Gifts, § 11.

ALR. - Rights in respect of payments made on a note or check which is the subject of a gift, 49 A.L.R. 684 .

Gift or trust by deposit of funds belonging to depositor in a bank account in the name of himself and another, 66 A.L.R. 881 .

Gift of savings deposit by delivery of passbook, 84 A.L.R. 558 .

May unconsummated intention to make a gift of personal property be made effective as a voluntary trust, 96 A.L.R. 383 ; 123 A.L.R. 1335 .

Necessity of delivery of stock certificate to complete valid gift of stock, 99 A.L.R. 1077 ; 23 A.L.R. 1171 .

Admissibility of declarations by donor subsequent to alleged gift, on issue as to gift, 105 A.L.R. 398 .

May proof of delivery essential to gift rest upon subsequent declarations of donor, 124 A.L.R. 1391 .

Rights of beneficiary under obligation or deposit payable to him at death of holder or depositor if not previously paid to latter, 131 A.L.R. 967 ; 155 A.L.R. 174 ; 161 A.L.R. 304 .

Surrender, by holder, of certificate of corporate stock, and issuance of a new certificate to him and another, as effective create a gift or a trust, 153 A.L.R. 934 .

Improvidence of donor as affecting validity of gift, 160 A.L.R. 1133 .

Judicial decisions involving United States war savings bonds, 168 A.L.R. 245 .

Implication of gift in inter vivos trust instrument, 11 A.L.R.2d 681.

Transfer by inter vivos trust of insurance policies upon settlor's life as in contemplation of death for tax purposes, 17 A.L.R.2d 787.

Donor's own check as subject of gift, 38 A.L.R.2d 594.

Nature and validity of gift made in contemplation of suicide, 60 A.L.R.2d 575.

Power to make charitable gifts from estate of incompetent, 99 A.L.R.2d 946.

Gift of automobile, 100 A.L.R.2d 1219.

Joint lease of safe-deposit box as evidence in support or denial of gift inter vivos of contents thereof, 40 A.L.R.3d 462.

Creation of joint savings account or savings certificate as gift to survivor, 43 A.L.R.3d 971.

Delivery of personalty to third person with directions to deliver to donee after donor's death as valid gift, 57 A.L.R.3d 1083.

Issuance of stock certificate to joint tenants as creating gift inter vivos, 5 A.L.R.4th 373.

Wills: gift to persons individually named but also described in terms of relationship to testator or another as class gift, 13 A.L.R.4th 978.

Inter vivos gift of remainder in chattel, 83 A.L.R.4th 966.

Validity of charitable gift or trust containing gender restrictions on beneficiaries, 90 A.L.R.4th 836.

Rights in respect of engagement and courtship presents when marriage does not ensue, 44 A.L.R.5th 1.

44-5-81. When acceptance presumed; acceptance for minors and corporations.

If a gift is of substantial benefit, the law will presume its acceptance unless the contrary is shown. A parent, guardian, or friend may accept a gift for a minor. The officers of a corporation may accept a gift for the corporation.

(Orig. Code 1863, § 2615; Code 1868, § 2616; Code 1873, § 2658; Code 1882, § 2658; Civil Code 1895, § 3565; Civil Code 1910, § 4145; Code 1933, § 48-102.)

Cross references. - Provisions governing certain gifts to minors, § 44-5-110 et seq.

Law reviews. - For article, "Multiple Party Accounts: Georgia Law Compared with the Uniform Probate Code," see 8 Ga. L. Rev. 739 (1974). For note discussing the treatment of joint bank accounts in Georgia, with regard to survivorship and testamentary effect, prior to the enactment of the Financial Institutions Code of Georgia, see 7 Ga. St. B.J. 370 (1971).

JUDICIAL DECISIONS

Acceptance may be implied. - Acceptance by the donee being generally presumed may be implied. Culpepper v. Culpepper, 18 Ga. App. 182 , 89 S.E. 161 (1916).

Nondelivery shall not be raised against minors. Whitworth v. Whitworth, 233 Ga. 53 , 210 S.E.2d 9 (1974).

Delivery to parent sufficient. - When a grandparent has made a parol gift of land to a grandchild who is a minor at the time, and the parent enters into possession of the land for the parent's child, such possession will inure to the benefit of the child, and can be made the basis of a recovery in an action against one holding adversely. Dasher v. Ellis, 102 Ga. 830 , 30 S.E. 544 (1898).

When a parent retained possession of property after delivery to minor child, this was possession by the minor. Hargrove v. Turner, 112 Ga. 134 , 37 S.E. 89 , 81 Am. St. R. 24 (1900).

Delivery to, and possession of, a deed by the parent is evidence of delivery to the infant. Whitworth v. Whitworth, 233 Ga. 53 , 210 S.E.2d 9 (1974).

Acceptance of flowers left upon graves. - When friends and relatives of deceased persons donate flowers to be left upon the graves, the title to such flowers vests in the heirs at law of such deceased persons, provided that they accept the gifts, and there is no express agreement to the contrary. When part of the heirs at law are present and in position to accept the flowers, they hold the same during the period of their usefulness as trustees for those heirs at law who are not present. Turner v. Joiner, 77 Ga. App. 603 , 48 S.E.2d 907 (1948).

Cited in Daniel v. Frost, 62 Ga. 697 (1879); Underwood v. Underwood, 43 Ga. App. 643 , 159 S.E. 725 (1931); Cozart v. Mobley, 43 Ga. App. 630 , 159 S.E. 749 (1931); Rogers v. Carter, 177 Ga. 605 , 170 S.E. 868 (1933); Croxton v. Barrow, 57 Ga. App. 1 , 194 S.E. 24 (1937); Cannon v. Williams, 194 Ga. 808 , 22 S.E.2d 838 (1942); Knight v. Wingate, 205 Ga. 133 , 52 S.E.2d 604 (1949); Jackson v. Jackson, 206 Ga. 470 , 57 S.E.2d 602 (1950); Berry v. Berry, 208 Ga. 285 , 66 S.E.2d 336 (1951); Wallace v. Moore, 219 Ga. 137 , 132 S.E.2d 37 (1963); Smith v. Fleming, 183 Ga. App. 342 , 358 S.E.2d 900 (1987).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, §§ 4, 30.

C.J.S. - 38 C.J.S., Gifts, §§ 26, 91.

ALR. - Delivery of bill or note of third person by way of gift, 25 A.L.R. 642 .

Rights in respect of payments made on a note or check which is the subject of a gift, 49 A.L.R. 684 .

Right of child en ventre sa mere to take under a conveyance or devise of present interest to parent and children, 50 A.L.R. 619 .

Presumption of gift, advancement, or settlement where husband takes title from third person to property paid for by or with funds of wife, 113 A.L.R. 339 .

Gift of automobile, 100 A.L.R.2d 1219.

Joint lease of safe-deposit box as evidence in support or denial of gift inter vivos of contents thereof, 40 A.L.R.3d 462.

Issuance of stock certificate to joint tenants as creating gift inter vivos, 5 A.L.R.4th 373.

44-5-82. Delivery; constructive delivery.

Actual manual delivery is not essential to the validity of a gift. Any act which indicates a renunciation of dominion by the donor and the transfer of dominion to the donee shall constitute a constructive delivery.

(Orig. Code 1863, § 2617; Code 1868, § 2618; Code 1873, § 2660; Code 1882, § 2660; Civil Code 1895, § 3567; Civil Code 1910, § 4147; Code 1933, § 48-103.)

Law reviews. - For note discussing the treatment of joint bank accounts in Georgia, with regard to survivorship and testamentary effect, prior to the enactment of the Financial Institutions Code of Georgia, see 7 Ga. St. B.J. 370 (1971). For comment on Felder v. Felder, 71 Ga. App. 860 , 32 S.E.2d 550 (1944), see 7 Ga. B.J. 478 (1945).

JUDICIAL DECISIONS

This statute is merely a codification of the common law on the subject of delivery as a requirement for a gift. Felder v. Felder, 71 Ga. App. 860 , 32 S.E.2d 550 (1944) (see O.C.G.A. § 44-5-82 ).

Delivery is essential for a gift. - Presumption of gift arises only when there is an actual delivery, or when the donee is in exclusive possession. Burt v. Andrews, 112 Ga. 465 , 37 S.E. 726 (1900); Cowdrey v. Barksdale, 16 Ga. App. 387 , 85 S.E. 617 (1915); Bond v. Bond, 22 Ga. App. 366 , 95 S.E. 1005 (1918); Helmer v. Helmer, 159 Ga. 376 , 125 S.E. 849 , 37 A.L.R. 1137 (1924).

Manifestation of an intention to make a present gift to another and, in consummation of this intention, delivery of the property to or for the use of the intended donee, or some act indicating a renunciation of dominion in favor of the intended donee, are essentials of a gift, whether inter vivos or causa mortis. Moore v. Tiller, 61 F.2d 478 (5th Cir. 1932).

To make a valid gift, there must be a present intention to give, and a complete renunciation of right, by the giver, over the thing given, without power of revocation, and a full delivery of possession as a gift, inter vivos. McLendon v. Johnson, 69 Ga. App. 214 , 25 S.E.2d 53 (1943), overruled on other grounds, Barfield v. Hilton, 238 Ga. 150 , 231 S.E.2d 755 (1977).

Conduct of parties as showing change of ownership. - Gift inter vivos, as distinguished from a gift mortis causa, does not require actual delivery, and it is sufficient to complete a gift inter vivos that the conduct of the parties should show that the ownership of the chattels has been changed. Poullain v. Poullain, 79 Ga. 11 , 4 S.E. 81 (1887).

Actual manual delivery is not essential to validity of a gift but any act which indicates renunciation of dominion by donor (e.g. a forbearance to collect), and transfer of dominion to donee (e.g. telling the donee that the donee need not make payments owed) shall constitute a constructive delivery. Bates v. Bates, 163 Ga. App. 268 , 293 S.E.2d 515 (1982).

Burden of proof. - Burden is upon the party asserting a gift to prove it as pleaded. Porter v. Allen, 54 Ga. 623 (1875).

Relinquishing control is jury question. - It is a question of fact for the jury to determine whether the donor has in fact relinquished control by the gift. Williams v. McElroy, 35 Ga. App. 420 , 133 S.E. 297 (1926).

Delivery and intention need not be synchronous. - While, as a general rule, there must be an actual delivery of the chattel at the time of the gift, it is not in every case essential that the expression of the intention to give be synchronous with delivery of the chattel; for if it be plain that there could have been no other purpose in the delivery than to effectuate a definite intention expressed in the past in anticipation of a future delivery, the delivery would complete the gift. Culpepper v. Culpepper, 18 Ga. App. 182 , 89 S.E. 161 (1916).

Failure of third party to deliver defeats gift. - When a client directed the client's attorney to pay over moneys which the attorney might collect on a judgment to the client's nephew, and when, after client directed the attorney to hold the same for the client's nephew and to deliver this money to the nephew or the nephew's guardian as soon as one should qualify, stating that the client had already given this money to the nephew, and when the client died before the attorney had paid over these funds to the nephew or to the nephew's guardian, there was no valid gift of this money by the client to the nephew, for lack of delivery of the subject matter of the gift to the donee. Knight v. Jackson, 156 Ga. 165 , 118 S.E. 661 (1923); Helmer v. Helmer, 159 Ga. 376 , 125 S.E. 849 , 37 A.L.R. 1137 (1924).

Holding money as agent is valid gift. - When a mother worked for her brother, and made an agreement with him to hold her wages for her child, to accumulate an estate for it, and that he reported to her that he had done so, and had deposited the money in a named bank in his name as agent for the child; this together with evidence that the uncle did in fact deposit money in the bank to the credit of himself as agent of the child made a prima facie case of a complete gift inter vivos from the mother to the child. Jackson v. Gallagher, 128 Ga. 321 , 57 S.E. 750 (1907).

Gift from parent to child. - While in a gift from a father to a minor child the law will dispense with some of the formalities of delivery, a mere promise to give is not the equivalent of a gift itself. Donaldson v. Everett, 122 Ga. 318 , 50 S.E. 94 (1905).

Delivery between members of same family. - Rule as to delivery is not so strictly applied to transactions between members of a family living in the same house, the law in such cases accepting as delivery acts which would not be so regarded if the transaction were between strangers living in different places. Harrell v. Nicholson, 119 Ga. 458 , 46 S.E. 623 (1904); Williams v. McElroy, 35 Ga. App. 420 , 133 S.E. 297 (1926).

Delivery of keys to personal property accompanied by a declaration that the donor is giving the property to the donee is sufficient evidence to sustain a finding that there has been a constructive delivery of the object. Banks v. Harvey, 98 Ga. App. 196 , 105 S.E.2d 341 (1958).

Delivery of debt by giving receipt. - Debt may be the subject of a gift by the creditor to the creditor's debtor, and is generally referred to as a forgiveness of the debt. The delivery may be accomplished by giving a receipt, even though not under seal and the debt is evidenced by a specialty, by surrendering the instrument evidencing the debt, or even by destroying the instrument, if this is done with intent to cancel the debt; and the fact that the creditor reserves the right to interest on the debt does not affect the validity of the gift. Croxton v. Barrow, 57 Ga. App. 1 , 194 S.E. 24 (1937).

Gift in writing without consideration requires actual delivery. - If a gift in writing is not based upon a good consideration, it is a nudum pactum and, in the absence of actual delivery of the property itself, remains ineffective. Cannon v. Williams, 194 Ga. 808 , 22 S.E.2d 838 (1942).

Failure to reduce evidence to writing due to mistake. - Gift of money represented by a time certificate will not be defeated, if the circumstances indicate that the omission to reduce to writing the evidence of the transfer of the legal title was due to ignorance, accident, or mistake. Culpepper v. Culpepper, 18 Ga. App. 182 , 89 S.E. 161 (1916). See also Philpot v. Temple Banking Co., 3 Ga. App. 742 , 60 S.E. 480 (1908).

Delivery of nonnegotiable written instrument, without more, is not sufficient to prove a gift. Hill v. Sheibley, 64 Ga. 529 (1880).

Gift unknown until after death of donor is invalid. - When an uncle wrote out and signed a promissory note payable to a niece and the note was written in a memorandum book and left in a drawer where both the uncle and niece kept their papers, and the niece did not know of its existence until after the uncle's death, this did not constitute a gift. Helmer v. Helmer, 159 Ga. 376 , 125 S.E. 849 , 37 A.L.R. 1137 (1924).

Delivery of deposit book. - When a deposit book issued by a savings bank is delivered with appropriate words of gift by the depositor, with the intention to give to the person to whom it is delivered the deposits entered in the book, this is sufficient to constitute a valid gift of the deposits, without assignment or transfer in writing. Wade v. Edwards, 23 Ga. App. 677 , 99 S.E. 160 (1919).

Deposit without delivery of passbook. - Mere fact of the deposit of money in the name of a third person without the delivery of the passbook, or other evidence of intention to make a gift, however, will not constitute a valid gift inter vivos, since this may have been done for any one of a number of reasons, each without donative purpose. Ward v. Sebren, 242 Ga. 782 , 251 S.E.2d 524 (1979).

Deposit subject to being withdrawn not gift. - Deposit made in a bank by a parent for the benefit of a child but subject to be drawn out at any time by either is not a gift. Clark v. Bridges, 163 Ga. 542 , 136 S.E. 444 (1927).

Language insufficient to prove constructive delivery. - See Lanier v. Holt, 18 Ga. App. 185 , 89 S.E. 182 (1916).

Cited in Underwood v. Underwood, 43 Ga. App. 643 , 159 S.E. 725 (1931); Knight v. Wingate, 205 Ga. 133 , 52 S.E.2d 604 (1949); Jackson v. Jackson, 206 Ga. 470 , 57 S.E.2d 602 (1950); Berry v. Berry, 208 Ga. 285 , 66 S.E.2d 336 (1951); Barfield v. Hilton, 238 Ga. 150 , 231 S.E.2d 755 (1977).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, § 16 et seq.

C.J.S. - 38 C.J.S., Gifts, § 13 et seq.

ALR. - Necessity of delivery of stock certificate to complete valid gift of stock, 23 A.L.R. 1171 , 99 A.L.R. 1077 .

Delivery of bill or note of third person by way of gift, 25 A.L.R. 642 .

Gift of savings deposit by delivery of passbook, 40 A.L.R. 1249 ; 84 A.L.R. 558 .

Rights in respect of payments made on a note or check which is the subject of a gift, 49 A.L.R. 684 .

Declarations or admissions by decedent while in possession of personal property that it belonged to another as sufficient evidence of latter's title in absence of sufficient evidence of gift or other transfer by decedent, 98 A.L.R. 755 .

Necessity of delivery where subject of gift is already in possession of donee at time of declaration of gift, 103 A.L.R. 1110 .

May proof of delivery essential to gift rest upon subsequent declarations of donor, 124 A.L.R. 1391 .

May delivery which will support gift be predicated upon deposit in mail, filing of telegram, or delivery to carrier, 126 A.L.R. 924 .

Delivery of key to safe-deposit box or other receptacle as sufficient to consummate gift of contents, 127 A.L.R. 780 .

Rights of beneficiary under obligation or deposit payable to him at death of holder or depositor if not previously paid to latter, 131 A.L.R. 967 ; 155 A.L.R. 174 ; 161 A.L.R. 304 .

Delivery which will support gift of an undivided interest in a chattel or chose in action, 145 A.L.R. 1386 .

Opening savings account in sole name of another, without complete surrender of passbook, as a gift, 1 A.L.R.2d 538.

Necessity of delivery of stock certificate to complete valid gift of stock, 23 A.L.R.2d 1171.

Delivery as essential to gift of tangible chattels or securities by written instrument, 48 A.L.R.2d 1405.

Nature and validity of gift made in contemplation of suicide, 60 A.L.R.2d 575.

Gift of automobile, 100 A.L.R.2d 1219.

Joint lease of safe-deposit box as evidence in support or denial of gift inter vivos of contents thereof, 40 A.L.R.3d 462.

Creation of joint savings account or savings certificate as gift to survivor, 43 A.L.R.3d 971.

Delivery of personalty to third person with directions to deliver to donee after donor's death as valid gift, 57 A.L.R.3d 1083.

44-5-83. Written gift.

A gift in writing, without good consideration and without delivery, is void. However, when, in order for a gift to be valid, a written conveyance for good consideration is required by law, or when in any case a written conveyance is made for a good consideration, the execution and delivery of such conveyance shall dispense with the necessity of delivering the article given.

(Orig. Code 1863, § 2616; Code 1868, § 2617; Code 1873, § 2659; Code 1882, § 2659; Civil Code 1895, § 3566; Civil Code 1910, § 4146; Code 1933, § 48-104.)

Code Commission notes. - Pursuant to § 28-9-5 , in 1991, "dispense" was substituted for "disperse" near the end of the second sentence.

JUDICIAL DECISIONS

Actual delivery required. - No effect can be given to deed of gift in writing where the maker retains the deed in the maker's own custody, in the absence of satisfactory proof that it was the maker's intention that such instrument should operate to immediately convey to the infant grantee the legal title to the premises therein described. Jenkins v. Southern Ry., 109 Ga. 35 , 34 S.E. 355 (1899).

Gift of personalty by parol must be accompanied by delivery and acceptance of the article given, and while a gift evidenced by an ordinary writing (as distinguished from a specialty) dispenses with the necessity for a delivery of the article, such a writing does not ordinarily, in the absence of actual or constructive delivery, dispense with the necessity for a "good consideration." Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807 , 7 S.E.2d 737 (1940).

If a gift in writing be not based upon a good consideration, it is a nudum pactum, and, in the absence of actual delivery of the property itself, remains ineffective. Cannon v. Williams, 194 Ga. 808 , 22 S.E.2d 838 (1942).

Deed from mother to daughter based on good consideration. - Deed of gift from a mother to her daughter would be based upon a good consideration, and the deed would be good whether there was any money consideration or not. Dunn v. Evans, 139 Ga. 741 , 78 S.E. 122 (1913).

Presumption of gift by a father to a child is not confined to a gift in writing. Johnson v. Griffin, 80 Ga. 551 , 7 S.E. 94 (1888).

Cited in Owen v. Smith, 91 Ga. 564 , 18 S.E. 527 (1893); King v. McDuffie, 144 Ga. 318 , 87 S.E. 22 (1915); Marchant v. Young, 147 Ga. 37 , 92 S.E. 863 (1917); Brown v. Nichols, 23 Ga. App. 569 , 99 S.E. 57 (1919); Cook v. Flanders, 164 Ga. 279 , 138 S.E. 212 (1927); Jones v. Robinson, 172 Ga. 746 , 158 S.E. 752 (1931); Waters v. Waters, 195 Ga. 281 , 24 S.E.2d 20 (1943).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, §§ 21, 28 et seq., 96.

C.J.S. - 38 C.J.S., Gifts, §§ 11, 81.

ALR. - Delivery of bill or note of third person by way of gift, 25 A.L.R. 642 .

Necessity of delivery where subject of gift is already in possession of donee at time of declaration of gift, 103 A.L.R. 1110 .

Grantor's continued possession of land after execution of deed as notice of his claim adverse to title conveyed, 105 A.L.R. 845 .

Consideration for subscription agreements, 115 A.L.R. 589 ; 151 A.L.R. 1238 .

Delivery of personalty to third person with directions to deliver to donee after donor's death as valid gift, 57 A.L.R.3d 1083.

44-5-84. Presumption of gift arising from delivery of personalty by parent to child living separate from parent.

The delivery of personal property by a parent into the exclusive possession of a child living separate from the parent creates a presumption of a gift to the child. This presumption may be rebutted by evidence of an actual contract of lending or by circumstances from which such a contract may be inferred.

(Orig. Code 1863, § 2621; Code 1868, § 2621; Code 1873, § 2663; Code 1882, § 2663; Civil Code 1895, § 3570; Civil Code 1910, § 4150; Code 1933, § 48-105.)

JUDICIAL DECISIONS

Statute applies only if there is a delivery, or if the donee is in actual possession. Lanier v. Holt, 18 Ga. App. 185 , 89 S.E. 182 (1916). See also Hawkins v. Davie, 136 Ga. 550 , 71 S.E. 873 (1911) (see O.C.G.A. § 44-5-84 ).

Presumption of gift applied. - When a father permits property to go home with his daughter, immediately upon her marriage or at any subsequent period, if he suffer it to remain there for a number of years, the presumption of law is that he intended it as a gift. Butler v. Hughes, 35 Ga. 200 (1866).

Presumption rebutted by proof that chattel held as loan. - Presumption that the law raises in favor of a gift, when made by a parent to a child, when the recipient is allowed to retain in the recipient's possession a chattel, is completely overcome and destroyed in the absence of other proof, by the declarations of such recipient, that the recipient held the chattel as a loan, and not as a gift - that the title to the property was in the parent. Culbreath v. Patton, 73 Ga. App. 667 , 37 S.E.2d 719 (1946).

Presumption of gift not rebutted by evidence. - Check from parents, who formed a limited partnership, given to their child for a large sum, was properly determined to have been a gift from the parents pursuant to O.C.G.A. §§ 44-5-80 and 44-5-84 , rather than a loan; the presumption under O.C.G.A. § 44-5-84 , together with other supportive circumstantial evidence, including that there was no contract or lending and no repayment had been required, provided support for that factual finding. Baker v. Baker, 280 Ga. 299 , 627 S.E.2d 26 (2006).

Question for jury. - Question whether money left with son-in-law was a loan to him or a gift to the daughter is a question of fact for the jury. Crawford v. Manson, 82 Ga. 118 , 8 S.E. 54 (1888); Gross v. Higginbotham, 34 Ga. App. 549 , 130 S.E. 371 (1925).

Presumption of advancement. - Gift of property by a parent to a child after marriage, when the child is living alone, is prima facie an advancement. Holliday v. Wingfield, 59 Ga. 206 (1877).

Cited in Webb v. Blake, 31 Ga. App. 101 , 119 S.E. 447 (1923); Jackson v. Moultrie Prod. Credit Ass'n, 76 Ga. App. 768 , 47 S.E.2d 127 (1948); Paris v. Paris, 207 Ga. 341 , 61 S.E.2d 491 (1950).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, § 62.

C.J.S. - 38 C.J.S., Gifts, § 91.

ALR. - Right of child en ventre sa mere to take under a conveyance or devise of present interest to parent and children, 50 A.L.R. 619 .

Gift of automobile, 100 A.L.R.2d 1219.

Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 A.L.R.3d 608.

Issuance of stock certificate to joint tenants as creating gift inter vivos, 5 A.L.R.4th 373.

44-5-85. Rebuttable presumption of gift of lands belonging to parent but in possession of child for seven years.

The exclusive possession by a child of lands which originally belonged to the parent or parents, without payment of rent, for the space of seven years, creates a rebuttable presumption of a gift and conveys title to the child. The presumption may be rebutted by evidence of a loan, of a claim of dominion by the parent or parents acknowledged by the child, of a disclaimer of title by the child, or similar evidence.

(Orig. Code 1863, § 2622; Code 1868, § 2622; Code 1873, § 2664; Code 1882, § 2664; Civil Code 1895, § 3571; Civil Code 1910, § 4151; Code 1933, § 48-106; Ga. L. 1998, p. 1304, § 1.)

Law reviews. - For comment on Harper v. Hudson, 210 Ga. 751 , 82 S.E.2d 854 (1954), see 17 Ga. B.J. 391 (1955).

JUDICIAL DECISIONS

Section formerly referred only to lands of father. - Former statute distinctly said, and dealt with, lands belonging to the father, and may not be extended to include lands belonging originally to the mother. Holton v. Mercer, 65 Ga. App. 53 , 15 S.E.2d 253 (1941); Owens v. White, 218 Ga. 1 , 126 S.E.2d 425 (1962) (see O.C.G.A. § 44-5-85 ).

Statute is not a part of the law of prescription. It is explicit in its terms, and is restricted to cases where possession for seven years raises a presumption, as between parent and child, that the title passed originally by gift. Mitchell v. Gunter, 170 Ga. 135 , 152 S.E. 466 (1930) (see O.C.G.A. § 44-5-85 ).

Intent to make present transfer necessary for gift. - To constitute a valid gift, there must be an intention by the donor to transfer to the donee an immediate present interest, and not a mere future interest, or to make a testamentary gift. May v. May, 165 Ga. App. 461 , 300 S.E.2d 215 (1983).

Gender bias was eliminated when law passed and not when amendment codified. - When the trial court granted summary judgment to mother against her six children who sought declaration of title to the house, because the words "parent or parents" did not replace the word "father" in the statute until the Official Code of Georgia was adopted in 1982, the trial court incorrectly reasoned that seven years had not run against the mother's interest in the property to invoke the statute; this section was amended sub silentio in 1979 after Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102 , 59 L. Ed. 2 d 306 (1979), when the legislature passed 1979 Ga. L. 466, and not in 1982 when the amendment was officially codified in the new code; thus, the omission of a presumptive right against the mother was not fatal to the children's cause of action. Sims v. Holtzclaw, 259 Ga. 537 , 384 S.E.2d 656 (1989).

This statute applies only if there is a delivery, or if the donee is in actual possession for the seven-year period. Burch v. Burch, 96 Ga. 133 , 22 S.E. 718 (1895); Cowdrey v. Barksdale, 16 Ga. App. 387 , 85 S.E. 617 (1915); Lanier v. Holt, 18 Ga. App. 185 , 89 S.E. 182 (1916) (see O.C.G.A. § 44-5-85 ).

No presumption arises from an expressed intention to give. Such a presumption arises only if there is an actual delivery, or if the donee is in exclusive possession. Cowdrey v. Barksdale, 16 Ga. App. 387 , 85 S.E. 617 (1915).

Gift conclusively presumed. - In a proper case when this statute applies, the gift is conclusively presumed under its very terms, and no proof touching such gift is required. Harden v. Morton, 195 Ga. 471 , 24 S.E.2d 685 (1943) (see O.C.G.A. § 44-5-85 ).

Presumption not confined to written gift. - Presumption is not confined to a gift by writing. The presumption may arise though it be certain that the father retained the paper title, and though that fact be admitted by the son. The assertion of dominion by the father which the statute contemplates is over the property not merely over the paper title. Johnson v. Griffin, 80 Ga. 551 , 7 S.E. 94 (1888).

Mere promise not equivalent of a gift. - While in a gift from a father to a son the law will dispense with some of the formalities of delivery, a mere promise to give is not the equivalent of a gift itself. Donaldson v. Everett, 122 Ga. 318 , 50 S.E. 94 (1905).

"Child" construed. - Term "child" in this section does not include a bastard. Floyd v. Floyd, 97 Ga. 124 , 24 S.E. 451 (1895); Johnstone v. Taliaferro, 107 Ga. 6 , 32 S.E. 931 , 45 L.R.A. 95 (1899).

Possession may begin during minority. Whitton v. Whitton, 218 Ga. 845 , 131 S.E.2d 189 (1963).

Possession during minority. - Presumption of a gift may arise in favor of a child whose possession began during minority if, at or before the time when the child went into possession, the child had been manumitted by the parent. In case a parent and minor child reside together upon land, the possession during the child's minority is presumptively that of the parent; but this presumption may be overcome by clear and unequivocal proof showing that the parent had actually surrendered to the child the exclusive control of and dominion over the property. Holt v. Anderson, 98 Ga. 220 , 25 S.E. 496 (1896).

Death of father before expiration of seven years. - If the father dies before the seven years is complete, the presumption provided in this statute does not exist. Roe v. Doe, 48 Ga. 332 (1873) (see O.C.G.A. § 44-5-85 ).

Reentry by parent. - When a possession of this kind has begun, and title under it is ripening, it would undoubtedly be the right of the father, at any time before the expiration of the seven years, to reenter; and in this event the prior possession of the son would count for nothing. In other words, he would acquire no conclusive right as against the father, nor have title at all, until the full completion of the seven years. Harden v. Morton, 195 Ga. 471 , 24 S.E.2d 685 (1943).

If the possession of the child is exclusive the statute is satisfied even though the father returned and stayed in the house for a few weeks during the seven-year period. Whitton v. Whitton, 218 Ga. 845 , 131 S.E.2d 189 (1963).

Judgment against father bars gift. - Until a gift of land by a father to his son was completed a judgment against the donor would bind the land and prevent the subsequent completion of the gift. Jones v. Clark, 59 Ga. 136 (1877); Hughes v. Berrien, 70 Ga. 273 (1883).

Creditor of donee. - Land held by a son for less than seven years under a parol gift from his father is not subject to execution in favor of the son's creditor, against the claim of the father, though the son may have erected valuable improvements on the faith of the gift. The legal title remaining in the father, and the son's remedy being by a suit for specific performance of the voluntary agreement, his creditor must resort to a like remedy. Harvey v. West, 87 Ga. 553 , 13 S.E. 693 (1891).

Loan of property and acknowledgment by child of claim. - When the only defense was that the child went into possession under agreement that the land was loaned to the child, it was error to charge the jury that the jury could not find for the father unless the jury believed from the evidence that the child not only took possession as a loan, but also acknowledged a claim of dominion by the father, or disclaimed title. Hardman v. Nowell, 84 Ga. 46 , 10 S.E. 370 (1889).

Purchase of part of land not disclaimer of title. - Consent of the wife, before the expiration of the period of seven years after she went into possession of the land in controversy under an alleged parol gift, to the purchase of a small part of the land by her husband from her father, the alleged donor, while a circumstance to be considered by the jury together with other evidence in the case, is not, as a matter of law, inconsistent with the claim of the wife that there was a gift by the father, that she had not disclaimed title, and that there had not been a claim of dominion by the father acknowledged by the donee. Holloway v. Hoard, 140 Ga. 380 , 78 S.E. 928 (1913).

Section inapplicable when son purchases property upon contingency. - When a son purchased land from his father and took a contract in the nature of a bond for title, providing for the making of a conveyance upon the happening of a named contingency, and entered into and held possession thereunder, this statute has no application. Graham v. Peacock, 131 Ga. 785 , 63 S.E. 348 (1909) (see O.C.G.A. § 44-5-85 ).

Proof of possession. - When it is claimed by the alleged donee, under the provisions of this statute, that possession has been had by the donee for the statutory period, this allegation is supported by proof of possession by the donee for a part of that period and by the donee's tenants for the remainder of the period, even though one of the tenants was the father of the donee, when it appears that the father actually paid rents to the donee during the period of the father's occupancy and recognized the donee as the father's landlord. Holloway v. Hoard, 140 Ga. 380 , 78 S.E. 928 (1913).

Gift subject to deed to secure debt. - Fact that a deed to secure debt exists means that the grantor does not hold complete title, but it does not prevent the grantor from conveying that which the grantor owns and the effect of O.C.G.A. § 44-5-85 in a situation such as this is a gift by operation of the statute, subject to the deed to secure debt. Ivey v. Stanley, 272 Ga. 180 , 526 S.E.2d 331 (2000).

Question for jury. - It is for the jury to say whether the evidence is sufficient to show exclusive possession, without disclaimer or loan or dominion, each point to be settled by the weight of the evidence thereon. Hughes v. Hughes, 72 Ga. 173 (1883).

Conveyance by parent before expiration of seven years. - When, before child had been in possession of property for seven years, the child's parent conveyed legal title to another and legal title never returned to the parent, the child did not receive title through a presumptive gift from the child's parent. Tucker v. Addison, 265 Ga. 642 , 458 S.E.2d 653 (1995).

Possession was not exclusive. - Child could not show child was in exclusive possession of a farm because, within a few years after the parent purchased the farm, the parent moved houses onto the farm and rented the houses for the parent's own benefit. Chapman v. Quinn, 267 Ga. 829 , 483 S.E.2d 580 (1997).

Cited in Daniel v. Frost, 62 Ga. 697 (1879); Thaggard v. Crawford, 112 Ga. 326 , 37 S.E. 367 (1900); Coffey v. Cobb, 143 Ga. 539 , 85 S.E. 693 (1915); Doe v. Newton, 171 Ga. 418 , 156 S.E. 25 (1930); Kerr v. Kerr, 183 Ga. 573 , 189 S.E. 20 (1936); Mitchell v. Hunt, 185 Ga. 835 , 196 S.E. 711 (1938); Moore v. Segars, 192 Ga. 190 , 14 S.E.2d 752 (1941); Holton v. Mercer, 195 Ga. 47 , 23 S.E.2d 166 (1942); Davis v. Davis, 199 Ga. 149 , 33 S.E.2d 429 (1945); Matthews v. Grace, 199 Ga. 400 , 34 S.E.2d 454 (1945); North v. Tolbert, 80 Ga. App. 110 , 55 S.E.2d 661 (1949); Harper v. Hudson, 210 Ga. 751 , 82 S.E.2d 854 (1954); Davis v. Newton, 215 Ga. 58 , 108 S.E.2d 809 (1959).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, § 62.

C.J.S. - 38 C.J.S., Gifts, § 91.

ALR. - Right of child en ventre sa mere to take under a conveyance or devise of present interest to parent and children, 50 A.L.R. 619 .

Adverse possession under parol gift of land, 43 A.L.R.2d 6.

Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 A.L.R.3d 608.

44-5-86. Gifts by person subject to undue influence; avoidance.

A gift by a person who is just over the age of majority or who is particularly susceptible to be unduly influenced by his parent, guardian, trustee, attorney, or other person standing in a similar confidential relationship to one of such persons shall be closely scrutinized. Upon the slightest evidence of persuasion or influence, such gift shall be declared void at the instance of the donor or his legal representative and at any time within five years after the making of such gift.

(Orig. Code 1863, § 2624; Code 1868, § 2624; Code 1873, § 2666; Code 1882, § 2666; Civil Code 1895, § 3572; Civil Code 1910, § 4152; Code 1933, § 48-107; Ga. L. 1982, p. 3, § 44.)

Law reviews. - For article, "Georgia's Law of Undue Influence in Gift-Making," see 5 Ga. St. B.J. 12 (2000). For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004).

JUDICIAL DECISIONS

Purpose. - It is for the common security of mankind that gifts procured by agents, and purchases made by the agents, from their principal, should be scrutinized with a close and vigilant suspicion. Harrison v. Harrison, 214 Ga. 393 , 105 S.E.2d 214 (1958).

Presumption of undue influence. - Georgia law raises a presumption of undue influence when the beneficiary stands in a confidential or fiduciary relationship with the donor, the donor is of weak mentality, and the beneficiary occupies a dominant position. Wheeless v. Gelzer, 780 F. Supp. 1373 (N.D. Ga. 1991).

To prove undue influence it is not sufficient to show merely that a person receiving substantial benefits occupied a confidential relationship to a donor and had an opportunity to exert undue influence. Rather, it must also be shown that the person receiving the gift occupied a dominant position over the donor, so that the donor's free will was destroyed and the donor in making the gift did something that the donor would not otherwise have done. Wheeless v. Gelzer, 780 F. Supp. 1373 (N.D. Ga. 1991).

Deed made in favor of guardian. - This statute does not apply to the case of a deed or will in favor of a guardian made by a person some years after arriving at majority; but even if it did apply, such a deed would be good if made with a full knowledge of the facts, and without any misrepresentation or suppression of material facts by the guardian. Ralston v. Turpin, 129 U.S. 663, 9 S. Ct. 420 , 32 L. Ed. 747 (1889) (see O.C.G.A. § 44-5-86 ).

Deeds of gift by a married woman conveying her separate estate to her husband will be scrutinized with great jealousy. Ball v. Moore, 181 Ga. 146 , 182 S.E. 28 (1935).

Limitation of action when transfer is from wife to husband. - Limitation expressed in this statute is not applicable if a wife, under the influence of her husband, transferred stock to him and he in turn transferred it to a bank. Hill v. Fourth Nat'l Bank, 156 Ga. 704 , 120 S.E. 1 (1923) (see O.C.G.A. § 44-5-86 ).

If a deed by a wife to her husband was really intended as a gift, the statute of limitations will apply; but if the deed was executed merely as part of a general scheme and device, inaugurated by the husband's creditor, to pledge the property to the creditor for the husband's debt, the deed to the husband would be a mere form, and not a gift, within the meaning of the statute. Barron v. First Nat'l Bank & Trust Co., 182 Ga. 796 , 186 S.E. 847 (1936) (see O.C.G.A. § 44-5-86 ).

Section applied in gift from wife to husband. - See Cain v. Ligon, 71 Ga. 692 , 51 Am. R. 281 (1883); Sasser v. Sasser, 73 Ga. 275 (1884).

Burden of proof not met. - Plaintiffs failed to meet plaintiff's burden of proof with regard to either the husband/father's alleged mental incompetence, or the wife's alleged exercise of fraud and/or undue influence over him at the time of the transactions in question. Wheeless v. Gelzer, 780 F. Supp. 1373 (N.D. Ga. 1991).

Cited in Simmons Hdwe. Co. v. Timmons, 180 Ga. 531 , 179 S.E. 726 (1935); Davis v. Liberty Co., 183 Ga. 286 , 188 S.E. 344 (1936); Hadaway v. Hadaway, 192 Ga. 265 , 14 S.E.2d 874 (1941); Armour v. Lunsford, 192 Ga. 598 , 15 S.E.2d 886 (1941); Jones v. Hogans, 197 Ga. 404 , 29 S.E.2d 568 (1944); Vinson v. Citizens & S. Nat'l Bank, 208 Ga. 813 , 69 S.E.2d 866 (1952); Johnson v. Hutchinson, 217 Ga. 489 , 123 S.E.2d 551 (1962).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, §§ 5, 12, 39.

C.J.S. - 38 C.J.S., Gifts, § 91.

ALR. - Undue influence by third person in which immediate beneficiary did not participate, 96 A.L.R. 613 .

Undue influence in nontestamentary gift to clergyman, spiritual adviser, or church, 14 A.L.R.2d 649.

Undue influence in nontestamentary gift from client to attorney, 24 A.L.R.2d 1288.

Undue influence in nontestamentary gift from patient to physician, nurse, or other medical practitioner, 70 A.L.R.2d 591.

Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 A.L.R.3d 608.

Validity of inter vivos gift by ward to guardian or conservator, 70 A.L.R.4th 499.

44-5-87. Implied trust on failure of specific purpose for which gift made.

If a gift is made for a specific purpose which is either expressed or is secretly understood and the purpose is illegal or from some other cause fails or cannot be accomplished, the donee shall hold the object of the gift as trustee for the donor or his next of kin.

(Orig. Code 1863, § 2625; Code 1868, § 2625; Code 1873, § 2667; Code 1882, § 2667; Civil Code 1895, § 3573; Civil Code 1910, § 4153; Code 1933, § 48-108.)

JUDICIAL DECISIONS

Deed in consideration of immoral or illegal thing constitutes contract. - Deed executed and delivered in consideration to do an immoral or illegal thing is not a gift, but an executed contract founded upon a consideration. Watkins v. Nugen, 118 Ga. 372 , 45 S.E. 262 (1903).

Purpose of gift not clear. - Trial court erred in granting partial summary judgment to the aunt and imposing a constructive trust on property purchased by the niece and the nieces's husband with money obtained from the aunt because the appellate court could not say as a matter of law that the specific purpose of the gift was sufficiently expressed or secretly understood to impose a trust. Shadder v. Holland, 350 Ga. App. 191 , 828 S.E.2d 418 (2019).

No failure to use for designated purpose. - When designated gifts were to be made from the proceeds of a sale of property donated to a charitable remainder unitrust, there was no failure to use the sale proceeds for specific charities when no sale had occurred. Powell v. Emory Univ., 268 Ga. 658 , 492 S.E.2d 874 (1997).

"Best interest of creditors" test under 11 U.S.C. § 1325(a)(4) was not met by the proposed plan of Chapter 13 debtors because the plan did not account for the recoverable value of the debtor's transfer of the debtor's interest in property given to the debtor by the debtor's mother. An implied trust under O.C.G.A. § 44-5-87 did not exist when the specific purpose of the mother's gift was to transfer the property to her sons outside of probate while continuing to reside in the house, and that purpose was accomplished. Meredith v. Weigl (In re Weigl), Bankr. (Bankr. S.D. Ga. Jan. 18, 2011).

Unclean hands. - Equity will not declare an implied trust in a case of unclean hands. Morgan v. Wright, 219 Ga. 385 , 133 S.E.2d 341 (1963).

Gifts made in contemplation of marriage are subject to an implied condition that the gifts are to be returned if the donee breaks the engagement, which rule applies to real estate as well as personalty; in a proper case equity will take jurisdiction to enforce a reconveyance. Guffin v. Kelly, 191 Ga. 880 , 14 S.E.2d 50 (1941).

Cited in Hollomon v. Board of Educ., 168 Ga. 359 , 147 S.E. 882 (1929); Morgan v. Hutcheson, 195 Ga. 123 , 23 S.E.2d 406 (1942).

RESEARCH REFERENCES

ALR. - Right of parent as against creditor or lienor to make gift to minor child of latter's own services, 44 A.L.R. 876 .

Validity and construction of statutes discountenancing donations, testamentary or otherwise, between persons living in concubinage or otherwise sustaining immoral relations, 62 A.L.R. 286 .

Gift by husband as fraud on wife, 64 A.L.R. 466 ; 49 A.L.R.2d 521.

44-5-88. Gifts void against creditors and bona fide purchasers.

  1. An insolvent person may not make a valid gift to the injury of his existing creditors.
  2. When partial or complete possession of property remains with the donor, every parol gift thereof shall be void against bona fide creditors and bona fide purchasers without notice.

    (Orig. Code 1863, § 2619; Code 1868, § 2620; Code 1873, § 2662; Code 1882, § 2662; Civil Code 1895, § 3569; Civil Code 1910, § 4149; Code 1933, § 48-110.)

JUDICIAL DECISIONS

Transaction may be set aside. - Every voluntary deed or conveyance, made by a debtor insolvent at the time of execution, being thus invalid, and an insolvent person being precluded from making a valid gift to the injury of the person's existing creditors, such a transaction may be set aside, and the assets thus transferred subjected to debts existing at the time of the transfer, or to subsequent debts if there was an intent to defraud as to the creditors. Edwards v. United Food Brokers, Inc., 195 Ga. 1 , 22 S.E.2d 812 (1942).

Conveyance is void when the donor thereby renders oneself insolvent. United States v. Phillips, 59 F. Supp. 1006 (S.D. Ga. 1945).

Conveyance leaving debtor without resources to pay debts. - Debtor is insolvent and debtor's voluntary deed is void when, after such conveyance, property left or retained by the debtor is not ample to pay debtor's existing debts. Federal Land Bank v. Bush, 179 Ga. 627 , 176 S.E. 639 (1934).

Existing and subsequent creditors. - Gift by a debtor insolvent at the time is void as to the debtor's then existing creditors whether made for the purpose of defrauding the creditors or not; but such a gift is not void against subsequent creditors, unless at the time of making it there was an intention to defraud. Lane v. Newton, 140 Ga. 415 , 78 S.E. 1082 (1913); Beasley v. Smith, 144 Ga. 377 , 87 S.E. 293 (1915); Roach v. Roach, 212 Ga. 40 , 90 S.E.2d 423 (1955).

Conveyance by solvent person binding. - Voluntary conveyance made by a husband, solvent at the time, to his wife and children, is binding against creditors. Brown v. Spivey, 53 Ga. 155 (1874); Trounstine & Co. v. Irving, 91 Ga. 92 , 16 S.E. 310 (1892).

Donee's knowledge is irrelevant. - If a husband, insolvent at the time and having no property subject to the demands of judgment creditors, makes a gift of property to his wife, such a gift would be void as against creditors, whether or not the wife had knowledge or notice of the husband's fraudulent intent. Garner v. State Banking Co., 150 Ga. 6 , 102 S.E. 442 (1920).

Standing to set aside conveyance. - Assignee in bankruptcy has no standing to impeach a voluntary conveyance made by the bankrupt to the bankrupt's children prior to the adjudication in bankruptcy, unless such conveyance was void because of fraud. Only existing creditors have a right to assail such a conveyance. Adams v. Collier, 122 U.S. 382, 7 S. Ct. 1208 , 30 L. Ed. 1207 (1887).

Possession by donor after gift as fraud. - Father being the proper custodian of property belonging to his minor child, possession of such by him is not indicative of fraud. Hargrove v. Turner, 112 Ga. 134 , 37 S.E. 89 , 81 Am. St. R. 24 (1900); Ross v. Cooley, 113 Ga. 1047 , 39 S.E. 471 (1901).

As a general rule, possession of personalty by an alleged donor, after the donor has executed an instrument purporting to evidence a gift of the property, is a badge of fraud which, in proceedings instituted by a judgment creditor of the former to subject the property to the donor's debt, must be satisfactorily explained in order to uphold the validity of the gift. Ross v. Cooley, 113 Ga. 1047 , 39 S.E. 471 (1901).

Debtor may make gift. - Person, though in debt, may in good faith make a voluntary conveyance of a part of the person's property, if the part which the person retains is amply sufficient to pay that person's debts. Cohen v. Parish, 105 Ga. 339 , 31 S.E. 205 (1898).

Services may be given away. - Person, though insolvent, can legally give away the person's services, and so doing is not a fraud upon the person's creditors. Brand v. Bagwell, 133 Ga. 750 , 66 S.E. 935 (1910).

Question of solvency for jury. - Whether a debtor is insolvent or not is a question for the jury. Primrose v. Browning, 56 Ga. 369 (1876).

Cited in Sims v. Albea, 72 Ga. 751 (1884); Garner v. State Banking Co., 150 Ga. 6 , 102 S.E. 442 (1920); Davenport & Broadhurst v. Wood, 166 Ga. 365 , 143 S.E. 398 (1928); Harper v. Atlanta Milling Co., 203 Ga. 608 , 48 S.E.2d 89 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, §§ 1, 8.

C.J.S. - 38 C.J.S., Gifts, § 7.

ALR. - Right of creditor or one representing him to recover money paid or property transferred by debtor on illegal consideration, 34 A.L.R. 1297 .

Right of parent as against creditor or lienor to make gift to minor child of latter's own services, 44 A.L.R. 876 .

44-5-89. Donation of blood by persons over 17 years of age.

Any person who is a resident of this state and who is 17 years of age or over may donate his blood to any person, firm, association, organization, public or private agency, or corporation without the consent of his parent or parents or guardian. Any person who is not a resident of this state and who is 17 years of age or over may donate his blood to any person, firm, association, organization, public or private agency, or corporation in this state without the consent of his parent or parents or guardian when the laws of the state wherein such person resides permit the donation of blood at such age.

(Ga. L. 1970, p. 150, § 1; Ga. L. 1975, p. 1071, § 1.)

Cross references. - Consent to surgical or medical treatment generally, Ch. 9, T. 31.

Labeling of blood withdrawn from person for transfusion purposes or for purposes of industrial use, Ch. 24, T. 31.

PART 2 G IFTS CAUSA MORTIS

RESEARCH REFERENCES

ALR. - Gift of savings deposit by delivery of passbook, 40 A.L.R. 1249 ; 84 A.L.R. 558 .

Birth of child as affecting gift causa mortis, 49 A.L.R. 1445 .

Gift or grant to one upon marriage, if married, payable at marriage, or the like, as vested or contingent, 30 A.L.R.2d 127.

44-5-100. Criteria for making valid gift causa mortis.

  1. To constitute a valid gift in contemplation of death, the following criteria must be met:
    1. The object of the gift must be personal property;
    2. The donor must be in his last illness or in peril of death;
    3. The gift must be intended to be absolute only in the event of death;
    4. The gift must be perfected by either actual or symbolic delivery; and
    5. The gift must be proved by one or more witnesses.
  2. A gift in contemplation of death may be made by parol.

    (Orig. Code 1863, § 2626; Code 1868, § 2626; Code 1873, § 2668; Code 1882, § 2668; Civil Code 1895, § 3574; Civil Code 1910, § 4154; Code 1933, § 48-201.)

JUDICIAL DECISIONS

Distinguished from gift inter vivos. - Gifts inter vivos and gifts causa mortis differ in nothing except that the latter are made in the expectation of death, become effectual only on the death of the donor, and may be revoked. Philpot v. Temple Banking Co., 3 Ga. App. 742 , 60 S.E. 480 (1908).

Chief distinction between a gift inter vivos and a gift causa mortis is that a gift causa mortis while immediately passing a revocable, contingent interest, must be intended to pass the absolute title only in the event of death. As a consequence, it is the general rule that a gift causa mortis may be revoked at any time during life at the option of the donor; and the donor's recovery from the particular illness or escape from the peril, in contemplation of which the gift was made, will of itself operate as a revocation. Cannon v. Williams, 194 Ga. 808 , 22 S.E.2d 838 (1942).

Revocable contingent interest in property. - Gift causa mortis carries an immediate though revocable contingent interest in the property, as distinguished from absolute title. The full title is intended to pass only in case of death. Higgs v. Willis, 205 Ga. 857 , 55 S.E.2d 372 (1949).

Donor must be in last illness. - If personal property be delivered by the owner to another for a third person with the intention of making a gift causa mortis at a time when the donor is not in the donor's last illness, this, without more, would not be sufficient to effectuate the gift; but if the donor, while in the donor's last illness and conscious of the approach of death, reaffirms the gift, and requests the person receiving the property to retain possession and deliver to the intended donee after the donor's death, this would be the equivalent of a new delivery, taking effect from the time such request was made. Sorrells v. Collins, 110 Ga. 518 , 36 S.E. 74 (1900).

Transaction which did not occur during the last illness or while the deceased was in peril of death does not meet the requirements of a gift causa mortis. Guest v. Stone, 206 Ga. 239 , 56 S.E.2d 247 (1949).

Gifts must be absolute only in event of death. - Gift causa mortis must be intended to be absolute only in the event of death. Southern Indus. Inst. v. Marsh, 15 F.2d 347 (5th Cir. 1926), cert. denied, 273 U.S. 747, 71 L. Ed. 872 , 47 S. Ct. 449 (1927).

Alleged debt forgiveness was not a gift in contemplation of death if the gift was intended to be immediate. Harrison v. Martin, 213 Ga. App. 337 , 444 S.E.2d 618 (1994).

Delivery provable by circumstantial evidence. - Though the delivery of the article allegedly given must be proved, it may be proved by circumstantial as well as by direct evidence. Salmon v. McCrary, 71 Ga. App. 262 , 30 S.E.2d 444 (1944).

Delivery to third person valid. - In order to constitute a valid gift of personalty made by one in view of impending dissolution, it is not necessary that there should be a delivery of the property to the donee personally; but such a delivery may be effected and the gift rendered valid by a delivery to a third person in trust and for the benefit of the donee. Sorrells v. Collins, 110 Ga. 518 , 36 S.E. 74 (1900).

Gift in writing not testamentary in character. - Expression in writing transferring title to the trustee of the donee, which made the gift conditional on the donor's death, and which is but an expressed statement of this essential element of a gift causa mortis as distinguished from a gift inter vivos, did not render the writing testamentary in character. Whether express or not, such a condition is always implied under the very definition of a gift causa mortis, as generally recognized and as expressed in this statute. Cannon v. Williams, 194 Ga. 808 , 22 S.E.2d 838 (1942) (see O.C.G.A. § 44-5-100 ).

Delivery of a certificate of deposit constituted a valid gift causa mortis. Philpot v. Temple Banking Co., 3 Ga. App. 742 , 60 S.E. 480 (1908).

Purported transfer of certificates of deposit not valid gift causa mortis. - Trial court did not err by holding that the purported transfer of certificates of deposit did not constitute a valid gift causa mortis since the only evidence submitted by defendants that the decedent intended to transfer the certificates to the defendant were the signature cards and the defendant's testimony. NeSmith v. Ellerbee, 203 Ga. App. 65 , 416 S.E.2d 364 (1992).

Check as gift causa mortis. - Check payable to the donor or bearer is capable of being made a gift inter vivos or causa mortis, and that in such gifts a mere delivery of the check, accompanied by proper words of gift, is sufficient; and it is not necessary, in order that the gift may be complete, that the check shall be presented for payment before the death of the donor. Philpot v. Temple Banking Co., 3 Ga. App. 742 , 60 S.E. 480 (1908).

Life insurance policy. - General rule is that a policy of insurance on the life of a donor may be made the subject of a gift in the same manner as any other chose in action. Higgs v. Willis, 205 Ga. 857 , 55 S.E.2d 372 (1949).

Realty cannot be the subject of a gift causa mortis. Salmon v. McCrary, 71 Ga. App. 262 , 30 S.E.2d 444 (1944).

Conveyance not a gift causa mortis. - Conveyance was not a gift causa mortis under O.C.G.A. § 44-5-100(a) when a promissory note executed by grantees in favor of a decedent indicated that the debt was to be forgiven upon the decedent's death. The consideration was bargained for and paid to the decedent until the decedent's death; neither a security deed nor the note made any mention of a gift; and the grantees would have been obligated to continue paying on the note had the decedent not died. Mize v. Woodall, 291 Ga. App. 349 , 662 S.E.2d 178 (2008).

Cited in Poullain v. Poullain, 79 Ga. 11 , 4 S.E. 81 (1887); Cowdrey v. Barksdale, 16 Ga. App. 387 , 85 S.E. 617 (1915); Bank of Adel v. Hutchinson, 18 Ga. App. 418 , 89 S.E. 492 (1916); Moore v. Tiller, 61 F.2d 478 (5th Cir. 1932); Drake v. Wayne, 52 Ga. App. 654 , 184 S.E. 339 (1936); Thomas v. Lockwood, 198 Ga. 437 , 31 S.E.2d 791 (1944); Swann v. Morris, 212 Ga. 460 , 93 S.E.2d 673 (1956); Abney v. West, 101 Ga. App. 450 , 114 S.E.2d 149 (1960).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, §§ 5, 9, 12, 39.

C.J.S. - 38 C.J.S., Gifts, §§ 45, 47.

ALR. - Gift of debt of third person not evidenced by commercial instrument, 14 A.L.R. 707 .

When transfer deemed to be one in contemplation of death, within the meaning of the inheritance tax laws, 21 A.L.R. 1335 ; 41 A.L.R. 989 ; 75 A.L.R. 544 ; 120 A.L.R. 170 ; 148 A.L.R. 1051 .

Delivery of bill or note of third person by way of gift, 25 A.L.R. 642 .

Validity of gift causa mortis as affected by donor's intention to transfer all his property, 90 A.L.R. 366 .

Necessity of delivery where subject of gift is already in possession of donee at time of declaration of gift, 103 A.L.R. 1110 .

What institutions or gifts are within statutes declaring invalid bequests for charitable, benevolent, religious, or similar purposes, if made within a specified period before testator's death, or prohibiting, or limiting the amount of, such bequests, 111 A.L.R. 525 .

May proof of delivery essential to gift rest upon subsequent declarations of donor, 124 A.L.R. 1391 .

Delivery of key to safe-deposit box or other receptacle as sufficient to consummate gift of contents, 127 A.L.R. 780 .

Time as of which rate of tax applicable to transfer in contemplation of death, or to take effect on death, is determined, 5 A.L.R.2d 1065.

Transfer by inter vivos trust of insurance policies upon settlor's life as in contemplation of death for tax purposes, 17 A.L.R.2d 787.

Nature and validity of gift made in contemplation of suicide, 60 A.L.R.2d 575.

Creation of joint savings account or savings certificate as gift to survivor, 43 A.L.R.3d 971.

Delivery of personalty to third person with directions to deliver to donee after donor's death as valid gift, 57 A.L.R.3d 1083.

Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 A.L.R.3d 608.

ARTICLE 5 THE GEORGIA TRANSFERS TO MINORS ACT

Editor's notes. - Section 10 of Ga. L. 1972, p. 193, effective July 1, 1972, provided that it was the purpose of the Act to reduce the age of legal majority from 21 years of age to 18 years of age so that all persons, upon reaching the age of 18, would have the rights, privileges, powers, duties, responsibilities, and liabilities previously applicable to persons 21 years of age or over. The section further provided that the Act was not to be construed as having the effect of changing the definition of a minor or of an adult as defined in the former "The Georgia Gift to Minors Act" for the purposes of that Act.

Ga. L. 1990, p. 667, § 1, effective July 1, 1990, repealed the Code sections formerly codified at this article and enacted the current article. The former article, concerning the Georgia Gift to Minors Act, consisted of §§ 44-5-110 through 44-5-124 and was based on Ga. L. 1955, p. 592, §§ 1-13; Ga. L. 1957, p. 98, § 1; Ga. L. 1960, p. 232, § 1; Ga. L. 1969, p. 24, §§ 1-8; Ga. L. 1981, Ex. Sess., p. 8; Ga. L. 1983, p. 3, § 33, Ga. L. 1984, p. 22, § 44, and Ga. L. 1985, p. 819, §§ 1-3.

Law reviews. - For article surveying trust and estate law in 1984-1985, see 37 Mercer L. Rev. 443 (1985). For article discussing the custodian as a fiduciary under this article, see 7 Ga. St. B.J. 175 (1970).

RESEARCH REFERENCES

ALR. - Gift of savings deposit by delivery of passbook, 40 A.L.R. 1249 ; 84 A.L.R. 558 .

Right of parent as against creditor or lienor to make gift to minor child of latter's own services, 44 A.L.R. 876 .

"Business situs" for purposes of property taxation of intangibles in state other than domicile of owner, 143 A.L.R. 361 .

Construction and effect of Uniform Gifts to Minors Act, 50 A.L.R.3d 528.

44-5-110. Short title.

This article shall be known and may be cited as "The Georgia Transfers to Minors Act."

(Code 1981, § 44-5-110 , enacted by Ga. L. 1990, p. 667, § 1.)

Law reviews. - For annual survey of wills, trusts, and administration of estates, see 42 Mercer L. Rev. 491 (1990).

JUDICIAL DECISIONS

Cited in Baird v. Baird, 258 Ga. 186 , 367 S.E.2d 37 (1988); Brandenburg v. Brandenburg, 274 Ga. 183 , 551 S.E.2d 721 (2001).

44-5-111. Definitions.

As used in this article, the term:

  1. "Adult" means an individual who has attained the age of 21 years.
  2. "Benefit plan" means an employer's plan for the benefit of an employee or partner or an individual retirement account.
  3. "Broker" means a person lawfully engaged in the business of effecting transactions in securities or commodities for the person's own account or for the account of others.
  4. "Court" means the probate court in the county where the minor resides, or, if the minor is not a resident of this state, the probate court in the county where the custodian resides or has his principal place of business or where the custodial property is located.
  5. "Custodial property" means any interest in property transferred to a custodian under the authority of this article and the income from and proceeds of that interest in property.
  6. "Custodian" means a person so designated under Code Section 44-5-119 or a successor or substitute custodian designated under Code Section 44-5-128.
  7. "Financial institution" means a bank, trust company, national banking association, industrial bank, savings institution, or credit union chartered and supervised under state or federal law.
  8. "Guardian" means a person appointed or qualified by a court to act as general, limited, or temporary guardian of a minor's property or a person legally authorized to perform substantially the same functions.
  9. "Legal representative" means an individual's personal representative or guardian.
  10. "Member of the minor's family" means the minor's parent, stepparent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption.
  11. "Minor" means an individual who has not attained the age of 21 years.
  12. "Person" means an individual, corporation, organization, or other legal entity.
  13. "Personal representative" means an executor, administrator, successor personal representative, or special administrator of a decedent's estate or a person legally authorized to perform substantially the same functions.
  14. "State" includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
  15. "Transfer" means a transaction that creates custodial property under Code Section 44-5-119.
  16. "Transferor" means a person who makes a transfer under the authority of this article.
  17. "Trust company" means a financial institution, corporation, or other legal entity authorized to exercise general trust powers in this state. (Code 1981, § 44-5-111 , enacted by Ga. L. 1990, p. 667, § 1.)

JUDICIAL DECISIONS

Cited in Honeycutt v. Edwards, 136 Ga. App. 486 , 221 S.E.2d 678 (1975); Penny v. McBride, 282 Ga. App. 590 , 639 S.E.2d 561 (2006).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, § 1.

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 1.

44-5-112. Applicability of article.

  1. This article applies to a transfer that refers to "The Georgia Transfers to Minors Act" in the designation under subsection (a) of Code Section 44-5-119 by which the transfer is made if at the time of the transfer the transferor, the minor, or the custodian is a resident of this state or the custodial property is located in this state. The custodianship so created remains subject to this article despite a subsequent change in residence of a transferor, the minor, or the custodian or the removal of custodial property from this state.
  2. A person designated as custodian under the authority of this article is subject to personal jurisdiction in this state with respect to any matter relating to the custodianship.
  3. A transfer that purports to be made and which is valid under the Uniform Transfers to Minors Act, the Uniform Gifts to Minors Act, or a substantially similar act of another state is governed by the law of the designated state and may be executed and is enforceable in this state if, at the time of the transfer, the transferor, the minor, or the custodian is a resident of the designated state or the custodial property is located in the designated state. (Code 1981, § 44-5-112 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 2.

ALR. - Gift of savings deposit by delivery of passbook, 40 A.L.R. 1249 ; 84 A.L.R. 558 .

Delivery as essential to gift of tangible chattels or securities by written instrument, 63 A.L.R. 537 ; 48 A.L.R.2d 1405.

Delivery which will support gift of an undivided interest in a chattel or chose in action, 145 A.L.R. 1386 .

Opening savings account in sole name of another, without complete surrender of passbook, as a gift, 1 A.L.R.2d 538.

44-5-113. Nomination of custodian.

  1. A person having the right to designate the recipient of property transferable upon the occurrence of a future event may revocably nominate a custodian to receive the property for a minor recipient upon the occurrence of the event by naming the custodian, followed in substance by the words: "as custodian for ________________________ (name of minor) under 'The Georgia Transfers to Minors Act.' " The nomination may name one or more persons as substitute custodians to whom the property must be transferred, in the order named, if the first nominated custodian dies before the transfer or is unable, declines, or is ineligible to serve.  The nomination may be made in a will, a trust, a deed, an instrument exercising a power of appointment, or in a writing designating a beneficiary of contractual rights which is delivered to the payor, issuer, or other obligor of the contractual rights.
  2. A custodian nominated under this Code section must be a person to whom a transfer of property of that kind may be made under subsection (a) of Code Section 44-5-119.
  3. The nomination of a custodian under this Code section does not create custodial property until the nominating instrument becomes irrevocable or a transfer to the nominated custodian is completed under Code Section 44-5-119 .  Unless the nomination of a custodian has been revoked, upon the occurrence of the future event the custodianship becomes effective and the custodian shall enforce a transfer of the custodial property pursuant to Code Section 44-5-119 . (Code 1981, § 44-5-113 , enacted by Ga. L. 1990, p. 667, § 1.)

JUDICIAL DECISIONS

Cited in Honeycutt v. Edwards, 136 Ga. App. 486 , 221 S.E.2d 678 (1975).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, §§ 2 et seq., 36, 81, 91.

C.J.S. - 38 C.J.S., Gifts, §§ 11, 76, 77, 79 et seq.

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 3.

ALR. - When may gift by will or deed of trust be considered as one to a class, 75 A.L.R. 773 ; 61 A.L.R.2d 212.

Opening savings account in sole name of another, without complete surrender of passbook, as a gift, 1 A.L.R.2d 538.

Wills: gift to persons individually named but also described in terms of relationship to testator or another as class gift, 13 A.L.R.4th 978.

44-5-114. Irrevocable gift or exercise of power of appointment made under Code Section 44-5-119.

A person may make a transfer by irrevocable gift to, or by the irrevocable exercise of a power of appointment in favor of, a custodian for the benefit of a minor pursuant to Code Section 44-5-119.

(Code 1981, § 44-5-114 , enacted by Ga. L. 1990, p. 667, § 1.)

JUDICIAL DECISIONS

Cited in Honeycutt v. Edwards, 136 Ga. App. 486 , 221 S.E.2d 678 (1975).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, §§ 3, 4.

C.J.S. - 38 C.J.S., Gifts, § 34. 39 C.J.S., Guardian and Ward, § 70 et seq.

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 4.

44-5-115. Irrevocable transfer by personal representative or trustee to custodian for minor's benefit.

  1. A personal representative or trustee may make an irrevocable transfer pursuant to Code Section 44-5-119 to a custodian for the benefit of a minor as authorized in the governing will or trust.
  2. If the testator or settlor has nominated a custodian under Code Section 44-5-113 to receive the custodial property, the transfer must be made to that person.
  3. If the testator or settlor has not nominated a custodian under Code Section 44-5-113 , or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, the personal representative or the trustee, as the case may be, shall designate the custodian from among those eligible to serve as custodian for property of that kind under subsection (a) of Code Section 44-5-119 , which designation may include the personal representative or the trustee. (Code 1981, § 44-5-115 , enacted by Ga. L. 1990, p. 667, § 1.)

JUDICIAL DECISIONS

Use of funds by custodian. - Custodian may show that the custodian has used a part or all of the funds in the custodian's absolute discretion for the support, maintenance, education, or general use of the minor and, although title was in the beneficiary, the beneficiary is entitled only to so much of the fund or property as may remain after proper disbursement. Honeycutt v. Edwards, 136 Ga. App. 486 , 221 S.E.2d 678 (1975).

Cited in Harris, Upham & Co. v. Harris, 142 Ga. App. 696 , 236 S.E.2d 773 (1977).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, § 7.

C.J.S. - 39 C.J.S., Guardian and Ward, § 70 et seq.

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 5.

44-5-116. Irrevocable transfer by personal representative, trustee, or guardian to custodian.

  1. Subject to subsection (c) of this Code section, a personal representative or trustee may make an irrevocable transfer to an adult or trust company as custodian (which custodian may be the personal representative or the trustee) for the benefit of a minor pursuant to Code Section 44-5-119, in the absence of a will or under a will or trust that does not contain an authorization to do so.
  2. Subject to subsection (c) of this Code section, a guardian may make an irrevocable transfer to an adult or trust company as custodian (which custodian may be the guardian) for the benefit of the minor pursuant to Code Section 44-5-119.
  3. A transfer under subsection (a) or (b) of this Code section may be made only if:
    1. The personal representative, trustee, or guardian considers the transfer to be in the best interest of the minor;
    2. The transfer is not prohibited by or inconsistent with provisions of the applicable will, trust agreement, or other governing instrument; and
    3. The transfer is authorized by the court as in the best interest of the minor if such transfer, combined with all prior transfers to the minor under this Code section, in the aggregate exceeds $10,000.00 in value. (Code 1981, § 44-5-116 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Gifts, § 4.

C.J.S. - 39 C.J.S., Guardian and Ward, § 218 et seq.

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 6.

44-5-117. Transfers by other persons to custodian.

  1. Subject to subsections (b) and (c) of this Code section, a person not subject to Code Section 44-5-115 or 44-5-116 who holds property of or owes a liquidated debt to a minor may make an irrevocable transfer to a custodian for the benefit of the minor pursuant to Code Section 44-5-119.
  2. If a person having the right to do so under Code Section 44-5-113 has nominated a custodian under that Code section to receive the custodial property, the transfer must be made to the custodian so designated.
  3. If no custodian has been nominated under Code Section 44-5-113 , or all persons so nominated as custodian die before the transfer or are unable, decline, or are ineligible to serve, a transfer under this Code section may be made to an adult member of the minor's family or to a trust company as custodian for the benefit of the minor if a guardian appointed for such minor considers the transfer to be in the best interest of the minor and, on petition brought by the minor's guardian, the transfer is authorized by the court as in the best interest of the minor. (Code 1981, § 44-5-117 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Gifts, § 4.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 10 et seq., 199, 200, 221.

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 7.

44-5-118. Effect of custodian's written acknowledgment of delivery.

A written acknowledgment of delivery by a custodian constitutes a sufficient receipt and discharge for custodial property transferred to the custodian pursuant to this article.

(Code 1981, § 44-5-118 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, § 4.

C.J.S. - 39 C.J.S., Guardian and Ward, § 41 et seq.

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 8.

44-5-119. Creation and transfer of custodial property.

  1. Custodial property is created and a transfer is made whenever:
    1. An uncertificated security or a certificated security in registered form is either:
      1. Registered in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for  ________________________ (name of minor) under 'The Georgia Transfers to Minors Act' "; or
      2. Delivered if in certificated form, or any document necessary for the transfer of an uncertificated security is delivered, together with any necessary endorsement to an adult other than the transferor or to a trust company as custodian, accompanied by an instrument in substantially the form set forth in subsection (b) of this Code section;
    2. Money is paid or delivered to a broker or financial institution for credit to an account in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for ________________________ (name of minor) under 'The Georgia Transfers to Minors Act' ";
    3. The ownership of a life or endowment insurance policy or annuity contract is either:
      1. Registered with the issuer in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for ________________________ (name of minor) under 'The Georgia Transfers to Minors Act' "; or       (B) Assigned in a writing delivered to an adult other than the transferor or to a trust company whose name in the assignment is followed in substance by the words: "as custodian for ________________________ (name of minor) under 'The Georgia Transfers to Minors Act' ";      (4) An irrevocable exercise of a power of appointment or an irrevocable present right to future payment under a contract is the subject of a written notification delivered to the payor, issuer, or other obligor that the right is transferred to the transferor, an adult other than the transferor, or a trust company, whose name in the notification is followed in substance by the words: "as custodian for ________________________ (name of minor) under 'The Georgia Transfers to Minors Act' ";      (5) An interest in real property is recorded in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words:  "as custodian for ________________________ (name of minor) under 'The Georgia Transfers to Minors Act' ";

        (7) An interest in any property not described in paragraphs (1) through (6) of this subsection is transferred to an adult other than the transferor or to a trust company by a written instrument in substantially the form set forth in subsection (b) of this Code section.

  2. An instrument in the following form satisfies the requirements of subparagraph (B) of paragraph (1) and paragraph (7) of subsection (a) of this Code section:
  3. A transferor shall place the custodian in control of the custodial property as soon as practicable. (Code 1981, § 44-5-119 , enacted by Ga. L. 1990, p. 667, § 1.)

(6) A certificate of title issued by a department or agency of a state or of the United States which evidences title to tangible personal property is either:

(A) Issued in the name of the transferor, an adult other than the transferor, or a trust company, followed in substance by the words: "as custodian for ________________________ (name of minor) under 'The Georgia Transfers to Minors Act' "; or (B) Delivered to an adult other than the transferor or to a trust company, endorsed to that person, followed in substance by the words: "as custodian for ________________________ (name of minor) under 'The Georgia Transfers to Minors Act' ";

"TRANSFER UNDER THE GEORGIA

TRANSFERS TO MINORS ACT

I, ________________________ (name of transferor or name and representative capacity if a fiduciary) transfer to ________________________ (name of custodian), as custodian for ________________________ (name of minor) under 'The Georgia Transfers to Minors Act,' the following: (insert a description of the custodial property sufficient to identify it). Dated: __________________________ __________________________ (Signature) ________________________ (name of custodian) acknowledges receipt of the property described above as custodian for the minor named above under 'The Georgia Transfers to Minors Act.' Dated: __________________________ __________________________ (Signature of Custodian)"

Cross references. - Relief of garnishee from liability, § 18-4-92.1.

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, § 7.

C.J.S. - 39 C.J.S., Guardian and Ward, § 43.

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 9.

44-5-120. Single custodianship.

A transfer may be made only for one minor, and only one person may be custodian. All custodial property held under the authority of this article by the same custodian for the benefit of the same minor constitutes a single custodianship.

(Code 1981, § 44-5-120 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, § 7.

C.J.S. - 39 C.J.S., Guardian and Ward, § 20 et seq.

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 10.

44-5-121. Validity of transfer.

  1. The validity of a transfer made in a manner prescribed in this article is not affected by:
    1. Failure of the transferor to comply with subsection (c) of Code Section 44-5-119 concerning possession and control;
    2. Designation of an ineligible custodian, except designation of the transferor in the case of property for which the transferor is ineligible to serve as custodian under subsection (a) of Code Section 44-5-119; or
    3. Death or incapacity of a person nominated under Code Section 44-5-113 or designated under Code Section 44-5-119 as custodian or the disclaimer of the office by that person.
  2. A transfer made pursuant to Code Section 44-5-119 is irrevocable, and the custodial property is indefeasibly vested in the minor, but the custodian has all the rights, powers, duties, and authority provided in this article, and neither that minor nor the minor's legal representative has any right, power, duty, or authority with respect to the custodial property except as provided in this article.
  3. By making a transfer, the transferor incorporates in the disposition all the provisions of this article and grants to the custodian, and to any third person dealing with a person designated as custodian, the respective powers, rights, and immunities provided in this article. (Code 1981, § 44-5-121 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, § 7.

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 11.

44-5-122. Powers and duties of custodian; name in which registered securities to be held; commingling with personal assets.

  1. A custodian shall:
    1. Take control of custodial property;
    2. Register or record title to custodial property if appropriate; and
    3. Collect, hold, manage, invest, and reinvest custodial property.
  2. In dealing with custodial property, a custodian shall invest and reinvest the custodial property as would prudent men of discretion and intelligence who are seeking a reasonable income and the preservation of their capital, without reference to the laws relating to permissible investments by fiduciaries.  If a custodian has a special skill or expertise or is named custodian on the basis of representations of a special skill or expertise, the custodian shall use that skill or expertise.  However, a custodian, in the custodian's discretion and without liability to the minor or the minor's estate, may retain any custodial property received from a transferor without reference to the laws relating to permissible investments by fiduciaries.
  3. A custodian may invest in or pay premiums on life insurance or endowment policies on:
    1. The life of the minor only if the minor or the minor's estate is the sole beneficiary; or
    2. The life of another person in whom the minor has an insurable interest only to the extent that the minor, the minor's estate, or the custodian in the capacity of custodian is the irrevocable beneficiary.
  4. A custodian at all times shall keep custodial property separate and distinct from all other property in a manner sufficient to identify it clearly as custodial property of the minor. Custodial property consisting of an undivided interest is so identified if the minor's interest is held as a tenant in common and is fixed. Custodial property subject to recordation is so identified if it is recorded, and custodial property subject to registration is so identified if it is either registered, or held in an account designated, in the name of the custodian, followed in substance by the words: "as a custodian for ________________________ (name of minor) under 'The Georgia Transfers to Minors Act.' "
  5. A custodian shall keep records of all transactions with respect to custodial property, including information necessary for the preparation of the minor's tax returns, and shall make them available for inspection at reasonable intervals by a parent or legal representative of the minor or by the minor if the minor has attained the age of 14 years. (Code 1981, § 44-5-122 , enacted by Ga. L. 1990, p. 667, § 1.)

JUDICIAL DECISIONS

Probate court has sole power to compel accounting. - Act vests in the probate court the sole power to compel the custodian to account for the funds. Honeycutt v. Edwards, 136 Ga. App. 486 , 221 S.E.2d 678 (1975).

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, § 7.

C.J.S. - 39 C.J.S., Guardian and Ward, § 207 et seq.

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 12.

44-5-123. Custodian's rights, powers, and authority over custodial property; liability for breach of Code Section 44-5-122.

  1. A custodian, acting in a custodial capacity, has all the rights, powers, and authority over custodial property that adult owners have over their own property, but a custodian may exercise those rights, powers, and authority in that capacity only.
  2. This Code section does not relieve a custodian from liability for breach of Code Section 44-5-122 . (Code 1981, § 44-5-123 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 13.

44-5-124. Custodial discretion in transfers of custodial property for support, maintenance, education, and general use and benefit of minor.

  1. A custodian may deliver or pay to the minor or expend for or apply to the minor's benefit so much or the whole of the custodial property as the custodian considers advisable for the support, maintenance, education, and general use and benefit of the minor in such manner, at such time or times, and to such extent as the custodian may deem suitable and proper, without court order and without regard to:
    1. The duty or ability of the custodian personally or of any other person to support the minor; or
    2. Any other income or property of the minor which may be applicable or available for that purpose.
  2. On petition of an interested person or the minor if the minor has attained the age of 14 years, the court may order the custodian to deliver or pay to the minor or expend for the minor's benefit so much of the custodial property as the court considers advisable for the use and benefit of the minor.
  3. A delivery, payment, or expenditure under this Code section is in addition to, not in substitution for, and does not affect any obligation of a person to support the minor. (Code 1981, § 44-5-124 , enacted by Ga. L. 1990, p. 667, § 1.)

JUDICIAL DECISIONS

Cited in Brandenburg v. Brandenburg, 274 Ga. 183 , 551 S.E.2d 721 (2001).

RESEARCH REFERENCES

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 14.

ALR. - Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 A.L.R.3d 608.

44-5-125. Compensation; expenses of custodian; bond.

  1. A custodian is entitled to reimbursement from custodial property for reasonable expenses incurred in the performance of the custodian's duties.
  2. Except for one who is a transferor under Code Section 44-5-114, a custodian has a noncumulative election during each calendar year to charge reasonable compensation for services performed during that year.
  3. Except as provided in subsection (f) of Code Section 44-5-128 , a custodian need not give a bond. (Code 1981, § 44-5-125 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 15.

44-5-126. Liability of third person for dealings with person purporting to act in capacity of custodian.

A third person in good faith and without court order may act on the instructions of or otherwise deal with any person purporting to make a transfer or purporting to act in the capacity of a custodian and, in the absence of knowledge, is not responsible for determining:

  1. The validity of the purported custodian's designation;
  2. The propriety of, or the authority under this article for, any act of the purported custodian;
  3. The validity or propriety under this article of any instrument or instructions executed or given either by the person purporting to make a transfer or by the purported custodian; or
  4. The propriety of the application of any property of the minor delivered to the purported custodian. (Code 1981, § 44-5-126 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 16.

44-5-127. Assertion of claim arising out of custodial relationship.

  1. A claim based on:
    1. A contract entered into by a custodian acting in a custodial capacity;
    2. An obligation arising from the ownership or control of custodial property; or
    3. A tort committed during the custodianship

      may be asserted against the custodial property by proceeding against the custodian in the custodial capacity, whether or not the custodian or the minor is personally liable therefor.

  2. A custodian is not personally liable:
    1. On a contract properly entered into in the custodial capacity unless the custodian fails to reveal that capacity and to identify the custodianship in the contract; or
    2. For an obligation arising from control of custodial property or for a tort committed during the custodianship unless the custodian is personally at fault.
  3. A minor is not personally liable for an obligation arising from ownership of custodial property or for a tort committed during the custodianship unless the minor is personally at fault. (Code 1981, § 44-5-127 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 17.

44-5-128. (See Editor's notes.) Appointment of successor custodian.

  1. A person nominated under Code Section 44-5-113 or designated under Code Section 44-5-119 as custodian may decline to serve by delivering a valid disclaimer under Code Section 53-2-115 to the person who made the nomination or to the transferor or the transferor's legal representative.  If the event giving rise to a transfer has not occurred and no substitute custodian able, willing, and eligible to serve was nominated under Code Section 44-5-113, the person who made the nomination may nominate a substitute custodian under Code Section 44-5-113; otherwise, the transferor or the transferor's legal representative shall designate a substitute custodian at the time of the transfer, in either case from among the persons eligible to serve as custodian for that kind of property under subsection (a) of Code Section 44-5-119. The custodian so designated has the rights of a successor custodian.
  2. A custodian at any time may designate a trust company or an adult other than a transferor under Code Section 44-5-114 as successor custodian by executing and dating an instrument of designation before a subscribing witness other than the successor. If the instrument of designation does not contain or is not accompanied by the resignation of the custodian, the designation of the successor does not take effect until the custodian resigns, dies, becomes incapacitated, or is removed.
  3. A custodian may resign at any time by delivering written notice to the minor if the minor has attained the age of 14 years and to the successor custodian and by delivering the custodial property to the successor custodian.
  4. If a custodian is ineligible, dies, or becomes incapacitated without having effectively designated a successor and the minor has attained the age of 14 years, the minor may designate as successor custodian, in the manner prescribed in subsection (b) of this Code section, an adult member of the minor's family, a guardian of the minor, or a trust company. If the minor has not attained the age of 14 years or fails to act within 60 days after the ineligibility, death, or incapacity, the guardian of the minor becomes successor custodian.  If the minor has no guardian or the guardian declines to act, the transferor, the legal representative of the transferor or of the custodian, an adult member of the minor's family, or any other interested person may petition the court to designate a successor custodian.
  5. A custodian who declines to serve under subsection (a) of this Code section or resigns under subsection (c) of this Code section, or the legal representative of a deceased or incapacitated custodian, as soon as practicable, shall put the custodial property and records in the possession and control of the successor custodian.  The successor custodian by action may enforce the obligation to deliver custodial property and records and becomes responsible for each item as received.
  6. A transferor, the legal representative of a transferor, an adult member of the minor's family, a guardian of the person of the minor, the guardian of the minor, or the minor if the minor has attained the age of 14 years may petition the court to remove the custodian for cause and to designate a successor custodian other than a transferor under Code Section 44-5-114 or to require the custodian to give appropriate bond. (Code 1981, § 44-5-128 , enacted by Ga. L. 1990, p. 667, § 1.)

For application of this statute in 2020, see Executive Order 04.09.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2 020-executive-orders.

RESEARCH REFERENCES

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 18.

44-5-129. Accounting by custodian; petition for accounting.

  1. A minor who has attained the age of 14 years, the minor's guardian of the person or legal representative, an adult member of the minor's family, a transferor, or a transferor's legal representative may petition the court:
    1. For an accounting by the custodian or the custodian's legal representative; or
    2. For a determination of responsibility, as between the custodial property and the custodian personally, for claims against the custodial property unless the responsibility has been adjudicated in an action under Code Section 44-5-127 to which the minor or the minor's legal representative was a party.
  2. A successor custodian may petition the court for an accounting by the predecessor custodian.
  3. The court, in a proceeding under this article or in any other proceeding, may require or permit the custodian or the custodian's legal representative to account.
  4. If a custodian is removed under subsection (f) of Code Section 44-5-128 , the court shall require an accounting and order delivery of the custodial property and records to the successor custodian and the execution of all instruments required for transfer of the custodial property. (Code 1981, § 44-5-129 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

U.L.A. - Uniform Transfers to Minors Act (U.L.A) § 19.

44-5-130. Transfer of custodial property by custodian to minor or minor's estate.

The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor's estate upon the earliest of:

  1. The minor's attainment of 21 years of age with respect to custodial property transferred under Code Section 44-5-114 or 44-5-115;
  2. The minor's attainment of majority under the laws of this state other than this article with respect to custodial property transferred under Code Section 44-5-116 or 44-5-117; or
  3. The minor's death. (Code 1981, § 44-5-130 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 20.

44-5-131. Applicability to transfers made after July 1, 1990.

This article applies to a transfer within the scope of Code Section 44-5-112 made after July 1, 1990, if:

  1. The transfer purports to have been made under former Article 5 of this chapter, known as "The Georgia Gifts to Minors Act"; or
  2. The instrument by which the transfer purports to have been made uses in substance the designation "as custodian under the Uniform Gifts to Minors Act" or "as custodian under the Uniform Transfers to Minors Act" of any other state, and the application of this article is necessary to validate the transfer. (Code 1981, § 44-5-131 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 21.

44-5-132. Applicability to transfers made prior to July 1, 1990.

  1. Any transfer of custodial property as now defined in this article made before July 1, 1990, is validated notwithstanding that there was no specific authority in former Article 5 of this chapter, known as "The Georgia Gifts to Minors Act," for the coverage of custodial property of that kind or for a transfer from that source at the time the transfer was made.
  2. This article applies to all transfers made before July 1, 1990, in a manner and form prescribed in former Article 5 of this chapter, known as "The Georgia Gifts to Minors Act," except insofar as the application impairs constitutionally vested rights or extends the duration of custodianships in existence on July 1, 1990. (Code 1981, § 44-5-132 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 22.

44-5-133. Uniform applicability of article.

This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among states enacting it.

(Code 1981, § 44-5-133 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

U.L.A. - Uniform Transfers Minors Act (U.L.A.) § 23.

44-5-134. Exceptions to article.

The former Article 5 of this chapter, known as "The Georgia Gifts to Minors Act," is repealed. To the extent that this new article, by virtue of subsection (b) of Code Section 44-5-132, does not apply to transfers made in a manner prescribed in "The Georgia Gifts to Minors Act" or to the powers, duties, and immunities conferred by transfers in that manner upon custodians and persons dealing with custodians, the repeal of "The Georgia Gifts to Minors Act" does not affect those transfers or those powers, duties, and immunities.

(Code 1981, § 44-5-134 , enacted by Ga. L. 1990, p. 667, § 1.)

RESEARCH REFERENCES

U.L.A. - Uniform Transfers to Minors Act (U.L.A.) § 27.

ARTICLE 6 REVISED UNIFORM ANATOMICAL GIFTS

Cross references. - Human body trafficking, Art. 6, Ch. 12, T. 16. Dead bodies, Ch. 21, T. 31. Eye banks, Ch. 23, T. 31. Advanced directives for health care, Ch. 32, T. 31. Forms for making anatomical gifts upon issuance of driver's license, § 40-5-6 .

Editor's notes. - Ga. L. 2008, p. 503, § 1, effective July 1, 2008, repealed the Code sections formerly codified at this article and enacted the current article. The former article consisted of Code Sections 44-5-140 through 44-5-151, relating to anatomical gifts, and was based on Ga. L. 1969, p. 59, § 9 and Ga. L. 1984, p. 1036, § 1; Ga. L. 1986, p. 645, § 1, 2; Ga. L. 1987, p. 1101, §§ 1-3; Ga. L. 1992, p. 2946, § 2; Ga. L. 2002, p. 415, § 44; Ga. L. 2007, p. 133, § 17/HB 24.

44-5-140. Short title.

This article shall be known and may be cited as the "Georgia Revised Uniform Anatomical Gift Act."

(Code 1981, § 44-5-140 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

Administrative Rules and Regulations. - Anatomical Gifts, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Human Resources, Public Health, Chapter 290-5-50.

Law reviews. - For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008).

44-5-141. Definitions.

As used in this article, the term:

  1. "Adult" means an individual who is at least 18 years of age.
  2. "Agent" means an individual:
    1. Authorized to make health care decisions on the principal's behalf by an advance directive for health care or a durable power of attorney for health care; or
    2. Expressly authorized to make an anatomical gift on the principal's behalf by any other record signed by the principal.
  3. "Anatomical gift" means a donation of all or part of a human body to take effect after the donor's death for the purpose of transplantation, therapy, research, or education.
  4. "Decedent" means a deceased individual whose body or part is or may be the source of an anatomical gift. The term includes a stillborn infant and a fetus.
  5. "Disinterested witness" means a witness other than the spouse, child, parent, sibling, grandchild, grandparent, or guardian of the individual who makes, amends, revokes, or refuses to make an anatomical gift. The term does not include a person to which an anatomical gift could pass under Code Section 44-5-149.
  6. "Document of gift" means a donor card or other record used to make an anatomical gift. The term includes a statement or symbol on a driver's license, identification card, or donor registry.
  7. "Donor" means an individual whose body or part is the subject of an anatomical gift.
  8. "Donor registry" means a data base that contains records of anatomical gifts and amendments to or revocations of anatomical gifts.
  9. "Driver's license" means a license or permit issued by the Department of Driver Services to operate a vehicle, whether or not conditions are attached to the license or permit.
  10. "Eye bank" means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of human eyes or portions of human eyes.
  11. "Guardian" means a person appointed by a court to make decisions regarding the support, care, education, health, or welfare of an individual. The term does not include a guardian ad litem.
  12. "Hospital" means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state, or a subdivision of a state.
  13. "Identification card" means an identification card for persons without drivers' licenses issued pursuant to Code Sections 40-5-100 through 40-5-104 by the Department of Driver Services.
  14. "Know" means to have actual knowledge.
  15. "Minor" means an individual who is under 18 years of age.
  16. "Organ procurement organization" means a person designated by the Secretary of the United States Department of Health and Human Services as an organ procurement organization.
  17. "Parent" means a parent whose parental rights have not been terminated.
  18. "Part" means an organ, an eye, or tissue of a human being. The term does not include the whole body.
  19. "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
  20. "Physician" means an individual authorized to practice medicine or osteopathy under the law of any state.
  21. "Procurement organization" means an eye bank, organ procurement organization, or tissue bank.
  22. "Prospective donor" means an individual who is dead or near death and has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research, or education. The term does not include an individual who has made a refusal.
  23. "Reasonably available" means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift.
  24. "Recipient" means an individual into whose body a decedent's part has been or is intended to be transplanted.
  25. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  26. "Refusal" means a record created under Code Section 44-5-145 that expressly states an intent to bar other persons from making an anatomical gift of an individual's body or part.
  27. "Sign" means, with the present intent to authenticate or adopt a record:
    1. To execute or adopt a tangible symbol; or
    2. To attach to or logically associate with the record an electronic symbol, sound, or process.
  28. "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
  29. "Technician" means an individual determined to be qualified to remove or process parts by an appropriate organization that is licensed, accredited, or regulated under federal or state law. The term includes an individual who is authorized to remove eyes, known as an enucleator.
  30. "Tissue" means a portion of the human body other than an organ or an eye. The term does not include blood unless the blood is donated for the purpose of research or education.
  31. "Tissue bank" means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of tissue.
  32. "Transplant hospital" means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients. (Code 1981, § 44-5-141 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

44-5-142. Anatomical gifts during life of donor.

Subject to Code Section 44-5-146, an anatomical gift of a donor's body or part may be made during the life of the donor for the purpose of transplantation, therapy, research, or education in the manner provided in Code Section 44-5-143 by:

  1. The donor, if the donor is an adult or if the donor is a minor and is:
    1. Emancipated; or
    2. Authorized under state law to apply for a driver's license because the donor is at least 16 years of age;
  2. An agent of the donor, unless the advance directive for health care or durable power of attorney for health care prohibits the agent from making an anatomical gift;
  3. A parent of the donor, if the donor is an unemancipated minor; or
  4. The donor's guardian. (Code 1981, § 44-5-142 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

44-5-143. (See Editor's notes.) Method to make an anatomical gift.

  1. A donor may make an anatomical gift:
    1. By authorizing a statement or symbol indicating that the donor has made an anatomical gift to be imprinted on the donor's driver's license or identification card;
    2. In a will;
    3. During a terminal illness or injury of the donor, by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness;
    4. By granting power pursuant to a durable power of attorney for health care or advance directive for health care under Chapter 32 of Title 31; or
    5. As provided in subsection (b) of this Code section.
  2. A donor or other person authorized to make an anatomical gift under Code Section 44-5-142 may make a gift by a donor card or other record signed by the donor or other person making the gift or by authorizing that a statement or symbol indicating that the donor has made an anatomical gift be included on a donor registry. If the donor or other person is physically unable to sign a record, the record may be signed by another individual at the direction of the donor or other person and shall:
    1. Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and
    2. State that it has been signed and witnessed as provided in paragraph (1) of this subsection.
  3. Revocation, suspension, expiration, or cancellation of a driver's license or identification card upon which an anatomical gift is indicated does not invalidate the gift.
  4. An anatomical gift made by will takes effect upon the donor's death whether or not the will is probated. Invalidation of the will after the donor's death does not invalidate the gift. (Code 1981, § 44-5-143 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

Cross references. - Forms for making of anatomical gifts upon issuance or renewal of driver's license, § 40-5-6 .

Wills generally, Ch. 2, T. 53.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, in paragraph (a)(3), "or" was deleted from the end, and in paragraph (a)(4), "; or" was substituted for a period at the end.

For application of this statute in 2020, see Executive Order 04.09.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2 020-executive-orders.

RESEARCH REFERENCES

ALR. - Validity and effect of testamentary direction as to disposition of testator's body, 7 A.L.R.3d 747.

Tort liability of physician or hospital in connection with organ or tissue transplant procedures, 76 A.L.R.3d 890.

44-5-144. (See Editor's notes.) Amending, or revoking an anatomical gift.

  1. Subject to Code Section 44-5-146, a donor or other person authorized to make an anatomical gift under Code Section 44-5-142 may amend or revoke an anatomical gift by:
    1. A record signed by:
      1. The donor;
      2. The other person; or
      3. Subject to subsection (b) of this Code section, another individual acting at the direction of the donor or the other person if the donor or other person is physically unable to sign; or
    2. A later-executed document of gift that amends or revokes a previous anatomical gift or portion of an anatomical gift, either expressly or by inconsistency.
  2. A record signed pursuant to subparagraph (a)(1)(C) of this Code section shall:
    1. Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the donor or the other person; and
    2. State that it has been signed and witnessed as provided in paragraph (1) of this subsection.
  3. Subject to Code Section 44-5-146, a donor or other person authorized to make an anatomical gift under Code Section 44-5-142 may revoke an anatomical gift by the destruction or cancellation of the document of gift, or the portion of the document of gift used to make the gift, with the intent to revoke the gift.
  4. A donor may amend or revoke an anatomical gift that was not made in a will by any form of communication during a terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness.
  5. A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills under Chapter 4 of Title 53 or as provided in subsection (a) of this Code section. (Code 1981, § 44-5-144 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

For application of this statute in 2020, see Executive Order 04.09.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2 020-executive-orders.

44-5-145. (See Editor's notes.) Refusal to make an anatomical gift.

  1. An individual may refuse to make an anatomical gift of the individual's body or part by:
    1. A record signed by:
      1. The individual; or
      2. Subject to subsection (b) of this Code section, another individual acting at the direction of the individual if the individual is physically unable to sign;
    2. The individual's will, whether or not the will is admitted to probate or invalidated after the individual's death; or
    3. Any form of communication made by the individual during the individual's terminal illness or injury addressed to at least two adults, at least one of whom is a disinterested witness.
  2. A record signed pursuant to subparagraph (a)(1)(B) of this Code section shall:
    1. Be witnessed by at least two adults, at least one of whom is a disinterested witness, who have signed at the request of the individual; and
    2. State that it has been signed and witnessed as provided in paragraph (1) of this subsection.
  3. An individual who has made a refusal may amend or revoke the refusal:
    1. In the manner provided in subsection (a) of this Code section for making a refusal;
    2. By subsequently making an anatomical gift pursuant to Code Section 44-5-143 that is inconsistent with the refusal; or
    3. By destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal.
  4. Except as otherwise provided in subsection (h) of Code Section 44-5-146 , in the absence of an express, contrary indication by the individual set forth in the refusal, an individual's unrevoked refusal to make an anatomical gift of the individual's body or part bars all other persons from making an anatomical gift of the individual's body or part. (Code 1981, § 44-5-145 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

For application of this statute in 2020, see Executive Order 04.09.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2 020-executive-orders.

44-5-146. Role and authority of people other than donor.

  1. Except as otherwise provided in subsection (g) of this Code section and subject to subsection (f) of this Code section, in the absence of an express, contrary indication by the donor, a person other than the donor is barred from making, amending, or revoking an anatomical gift of a donor's body or part if the donor made an anatomical gift of the donor's body or part under Code Section 44-5-143 or an amendment to an anatomical gift of the donor's body or part under Code Section 44-5-144.
  2. A donor's revocation of an anatomical gift of the donor's body or part under Code Section 44-5-144 is not a refusal and does not bar another person specified in Code Sections 44-5-142 and 44-5-147 from making an anatomical gift of the donor's body or part under Code Section 44-5-143 or 44-5-148.
  3. If a person other than the donor makes an unrevoked anatomical gift of the donor's body or part under Code Section 44-5-143 or an amendment to an anatomical gift of the donor's body or part under Code Section 44-5-144, another person may not make, amend, or revoke the gift of the donor's body or part under Code Section 44-5-148.
  4. A revocation of an anatomical gift of a donor's body or part under Code Section 44-5-144 by a person other than the donor does not bar another person from making an anatomical gift of the body or part under Code Section 44-5-143 or 44-5-148.
  5. In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under Code Section 44-5-142, an anatomical gift of a part is neither a refusal to give another part nor a limitation on the making of an anatomical gift of another part at a later time by the donor or another person.
  6. In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under Code Section 44-5-142, an anatomical gift of a part for one or more of the purposes set forth in Code Section 44-5-142 is not a limitation on the making of an anatomical gift of the part for any of the other purposes by the donor or any other person under Code Section 44-5-143 or 44-5-148.
  7. If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor's body or part.
  8. If an unemancipated minor who signed a refusal dies, a parent of the minor who is reasonably available may revoke the minor's refusal. (Code 1981, § 44-5-146 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

44-5-147. Classes of persons available to make donations; priority.

  1. Subject to subsections (b) and (c) of this Code section and unless barred by Code Section 44-5-145 or 44-5-146, an anatomical gift of a decedent's body or part for the purpose of transplantation, therapy, research, or education may be made by any member of the following classes of persons who is reasonably available, in the order of priority listed:
    1. An agent of the decedent at the time of death who could have made an anatomical gift under paragraph (2) of Code Section 44-5-142 immediately before the decedent's death;
    2. The spouse of the decedent;
    3. Adult children of the decedent;
    4. Parents of the decedent;
    5. Adult siblings of the decedent;
    6. Adult grandchildren of the decedent;
    7. Grandparents of the decedent;
    8. The persons who were acting as the guardians of the person of the decedent at the time of death;
    9. Any other person having the authority to dispose of the decedent's body; and
    10. A representative ad litem who shall be appointed by a court of competent jurisdiction forthwith upon a petition heard ex parte filed by any person, which representative ad litem shall ascertain that no person of higher priority exists and is reasonably available who objects to the gift of all or any part of the decedent's body and that no evidence exists of the decedent's having made a communication expressing a desire that his or her body or body parts not be donated upon death.
  2. If there is more than one member of a class listed in paragraph (1), (3), (4), (5), (6), (7), or (8) of subsection (a) of this Code section entitled to make an anatomical gift, an anatomical gift may be made by a member of the class only if the person to which the gift may pass under Code Section 44-5-149 in good faith obtains a representation from the member that the member does not know of an objection by another member of the class. If an objection is known, the gift may be made only by a majority of the members of the class who are reasonably available.
  3. A person may not make an anatomical gift if, at the time of the decedent's death, a person in a prior class under subsection (a) of this Code section is reasonably available to make or to object to the making of an anatomical gift. (Code 1981, § 44-5-147 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

44-5-148. Signed writing or oral communication required for gift of document.

  1. A person authorized to make an anatomical gift under Code Section 44-5-147 may make an anatomical gift by a document of gift signed by the person making the gift or by that person's oral communication that is electronically recorded or is contemporaneously reduced to a record and signed by the individual receiving the oral communication.
  2. Subject to subsection (c) of this Code section, an anatomical gift by a person authorized under Code Section 44-5-147 may be amended or revoked orally or in a record by any member of a prior class who is reasonably available. If more than one member of the prior class is reasonably available, the gift made by a person authorized under Code Section 44-5-147 may be:
    1. Amended only if a majority of the reasonably available members agree to the amending of the gift; or
    2. Revoked only if a majority of the reasonably available members agree to the revoking of the gift or if they are equally divided as to whether to revoke the gift.
  3. A revocation under subsection (b) of this Code section is effective only if, before an incision has been made to remove a part from the donor's body or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital, or physician or technician knows of the revocation. (Code 1981, § 44-5-148 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

44-5-149. Recipients of anatomical gifts of procurement organizations.

  1. An anatomical gift may be made to the following persons named in the document of gift:
    1. A hospital; accredited medical school, dental school, college, or university; organ procurement organization; or other appropriate person, for research or education;
    2. Subject to subsection (b) of this Code section, an individual designated by the person making the anatomical gift if the individual is the recipient of the part; or
    3. An eye bank or tissue bank.
  2. If an anatomical gift to an individual under paragraph (2) of subsection (a) of this Code section cannot be transplanted into the individual, the part passes in accordance with subsection (g) of this Code section in the absence of an express, contrary indication by the person making the anatomical gift.
  3. If an anatomical gift of one or more specific parts or of all parts is made in a document of gift that does not name a person described in subsection (a) of this Code section but identifies the purpose for which an anatomical gift may be used, the following rules apply:
    1. If the part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank;
    2. If the part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank;
    3. If the part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ; and
    4. If the part is an organ, an eye, or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization.
  4. For the purpose of subsection (c) of this Code section, if there is more than one purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, the gift shall be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education.
  5. If an anatomical gift of one or more specific parts is made in a document of gift that does not name a person described in subsection (a) of this Code section and does not identify the purpose of the gift, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (g) of this Code section.
  6. If a document of gift specifies only a general intent to make an anatomical gift by words such as "donor," "organ donor," or "body donor," or by a symbol or statement of similar import, the gift may be used only for transplantation or therapy, and the gift passes in accordance with subsection (g) of this Code section.
  7. For purposes of subsections (b), (e), and (f) of this Code section, the following rules apply:
    1. If the part is an eye, the gift passes to the appropriate eye bank;
    2. If the part is tissue, the gift passes to the appropriate tissue bank; and
    3. If the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ.
  8. An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under paragraph (2) of subsection (a) of this Code section, passes to the organ procurement organization as custodian of the organ.
  9. If an anatomical gift does not pass pursuant to subsections (a) through (h) of this Code section or the decedent's body or part is not used for transplantation, therapy, research, or education, custody of the body or part passes to the person under obligation to dispose of the body or part.
  10. A person may not accept an anatomical gift if the person knows that the gift was not effectively made under Code Sections 44-5-143 and 44-5-148 or if the person knows that the decedent made a refusal under Code Section 44-5-145 that was not revoked. For purposes of this subsection, if a person knows that an anatomical gift was made on a document of gift, the person is deemed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift.
  11. Except as otherwise provided in paragraph (2) of subsection (a) of this Code section, nothing in this article affects the allocation of organs for transplantation or therapy. (Code 1981, § 44-5-149 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

Cross references. - Facilities for receipt and storage of human eyes, Ch. 23, T. 31.

RESEARCH REFERENCES

ALR. - Tort liability of physician or hospital in connection with organ or tissue transplant procedures, 76 A.L.R.3d 890.

Physician's use of patient's tissue, cells, or bodily substances for medical research or economic purposes, 16 A.L.R.5th 143.

44-5-150. Search and notification for information identifying donor status.

  1. The following persons shall make a reasonable search of an individual who the person reasonably believes is dead or near death for a document of gift or other information identifying the individual as a donor or as an individual who made a refusal:
    1. A law enforcement officer, firefighter, paramedic, emergency medical technician, or other first responder finding the individual, in accordance with subsection (b.1) of Code Section 17-6-11; and
    2. If no other source of the information is immediately available, a hospital, as soon as practical after the individual's arrival at the hospital.
  2. If a document of gift or a refusal to make an anatomical gift is located by the search required by subsection (a) of this Code section and the individual or deceased individual to whom it relates is taken to a hospital, the person responsible for conducting the search shall send the document of gift or refusal to the hospital.
  3. A person is not subject to criminal or civil liability for failing to discharge the duties imposed by this Code section but may be subject to administrative sanctions. (Code 1981, § 44-5-150 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

44-5-151. Delivery of document.

  1. A document of gift need not be delivered during the donor's lifetime to be effective.
  2. Upon or after an individual's death, a person in possession of a document of gift or a refusal to make an anatomical gift with respect to the individual shall allow examination and copying of the document of gift or refusal by a person authorized to make or object to the making of an anatomical gift with respect to the individual or by a person to which the gift could pass under Code Section 44-5-149 . (Code 1981, § 44-5-151 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

44-5-152. Rights and duties of procurement organizations.

  1. When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of the records of any donor registry that it knows exists for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift.
  2. The Department of Driver Services shall make donor information reasonably available to a procurement organization.
  3. When a hospital refers an individual at or near death to a procurement organization, the organization may conduct any reasonable examination necessary to ensure the medical suitability of a part that is or could be the subject of an anatomical gift for transplantation, therapy, research, or education from a donor or a prospective donor. During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization knows that the individual expressed a contrary intent.
  4. Unless prohibited by law other than this article, at any time after a donor's death, the person to which a part passes under Code Section 44-5-149 may conduct any reasonable examination necessary to ensure the medical suitability of the body or part for its intended purpose.
  5. Unless prohibited by law other than this article, an examination under subsection (c) or (d) of this Code section may include an examination of all medical and dental records of the donor or prospective donor.
  6. Unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal, if any.
  7. Upon referral by a hospital under subsection (a) of this Code section, a procurement organization shall make a reasonable search for any person listed in Code Section 44-5-147 having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended, or revoked, it shall promptly advise the other person of all relevant information.
  8. Subject to subsection (i) of Code Section 44-5-149 and Code Section 44-5-151, the rights of the person to which a part passes under Code Section 44-5-149 are superior to the rights of all others with respect to the part. The person may accept or reject an anatomical gift in whole or in part. Subject to the terms of the document of gift and this article, a person that accepts an anatomical gift of an entire body may allow embalming, burial, or cremation and use of remains in a funeral service. If the gift is of a part, the person to which the part passes under Code Section 44-5-149, upon the death of the donor and before embalming, burial, or cremation, shall cause the part to be removed without unnecessary mutilation.
  9. Neither the physician who attends the decedent at death nor the physician who determines the time of the decedent's death may participate in the procedures for removing or transplanting a part from the decedent.
  10. A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove. (Code 1981, § 44-5-152 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

Cross references. - Facilities for receipt and storage of human eyes, Ch. 23, T. 31.

44-5-153. Coordination of procurement and use.

Each hospital in this state shall enter into agreements or affiliations with procurement organizations for coordination of procurement and use of anatomical gifts.

(Code 1981, § 44-5-153 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

44-5-154. Limited prohibition on sale or purchase of body parts.

  1. Except as otherwise provided in subsection (b) of this Code section, a person that for valuable consideration knowingly purchases or sells a part for transplantation or therapy if removal of a part from an individual is intended to occur after the individual's death commits a felony and upon conviction is subject to a fine not exceeding $50,000.00 or imprisonment not exceeding five years, or both.
  2. A person may charge a reasonable amount for the removal, processing, preservation, quality control, storage, transportation, implantation, or disposal of a part. (Code 1981, § 44-5-154 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

Cross references. - Buying or selling or offering to buy or sell the human body or parts, § 16-12-160 .

Sale by contract or will of implanted pacemaker, § 53-1-4 .

44-5-155. Penalties.

A person that, in order to obtain a financial gain, intentionally falsifies, forges, conceals, defaces, or obliterates a document of gift, an amendment or revocation of a document of gift, or a refusal commits a felony and upon conviction is subject to a fine not exceeding $50,000.00 or imprisonment not exceeding five years, or both.

(Code 1981, § 44-5-155 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

44-5-156. Immunity.

  1. A person that acts in accordance with this article or with the applicable anatomical gift law of another state, or attempts in good faith to do so, is not liable for the act in a civil action, criminal prosecution, or administrative proceeding.
  2. Neither the person making an anatomical gift nor the donor's estate is liable for any injury or damage that results from the making or use of the gift.
  3. In determining whether an anatomical gift has been made, amended, or revoked under this article, a person may rely upon representations of an individual listed in paragraph (2), (3), (4), (5), (6), or (7) of subsection (a) of Code Section 44-5-147 relating to the individual's relationship to the donor or prospective donor unless the person knows that the representation is untrue. (Code 1981, § 44-5-156 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

44-5-157. Requirements for validity of document of gift; governing law.

  1. A document of gift is valid if executed in accordance with:
    1. This article;
    2. The laws of the state or country where it was executed; or
    3. The laws of the state or country where the person making the anatomical gift was domiciled, has a place of residence, or was a national at the time the document of gift was executed.
  2. If a document of gift is valid under this Code section, the law of this state governs the interpretation of the document of gift.
  3. A person may presume that a document of gift or amendment of an anatomical gift is valid unless that person knows that it was not validly executed or was revoked. (Code 1981, § 44-5-157 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

44-5-158. Donor registry.

  1. The Department of Driver Services shall make available to procurement organizations or secure data centers maintained and managed at the direction of a procurement organization the name, license number, date of birth, gender, and most recent address of any person who obtains an organ donor's license; provided, however, that the gender information shall only be made available to a procurement organization or secure data center if such organization or center has sufficient funds to cover the associated costs with providing such information. Information so obtained by such organizations shall be used for the purpose of establishing a state-wide organ donor registry accessible to organ tissue and eye banks authorized to function as such in this state and shall not be further disseminated.
  2. A donor registry shall:
    1. Allow a donor or other person authorized under Code Section 44-5-142 to include on the donor registry a statement or symbol that the donor has made, amended, or revoked an anatomical gift;
    2. Be accessible to a procurement organization to allow it to obtain relevant information on the donor registry to determine, at or near death of the donor or a prospective donor, whether the donor or prospective donor has made, amended, or revoked an anatomical gift; and
    3. Be accessible for purposes of paragraphs (1) and (2) of this subsection seven days a week on a 24 hour basis.
  3. Personally identifiable information on a donor registry about a donor or prospective donor may not be used or disclosed without the express consent of the donor, prospective donor, or person that made the anatomical gift for any purpose other than to determine, at or near death of the donor or prospective donor, whether the donor or prospective donor has made, amended, or revoked an anatomical gift; provided, however, this shall not preclude the use of aggregated demographic information for the purposes of annual reporting, research, or education.
  4. This Code section does not prohibit any person from creating or maintaining a donor registry that is not established by or under contract with this state. Any such registry shall comply with subsections (b) and (c) of this Code section. (Code 1981, § 44-5-158 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

Cross references. - Forms for making of anatomical gifts upon issuance or renewal of driver's license, § 40-5-6 .

44-5-159. Impact of anatomical gift on an advance directive for health care.

If a prospective donor has an advance directive for health care in accordance with Chapter 32 of Title 31 or a declaration signed by a prospective donor, unless it expressly provides to the contrary, measures necessary to ensure the medical suitability of an organ for transplantation or therapy may not be withheld or withdrawn from the prospective donor.

(Code 1981, § 44-5-159 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

44-5-159.1. Cooperation between medical examiners and procurement organizations.

  1. A medical examiner and procurement organizations shall cooperate with each other to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research, or education.
  2. If a medical examiner receives notice from a procurement organization that an anatomical gift might be available or was made with respect to a decedent whose body is under the jurisdiction of the medical examiner and a postmortem examination is going to be performed, unless the medical examiner denies recovery in accordance with Code Section 44-5-159.2, the medical examiner or designee shall conduct, when practicable, a postmortem examination of the body or the part in a manner and within a period compatible with its preservation for the purposes of the gift. The date and location of such examinations shall occur as specified in the agreement as provided for in subsection (e) of Code Section 44-5-159.2.
  3. A part may not be removed from the body of a decedent under the jurisdiction of a medical examiner for transplantation, therapy, research, or education unless the part is the subject of an anatomical gift. The body of a decedent under the jurisdiction of the medical examiner may not be delivered to a person for research or education unless the body is the subject of an anatomical gift. This subsection shall not preclude a medical examiner from performing the medicolegal autopsy upon the body or parts of a decedent under the jurisdiction of the medical examiner or from using the body or parts of a decedent under the jurisdiction of the medical examiner for the purposes of education, training, and research required by the medical examiner. (Code 1981, § 44-5-159.1 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

RESEARCH REFERENCES

ALR. - Tests of death for organ transplant purposes, 76 A.L.R.3d 913.

Liability for wrongful autopsy, 18 A.L.R.4th 858.

44-5-159.2. Role of medical examiner.

  1. Upon specific request of a procurement organization, and in accordance with the procedures set forth under the agreement established pursuant to subsection (e) of this Code section, a medical examiner shall release to the procurement organization the name, contact information, and available medical and social history of a decedent whose body is under the jurisdiction of the medical examiner. If the decedent's body or part is medically suitable for transplantation, therapy, research, or education, and the gift or procurement does occur, the medical examiner shall release postmortem examination results to the procurement organization. The procurement organization may make a subsequent disclosure of the postmortem examination results or other information received from the medical examiner only if relevant to transplantation, therapy, research, or education.
  2. The medical examiner may conduct a medicolegal investigation by reviewing all medical records, laboratory test results, x-rays, other diagnostic results, and other information that any person possesses about a donor or prospective donor whose body is under the jurisdiction of the medical examiner that the medical examiner determines may be relevant to the investigation.
  3. A person that has any information requested by a medical examiner pursuant to subsection (b) of this Code section shall provide that information as expeditiously as possible to allow the medical examiner to conduct the medicolegal investigation within a period compatible with the preservation of parts for the purpose of transplantation, therapy, research, or education.
  4. If an anatomical gift has been or might be made of a part of a decedent whose body is under the jurisdiction of the medical examiner and a postmortem examination is not required, or the medical examiner determines that a postmortem examination is required but that the recovery of the part that is the subject of an anatomical gift will not interfere with the examination, the medical examiner and procurement organization shall cooperate in the timely removal of the part from the decedent for the purpose of transplantation, therapy, research, or education.
  5. The medical examiner and procurement organizations shall enter into an agreement signed by both parties setting forth protocols and procedures to govern relations between the parties when an anatomical gift of a part from a decedent under the jurisdiction of the medical examiner has been or might be made, but the medical examiner believes that the recovery of the part could interfere with the postmortem investigation into the decedent's cause or manner of death. Decisions regarding the recovery of organs, tissue, and eyes from such a decedent, and decisions about approaches to tissue donation cases compared with organ donation cases, shall be made in accordance with the agreement. In the event that a medical examiner denies recovery of an anatomical gift, the procurement organization may request the regional medical examiner serving the county having jurisdiction over the death to reconsider the denial and to permit the recovery to proceed; provided, however, that if a county having jurisdiction over the death does not have a county medical examiner as defined in paragraph (2) of Code Section 45-16-21, and a recovery is denied as provided herein, the procurement organization may request the chief medical examiner appointed pursuant to Code Section 35-3-153 to reconsider the denial and to permit the recovery to proceed. The parties shall evaluate the effectiveness of the protocols and procedures at regular intervals but no less frequently than every two years. A medical examiner may limit its involvement and agreements with procurement organizations to one procurement organization, but may work with more than one procurement organization in the discretion of the medical examiner.
  6. If the medical examiner or designee allows recovery of a part under subsection (d) or (e) of this Code section, the procurement organization, upon request, shall cause the physician or technician who removes the part to provide the medical examiner with a record describing the condition of the part, a biopsy, a photograph, and any other information and observations that would assist in the postmortem examination.
  7. If a medical examiner or designee is required to be present at a removal procedure pursuant to an agreement entered into under subsection (e) of this Code section, upon request the procurement organization requesting the recovery of the part shall reimburse the medical examiner or designee for the additional costs incurred in complying with subsection (e) of this Code section. (Code 1981, § 44-5-159.2 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

RESEARCH REFERENCES

ALR. - Tests of death for organ transplant purposes, 76 A.L.R.3d 913.

Liability for wrongful autopsy, 18 A.L.R.4th 858.

44-5-159.3. Application.

This article applies to an anatomical gift or amendment to, revocation of, or refusal to make an anatomical gift, whenever made.

(Code 1981, § 44-5-159.3 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

44-5-159.4. Construction with federal law.

This article modifies, limits, and supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit or supersede Section 101(a) of that act, 15 U.S.C. Section 7001, or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

(Code 1981, § 44-5-159.4 , enacted by Ga. L. 2008, p. 503, § 1/SB 405.)

ARTICLE 7 PRESCRIPTION

Law reviews. - For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978). For note, "Adverse Possession of Municipal and County Property Held for Proprietary Purposes: The Unique Georgia Development," see 7 Ga. St. B.J. 482 (1971).

JUDICIAL DECISIONS

Possession of land remaining with grantor and never surrendered is deemed held under grantee. Such possession is construed as consistent with the grantor's recorded deed, and is not notice to an innocent purchaser from the grantee of any mistake in the deed whereby a larger tract was inadvertently conveyed than the parties to the deed intended. Under these circumstances such possession, although remaining with the grantor and never surrendered, is not deemed adverse to the title of the grantor's grantee, and a prescriptive title in favor of the grantor can never ripen under such possession. Stepp v. Stepp, 195 Ga. 595 , 25 S.E.2d 6 (1943).

Cited in Carnes v. Pittman, 209 Ga. 639 , 74 S.E.2d 852 (1953); Lightfoot v. Applewhite, 212 Ga. 136 , 91 S.E.2d 37 (1956); Mann v. Carter, 213 Ga. 85 , 97 S.E.2d 137 (1957).

RESEARCH REFERENCES

ALR. - Loss of easement by adverse possession, or nonuser, 1 A.L.R. 884 ; 66 A.L.R. 1099 ; 98 A.L.R. 1291 ; 25 A.L.R.2d 1265.

Adverse possession as against vendor by one who enters under executory contract, 1 A.L.R. 1329 .

Adverse possession of common, 9 A.L.R. 1373 .

Necessity of actual possession to give title by adverse possession under invalid tax title, 22 A.L.R. 550 .

Act of trespasser as interrupting adverse possession, 22 A.L.R. 1458 .

Holder of invalid tax title as within occupying claimant's act, 44 A.L.R. 479 .

Adverse possession of railroad right of way, 50 A.L.R. 303 .

Adverse possession or prescription as affected by owner's informal consent subsequent to hostile entry, 65 A.L.R. 128 .

Possession by widow after extinguishment of dower as adverse to heirs or their privies, 75 A.L.R. 147 .

Rule against accumulation of income as applicable to income from personalty, or real property equitably converted into personalty, 75 A.L.R. 196 .

Time covered by pendency of suit discontinued without decision on merits as included in computation of period of adverse possession, 80 A.L.R. 439 .

Right of cotenant to acquire and assert adverse title or interest as against other cotenant, 85 A.L.R. 1535 .

Time during which dominant and servient tracts were in same ownership or under same control as excluded or included in determining easement by prescription, 98 A.L.R. 591 .

Sufficiency of compliance, as regards payment of taxes, with limitation statute requiring payment of taxes as a condition of adverse possession, 132 A.L.R. 216 .

Adverse possession by religious society, 4 A.L.R.2d 123.

Tacking adverse possession of area not within description of deed or contract, 17 A.L.R.2d 1128.

Adverse possession: sufficiency, as regards continuity, of seasonal possession other than for agricultural or logging purposes, 24 A.L.R.2d 632.

Acquisition of title to ground through adverse possession by cemetery or graveyard authorities, 41 A.L.R.2d 925.

Adverse possession of executor or administrator or his vendee as continuous with that of ancestor and heirs, 43 A.L.R.2d 1061.

Acquisition by user or prescription of right of way over unenclosed land, 46 A.L.R.2d 1140.

Acquisition by adverse possession or use of public property held by municipal corporation or other governmental unit otherwise than for streets, alleys, parks, or common, 55 A.L.R.2d 554.

Easement by prescription in artificial drains, pipes, or sewers, 55 A.L.R.2d 1144.

Acquisition of right of way by prescription as affected by change of location or deviation during prescriptive period, 80 A.L.R.2d 1095.

Adverse possession involving ignorance or mistake as to boundaries - modern views, 80 A.L.R.2d 1171.

Use of property by public as affecting acquisition of title by adverse possession, 56 A.L.R.3d 1182.

Adverse possession between cotenants who are unaware of cotenancy, 27 A.L.R.4th 420.

Presumptions and evidence respecting identification of land on which property taxes were paid to establish adverse possession, 36 A.L.R.4th 843.

Grazing of livestock, gathering of natural crop, or cutting of timber by record owner as defeating exclusiveness or continuity of possession by one claiming title by adverse possession, 39 A.L.R.4th 1148.

44-5-160. Nature of title by prescription.

Title by prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by law.

(Orig. Code 1863, § 2637; Code 1868, § 2636; Code 1873, § 2678; Code 1882, § 2678; Civil Code 1895, § 3583; Civil Code 1910, § 4163; Code 1933, § 85-401.)

Law reviews. - For article, "Some Aspects of the Law of Easements," see 9 Ga. St. B.J. 287 (1973).

JUDICIAL DECISIONS

Object of doctrine of prescription is to make a bad title good upon compliance with the necessary requisites; of course, if a person purchases land in bad faith, knowing that the title one purchases is fraudulent, it can never ripen into a good title. Latham v. Fowler, 192 Ga. 686 , 16 S.E.2d 591 (1941).

Foundation of prescription is possession. Yundt v. Davison, 186 Ga. 179 , 197 S.E. 248 (1938).

Prescriptive time interrupted. - Trial court erred in granting summary judgment on prescription and acquiescence grounds to the contestants to a tract of land without determining the validity or sufficiency of the legal descriptions of either deed to the property as there was insufficient evidence of possession and support for prescriptive title, and the construction of a driveway, apparently on the disputed tract, was interrupted by a quiet title action filed within seven years by the heirs of the property. Henson v. Tucker, 278 Ga. App. 859 , 630 S.E.2d 64 (2006).

Possession, if held under claim of right, is referred to as title, actual or supposed, under which the right of possession is claimed. Patellis v. Tanner, 199 Ga. 304 , 34 S.E.2d 84 (1945).

State may obtain title to property by prescription. Seignious v. Metropolitan Atlanta Rapid Transit Auth., 252 Ga. 69 , 311 S.E.2d 808 (1984).

Squatter can never gain prescriptive title to land no matter how long the squatter holds the possession; the squatter's possession is never considered as adverse. Mayor of Forsyth v. Hooks, 182 Ga. 78 , 184 S.E. 724 (1936).

Requirement of continuity of possession is one of substance, not of absolute mathematical continuity, provided there is no break so as to make a severance of two possessions. Anneberg v. Kurtz, 197 Ga. 188 , 28 S.E.2d 769 (1944).

Good faith is one of main elements when doctrine of prescription is involved in an action of ejectment. Latham v. Fowler, 192 Ga. 686 , 16 S.E.2d 591 (1941).

If a person buys land in good faith, believing the person is obtaining a good title, and enters into possession thereof, and remains there continuously, uninterruptedly, peaceably, etc., for seven years, that possession ripens into a good title, whether the title the person purchased originally was good or not. Latham v. Fowler, 192 Ga. 686 , 16 S.E.2d 591 (1941).

An outstanding recorded title will not prevent the ripening of a title by prescription since the possessor enters in good faith under written evidence of title from another. Hearn v. Leverette, 213 Ga. 286 , 99 S.E.2d 147 (1957).

Question of good faith is ordinarily one of fact for jury. Latham v. Fowler, 192 Ga. 686 , 16 S.E.2d 591 (1941).

"Appurtenants" construed. - Word "appurtenants" in a deed, when none are specified, will not be construed to convey anything except what was legally appurtenant to the lands in the hands of the grantor; it does not convey an easement in the land of another which has not ripened into a legal right and has not become attached to the premises conveyed, unless accompanied by proper words describing it and showing the intention of the grantor to pass it. Olsen v. Noble, 209 Ga. 899 , 76 S.E.2d 775 (1953).

Right of prescription is measured by actual user, and not by capacity for more extended use, and the right does not begin to run until an actionable injury has been inflicted. Goble v. Louisville & N.R.R., 187 Ga. 243 , 200 S.E. 259 (1938).

Right to maintain private nuisance may be acquired by prescription. Anneberg v. Kurtz, 197 Ga. 188 , 28 S.E.2d 769 (1944).

Evidence showed that defendant was in actual adverse possession of land involved when the plaintiffs filed suit against the defendant in 1955, and that the defendant had been in such possession under a claim of right or ownership continuously and exclusively since 1934, under circumstances which would ripen the defendant's possession into a good prescriptive title, since actual possession was delivered to the defendant by defendant's mother by execution and delivery of a warranty deed which purported to convey to the defendant the property in question, the defendant and the defendant's tenants since then continuously occupied and used the property to the exclusion of all others, the defendant improved the property by the construction of two dwelling houses, three garages and a barn, which buildings the defendant has since kept repaired, the defendant paid annual taxes and fire insurance premiums, the defendant had the land regularly cultivated in annual crops, and kept the defendant's livestock, poultry, and farming equipment on the land, and the defendant sold two described portions of the land in 1954 and 1955. Hughes v. Heard, 215 Ga. 156 , 109 S.E.2d 510 (1959).

Exclusivity not shown. - In a quiet title action, there was evidence to support the jury's finding that the claimant did not satisfy the elements of adverse possession under O.C.G.A. § 44-5-160 et seq., since the evidence showed that the claimant did not hold the property exclusively as the owner had given permission to others to hunt on the land. Keever v. Dellinger, 291 Ga. 860 , 734 S.E.2d 874 (2012).

Title by prescription arises if adverse possession held for 20 years. - While a prescriptive title may be extinguished by the ripening of a prescription in favor of a subsequent adverse possession, yet if adverse possession is held for 20 years, a title by prescription arises, good against everyone except the state, or persons laboring under legal disabilities, and that title is not lost or impaired by any subsequent abandonment of the adverse possession. Bridges v. Henson, 216 Ga. 423 , 116 S.E.2d 570 (1960).

Acquisition of prescriptive title by recorded deed and seven years of actual possession. - Person claiming under a recorded deed may have constructive possession of lands and may acquire a prescriptive title to all lands which are covered by the deed and are contiguous by having actual possession of a part thereof for a period of seven years. Mincey v. Anderson, 206 Ga. 572 , 57 S.E.2d 922 (1950).

Prescriptive right to empty plant refuse into stream acquired. - When a person, in the operation of a canning plant, has from June 1 to November 1 of each year, for more than 20 years, emptied the refuse from the plant into a nonnavigable stream, the person has thereby acquired a prescriptive right so to do. Anneberg v. Kurtz, 197 Ga. 188 , 28 S.E.2d 769 (1944).

Adverse possession of church will support prescriptive title. - Possession of property for the use of a church by the constituent membership is possession of the church, and if continued adversely for the prescriptive period, will support prescriptive title. Bridges v. Henson, 216 Ga. 423 , 116 S.E.2d 570 (1960).

Trial court properly found that a church acquired prescriptive title to a portion of the disputed land bordering that of the adjacent landowners, setting a boundary line between the two parcels, upon sufficient evidence of the church's adverse possession, the paper trail recognizing the church's use and possession of the disputed property for the requisite time frame, and the setting of the boundary line almost 30 years earlier imputing personal knowledge to one of the owners of the adjacent land. Mobley v. Jackson Chapel Church, 281 Ga. 122 , 636 S.E.2d 535 (2006).

Stringing wire consistently with customary location permissible as within easement. - When poles and wires were used in the operation of a telephone line or lines over the lands of another, those poles and wires should be considered as having marked or outlined a general area in use according to the usual and ordinary manner; and if the outer limits of this space remains the same for the prescriptive period of 20 years, the resulting easement will apply at least to such general area, so that the stringing of additional wires anywhere therein consistently with customary location is permissible as territorially within the easement, whether or not the identical space to be physically occupied by such wires had ever before been so occupied by other wires. Kerlin v. Southern Bell Tel. & Tel. Co., 191 Ga. 663 , 13 S.E.2d 790 (1941).

Easement to flood lands not acquired by maintenance of trestle. - Railroad company which has for 25 years maintained a trestle and abutments, under which a stream flows, does not thereby acquire a prescriptive easement to flood lands, unless such flooding has been continuous and uninterrupted for a period sufficient to ripen prescription. Goble v. Louisville & N.R.R., 187 Ga. 243 , 200 S.E. 259 (1938).

Neither laches nor statute of limitations will run against one in peaceable possession of property under a claim of ownership for delay in resorting to a court of equity to establish one's rights. Reid v. Wilkerson, 222 Ga. 282 , 149 S.E.2d 700 (1966).

Title by prescription is substituted for statute of limitations in actions to recover land. Latham v. Fowler, 192 Ga. 686 , 16 S.E.2d 591 (1941), later appeal, 206 Ga. 245 , 56 S.E.2d 272 (1949).

One who relies on prescriptive title has burden of establishing prescription. Patellis v. Tanner, 199 Ga. 304 , 34 S.E.2d 84 (1945).

Adverse possession is usually mixed question of law and fact. - Whether the facts exist which constitute adverse possession is for the jury to judge; whether, assuming the facts prove to be true, those facts constitute adverse possession is for the court to decide. Olsen v. Noble, 209 Ga. 899 , 76 S.E.2d 775 (1953).

Court may decide question of title by prescription as matter of law without submitting the question to the jury. Verdery v. Savannah, F. & W. Ry., 82 Ga. 675 , 9 S.E. 1133 (1889).

Cited in Walker v. Steffes, 139 Ga. 520 , 77 S.E. 580 (1913); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); Beeland v. Butler Payne Lumber Co., 48 Ga. App. 619 , 173 S.E. 436 (1934); Ewing v. Tanner, 184 Ga. 773 , 193 S.E. 243 (1937); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80 , 3 S.E.2d 91 (1939); Dyal v. Sanders, 194 Ga. 228 , 21 S.E.2d 596 (1942); Strickland v. Padgett, 197 Ga. 589 , 30 S.E.2d 167 (1944); Powell v. Moore, 202 Ga. 62 , 42 S.E.2d 110 (1947); Key v. Stringer, 204 Ga. 869 , 52 S.E.2d 305 (1949); Rowland v. McLain, 86 Ga. App. 140 , 70 S.E.2d 918 (1952); Burgin v. Moye, 212 Ga. 370 , 93 S.E.2d 9 (1956); Pridgen v. Coffee County Bd. of Educ., 218 Ga. 326 , 127 S.E.2d 808 (1962); Whitton v. Whitton, 218 Ga. 845 , 131 S.E.2d 189 (1963); Little v. Weatherby, 220 Ga. 274 , 138 S.E.2d 380 (1964); Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967); Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977); Larkin v. Laster, 254 Ga. 716 , 334 S.E.2d 158 (1985); Fort Mt. Container Corp. v. Keith, 275 Ga. 210 , 563 S.E.2d 860 (2002).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 1 et seq., 8, 11, 248, 249, 310.

Mistaken Occupant's Right to Recover for Improvements, 2 POF2d 467.

Permissive Possession or Use of Land, 28 POF2d 703.

Acquisition of Title to Property by Adverse Possession, 39 POF2d 261.

Permissive Possession or Use of Land as Defeating Claim of Adverse Possession or Prescriptive Easement, 68 POF3d 239.

C.J.S. - 2 C.J.S., Adverse Possession, §§ 1, 2, 7. 73 C.J.S., Property, § 55 et seq.

ALR. - Adverse possession by third party or stranger of property held in trust, 2 A.L.R. 41 .

Writing as essential to color of title in adverse occupant of land, 2 A.L.R. 1457 .

What will disprove acquiescence by owner essential to easement by prescription in case of known use, 5 A.L.R. 1325 .

Adverse possession of railroad right of way, 50 A.L.R. 303 .

Adverse possession or prescription in respect of burial lot, 107 A.L.R. 1294 .

Tacking adverse possession of area not within description of deed or contract, 17 A.L.R.2d 1128.

Rights derived from use by adjoining owners for driveway, or other common purpose, of strip of land lying over and along their boundary, 27 A.L.R.2d 332.

Acquisition of title to mines or minerals by adverse possession, 35 A.L.R.2d 124.

Right of owner of title to or interest in minerals under one tract to use surface, or underground passages, in connection with mining other tract, 83 A.L.R.2d 665.

Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.3d 678.

Tacking as applied to prescriptive easements, 72 A.L.R.3d 648.

Scope of prescriptive easement for access (easement of way), 79 A.L.R.4th 604.

44-5-161. Adverse possession; effect of permissive possession.

  1. In order for possession to be the foundation of prescriptive title, it:
    1. Must be in the right of the possessor and not of another;
    2. Must not have originated in fraud except as provided in Code Section 44-5-162;
    3. Must be public, continuous, exclusive, uninterrupted, and peaceable; and
    4. Must be accompanied by a claim of right.
  2. Permissive possession cannot be the foundation of a prescription until an adverse claim and actual notice to the other party.

    (Ga. L. 1851-52, p. 238, § 2; Code 1863, § 2638; Code 1868, § 2637; Code 1873, § 2679; Code 1882, § 2679; Civil Code 1895, § 3584; Civil Code 1910, § 4164; Code 1933, § 85-402.)

Cross references. - Adverse possession against cotenant, § 44-6-123 .

Obtaining private ways through adverse possession, §§ 44-9-1 , 44-9-54 , 44-9-55 .

Law reviews. - For annual survey of real property law, see 35 Mercer L. Rev. 257 (1983). For annual survey of zoning and land use law, see 57 Mercer L. Rev. 447 (2005). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For note, "For Sale - One Level 5 Barbarian for 94,800 Won: The International Effects of Virtual Property and the Legality of Its Ownership," see 37 Ga. J. Int'l & Comp. L. 381 (2009).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Purpose. - Object of statutory provisions on prescription is to make a bad title good by compliance with the requisites; therefore, if a person buys land in good faith, believing the person is obtaining a good title, enters into possession thereof, and remains there continuously, uninterruptedly, peaceably, etc., for seven years, that possession ripens into a good title, whether the title the person purchased originally was good or not. Chandler v. Douglas, 178 Ga. 11 , 172 S.E. 54 (1933); Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Statute incorporates common-law rule to quiet men's estates that have been long in possession. Shiels v. Roberts, 64 Ga. 370 (1879) (see O.C.G.A. § 44-5-161 ).

Prescriptive title generally. - Prescriptive title involves a failure on the part of the holder of the superior title to properly assert it within the time limited. Walker v. Steffes, 139 Ga. 520 , 77 S.E. 580 (1913).

In a dispute over two subdivision lots, the trial court did not err in admitting evidence that was cumulative to properly admitted evidence showing a legal property owner's record title, and the evidence was not hearsay, as alleged by a claimant who sought title to the property by prescription; further, the evidence was relevant to the issue of whether a claimant's adverse possession ripened into title by prescription. Smith v. Stacey, 281 Ga. 601 , 642 S.E.2d 28 (2007).

Applicability. - Section refers to title by prescription and has no bearing on establishing dividing lines by agreement and possession or acquiescence by acts or declarations for seven years. Bennett v. Perry, 207 Ga. 331 , 61 S.E.2d 501 (1950).

Statute applies equally to seven years with color of title or 20 years without. Woods v. Brannen, 208 Ga. 495 , 67 S.E.2d 702 (1951) (see O.C.G.A. § 44-5-161 ).

Applicability to right-of-way. - Record supported conclusion defendant had at all relevant times inspected, cleared, and marked defendant's right-of-way, and in 1978 had installed a second pipeline in the right-of-way; therefore, defendant had acquired title by adverse possession. Simpson v. Colonial Pipeline Co., 269 Ga. 520 , 499 S.E.2d 634 (1998).

Elements of adverse possession are set out in this statute. Rowland v. McLain, 86 Ga. App. 140 , 70 S.E.2d 918 (1952) (see O.C.G.A. § 44-5-161 ).

Possession must meet requirements of this statute. - In defining the adverse possession which may be the foundation of a prescriptive title, it is best to state the necessary elements of such possession as those elements are stated in this statute. Smith v. Board of Educ., 168 Ga. 755 , 149 S.E. 136 (1929) (see O.C.G.A. § 44-5-161 ).

Whether title was claimed under former Civil Code 1910, § 4168 (see O.C.G.A. § 44-5-163 ) by virtue of adverse possession for 20 years without written evidence of title, or under former Civil Code 1910, § 4169 (see O.C.G.A. § 44-5-164 ) by virtue of adverse possession for seven years under color of title, the possession relied upon must meet the requirements of former Code 1910, § 4169 (see O.C.G.A. § 44-5-161 ). Smith v. Board of Educ., 168 Ga. 755 , 149 S.E. 136 (1929); Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940); Moore v. Stephens, 199 Ga. 500 , 34 S.E.2d 716 (1945); Flynt v. Dumas, 205 Ga. 702 , 54 S.E.2d 429 (1949).

Because the trial court found that there was evidence to support the special master's determination that the contestant failed to establish prescriptive title to the disputed parcel, either under O.C.G.A. § 44-5-161(a) or O.C.G.A. § 44-5-164 , and that the disputed parcel showed no signs of having been disturbed by any of the contestant's alleged activities thereon, the trial court properly adopted the special master's recommendations that title vested in a railroad free of any claims by the contestant, and that the contestant's affidavits should be stricken from the deed records. Thompson v. Cent. of Ga. R.R., 282 Ga. 264 , 646 S.E.2d 669 (2007).

Mere use is not notice of adverse claim. - In a dispute over a landowners' patio built on a neighbor's land and use of a roadway over the neighbor's land, the patio did not create a prescriptive right of way as the patio was not a road or path and the bottom part of the road was not taken by adverse possession as mere use was not notice of an adverse claim; however, as the landowner might have met the time and notice requirements to obtain a right of way by prescription for the top part of the road, summary judgment was not proper on that point. Moody v. Degges, 258 Ga. App. 135 , 573 S.E.2d 93 (2002).

Right of prescription is measured by actual user, and not by capacity for more extended use, and the right does not begin to run until an actionable injury has been inflicted. Goble v. Louisville & N.R.R., 187 Ga. 243 , 200 S.E. 259 (1938).

Person claiming prescriptive title against cotenant has burden of showing not only the usual elements of prescription under O.C.G.A. § 44-5-161 , but in addition thereto at least one of the conditions stated in O.C.G.A. § 44-6-123 . Lindsey v. Lindsey, 249 Ga. 832 , 294 S.E.2d 512 (1982); Wright v. Wright, 270 Ga. 530 , 512 S.E.2d 618 (1999).

In order for one cotenant to prescribe against another, O.C.G.A. § 44-6-123 requires actual ouster, exclusive possession after demand, or express notice of adverse possession, in addition to the usual elements of adverse possession. Carter v. Becton, 250 Ga. 617 , 300 S.E.2d 152 (1983).

Because a trust's predecessors in interest to a disputed parcel of land maintained public, exclusive, and continuous possession of that tract for the required time frames under both O.C.G.A. §§ 44-5-163 and 44-5-164 , and the original grantee's hostile possession of the property was done in good faith that a claim of right existed, the trial court did not err in adopting a special master's award and findings that the trust owned the disputed property against the rights of a contesting neighbor. Crawford v. Simpson, 279 Ga. 280 , 612 S.E.2d 783 (2005).

Adverse possession is usually mixed question of law and fact. - Whether the facts exist which constitute adverse possession is for the jury to judge; whether, assuming the facts prove to be true, those facts constitute adverse possession is for the court to decide. Olsen v. Noble, 209 Ga. 899 , 76 S.E.2d 775 (1953); Barnett v. Holliday, 228 Ga. 361 , 185 S.E.2d 397 (1971).

Questions of fact as to whether the state acquired land by adverse possession arise when the state's claim of acquisition by adverse possession are disputed by parties producing evidence that those parties have record title to the land, that the state's possession of the land was permissible, and that the state did not purport to have a valid claim of right to the land or give notice that the state did have a valid claim to the land. Tanner v. Brasher, 254 Ga. 41 , 326 S.E.2d 218 (1985).

Insufficient evidence of ouster. - By affidavit, heirs who had an ownership interest in property showed that a cotenant did not meet the requirements of O.C.G.A. § 44-6-123 by averring that the cotenant took no action to oust the heirs from the property in question, to demand and retain exclusive possession, or to give actual notice of adverse possession; the burden shifted to the cotenant to point to a conflict on this issue, but in an affidavit, the cotenant only showed that the cotenant paid the property taxes and that the heirs did not use the property or question the cotenants right to be on the property, which did not establish an ouster or to satisfy an "express notice" or a "hostile claim" criterion, and summary judgment in favor of the heirs was proper. Ward v. Morgan, 280 Ga. 569 , 629 S.E.2d 230 (2006).

When state's claim not established, opposing party's case not barred by sovereign immunity. - When the state's claim to land by adverse possession has not been established as a matter of law, the scope of state officials' authority with respect to the land may not yet be determined, and the officials, therefore, may not bar the opposing party's case on the ground of sovereign immunity for acts undertaken within the scope of the officials' authority. Tanner v. Brasher, 254 Ga. 41 , 326 S.E.2d 218 (1985).

Ripening of prescriptive title not prevented by suspension of statute of limitations. - Suspension of the statute of limitations in war time when it creates no disability to sue does not prevent the ripening of a prescriptive title founded upon possession begun during the period of suspension. Roe v. Doe, 38 Ga. 439 (1868).

Mandamus to require county to maintain road. - Group of landowners were properly granted mandamus relief requiring a county to maintain an adjacent road as the county had acquired title to the road by prescriptive acquisition, abandonment was not an issue, and compliance with O.C.G.A. § 32-3-3(c) did not need to be shown when a roadway was otherwise acquired by prescription; moreover, urging that a county's failure to meet the county's obligation to maintain public roads was an acceptable method of abandoning a roadway would encourage counties to disregard their public duty. Shearin v. Wayne Davis & Co., P.C., 281 Ga. 385 , 637 S.E.2d 679 (2006).

Judicial review. - Trial court did not err in rejecting a property owners' claim of title to a street by adverse possession; because the owners did not provide a transcript of the special master's evidentiary hearing, it was presumed that the evidence supported the relevant findings of the special master adopted by the trial court. Goodson v. Ford, 290 Ga. 662 , 725 S.E.2d 229 (2012).

Cited in Hill v. Waldrop, 57 Ga. 134 (1876); Western Union Tel. Co. v. Georgia R.R. & Banking Co., 227 F. 276 (S.D. Ga. 1915); Lancaster v. Treadwell, 146 Ga. 81 , 90 S.E. 710 (1916); Frazier v. Swain, 147 Ga. 654 , 95 S.E. 211 (1918); Johnson v. Mary-Leila Cotton Mills, 155 Ga. 344 , 116 S.E. 609 (1923); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); McNeill v. Daniel, 174 Ga. 820 , 164 S.E. 187 (1932); Chandler v. Douglas, 178 Ga. 11 , 172 S.E. 54 (1933); Beeland v. Butler Payne Lumber Co., 48 Ga. App. 619 , 173 S.E. 436 (1934); Vick v. Georgia Power Co., 178 Ga. 869 , 174 S.E. 713 (1934); Hardin v. Pie, 179 Ga. 446 , 176 S.E. 14 (1934); Kelley v. Spivey, 182 Ga. 507 , 185 S.E. 783 (1936); Sewell v. Sprayberry, 186 Ga. 1 , 196 S.E. 796 (1938); Reynolds v. Smith, 186 Ga. 838 , 199 S.E. 137 (1938); Waters v. Baker, 190 Ga. 186 , 8 S.E.2d 637 (1940); Metropolitan Life Ins. Co. v. Hall, 191 Ga. 294 , 12 S.E.2d 53 (1940); Lockwood v. Daniel, 194 Ga. 544 , 22 S.E.2d 85 (1942); Holloway v. Woods, 195 Ga. 55 , 23 S.E.2d 254 (1942); Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322 , 26 S.E.2d 727 (1943); Strickland v. Padgett, 197 Ga. 589 , 30 S.E.2d 167 (1944); Elliott v. Robinson, 198 Ga. 811 , 33 S.E.2d 95 (1945); Barfield v. Vickers, 200 Ga. 279 , 36 S.E.2d 766 (1946); Thompson v. Fouts, 203 Ga. 522 , 47 S.E.2d 571 (1948); Davis v. Newton, 215 Ga. 58 , 108 S.E.2d 809 (1959); Pridgen v. Coffee County Bd. of Educ., 218 Ga. 326 , 127 S.E.2d 808 (1962); Whitton v. Whitton, 218 Ga. 845 , 131 S.E.2d 189 (1963); Durand v. Reeves, 219 Ga. 182 , 132 S.E.2d 71 (1963); Little v. Weatherby, 220 Ga. 274 , 138 S.E.2d 380 (1964); Hiwassee Land Co. v. Biddy, 222 Ga. 784 , 152 S.E.2d 395 (1966); Hughes v. Heard, 215 Ga. 156 , 109 S.E.2d 510 (1972); Jordan v. Robinson, 229 Ga. 761 , 194 S.E.2d 452 (1972); Jordan v. Way, 235 Ga. 496 , 220 S.E.2d 258 (1975); Drew v. DeKalb County, 239 Ga. 35 , 235 S.E.2d 528 (1977); Arrington v. Watkins, 239 Ga. 793 , 239 S.E.2d 10 (1977); Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977); Swicord v. Hester, 240 Ga. 484 , 241 S.E.2d 242 (1978); Edingburg v. Citizens & S. Bank of Macon, Inc., 244 Ga. 667 , 261 S.E.2d 617 (1979); Waters v. Pervis, 153 Ga. App. 71 , 264 S.E.2d 551 (1980); Fuller v. Smith, 245 Ga. 751 , 267 S.E.2d 23 (1980); Cheek v. Wainwright, 246 Ga. 171 , 269 S.E.2d 443 (1980); Estate of Seamans v. True, 247 Ga. 721 , 279 S.E.2d 447 (1981); Ross v. Lowery, 249 Ga. 307 , 290 S.E.2d 61 (1982); Larkin v. Laster, 254 Ga. 716 , 334 S.E.2d 158 (1985); Simms v. Candler, 256 Ga. 163 , 345 S.E.2d 37 (1986); Nebb v. Butler, 257 Ga. 145 , 357 S.E.2d 257 (1987); Love v. Love, 259 Ga. 423 , 383 S.E.2d 329 (1989); Addison v. Reece, 263 Ga. 631 , 436 S.E.2d 663 (1993); Davis v. Merritt, 265 Ga. 160 , 454 S.E.2d 515 (1995); Young v. Faulkner, 217 Ga. App. 321 , 457 S.E.2d 584 (1995); Resseau v. Bland, 268 Ga. 634 , 491 S.E.2d 809 (1997); Strozzo v. Coffee Bluff Marina Prop., 250 Ga. App. 212 , 550 S.E.2d 122 (2001); Wilbanks v. Arthur, 257 Ga. App. 226 , 570 S.E.2d 664 (2002); Gigger v. White, 277 Ga. 68 , 586 S.E.2d 242 (2003).

Requirements

Notice required. - To establish title by adverse possession, the claimant must show actual notice of the adverse claim. Coleman v. Coleman, 265 Ga. 568 , 459 S.E.2d 166 (1995).

Couple's use of a dock, which was based on a common belief that the couple had the right to do so per their deed language, was permissive in nature; thus, a showing of notice of an adverse claim was required to establish a prescriptive easement under O.C.G.A. § 44-5-161 . Waters v. Ellzey, 290 Ga. App. 693 , 660 S.E.2d 392 (2008).

Facts as set out by the trial court and as recited by the brothers were insufficient as a matter of law to establish that the brothers were in such notorious possession that the brothers acquired title to the riverbed by prescriptive easement or adverse possession; all of the brothers' actions were consistent with the brothers' 1976 easement, and therefore did not give notice that the brothers claimed the entire riverbed to the exclusion of others. Thomas v. Henry County Water & Sewerage Auth., 317 Ga. App. 258 , 731 S.E.2d 66 (2012).

Requirement of actual notice applies only to adverse claims based on the claimant's possession by permission. Proctor v. Heirs of Jernigan, 273 Ga. 29 , 538 S.E.2d 36 (2000).

Requirements satisfied. - Because: (1) a landowner continuously and exclusively maintained and used the land in question for more than 20 years accompanied by a claim of right; and (2) a claim that the Dead Man's Statute was violated lacked merit, the landowner established prescriptive title by adverse possession. Murray v. Stone, 283 Ga. 6 , 655 S.E.2d 821 (2008).

Trial court did not err in granting summary judgment in favor of the appellees granting the appellees prescriptive title by adverse possession to the disputed property because the terraces and construction debris remained in the same place continuously for the statutory 20-year prescriptive period; the building of the terraces changed the nature and appearance of the property and gave notice to all that the appellees were exercising possession over the property in question; the construction of the terraces demonstrated the appellees' exercise of exclusive dominion over the property and an appropriation of the property for the appellees' own use and benefit; and the construction of the terraces established a claim of right to the property. Kelley v. Randolph, 295 Ga. 721 , 763 S.E.2d 858 (2014).

When the plaintiffs contended that the issuance of a notice of interim trail use or abandonment authorizing the conversion of a railroad line for use as a public recreational trail under the National Trail Systems Act exceeded the scope of an easement and, thus, was a Fifth Amendment taking, the court applied Georgia law and determined that, with respect to one parcel, the railroad acquired title in fee simple, not just an easement limited to rail use, because the railroad satisfied the elements of adverse possession when the railroad constructed and used a rail line adjacent to the parcel. Further, the railroad possessed the property for more than 20 years and, thus, acquired title to the property as opposed to a mere easement to use the property. Hardy v. United States, 127 Fed. Cl. 1 (Fed. Cl. May 4, 2016).

Requirements not satisfied. - Although the quia timet provision under which the property purchaser sought to quiet title permitted the property claimant to seek a jury trial, the special master's error in concluding that the claimant was not entitled to a jury trial was harmless because the property claimant did not show that the case presented a question of fact requiring the intervention of a jury; the property claimant did not show the existence of a claim to the property by virtue of adverse possession since the claimant did not show that there had been uninterrupted and continuous possession for 20 years. Gurley v. E. Atlanta Land Co., 276 Ga. 749 , 583 S.E.2d 866 (2003).

Surveying of a disputed tract of land and marking of drill rods and pins found thereon did not amount to an adverse possession; additionally, these acts did not become an adverse possession merely because the acts were done in the presence of the true owner and consistent with the owner's indications of the property boundaries. Henson v. Tucker, 278 Ga. App. 859 , 630 S.E.2d 64 (2006).

Transferee's payment of taxes on the property at issue in an adverse possession claim was not evidence of title and ownership and was properly excluded; the trial court's order excluding evidence which was insufficient to show the transferee's "possession" as probative of adverse possession, but allowing it insofar as it showed that the transferee had not been dispossessed of the property, was proper. Byrd v. Shelley, 279 Ga. App. 886 , 633 S.E.2d 56 (2006).

Trial court did not err in denying a landowner's claim that the landowner held prescriptive title to certain property by possession for a period of more than 20 years under O.C.G.A. § 44-5-163 because neither the landowner nor the landowner's spouse cultivated the property or erected any structure or fence upon the property pursuant to O.C.G.A. § 44-5-165 , and the clearing of vegetation did not require a finding that possession had been established; photographs submitted in support of the landowner's claim that a pre-existing fence situated at one end of the property, together with the vegetation lines caused by the clearing and periodic mowing of the property, constituted an enclosure of the property so as to evidence possession and could allow the special master to conclude that the asserted enclosure was not so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another. Bailey v. Moten, 289 Ga. 897 , 717 S.E.2d 205 (2011).

Trial court erred in finding that a neighbor was the rightful owner of certain property because there was no evidence to support the conclusion that the neighbor owned the disputed property either by deed or by adverse possession; the legal description of the property contained in the neighbor's deed did not include the disputed property, and since the evidence showed that, at most, the neighbor made a claim to the disputed property for only eighteen years before being challenged by the landowners, the neighbor's claim to have gained prescriptive title to the property through adverse possession under O.C.G.A. §§ 44-5-161 and 44-5-165 failed as a matter of law. Washington v. Brown, 290 Ga. 477 , 722 S.E.2d 65 (2012).

Trial court did not err in granting a bank and purchasers summary judgment in a son's action to quiet title to a parcel of land because the son did not gain title to the house on the property through adverse possession; the son had not adversely possessed the property for the requisite 20 years pursuant to O.C.G.A. § 44-5-161 et seq. Furthermore, the son could not claim adverse possession under color of title, which reduced the required period of possession to seven years, because the son's deed did not provide written evidence of title. Haffner v. Davis, 290 Ga. 753 , 725 S.E.2d 286 (2012).

Recordation over the course of years of no consequence. - Claim of adverse possession, based on recordation of the various deeds over the course of eight years, in and of itself, had to fail in light of O.C.G.A. § 44-5-166(b) . Double 'D' bar 'C' Ranch v. Bell, 283 Ga. 386 , 658 S.E.2d 635 (2008).

Payment of taxes and running people off land insufficient for prescriptive title. - In a quiet title action, because a ranch, that was seeking title to the disputed parcel of land, adduced no evidence that the ranch cultivated or built upon the land or enclosed or excluded others from the entire property, the special master correctly concluded that the act of posting of a few signs forbidding trespassing and driving off an occasional trespasser was insufficient to show adverse possession. Moreover, the payment of property taxes on the parcel since 1997, in and of itself, was insufficient to establish prescriptive title. Double 'D' bar 'C' Ranch v. Bell, 283 Ga. 386 , 658 S.E.2d 635 (2008).

Right of Possessor

True owner deemed to be in possession unless dispossessed. - When two persons enter onto property each claiming an interest therein, one who is the true owner or has the better title is deemed to be in possession thereof unless that one is dispossessed by the other person. Carter v. Becton, 250 Ga. 617 , 300 S.E.2d 152 (1983).

Scope of prescription by mere possession. - Prescription by mere possession does not extend beyond the actual possessio pedis of the prescriber. Arnold v. Shackelford, 219 Ga. 839 , 136 S.E.2d 384 (1964).

Actual possession of land is notice to world of claim thereto, and one who, knowing land to be held by one person, buys the land from another, will be charged with notice of an unrecorded deed held by the party in possession. Scarbor v. Scarbor, 226 Ga. 323 , 175 S.E.2d 6 (1970).

Possession is presumed to be adverse and in good faith, until the contrary is shown. Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986).

Law will never construe possession as tortious, unless from necessity; it will consider every possession lawful, the commencement and continuance of which is not proved to be wrongful. Ewing v. Tanner, 184 Ga. 773 , 193 S.E. 243 (1937).

Possession need not be held in person by one claiming prescriptive rights. Swygert v. Roberts, 136 Ga. App. 700 , 222 S.E.2d 75 (1975).

Tenant's possession is that of the tenant's landlord; and the landlord is the true possessor within the meaning of this statute. Swygert v. Roberts, 136 Ga. App. 700 , 222 S.E.2d 75 (1975) (see O.C.G.A. § 44-5-161 ).

Tenant's knowledge. - When the landlord never had possession of the land or claimed title to the land, and did not include the land in the lease, the possession of the tenant, beyond the boundaries of the land contained in the lease, is not the possession of the landlord, even though the tenant believes the tenant is occupying only the land demised. Olsen v. Noble, 209 Ga. 899 , 76 S.E.2d 775 (1953).

Use by tenant inures to landlord's benefit if it expressly or impliedly includes easement; a tenant cannot originate adverse user in the landlord's favor if the lease does not expressly or impliedly include the easement. Olsen v. Noble, 209 Ga. 899 , 76 S.E.2d 775 (1953).

Except if tenant's adverse occupation not covered by lease. - An independent adverse occupation by a tenant of another's land, not purporting to be covered by the terms of the lease, and not based upon any authorization purporting to be conferred therein by the lessor, does not inure to the benefit of the landlord. Olsen v. Noble, 209 Ga. 899 , 76 S.E.2d 775 (1953).

Bald trespass is entry upon lands without any right to do so and without a bona fide claim of any right to do; one so entering may receive a form of property in one's bare possession sufficient to enable one to hold the land as against subsequent intruders, but which can never ripen into prescriptive title. Mayor of Forsyth v. Hooks, 182 Ga. 78 , 184 S.E. 724 (1936); Hannah v. Kenny, 210 Ga. 824 , 83 S.E.2d 1 (1954).

Squatter can never gain prescriptive title to land, no matter how long the squatter holds the possession; the squatter's possession is never considered as adverse. Mayor of Forsyth v. Hooks, 182 Ga. 78 , 184 S.E. 724 (1936); Hannah v. Kenny, 210 Ga. 824 , 83 S.E.2d 1 (1954).

Mere squatter on a lot of land, without color of title or claim of right, cannot defeat the title of the true owner by conveying the land to other purchasers who had full knowledge of the nature and character of the title when the purchaser's purchased the land, although the purchaser's may have been in possession of the land for seven years under such title. Hannah v. Kenny, 210 Ga. 824 , 83 S.E.2d 1 (1954).

Adverse possession of church will support prescriptive title. - Possession of property for the use of a church by the constituent membership is possession of the church, and if continued adversely for the prescriptive period, will support prescriptive title. Bridges v. Henson, 216 Ga. 423 , 116 S.E.2d 570 (1960).

Adverse possession of adjoining strip held insufficient to establish title. - Adverse possession of an adjoining strip by successive tenants, not expressly or impliedly authorized by the landlord, who was never in possession, is not sufficient to give the landlord title to the adjoining strip. Olsen v. Noble, 209 Ga. 899 , 76 S.E.2d 775 (1953).

Purchaser not entitled to possession during owner's redemption period. - Purchaser at a tax sale is not entitled to possession during the period in which the law allows the owner to redeem; possession during that period by the purchaser cannot be as a matter of right or law. McDonald v. Wimpy, 206 Ga. 270 , 56 S.E.2d 524 (1949).

Act of possession not amounting to adverse possession. - Evidence that, without actual notice of the grantor's deed to secure debt, the claimant for more than seven years had paid taxes, that on one occasion the claimant drove across the land and gathered certain botanical specimens, but that the claimant never fenced the land or any part of the land, never cultivated any of the land through a tenant or otherwise, or did any other act to indicate actual possession, disclosed no such actual possession as was necessary to show a prescriptive title as against plaintiffs in fi. fa. Yundt v. Davison, 186 Ga. 179 , 197 S.E. 248 (1938).

When defendant and defendant's grantor plowed and burned fire breaks to keep fire off the land, planted trees for two or three years, not many of which lived, had the land surveyed, the corners and land lines marked, kept trespassers from getting wood off the land and kept named persons from working turpentine trees thereon, and paid taxes thereon for 12 or 14 years, but there was no dwelling or outhouse of any kind on the land, the land was not fenced, and no part of the land was in cultivation, the acts relied upon by the defendant and the defendant's grantor did not amount to actual, open, visible, exclusive, and unambiguous possession. Memory v. Walker, 209 Ga. 916 , 76 S.E.2d 698 (1953).

Claimant's possession was not adverse since claimant was incarcerated for six months during the time period claimant claims claimant adversely possessed the property and the owner averred that claimant was the caretaker of the property. Wolf v. McCollum, 240 Ga. App. 412 , 522 S.E.2d 547 (1999).

Beaver dams. - Landowner enjoys no prescriptive right to the continued existence of beaver dams in a creek which form a border of the landowner's property because the dams are not erected through human agency. Dawson v. Wade, 257 Ga. 552 , 361 S.E.2d 181 (1987).

Fraud

Statute only contemplates fraud against true landowner. Moore v. Mobley, 123 Ga. 424 , 51 S.E. 351 (1905) (see O.C.G.A. § 44-5-161 ).

Statute includes not only mere legal fraud but also moral fraud. - This fraud is not mere legal fraud but is moral fraud, that is, something in the transaction which charges the conscience of the prescriber; an honest mistake of law cannot amount to such a fraud. Wright v. Smith, 43 Ga. 291 (1871); Brown v. Wells, 44 Ga. 573 (1872); McCamy v. Higdon, 50 Ga. 629 (1874); Virgin v. Wingfield, 54 Ga. 451 (1875); Ware v. Barlow, 81 Ga. 1 , 6 S.E. 465 (1875); Ellis v. Dasher, 101 Ga. 5 , 29 S.E. 268 (1897); Street v. Collier, 118 Ga. 470 , 45 S.E. 294 (1903); Bower v. Cohen, 126 Ga. 35 , 54 S.E. 918 (1906).

In order to defeat title by prescription on the ground of fraud, it must appear that the fraud of the prescriber was such as to "charge his conscience," and thus amount to actual moral fraud. Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986).

Possession originating in fraud will not be presumed. Chancey v. Georgia Power Co., 238 Ga. 397 , 233 S.E.2d 365 (1977).

Fraud precludes adverse possession. - When, at the time of the intestate decedent's death, the wife and children falsely informed the probate court that they were the decedent's only heirs at law when the son was also an heir at law, an issue of fact remained as to whether the wife and children's possession of the decedent's property originated in fraud, which would have precluded adverse possession under O.C.G.A. § 44-5-161(a)(2). Ponder v. Ponder, 275 Ga. 616 , 571 S.E.2d 343 (2002).

It is enough if nothing appears indicative of fraud. McMullin v. Erwin, 58 Ga. 427 (1877).

Presumption of good faith in origin of possession exists when actual possession has been shown; this would not be true if actual possession had been only alleged. Latham v. Fowler, 192 Ga. 686 , 16 S.E.2d 591 (1941); Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Good faith has relation to actual existing state of mind, whether so from ignorance, skepticism, sophistry, delusion, or imbecility, and without regard to what it should be from given legal standards of law or reason. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945); McDonald v. Wimpy, 206 Ga. 270 , 56 S.E.2d 524 (1949).

No prescription can be based upon fraud. - If the color of title is fraudulent and notice thereof is brought home to the claimant before or at the time of the commencement of one's possession, no prescription can be based upon the fraud. Johnson v. Key, 173 Ga. 586 , 160 S.E. 794 (1931).

Burden of proof. - Claimant must establish fraud in defendant or else defendant's knowledge of fraud by someone upon whose possession one relies for one's prescriptive title. Ross v. Central R.R. & Banking Co., 53 Ga. 371 (1874); Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Notice insufficient to constitute fraud. - When the plaintiff purchased land from the county which in turn made a bid in the land at a tax sale, it will not be adjudged that under such circumstances one who enters otherwise in good faith will be held to have been guilty of such notice of the claim of the original owner as would render one's entry fraudulent. Dyal v. Sanders, 194 Ga. 228 , 21 S.E.2d 596 (1942).

Alleged fraud did not defeat adverse possession. - Upon finding that the trial court had exclusive subject matter jurisdiction, the court also properly ruled that a sibling had prescriptive title to certain property under O.C.G.A. § 44-5-164 by possessing the property under color of title for a period greater than seven years, satisfying the requirements of O.C.G.A. § 44-5-161 ; the fraud alleged by the other siblings did not defeat the title, as they were unaware of the fraud from 1989 to 2002. Goodrum v. Goodrum, 283 Ga. 163 , 657 S.E.2d 192 (2008).

Public, Continuous, Exclusive, Uninterrupted, and Peaceable

"Continuous" means that the user shall exercise the right of possession more or less frequently according to the nature of the use to which its enjoyment may be applied. Anneberg v. Kurtz, 197 Ga. 188 , 28 S.E.2d 769 (1944).

"Peaceable possession" means possession unbroken by an ouster and is contradistinguished from disputed or hostile possession. Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986).

Omission to use when not needed does not disprove continuity of use, shown by using it when needed; it is not required that a person shall use the easement everyday for the prescriptive period. Anneberg v. Kurtz, 197 Ga. 188 , 28 S.E.2d 769 (1944).

Applicability of continuity requirement. - Requirement of continuity of possession for a period of 20 years is applicable to any practice relied upon to vest in the prescriber the right to subject the lands of another to a particular burden or use. Vickers v. City of Fitzgerald, 216 Ga. 476 , 117 S.E.2d 316 (1960), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635 , 452 S.E.2d 488 (1994).

Continuity as consisting of successive possessions of several persons in privity. - To constitute element of continuity which is essential to adverse possession as the foundation of a good prescriptive title, it is not necessary that adverse possession be maintained for the statutory period by the same person, since continuity may as effectively be shown by the successive bona fide possessions of several persons, provided the requisite privity exists between them, so as to permit attacking of their unbroken successive possessions. Blalock v. Redwine, 191 Ga. 169 , 12 S.E.2d 639 (1940); Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986).

In order to show privity between successive occupants, all that is necessary is that one shall have received one's possession from the other by some act of another or by operation of law. This may be accomplished by a parol agreement or understanding, under which the actual possession of the premises is delivered, as well as by a written conveyance. Blalock v. Redwine, 191 Ga. 169 , 12 S.E.2d 639 (1940); Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 , 24 S.E.2d 59 (1943).

Requirement of continuity of possession is one of substance and not of absolute mathematical continuity, provided that there is no break so as to make a severance of two possessions. Clark v. White, 120 Ga. 957 , 48 S.E. 357 (1904); Walker v. Steffes, 139 Ga. 520 , 77 S.E. 580 (1913); Anneberg v. Kurtz, 197 Ga. 188 , 28 S.E.2d 769 (1944).

There may be slight intervals in which the prescriber or the prescriber's agent or tenant is not actually upon the land, as in cases of changing tenants, or if the nature or character of the business does not require one's presence every day, or there may be short intervals of temporary absence of such person. Clark v. White, 120 Ga. 957 , 48 S.E. 357 (1904); Walker v. Steffes, 139 Ga. 520 , 77 S.E. 580 (1913).

Mere bringing of an action which is dismissed and not prosecuted to a successful termination is no disturbance of possession so as to prevent a prescriptive title from ripening. Kile v. Fleming, 78 Ga. 1 (1886).

Suit to which the true owner is not a party does not stop or break the continuity of adverse possession, even though the land is sold under a decree in such suit. Verdery v. Savannah, F. & W. Ry., 82 Ga. 675 , 9 S.E. 1133 (1889).

Joint adverse possession may create jointly acquired prescriptive title. - When two or more persons are in joint possession of real estate, and when they are jointly claiming adverse possession as against the rest of the world, they can jointly acquire prescriptive title through adverse possession. Carter v. Becton, 250 Ga. 617 , 300 S.E.2d 152 (1983).

Effect of joint and mutually adverse possession. - When two or more persons without title or color of title are in joint possession of real estate, and when they are making claims to the same property adverse to each other, none has the exclusive possession necessary to establish prescriptive title through adverse possession. Carter v. Becton, 250 Ga. 617 , 300 S.E.2d 152 (1983).

Tacking. - Adverse possession of land by promoters or officers of a corporation may be tacked to the adverse possession of the corporation after the corporation's organization and incorporation. Blalock v. Redwine, 191 Ga. 169 , 12 S.E.2d 639 (1940).

Link in chain of prescriptive title can be formed if executor had possession in the executor's own name before turning over the land to a devisee. Caraker v. Brown, 152 Ga. 677 , 111 S.E. 51 (1922).

One may hold the possession in person or by a tenant. McMullin v. Erwin, 58 Ga. 427 (1877).

Possession by a tenant or agent, under a parol understanding with the owner, will suffice to support the owner's claim of a prescriptive title. Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 , 24 S.E.2d 59 (1943).

When the uncontradicted evidence shows that the plaintiff and the plaintiff's immediate grantor, in whom demises were properly laid, entered in good faith and were successively in continuous adverse possession of certain property, under color of title, of the land so described, for more than seven years before the alleged ouster, the evidence demanded a finding for the plaintiff on the basis of title by prescription. Elliott v. Robinson, 192 Ga. 682 , 16 S.E.2d 433 (1941).

Vendee placed in possession by the vendor under a bond or contract to convey does not hold adversely to the vendor. Hines v. Rutherford, 67 Ga. 606 (1881); Allen v. Napier, 75 Ga. 275 (1885); Parrott v. Baker, 82 Ga. 364 , 9 S.E. 1068 (1889); Brown v. Huey, 103 Ga. 448 , 30 S.E. 429 (1898).

Burden of proof for owners tacking on tenant's prior possession time. - For owners to tack onto the period of their possession the time that the property was used by a tenant of the owner, the burden is upon the owners to show by a preponderance of the evidence that this prior possession is of such character as to be the foundation of prescription, and be adverse, and the foundation must meet all the requirements of law, including the requirement that the possession must be accompanied by a claim of right. Olsen v. Noble, 209 Ga. 899 , 76 S.E.2d 775 (1953).

Title acquired by continuously emptying refuse into stream. - When a person in the operation of a canning plant, has from June 1 to November 1 of each year for more than 20 years, emptied the refuse from the plant into a nonnavigable stream, the person has thereby acquired a prescriptive right so to do. Anneberg v. Kurtz, 197 Ga. 188 , 28 S.E.2d 769 (1944).

Easement to flood lands denied. - Railroad company which has for 25 years maintained a trestle and abutments, under which a stream flows, does not thereby acquire a prescriptive easement to flood lands, unless such flooding has been continuous and uninterrupted for a period sufficient to ripen prescription. Goble v. Louisville & N.R.R., 187 Ga. 243 , 200 S.E. 259 (1938).

Long intervals between possessory periods defeats adverse possession. - When the plaintiff went into possession of a part of the land, remaining in possession only for short periods with long intervals between periods of possession, this will not meet the requirements for adverse possession. McDonald v. Wimpy, 206 Ga. 270 , 56 S.E.2d 524 (1949).

Possession of property under a duly recorded warranty deed is notice to the world of the possessor's claim of title. Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986).

Title insufficient absent evidence of continuous physical possession of land. - Evidence was insufficient to show that the defendant had acquired title to the strip of land in dispute by actual adverse possession for a period of 20 years since it did not show that the defendant and the defendant's predecessors in title had been in physical or corporeal possession of such strip continuously for the period stated. Bradley v. Shelton, 189 Ga. 696 , 7 S.E.2d 261 (1940).

Evidence of successive occupation need not be in writing; the transfer may be accomplished by a parol agreement or understanding under which the actual possession of the premises is delivered, as well as by a written conveyance. Blalock v. Redwine, 191 Ga. 169 , 12 S.E.2d 639 (1940).

Complete enclosure of land indicates complete and notorious dominion over land. McCrea v. Georgia Power Co., 179 Ga. 1 , 174 S.E. 798 (1934), later appeal, 187 Ga. 708 , 1 S.E.2d 664 (1939).

To constitute actual possession by enclosure, the land must be completely enclosed, but it is not necessary that the land should be completely enclosed on every side by artificial means, such as fences. McCrea v. Georgia Power Co., 179 Ga. 1 , 174 S.E. 798 (1934), later appeal, 187 Ga. 708 , 1 S.E.2d 664 (1939).

Actual possession of land may consist of an enclosure of land in part by fences, high banks of a creek and by a rocky shoal, if all together they make a complete enclosure. McCrea v. Georgia Power Co., 179 Ga. 1 , 174 S.E. 798 (1934), later appeal, 187 Ga. 708 , 1 S.E.2d 664 (1939).

Hog wire fence. - Trial court erred by concluding, as a matter of law, that defendant's "hog wire fence" satisfied the notoriety and exclusivity requirements of O.C.G.A. § 44-5-161 . Guagliardo v. Jones, 238 Ga. App. 668 , 518 S.E.2d 925 (1999).

Telephone poles and wires outline general area in use. - When poles and wires were used in the operation of a telephone line or lines over the lands of another, the poles and wires should be considered as having marked or outlined a general area in use according to the usual and ordinary manner; and if the outer limits of this space remained the same for the prescriptive period of 20 years, the resulting easement would apply at least to such general area, so that the stringing of additional wires anywhere therein consistently with customary location would be permissible as territorially within the easement, whether or not the identical space to be physically occupied by such wires had ever before been so occupied by other wires. Kerlin v. Southern Bell Tel. & Tel. Co., 191 Ga. 663 , 13 S.E.2d 790 (1941).

Utility company's use of land. - Even though continuous and open possession of property for almost an entire century was subject to a power company's limited use and was therefore not "absolutely exclusive," it was consistent with ownership, and was sufficiently exclusive to satisfy O.C.G.A. § 44-5-161 . Georgia Power Co. v. Irvin, 267 Ga. 760 , 482 S.E.2d 362 (1997).

Installation of sprinkler system. - Property owners could not establish that the alleged installation of a sprinkler system on the disputed property by a prior owner of the owners' property somehow bolstered the owners' claim of adverse possession because there was no evidence as to how long any previous owner allegedly maintained adverse possession of the disputed property, and the installation of a sprinkler system, by itself, would not establish adverse possession under the circumstances presented in the case. Campbell v. Landings Ass'n, 289 Ga. 617 , 713 S.E.2d 860 (2011).

Reconstruction of dam and pond. - In a boundary dispute, the evidence was sufficient for the jury to find that a landowner was entitled to judgment pursuant to prescriptive title under O.C.G.A. § 44-5-161(a) because a dam creating the disputed pond broke in 1994, and the landowner reconstructed the dam at the landowner's sole cost; the neighbors raised no objection to this act of actual possession and ownership. Mathews v. Cloud, 294 Ga. 415 , 754 S.E.2d 70 (2014).

Quitclaim deed held not impediment to adverse possession. - Quitclaim deed to the disputed property, executed 40 years earlier by plaintiff's decedent in favor of plaintiff's predecessor in title, was no impediment to decedent's adverse possession of the property, since there was no evidence of mistake or that the decedent remained in possession after executing the deed, but there was evidence that the decedent was in possession for 30 years preceding the litigation. Brown v. Williams, 259 Ga. 6 , 375 S.E.2d 835 (1989).

Evidence supporting claim of adverse possession. - Indicia of ownership, including cultivating garden plots, harvesting trees, creating and maintaining roads, hunting, and excluding members of another family from use of the property were sufficient to provide notice of the occupier's adverse claim. Armour v. Peek, 271 Ga. 202 , 517 S.E.2d 527 (1999).

Evidence that the possessors and their predecessors in interest were in continued possession of the property since 1906 and that they fenced, maintained, landscaped and put the property to various exclusive uses authorized the special master's finding that the possessors acquired prescriptive title. Childs v. Sammons, 272 Ga. 737 , 534 S.E.2d 409 (2000).

Trial court properly found that a church acquired prescriptive title to a portion of the disputed land bordering that of the adjacent landowners, setting a boundary line between the two parcels, upon sufficient evidence of the church's adverse possession, the paper trail recognizing the church's use and possession of the disputed property for the requisite time frame, and the setting of the boundary line almost 30 years earlier imputing personal knowledge to one of the owners of the adjacent land. Mobley v. Jackson Chapel Church, 281 Ga. 122 , 636 S.E.2d 535 (2006).

Trial court properly granted summary judgment to a neighbor in its declaratory judgment suit as the neighbor had established its right to use the airspace through acquisition by adverse possession under O.C.G.A. § 44-5-161(a) . For a period of more than 20 years, the neighbor's possession of the airspace occupied by its ventilation system had been public, continuous, exclusive, uninterrupted, peaceable, and under a claim of right, and contrary to the owner's contention, it was the owner's burden, not the neighbor's, to rebut the presumption of adverse possession with evidence of permissive use, which the owner had not done. Cong. St. Props., LLC v. Garibaldi's, Inc., 314 Ga. App. 143 , 723 S.E.2d 463 (2012).

Evidence insufficient to support claim of adverse title. - Neighbor's claims of ownership as to a tract of land was denied because the evidence did not support the neighbor's alleged use of the tract as being continuous, exclusive, nor uninterrupted for the requisite 20-year period, and the jury could have reasonably decided that this evidence demonstrated interruption of possession or lack of continuity and exclusivity. Jackson v. Tolliver, 277 Ga. 58 , 586 S.E.2d 321 (2003).

Trial court did not err when the court concluded that a buyer's tax deed did not ripen by prescription into a fee simple title because neither the buyer's payments of taxes nor occasional cleanup and mowing areas were sufficiently notorious or exclusive as to constitute actual possession. Washington v. McKibbon Hotel Group, Inc., 284 Ga. 262 , 664 S.E.2d 201 (2008).

Trial court properly granted a renter summary judgment and removed an affidavit asserting adverse possession filed by the owner of the first floor of a building with regard to a 1,350 square foot space on the second floor of the building as the renter established that title was acquired via a quit claim deed, that the renter changed the door at the base of the stairwell and had sole access to the second floor space, as well as posted no trespassing signs. The owner of the first floor failed to establish a continuous, exclusive, and uninterrupted possession of the space based on sporadic repairs made to the roof of the entire building. MEA Family Invs., LP v. Adams, 284 Ga. 407 , 667 S.E.2d 609 (2008).

Trial court did not err in finding that property owners' claim for prescriptive title failed as a matter of law because the owners did not show that the owners use of the property had been continuous, exclusive, uninterrupted, and peaceable for the past twenty years; the owners purchased the owners' lot within the past sixteen years, and a homeowners association had consistently impeded all of the owners' attempts to do the owners' own personal construction projects on the disputed property. Campbell v. Landings Ass'n, 289 Ga. 617 , 713 S.E.2d 860 (2011).

Evidence supported the trial court's conclusion that landowners did not own the disputed property because the landowners' occasional maintenance and use of the disputed property did not amount to the type of exclusive possession for twenty years that would support a claim for prescriptive title under O.C.G.A. §§ 44-5-161 and 44-5-165 . Washington v. Brown, 290 Ga. 477 , 722 S.E.2d 65 (2012).

Successor in interest to the owner of property successfully redeemed the property from the purchaser of a tax deed by tendering an adequate amount, O.C.G.A. § 48-4-40(2) , although it was refused by the purchaser; the court rejected the purchaser's claim that the purchaser had acquired title by prescription under O.C.G.A. § 48-4-48 because the prescriptive period was not met and the purchaser's possession of the unfenced, uninhabited property was not sufficiently adverse. Nix v. 230 Kirkwood Homes, LLC, 300 Ga. 91 , 793 S.E.2d 402 (2016).

Petition to quiet title based on adverse possession claim properly granted. - Trial court properly granted executor's petition to quiet title based on the claim that the executor's grandfather acquired the property through adverse possession, because the grandfather and his lineal descendants continuously occupied the property and openly declared to others that they owned the property; thus, possession of the property by the executor's family was public, continuous, exclusive, uninterrupted and peaceable, and under a claim of right as required under O.C.G.A. § 44-5-161(a) . Cooley v. McRae, 275 Ga. 435 , 569 S.E.2d 845 (2002).

Claim of Right

Title based on adverse possession must be accompanied by claim of right. Hardison v. McCreary, 304 F.2d 699 (5th Cir. 1962).

"Claim of right" is synonymous with claim of title and claim of ownership; while this does not mean that the possession must be accompanied by a claim of title out of some predecessor, there must be some claim of title in the sense that the possessor claims the property as the possessor's own. Ewing v. Tanner, 184 Ga. 773 , 193 S.E. 243 (1937); Allen v. Allen, 196 Ga. 736 , 27 S.E.2d 679 (1943).

Hostile possession or possession under claim of right are legal equivalents for all practical purposes. Ewing v. Tanner, 184 Ga. 773 , 193 S.E. 243 (1937).

Possession, if held under claim of right, is referred to as title, actual or supposed, under which the right of possession is claimed. Patellis v. Tanner, 199 Ga. 304 , 34 S.E.2d 84 (1945).

Color of title is anything in writing, purporting to convey title to land, which defines the extent of the claim. McCrea v. Georgia Power Co., 179 Ga. 1 , 174 S.E. 798 (1934), later appeal, 187 Ga. 708 , 1 S.E.2d 664 (1939).

Color of title is a writing, upon the writing's face professing to pass title, but which does not do it, either from a want of title in the person making the writing, or from the defective conveyance that is used - a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Squatter defined. - Person entering upon lands, not claiming in good faith the right to do so by virtue of any title of one's own or by virtue of some agreement with someone else whom one believes to hold the title, is called a squatter. Hannah v. Kenny, 210 Ga. 824 , 83 S.E.2d 1 (1954).

Claim must be honestly entertained before prescription can arise under an asserted claim of right. Mayor of Forsyth v. Hooks, 182 Ga. 78 , 184 S.E. 724 (1936).

Honesty and good faith required. - Although a given paper may constitute color of title, no prescription can be based thereon unless the claimant entered thereunder honestly and in good faith. Johnson v. Key, 173 Ga. 586 , 160 S.E. 794 (1931).

An outstanding recorded title will not prevent the ripening of a title by prescription if the possessor enters in good faith under written evidence of title from another. Hearn v. Leverette, 213 Ga. 286 , 99 S.E.2d 147 (1957).

Defendants' motion for summary judgment was improperly granted on the plaintiffs' adverse possession claim as a question of fact remained about the location of the actual boundary line and whether the plaintiffs entered the disputed area in bad faith when the plaintiffs parked a large trailer in that area and then continued using that area for the next three-and-a-half decades because, although the plaintiff's signing of the 1974 deed might be some evidence of a lack of a good faith claim of right to possession of the disputed area, it was not dispositive, as knowing what the deed said about the boundaries of the defendants' lot did not automatically demonstrate knowledge of precisely where those boundaries lay in relation to the disputed area. McBee v. Aspire at West Midtown Apts., L.P., 302 Ga. 662 , 807 S.E.2d 455 (2017).

No paper title is necessary; nothing but actual bona fide possession, and the claimant is not required to show that the claimant went into possession bona fide. Evans v. Baird, 44 Ga. 645 (1872); Shiels v. Roberts, 64 Ga. 370 (1879); Hall v. Gay, 68 Ga. 442 (1882).

Deed void for uncertainty of description cannot be foundation of color of title upon which a prescriptive title may rest. Etowah Mining Co. v. Parker, 73 Ga. 51 (1884).

Evidence of claim of right or title. - Claim of right or title may be evidenced by acts or conduct in relation to the property possessed, which are inconsistent with the true owner's title. Ewing v. Tanner, 184 Ga. 773 , 193 S.E. 243 (1937); Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967).

Deed, reciting that levy under which a tax sale took place was made by a constable, is not valid as a muniment of title, but is only color of title. McDonald v. Wimpy, 206 Ga. 270 , 56 S.E.2d 524 (1949).

Because the heirs produced evidence raising a material question of fact as to whether their ancestors possessed certain property for the requisite period of time under a claim of right pursuant to O.C.G.A. §§ 44-5-161(a) , 44-5-163 , and 44-5-165 , the record owner was not entitled to summary judgment. Walker v. Sapelo Island Heritage Auth., 285 Ga. 194 , 674 S.E.2d 925 (2009).

Equitable claim in divorce proceeding. - Wife acquired a prescriptive title to property through adverse possession because her equitable claim to ownership in a divorce proceeding gave sufficient notice of intent to possess property adversely. Walters v. McNeese, 257 Ga. 440 , 360 S.E.2d 268 (1987).

Inventory of property in state entity's records. - State's claim of right to property is evidenced by its inclusion in an inventory of the property of the Western and Atlantic Railroad as the state is the owner of the Western and Atlantic Railroad. Seignious v. Metropolitan Atlanta Rapid Transit Auth., 252 Ga. 69 , 311 S.E.2d 808 (1984).

Claim of right will be presumed from assertion of dominion, particularly if the assertion of dominion is made by the erection of valuable improvements. Chancey v. Georgia Power Co., 238 Ga. 397 , 233 S.E.2d 365 (1977).

Easement rights extinguished. - Trial court did not err in granting summary judgment in favor of the appellees on the appellants' abatement claim in which the appellants sought the removal of the terraces and construction debris from the alleyway because, even assuming the appellants previously held title to one-half of the alleyway, ownership of that portion of the alleyway now lay with the appellees based on the appellees acquisition of the disputed property by prescriptive title and any rights the appellants had to the property, including any asserted easement rights, were extinguished. Kelley v. Randolph, 295 Ga. 721 , 763 S.E.2d 858 (2014).

Judgment of probate court is color of title. - Judgment of a probate court purporting to vest title to the land of a decedent in a widow for a year's support is generally color of title on which prescription can be based. Johnson v. Key, 173 Ga. 586 , 160 S.E. 794 (1931).

Sheriff's deed may be color of title, even though the deed is defective. Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940).

Claim lacking element of hostility fails to show good title. - Plaintiff did not show a good prescriptive title by seven years adverse possession under color of voluntary deed made to her by husband, intervenors' brother, since the necessary element of hostility inherent in adverse possession was lacking, by reason of the fact that, before the lapse of seven years from the beginning of plaintiff's possession, plaintiff's vendee, defendant, in actual possession, had under the undisputed evidence recognized that his holding of the land was subject to any valid claim of the intervenors, and plaintiff also had partly recognized their claim. Pittman v. Pittman, 196 Ga. 397 , 26 S.E.2d 764 (1943).

Title fails for lack of claim of right. - When the tenant of the immediate predecessor in title to the defendants used a portion of plaintiff's adjoining property in such a manner as to be considered an adverse use as against the plaintiffs, but the owners (defendant's predecessors in title) during this period made no claim of a right to the use of plaintiffs' property, and expressly denied any claim of benefit by reason of the use of their tenant, one of the essential elements of prescription is lacking, as the possession through the tenant was not accompanied by any claim of right on its part as the owner and the defendants' own use of the property was for less than seven years. Olsen v. Noble, 209 Ga. 899 , 76 S.E.2d 775 (1953).

Permissive Possession

Permissive possession cannot be foundation of prescription until an adverse claim and actual notice to the other party are shown. Johnson v. Key, 173 Ga. 586 , 160 S.E. 794 (1931); Tanner v. John Hancock Mut. Life Ins. Co., 73 F.2d 382 (5th Cir. 1934), cert. denied, 295 U.S. 733, 55 S. Ct. 644 , 79 L. Ed. 1682 (1935); Harris v. Mandeville, 195 Ga. 251 , 24 S.E.2d 23 (1943); Blanton v. Moody, 265 F.2d 533 (5th Cir. 1959); Dickson v. Davis, 237 Ga. 883 , 230 S.E.2d 279 (1976).

Trial court's finding of "permissive use" of property held by a local church, even when that use spanned 70 years, could not be the foundation of a prescription until an adverse claim and actual notice to the other party under O.C.G.A. § 44-5-161(b) because there was no evidence presented that an adverse claim was made and actual notice was given; therefore, the local church did not hold prescriptive title in trust for a national church, but the local church obtained the property by gift years ago and took possession and built the church building. Kemp v. Neal, 288 Ga. 324 , 704 S.E.2d 175 (2010).

Possession inceptively permissive cannot become adverse until the possessor notifies the one who placed the possessor in possession that the possessor is holding adversely. Rucker v. Rucker, 136 Ga. 830 , 72 S.E. 241 (1911).

It is necessary that, during the whole time required for the ripening of prescription, there should be something to give notice that another is doing such acts or holding out such signs as to indicate the existence of a possession adverse to the true owner. Clark v. White, 120 Ga. 957 , 48 S.E. 357 (1904); Walker v. Steffes, 139 Ga. 520 , 77 S.E. 580 (1913).

Private way may not be acquired by prescription if use of the private way is with the owner's permission until an adverse claim is made and actual notice is given to the owner or party in possession. Greer v. Piedmont Realty Invs., Inc., 248 Ga. 821 , 286 S.E.2d 712 (1982).

Burden of proof. - O.C.G.A. § 44-5-161(b) does not place the burden on the party claiming adverse possession to prove that its use of the airspace was not permissive as part of its prima facie case; rather, in accordance with the plain language of the statute and applicable Georgia law, the party claiming adverse possession satisfies its burden once it establishes by a preponderance of the evidence each of the elements explicitly set forth within § 44-5-161(a) . Once it does so, the burden then shifts to the opposing party to rebut the presumption of adverse possession with evidence of permissive use. Cong. St. Props., LLC v. Garibaldi's, Inc., 314 Ga. App. 143 , 723 S.E.2d 463 (2012).

Possession was permissive during period when parties went into possession of their tract under an oral agreement to purchase the land from the owner, and did not receive a deed to the property until the purchase price was paid; they could not prescribe against the vendor until the purchase money was paid in full. Burk v. Tyrrell, 212 Ga. 239 , 91 S.E.2d 744 (1956).

Trial court properly granted summary judgment to a railroad as to the property owner's adverse possession claim as no evidence showed that the fence served to exclude the railroad from its right-of-way and its track supervisor testified that while it was aware of the fence, it did not consider the fence an encroachment on its right-of-way because the fence did not interfere with the railroad's access to the railroad's property. Fox v. Norfolk S. Corp., 342 Ga. App. 38 , 802 S.E.2d 319 (2017).

Permissive possession prevents prevailing under theory of adverse possession. Foster v. Adcock, 207 Ga. 201 , 60 S.E.2d 334 (1950).

Permissive possession is presumed to be for another, the rightful owner. Ewing v. Tanner, 184 Ga. 773 , 193 S.E. 243 (1937).

If personalty of tenant is left behind by the tenant, possession by the landlord is permissive, and cannot be the foundation of a prescription until an adverse claim and actual notice to the other party. Cozart v. Johnson, 181 Ga. 337 , 182 S.E. 502 (1935).

Possession by heirs. - Possession by heirs is permissive, not adverse, and no prescription can be based on such possession as against the grantees in security deeds. Boswell v. Underwood, 106 Ga. App. 675 , 127 S.E.2d 870 (1962).

When an heir, in possession, held under a deed from the other heirs of the grantor, who had executed a security deed to the plaintiff and, as an heir personally, still owned and claimed in part only by descent from the grantor in plaintiff's security deed, that heir "stood in the shoes" of such grantor, and could not set up an adverse prescriptive title against the plaintiff grantee in the security deed. Sweat v. Arline, 186 Ga. 460 , 197 S.E. 893 (1938).

Possession and valuable improvements alone are not sufficient bases for prescriptive claim in favor of a grantor against a grantee because the possession is permissive, and any improvements put on the land by the grantor accrue to the benefit of the grantee in the absence of a bona fide adverse claim of title and notice to the grantee. Fuller v. Calhoun Nat'l Bank, 59 Ga. App. 419 , 1 S.E.2d 86 (1939).

No prescriptive right acquired by permissive encroachment. - When the plaintiff and her husband had encroached upon lands now owned by the defendant with the permission of the previous owner, the plaintiff did not acquire any prescriptive right by the permissive encroachment made upon such lands since neither the plaintiff nor her husband gave notice at any time that they were claiming adversely to the rights of the defendant. McClung v. Schulte, 214 Ga. 426 , 105 S.E.2d 225 (1958).

Grantor who never surrenders possession to grantee does not hold adversely to grantee. Jay v. Welchel, 78 Ga. 786 , 3 S.E. 906 (1887); Melson v. Leigh, 159 Ga. 683 , 126 S.E. 718 (1925).

Vendor does not hold adversely to vendee if the vendor sold property to his wife and continued in possession without making her a deed thereto as he promised. McArthur v. Ryals, 162 Ga. 413 , 134 S.E. 76 (1926).

Adverse possession not sustained against security deed holder. - One in possession of property who makes payments to the holder of a security deed on the property, such payments being either rent or payments on an indebtedness that the property itself secured, cannot sustain a claim of adverse possession against the security deed holder as a matter of law. Dickson v. Davis, 237 Ga. 883 , 230 S.E.2d 279 (1976).

No adverse possession if possessor of property admits making payments of rent to record title holder. Dickson v. Davis, 237 Ga. 883 , 230 S.E.2d 279 (1976).

Acquiescence to division line between land of coterminous proprietors not mere permissive possession. - If location of the line between two coterminous proprietors is uncertain, and the proprietors, conceding the title of each to each one's separate lot, erect at joint expense a fence intended as marking the line of division, and both acquiesce therein by exercise of actual possession up to the fence, such possession of each is in right of the possessor and, being so, is not mere permissive possession within the meaning of this statute. Lockwood v. Daniel, 193 Ga. 122 , 17 S.E.2d 542 (1941) (see O.C.G.A. § 44-5-161 ).

Possession is not permissive if the evidence shows a claim of right under an equitable title based upon an oral contract of sale, the payment of a valuable consideration, and the erection of valuable improvements. Serritt v. Johnson, 223 Ga. 620 , 157 S.E.2d 484 (1967).

Tenant at sufferance is not in possession by permission of the landlord, but as a result of the tenant's laches or neglect. Reid v. Wilkerson, 222 Ga. 282 , 149 S.E.2d 700 (1966).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, § 10 et seq.

C.J.S. - 2 C.J.S., Adverse Possession, §§ 1, 29 et seq. 31 C.J.S., Estates, § 79.

ALR. - Adverse possession by third party or stranger of property held in trust, 2 A.L.R. 41 .

Writing as essential to color of title in adverse occupant of land, 2 A.L.R. 1457 .

Adverse possession of common, 9 A.L.R. 1373 .

Act of trespasser as interrupting adverse possession, 22 A.L.R. 1458 .

Adverse possession of railroad right of way, 50 A.L.R. 303 .

Adverse possession or prescription as affected by owner's informal consent subsequent to hostile entry, 65 A.L.R. 128 .

May adverse possession be predicated upon use or occupancy by one spouse of real property of other, 74 A.L.R. 138 .

Interval between crops as affecting continuity of adverse possession, 76 A.L.R. 1492 .

Adverse possession due to ignorance or mistake as to boundaries, 97 A.L.R. 14 .

Tenant's adverse possession or use of third person's land not within the description in the lease as inuring to landlord's benefit so as to support latter's title or right by adverse possession or prescription, 105 A.L.R. 1187 .

Adverse possession or prescription in respect of burial lot, 107 A.L.R. 1294 .

Use by public as affecting acquisition by individual of right of way by prescription, 111 A.L.R. 221 .

Adverse possession as against remainderman during life estate as affected by fact that conveyance by life tenant purported to cover fee, 112 A.L.R. 1042 .

Purchase of, or offer to purchase or to settle, outstanding title, interest, or claim as interrupting continuity of adverse possession as regards another title, interest, or claim, 125 A.L.R. 825 .

Adverse possession by stranger as against mortgagee, 136 A.L.R. 782 .

Cutting of timber as adverse possession, 170 A.L.R. 887 .

Title by adverse possession as affected by recording statutes, 9 A.L.R.2d 850.

Tacking adverse possession of area not within description of deed or contract, 17 A.L.R.2d 1128.

Adverse possession: sufficiency, as regards continuity, of seasonal possession other than for agricultural or logging purposes, 24 A.L.R.2d 632.

Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R.2d 1214.

Acquisition of title to mines or minerals by adverse possession, 35 A.L.R.2d 124.

Void tax deed, tax sale certificate, and the like, as constituting color of title, 38 A.L.R.2d 986.

Grantor's possession as adverse possession against grantee, 39 A.L.R.2d 353.

Title by or through adverse possession as marketable, 46 A.L.R.2d 544.

What acts, claims, circumstances, instruments, color of title, judgment, or thing of record will ground adverse possession in a life tenant as against remaindermen or reversioners, 58 A.L.R.2d 299.

Judgment or decree as constituting color of title, 71 A.L.R.2d 404.

Adverse possession of land by personal representative as against deceased owner's heirs or devisees, 73 A.L.R.2d 1097.

Adverse possession involving ignorance or mistake as to boundaries - modern views, 80 A.L.R.2d 1171.

Adverse possession based on encroachment of building or other structure, 2 A.L.R.3d 1005.

Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.3d 678.

Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48 A.L.R.3d 818.

Owner's surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse possession, 76 A.L.R.3d 1202.

Fence as factor in fixing location of boundary line - modern cases, 7 A.L.R.4th 53.

44-5-162. Effect of fraud on prescription.

  1. In order for fraud to prevent the possession of property from being the foundation of prescription, such fraud must be actual or positive and not merely constructive or legal.
  2. When actual or positive fraud prevents or deters another party from acting, prescription shall not run until such fraud is discovered.

    (Civil Code 1895, § 3597; Civil Code 1910, § 4177; Code 1933, § 85-414.)

History of section. - This Code section is derived from the decision in Salter v. Salter, 80 Ga. 178 , 4 S.E. 391 (1887).

JUDICIAL DECISIONS

Presumption of good faith arises from adverse possession. Baxley v. Baxley, 117 Ga. 60 , 43 S.E. 436 (1903).

Moral fraud required to defeat prescriptive title for fraud. - In order to defeat a prescriptive title for fraud, the claimant's written evidence of title, under which the claimant went into possession of the property, must be shown to have been fraudulent within the claimant's own knowledge, or notice thereof brought home to the claimant before or at the time of the commencement of the claimant's possession. Wingfield v. Virgin, 51 Ga. 139 (1874); Street v. Collier, 118 Ga. 470 , 45 S.E. 294 (1903); Wood v. Wilson, 145 Ga. 256 , 88 S.E. 980 (1916). See also Salter v. Salter, 80 Ga. 178 , 4 S.E. 391 , 12 Am. St. R. 249 (1887).

To defeat prescription title, the fraud of the party claiming thereunder must be such as to change one's conscience; one must be cognizant of the fraud, not by constructive but by actual notice. Kelley v. Tucker, 175 Ga. 796 , 166 S.E. 187 (1932).

Only moral fraud will prevent possession under color of title from ripening into prescriptive title. Wanamaker v. Wanamaker, 215 Ga. 473 , 111 S.E.2d 94 (1959).

Actual fraud cannot be founded on presumptive notice, on that sort of notice which is based upon record, or which is presumed from want of diligence. Baxter v. Phillips, 150 Ga. 498 , 104 S.E. 196 (1920); Mohr & Sons v. Dubberly, 165 Ga. 309 , 140 S.E. 856 (1927).

Direct evidence of bona fide possession is not required. Baxley v. Baxley, 117 Ga. 60 , 43 S.E. 436 (1903).

In order to constitute element of continuity which is essential to adverse possession as the foundation of a good prescriptive title, it is not necessary that adverse possession be maintained from the statutory period by the same person, since continuity may as effectively be shown by the successive bona fide possessions of several persons, provided the requisite privity exists between the people, so as to thus permit attacking of their unbroken successive possessions. Blalock v. Redwine, 191 Ga. 169 , 12 S.E.2d 639 (1940); Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 , 24 S.E.2d 59 (1943).

In order to show privity between successive occupants, all that is necessary is that one shall have received one's possession from the other by some act of such other or by operation of law; it is not necessary that such a transfer be in writing, since this may be accomplished by a parol agreement or understanding, under which the actual possession of the premises is delivered, as well as by a written conveyance. Blalock v. Redwine, 191 Ga. 169 , 12 S.E.2d 639 (1940); Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 , 24 S.E.2d 59 (1943).

Possession by tenant or agent sufficient. - Possession by a tenant or agent, under a parol understanding with the owner, will suffice to support the owner's claim of prescriptive title. Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 , 24 S.E.2d 59 (1943).

Alleged fraud did not defeat adverse possession. - Upon finding that the trial court had exclusive subject matter jurisdiction, the court also properly ruled that a sibling had prescriptive title to certain property under O.C.G.A. § 44-5-164 by possessing the property under color of title for a period greater than seven years, satisfying the requirements of O.C.G.A. § 44-5-161 ; the fraud alleged by the other siblings did not defeat the title as the siblings were unaware of the fraud from 1989 to 2002. Goodrum v. Goodrum, 283 Ga. 163 , 657 S.E.2d 192 (2008).

Cited in Thomas v. Couch, 171 Ga. 602 , 156 S.E. 206 (1930); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); Reynolds v. Smith, 186 Ga. 838 , 199 S.E. 137 (1938); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80 , 3 S.E.2d 91 (1939); Metropolitan Life Ins. Co. v. Hall, 191 Ga. 294 , 12 S.E.2d 53 (1940).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 13 et seq., 111 et seq., 118, 130, 136, 143, 144, 264, 301.

C.J.S. - 2 C.J.S., Adverse Possession, §§ 208, 263.

ALR. - What constitutes sufficient repudiation of express trust by trustee to cause statute of limitations to run, 54 A.L.R.2d 13.

44-5-163. When adverse possession for 20 years confers title.

Possession of real property in conformance with the requirements of Code Section 44-5-161 for a period of 20 years shall confer good title by prescription to the property against everyone except the state and those persons laboring under the disabilities stated in Code Section 44-5-170.

(Laws 1767, Cobb's 1851 Digest, p. 560; Code 1863, § 2641; Code 1868, § 2640; Code 1873, § 2682; Code 1882, § 2682; Civil Code 1895, § 3588; Civil Code 1910, § 4168; Code 1933, § 85-406.)

Cross references. - Surveying and marking boundary lines of property possessed under claim of right for more than seven years, § 44-4-7.

Presumption of grant from state upon 20 years' possession of land under claim of right, § 44-5-14 .

Law reviews. - For article, "Some Aspects of the Law of Easements," see 9 Ga. St. B.J. 287 (1973). For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

"Adverse" construed. - Possession is "adverse" within the meaning of this statute only as to one who has an immediate right to bring an action to recover lands the possession of which are wrongfully withheld. Futch v. Jarrard, 203 Ga. 47 , 45 S.E.2d 420 (1947) (see O.C.G.A. § 44-5-163 ).

Applicability of doctrine of prescription. - Doctrine of prescription applies to any incorporeal right which may be lawfully granted. Davis v. State, 9 Ga. App. 430 , 71 S.E. 603 (1911); Smith v. Jensen, 156 Ga. 814 , 120 S.E. 417 (1923).

Ripened prescriptive title extinguishes all inconsistent titles. - When an adverse possessor has held for the requisite period and one's prescriptive title ripens, it extinguishes all other inconsistent titles and itself becomes the true title. Danielly v. Lowe, 161 Ga. 279 , 130 S.E. 687 (1925).

Provision that adverse possession shall not run against state is all-inclusive, and it includes all property held by this state whether used for governmental or for proprietary purposes. Grand Lodge, I.O.O.F. v. City of Thomasville, 226 Ga. 4 , 172 S.E.2d 612 (1970).

State not barred by statute of limitations. - No statute of limitations or prescription runs against the state so as to be a bar. Dougherty v. Western & A.R.R., 53 Ga. 304 (1874).

Fraud, to bar prescription, must be actual fraud. Street v. Collier, 118 Ga. 470 , 45 S.E. 294 (1903).

Prescription does not run against a county in regard to land held for the benefit of the public. Clark v. McBride, 256 Ga. 308 , 348 S.E.2d 634 (1986), overruled on other grounds, Northpark Assocs. No. 2 v. Homard Dev. Co., 262 Ga. 138 , 414 S.E.2d 214 (1992).

Prescription may run against wife in favor of husband, though living together, as to property other than home. Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931).

Mandamus to require county to maintain road. - Group of landowners were properly granted a writ of mandamus requiring a county to maintain an adjacent road as the county had acquired title to the road by prescriptive acquisition, abandonment was not an issue, and compliance with O.C.G.A. § 32-3-3(c) did not need to be shown when a roadway was otherwise acquired by prescription; moreover, urging that a county's failure to meet the county's obligation to maintain public roads was an acceptable method of abandoning a roadway would encourage counties to disregard their public duty. Shearin v. Wayne Davis & Co., P.C., 281 Ga. 385 , 637 S.E.2d 679 (2006).

Judicial review. - Trial court did not err in rejecting a property owners' claim of title to a street by adverse possession; because the owners did not provide a transcript of the special master's evidentiary hearing, it was presumed that the evidence supported the relevant findings of the special master adopted by the trial court. Goodson v. Ford, 290 Ga. 662 , 725 S.E.2d 229 (2012).

Cited in McLaren v. Irvin, 63 Ga. 275 (1879); Milliken v. Kennedy, 87 Ga. 463 , 13 S.E. 635 (1891); Cushman v. Coleman, 92 Ga. 772 , 19 S.E. 46 (1894); Sapp v. Cline, 131 Ga. 433 , 62 S.E. 529 (1908); Tarver v. Deppen, 132 Ga. 798 , 65 S.E. 177 , 24 L.R.A. (n.s.) 1161 (1909); Bunger v. Grimm, 142 Ga. 448 , 83 S.E. 200 , 1916C Ann. Cas. 173 (1914); Stringfield v. Stringfield, 143 Ga. 557 , 85 S.E. 754 (1915); Ballenger v. Burton, 147 Ga. 5 , 92 S.E. 514 (1917); Brewton v. Brewton, 167 Ga. 633 , 146 S.E. 444 (1929); Wright v. Harber, 175 Ga. 696 , 165 S.E. 616 (1932); Beeland v. Butler Payne Lumber Co., 48 Ga. App. 619 , 173 S.E. 436 (1934); Rocker v. De Loach, 178 Ga. 480 , 173 S.E. 709 (1934); Sewell v. Sprayberry, 186 Ga. 1 , 196 S.E. 796 (1938); McCrea v. Georgia Power Co., 187 Ga. 708 , 1 S.E.2d 664 (1939); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80 , 3 S.E.2d 91 (1939); Stanley v. Laurens County Bd. of Educ., 188 Ga. 581 , 4 S.E.2d 164 (1939); Crump v. McEntire, 190 Ga. 684 , 10 S.E.2d 186 (1940); Flournoy v. United States, 115 F.2d 220 (5th Cir. 1940); Lockwood v. Daniel, 193 Ga. 122 , 17 S.E.2d 542 (1941); Hardy v. Brannen, 194 Ga. 252 , 21 S.E.2d 417 (1942); Holton v. Mercer, 195 Ga. 47 , 23 S.E.2d 166 (1942); Holloway v. Woods, 195 Ga. 55 , 23 S.E.2d 254 (1942); Harden v. Morton, 195 Ga. 47 1 , 24 S.E.2d 685 (1943); Pittman v. Pittman, 196 Ga. 397 , 26 S.E.2d 764 (1943); Patellis v. Tanner, 199 Ga. 304 , 34 S.E.2d 84 (1945); Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945); Barfield v. Vickers, 200 Ga. 279 , 36 S.E.2d 766 (1946); Powell v. Moore, 202 Ga. 62 , 42 S.E.2d 110 (1947); Browne v. Johnson, 204 Ga. 634 , 51 S.E.2d 416 (1949); Key v. Stringer, 204 Ga. 869 , 52 S.E.2d 305 (1949); Ballenger v. Houston, 207 Ga. 438 , 62 S.E.2d 189 (1950); Harrison v. Durham, 210 Ga. 187 , 78 S.E.2d 482 (1953); Phillips v. Wheeler, 212 Ga. 603 , 94 S.E.2d 732 (1956); Turner v. McKee, 97 Ga. App. 531 , 103 S.E.2d 658 (1958); Hughes v. Heard, 215 Ga. 156 , 109 S.E.2d 510 (1959); Blanton v. Moody, 265 F.2d 533 (5th Cir. 1959); Pridgen v. Coffee County Bd. of Educ., 218 Ga. 326 , 127 S.E.2d 808 (1962); Harrison v. Morris, 108 Ga. App. 566 , 133 S.E.2d 899 (1963); Little v. Weatherby, 220 Ga. 274 , 138 S.E.2d 380 (1964); Reid v. Wilkerson, 222 Ga. 282 , 149 S.E.2d 700 (1966); Barnett v. Holliday, 228 Ga. 361 , 185 S.E.2d 397 (1971); United States v. Williams, 441 F.2d 637 (5th Cir. 1971); Seaboard Coast Line R.R. v. Carter, 231 Ga. 5 , 200 S.E.2d 113 (1973); Roe v. Doe, 233 Ga. 691 , 212 S.E.2d 854 (1975); Jordan v. Way, 235 Ga. 496 , 220 S.E.2d 258 (1975); Chancey v. Georgia Power Co., 238 Ga. 397 , 233 S.E.2d 365 (1977); Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977); Swicord v. Hester, 240 Ga. 484 , 241 S.E.2d 242 (1978); Crosby v. Jones, 241 Ga. 558 , 246 S.E.2d 677 (1978); Killingsworth v. Willis, 244 Ga. 662 , 261 S.E.2d 613 (1979); Fuller v. Smith, 245 Ga. 751 , 267 S.E.2d 23 (1980); Bailey v. Johnson, 245 Ga. 823 , 268 S.E.2d 147 (1980); Atlanta Trailer Mart, Inc. v. Ashmore Foods, Inc., 247 Ga. 254 , 275 S.E.2d 336 (1981); Ross v. Lowery, 249 Ga. 307 , 290 S.E.2d 61 (1982); Simms v. Candler, 256 Ga. 163 , 345 S.E.2d 37 (1986); Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986); Georgia Power Co. v. Irvin, 267 Ga. 760 , 482 S.E.2d 362 (1997); Strozzo v. Coffee Bluff Marina Prop., 250 Ga. App. 212 , 550 S.E.2d 122 (2001); Small v. Irving, 291 Ga. 316 , 729 S.E.2d 323 (2012).

Requirements

Actual adverse possession of land for 20 years, by itself, gives good title by prescription. Hughes v. Heard, 215 Ga. 156 , 109 S.E.2d 510 (1959).

Statute provides for a title to land by prescription based upon possession alone for the time prescribed without the aid of any written evidence of title. Futch v. Jarrard, 203 Ga. 47 , 45 S.E.2d 420 (1947) (see O.C.G.A. § 44-5-163 ).

An easement may be acquired by prescription in 20 years unless there is some color of title, in which case only seven years is required. Smith v. Clay, 239 Ga. 220 , 236 S.E.2d 346 (1977).

Trial court did not err in granting summary judgment in favor of the appellees on the appellants' abatement claim in which the appellants sought the removal of the terraces and construction debris from the alleyway because, even assuming the appellants previously held title to one-half of the alleyway, ownership of that portion of the alleyway now lay with the appellees based on the appellees acquisition of the disputed property by prescriptive title and any rights the appellants had to the property, including any asserted easement rights, were extinguished. Kelley v. Randolph, 295 Ga. 721 , 763 S.E.2d 858 (2014).

Possession relied upon must meet requirements of O.C.G.A. § 44-5-161 . - Whether title was claimed under former Code 1933, § 85-406 (see O.C.G.A. § 44-5-163 ) by virtue of adverse possession for 20 years without written evidence of title or, under former Code 1933, § 85-407 (see O.C.G.A. § 44-5-164 ) by virtue of adverse possession for seven years under color of title, the possession relied upon must meet the requirements of former Code 1933, § 85-402 (see O.C.G.A. § 44-5-161 ). Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940); Moore v. Stephens, 199 Ga. 500 , 34 S.E.2d 716 (1945).

Surveying of a disputed tract of land and marking of drill rods and pins found thereon did not amount to an adverse possession; additionally, these acts did not become an adverse possession merely because the acts were done in the presence of the true owner and consistent with the owner's indications of the property boundaries. Henson v. Tucker, 278 Ga. App. 859 , 630 S.E.2d 64 (2006).

Trial court properly found that a church acquired prescriptive title to a portion of the disputed land bordering that of the adjacent landowners, setting a boundary line between the two parcels, upon sufficient evidence of the church's adverse possession, the paper trail recognizing the church's use and possession of the disputed property for the requisite time frame, and the setting of the boundary line almost 30 years earlier imputing personal knowledge to one of the owners of the adjacent land. Mobley v. Jackson Chapel Church, 281 Ga. 122 , 636 S.E.2d 535 (2006).

Trial court properly granted summary judgment to a neighbor in its declaratory judgment suit as the neighbor had established its right to use the airspace through acquisition by adverse possession under O.C.G.A. § 44-5-161(a) . For a period of more than 20 years, the neighbor's possession of the airspace occupied by its ventilation system had been public, continuous, exclusive, uninterrupted, peaceable, and under a claim of right, and contrary to the owner's contention, it was the owner's burden, not the neighbor's, to rebut the presumption of adverse possession with evidence of permissive use, which the owner had not done. Cong. St. Props., LLC v. Garibaldi's, Inc., 314 Ga. App. 143 , 723 S.E.2d 463 (2012).

Trial court did not err in granting summary judgment in favor of the appellees granting the appellees prescriptive title by adverse possession to the disputed property because the terraces and construction debris had remained in the same place continuously for the statutory 20-year prescriptive period; the building of the terraces changed the nature and appearance of the property and gave notice to all that the appellees were exercising possession over the property in question; the construction of the terraces demonstrated the appellees' exercise of exclusive dominion over the property and an appropriation of the property for the appellees own use and benefit; and the construction of the terraces established a claim of right to the property. Kelley v. Randolph, 295 Ga. 721 , 763 S.E.2d 858 (2014).

In absence of color of title, possession must be continuous for a period of at least 20 years before such possession can ripen into a prescriptive title. Spillers v. Jordan, 96 Ga. App. 426 , 100 S.E.2d 483 (1957).

Period of possession need not be for more than 20 years. Bridges v. Black, 144 Ga. 311 , 87 S.E. 20 (1915).

Actual possession required for title by prescription. Brookman v. Rennolds, 148 Ga. 721 , 98 S.E. 543 (1919).

Evidence sufficient for title. - When the plaintiffs contended that the issuance of a notice of interim trail use or abandonment authorizing the conversion of a railroad line for use as a public recreational trail under the National Trail Systems Act exceeded the scope of an easement and, thus, was a Fifth Amendment taking, the court applied Georgia law and determined that, with respect to one parcel, the railroad acquired title in fee simple, not just an easement limited to rail use, because the railroad satisfied the elements of adverse possession when the railroad constructed and used a rail line adjacent to the parcel. Further, the railroad possessed the property for more than 20 years and, thus, acquired title to the property as opposed to a mere easement to use the property. Hardy v. United States, 127 Fed. Cl. 1 (Fed. Cl. May 4, 2016).

Evidence insufficient for title. - Evidence was insufficient to show that the defendant had acquired title to a strip of land by actual adverse possession for a period of 20 years since the evidence did not show that the defendant and defendant's predecessors in title had been in physical or corporeal possession of such strip continuously for the period stated. Bradley v. Shelton, 189 Ga. 696 , 7 S.E.2d 261 (1940).

When poles and wires were used in the operation of a telephone line or lines over the lands of another, they should be considered as having marked or outlined a general area in use according to the usual or ordinary manner; and if the outer limits of this space remained the same for the prescriptive period of 20 years, the resulting easement would apply at least to such general area, so that the stringing of additional wires anywhere therein consistently with customary location would be permissible as territorially within the easement, whether or not the identical space to be physically occupied by such wires had ever before been so occupied by other wires. Kerlin v. Southern Bell Tel. & Tel. Co., 191 Ga. 663 , 13 S.E.2d 790 (1941).

Trial court did not err in denying a landowner's claim that the landowner held prescriptive title to certain property by possession for a period of more than 20 years under O.C.G.A. § 44-5-163 because neither the landowner nor the landowner's spouse cultivated the property or erected any structure or fence upon the land pursuant to O.C.G.A. § 44-5-165 , and the clearing of vegetation did not require a finding that possession had been established; photographs submitted in support of the landowner's claim that a pre-existing fence situated at one end of the property, together with the vegetation lines caused by the clearing and periodic mowing of the property, constituted an enclosure of the property so as to evidence possession could allow the special master to conclude that the asserted enclosure was not so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another. Bailey v. Moten, 289 Ga. 897 , 717 S.E.2d 205 (2011).

Trial court did not err in granting a bank and purchasers summary judgment in a son's action to quiet title to a parcel of land because the son did not gain title to the house on the property through adverse possession; the son had not adversely possessed the property for the requisite 20 years pursuant to O.C.G.A. § 44-5-161 et seq. Furthermore, the son could not claim adverse possession under color of title, which reduced the required period of possession to seven years because the son's deed did not provide written evidence of title. Haffner v. Davis, 290 Ga. 753 , 725 S.E.2d 286 (2012).

Land beyond limits of actual possession excluded. - Prescriptive title, arising upon actual adverse possession alone, will not include any part of a given tract of land beyond the limits of the actual possession. Ford v. Williams, 73 Ga. 106 (1884); Baker v. White, 136 Ga. 541 , 71 S.E. 871 (1911); Rock Run Iron Co. v. Heath, 155 Ga. 95 , 116 S.E. 590 (1923); Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940).

When actual possession impossible. - When the character of property is such that it is impossible to be in actual possession thereof, title thereto can pass from one to another only by written evidence of title. Rowland v. McLain, 86 Ga. App. 140 , 70 S.E.2d 918 (1952).

Notice required. - To establish title by adverse possession, the claimant must show actual notice of the adverse claim. Coleman v. Coleman, 265 Ga. 568 , 459 S.E.2d 166 (1995).

Continuity of possession required for acquisition of prescriptive easement. - To acquire a prescriptive easement over real property, there must be continuity of possession of the right asserted for the entire period fixed by statute. Vickers v. City of Fitzgerald, 216 Ga. 476 , 117 S.E.2d 316 (1960), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635 , 452 S.E.2d 488 (1994).

In order to constitute element of continuity which is essential to adverse possession as the foundation of good prescriptive title, it is not necessary that adverse possession be maintained for the statutory period by the same person, since continuity may just as effectively be shown by the successive bona fide possessions of several persons, provided the requisite privity exists between the people, so as to permit a tacking of their unbroken successive possessions. Blalock v. Redwine, 191 Ga. 169 , 12 S.E.2d 639 (1940); Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 , 24 S.E.2d 59 (1943).

In order to show privity between successive occupants, all that is necessary is that one shall have received one's possession from the other by some act of such other person or by operation of law. Blalock v. Redwine, 191 Ga. 169 , 12 S.E.2d 639 (1940); Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 , 24 S.E.2d 59 (1943).

Adverse possession of land by promoters or officers of a corporation may be tacked to the adverse possession of the corporation after the corporation's organization and incorporation. Blalock v. Redwine, 191 Ga. 169 , 12 S.E.2d 639 (1940).

Privity between successive occupants may be accomplished by a parol agreement or understanding, under which the actual possession of the premises is delivered, as well as by a written conveyance. Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 , 24 S.E.2d 59 (1943).

Prescription may run against wife in favor of husband, though living together, as to property other than home. Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931).

Permissive possession cannot be foundation of prescription until there is adverse claim and actual notice to other party. Harris v. Mandeville, 195 Ga. 251 , 24 S.E.2d 23 (1943).

Possession was permissive. - Trial court properly granted summary judgment to a railroad as to the property owner's adverse possession claim as no evidence showed that the fence served to exclude the railroad from its right-of-way and its track supervisor testified that while it was aware of the fence, it did not consider the fence an encroachment on its right-of-way because the fence did not interfere with the railroad's access to the railroad's property. Fox v. Norfolk S. Corp., 342 Ga. App. 38 , 802 S.E.2d 319 (2017).

Actions Supporting Title

Abandonment. - Title once ripened by adverse possession is no longer affected by abandonment. Peeples v. Rudulph, 153 Ga. 17 , 111 S.E. 548 (1922).

Possession of church by membership for prescriptive period supports title. - Possession of the property for use of a church by the constituent membership is possession of the church as such an entity, and if continued adversely for the prescriptive period will support prescriptive title. Slaughter v. Land, 194 Ga. 156 , 21 S.E.2d 72 (1942).

Possession, use, and upkeep of road by public as highway for 20 years ripens into prescriptive title. Hyde v. Chappell, 194 Ga. 536 , 22 S.E.2d 313 (1942).

Possession by tenant or agent will suffice to support owner's claim of prescriptive title under a parol understanding with the owner. Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 , 24 S.E.2d 59 (1943).

Adverse possession properly granted under both O.C.G.A. §§ 44-5-163 and 44-5-164 . - Because a trust's predecessors in interest to a disputed parcel of land maintained public, exclusive, and continuous possession of that tract for the required time frames under both O.C.G.A. §§ 44-5-163 and 44-5-164 , and the original grantee's hostile possession of the property was done in good faith that a claim of right existed, the trial court did not err in adopting a special master's award and findings that the trust owned the disputed property against the rights of a contesting neighbor. Crawford v. Simpson, 279 Ga. 280 , 612 S.E.2d 783 (2005).

When homestead claim does not prevent prescriptive title from ripening. - When the homestead never became legally operative by reason of a deed made prior to the application for homestead, and since the alleged equitable redemption of the property under such deed was never asserted by proper legal or equitable proceedings, and none of the claimants were shown to be laboring under disabilities, a claim of homestead would not prevent title by prescription from ripening. Slade v. Barber, 200 Ga. 405 , 37 S.E.2d 143 (1946).

Evidence of claim of right or title sufficiently avoids summary judgment. - Because the heirs produced evidence raising a material question of fact as to whether their ancestors possessed certain property for the requisite period of time under a claim of right pursuant to O.C.G.A. §§ 44-5-161(a) , 44-5-163 , and 44-5-165 , the record owner was not entitled to summary judgment. Walker v. Sapelo Island Heritage Auth., 285 Ga. 194 , 674 S.E.2d 925 (2009).

Actions Failing to Establish Title

Payment of taxes on property is insufficient to establish prescriptive title. Adams v. Talmadge, 240 Ga. 193 , 240 S.E.2d 9 (1977).

Beneficiaries cannot prescribe against title conveyed by trustee. - Trial court properly granted summary judgment to the property owner on the trust beneficiary's suit to establish certain prescriptive rights to property a trust had sold to the property owner as a sale by a trustee of land held by the trustee in trust for beneficiaries, such as the trust beneficiary, was in effect a sale by the beneficiaries, including the trust beneficiaries, and the beneficiaries could not prescribe against title conveyed by the trustee; accordingly, the trust beneficiary's possession of a portion of the property after the trustee sold the property to the property owner could not be adverse to the property owner. Reasor v. Peoples Fin. Servs., 276 Ga. 534 , 579 S.E.2d 742 (2003).

Principle of acquiescence was inapplicable. - Neighbor's claims of ownership as to a tract of land was denied because the principle of acquiescence was inapplicable to the ownership of a tract of land as a deed to the tract of land undisputedly conveyed the tract of land and the property line was neither in dispute, uncertain, or unascertained during the period in question. Jackson v. Tolliver, 277 Ga. 58 , 586 S.E.2d 321 (2003).

Sporadic repairs. - Trial court properly granted a renter summary judgment and removed an affidavit asserting adverse possession filed by the owner of the first floor of a building with regard to a 1,350 square foot space on the second floor of the building as the renter established that title was acquired via a quit claim deed, that the renter changed the door at the base of the stairwell and had sole access to the second floor space, as well as posted no trespassing signs. The owner of the first floor failed to establish a continuous, exclusive, and uninterrupted possession of the space based on sporadic repairs made to the roof of the entire building. MEA Family Invs., LP v. Adams, 284 Ga. 407 , 667 S.E.2d 609 (2008).

When there has been no cultivation, enclosure, or act of possession thereon except the occasional cutting of timber of a disputed strip of land, there can be no prescriptive title based on possession of the property for 20 years. Robertson v. Abernathy, 192 Ga. 694 , 16 S.E.2d 584 (1941), later appeal, 195 Ga. 704 , 25 S.E.2d 424 (1943).

Burden of Proof

One who claims prescriptive title has burden of establishing it. Yerbey v. Chandler, 194 Ga. 263 , 21 S.E.2d 636 (1942).

Burden of proof satisfied. - Because: (1) a landowner continuously and exclusively maintained and used the land in question for more than 20 years accompanied by a claim of right; and (2) a claim that the Dead Man's Statute was violated lacked merit, the landowner established prescriptive title by adverse possession. Murray v. Stone, 283 Ga. 6 , 655 S.E.2d 821 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 1 et seq., 7, 13 et seq., 42, 50.

C.J.S. - 2 C.J.S., Adverse Possession, §§ 66, 200 et seq.

ALR. - Adverse possession of railroad right of way, 50 A.L.R. 303 .

May adverse possession be predicated upon use or occupancy by one spouse of real property of other, 74 A.L.R. 138 .

Time during which dominant and servient tracts were in same ownership or under same control as excluded or included in determining easement by prescription, 98 A.L.R. 591 .

Adoption as period of prescription for easement the period prescribed by statute of limitations with reference to adverse possession as including condition of color of title or right or other conditions imposed by that statute, 112 A.L.R. 545 .

Adverse possession as affected by attempt during period thereof to change, or make more specific, the tract claimed, 115 A.L.R. 1299 .

Time when statute of limitations or period of adverse possession of real estate commences to run against or in favor purchaser at judicial sale, 118 A.L.R. 946 .

Adverse possession: mortgagee's possession before foreclosure as barring right of redemption, 7 A.L.R.2d 1131.

Acquisition of title to mines or minerals by adverse possession, 35 A.L.R.2d 124.

Possession of mortgagor or successor in interest as adverse to purchaser at foreclosure sale, 38 A.L.R.2d 348.

Adverse possession of landlord as affected by tenant's recognition of title of third person, 38 A.L.R.2d 826.

Adverse possession under parol gift of land, 43 A.L.R.2d 6.

Title by or through adverse possession as marketable, 46 A.L.R.2d 544.

Tax sales or forfeitures by or to governmental units as interrupting adverse possession, 50 A.L.R.2d 600.

Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.3d 678.

Owner's surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse possession, 76 A.L.R.3d 1202.

44-5-164. When adverse possession for seven years confers title.

Possession of real property under written evidence of title in conformance with the requirements of Code Section 44-5-161 for a period of seven years shall confer good title by prescription to the property against everyone except the state and those persons laboring under the disabilities stated in Code Section 44-5-170, provided that, if the written title is forged or fraudulent and if the person claiming adverse possession had actual notice of such forgery or fraud when he commenced his possession, no prescription may be based on such possession.

(Laws 1767, Cobb's 1851 Digest, p. 559; Laws 1805, Cobb's 1851 Digest, p. 563; Ga. L. 1851-52, p. 238, § 1; Ga. L. 1855-56, p. 233, § 1; Code 1863, § 2642; Code 1868, § 2641; Code 1873, § 2683; Code 1882, § 2683; Civil Code 1895, § 3589; Civil Code 1910, § 4169; Code 1933, § 85-407; Ga. L. 1982, p. 3, § 44.)

Cross references. - Surveying and marking boundary lines of property possessed under claim of right for more than seven years, § 44-4-7.

Law reviews. - For article, "Some Aspects of the Law of Easements," see 9 Ga. St. B.J. 287 (1973). For article surveying real property law, see 34 Mercer L. Rev. 255 (1982). For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Easement may be acquired by prescription in 20 years unless there is some color of title, in which case only seven years is required. Smith v. Clay, 239 Ga. 220 , 236 S.E.2d 346 (1977).

Possession, where there is no color of title, cannot ripen into prescriptive ownership in less than 20 years. Spillers v. Jordan, 96 Ga. App. 426 , 100 S.E.2d 483 (1957).

Applicability. - Statute does not apply against a judgment lien on a decedent's estate in favor of land in the hands of devisees when the action was brought before the debt was barred. Redd v. Davis, 59 Ga. 823 (1877) (see O.C.G.A. § 44-5-164 ).

Statute applies in favor of a vendee against a vendor holding legal title to property for security. Janes v. Patterson, 62 Ga. 527 (1879) (see O.C.G.A. § 44-5-164 ).

Statute applies in favor of a claimant against the lien of a judgment against the claimant's vendor when there has been no levy on the property until after the prescriptive title has ripened. Johnston v. Neal, 67 Ga. 528 (1881) (see O.C.G.A. § 44-5-164 ).

Permissive possession cannot be foundation of prescription until adverse claim and actual notice to other party are shown. Johnson v. Key, 173 Ga. 586 , 160 S.E. 794 (1931).

Incorporeal rights. - Incorporeal rights, such as the right to maintain a sign or show case on another's property, may be acquired. Smith v. Jensen, 156 Ga. 814 , 120 S.E. 417 (1923).

Ripened prescriptive title extinguishes inconsistent titles. - When an adverse possessor has held for the requisite period and the possessor's prescriptive title ripens, it extinguishes all other inconsistent titles and itself becomes the true title. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Jury instruction held not cause for new trial. - When the provision of this statute which relates to forged or fraudulent deeds was not applicable to a particular action, giving this statute in charge to the jury could not harm the plaintiff and is not cause for a new trial. Butler v. Lovelace-Eubanks Lumber Co., 37 Ga. App. 74 , 139 S.E. 83 (1927); Rogers v. Manning, 200 Ga. 844 , 38 S.E.2d 724 (1946) (see O.C.G.A. § 44-5-164 ).

Whether or not taking possession under a tax deed before the expiration of the period of redemption is such fraud as would authorize charging this statute, the charge was not harmful to the petitioner, and a new trial was not granted. McDonald v. Wimpy, 206 Ga. 270 , 56 S.E.2d 524 (1949) (see O.C.G.A. § 44-5-164 ).

Cited in Doe v. Roe, 36 Ga. 199 (1867); Wright v. Smith, 43 Ga. 291 (1871); Garrett v. Adrain, 44 Ga. 274 (1871); Wingfield v. Davis, 53 Ga. 655 (1875); Bennett v. Walker, 64 Ga. 326 (1879); Veal v. Robinson, 70 Ga. 809 (1883); Millen v. Stines, 81 Ga. 655 , 8 S.E. 315 (1888); Parker v. Waycross & F.R.R., 81 Ga. 387 , 8 S.E. 871 (1889); Bussey v. Jackson, 104 Ga. 151 , 30 S.E. 646 (1898); Wardlaw v. McNeill, 106 Ga. 29 , 31 S.E. 785 (1898); Baxley v. Baxley, 117 Ga. 60 , 43 S.E. 436 (1903); Street v. Collier, 118 Ga. 470 , 45 S.E. 294 (1903); Peeples v. Wilson, 140 Ga. 610 , 79 S.E. 466 (1913); Buchan v. Daniel, 147 Ga. 450 , 94 S.E. 578 (1917); Spillar v. Dickson, 148 Ga. 90 , 95 S.E. 994 (1918); Cock v. Lipsey, 148 Ga. 322 , 96 S.E. 628 (1918); Watts v. Boothe, 148 Ga. 376 , 96 S.E. 863 (1918); Baxter v. Phillips, 150 Ga. 498 , 104 S.E. 196 (1920); Dodge v. Clark, 268 F. 784 (5th Cir. 1920); Sweat v. Lott, 151 Ga. 66 , 105 S.E. 835 (1921); Byrom v. Riley, 154 Ga. 580 , 114 S.E. 642 (1922); Ashford v. Holliday, 169 Ga. 237 , 149 S.E. 790 (1929); Cattahoochee Fertilizer Co. v. Quinn, 169 Ga. 801 , 151 S.E. 496 (1930); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); Beeland v. Butler Payne Lumber Co., 48 Ga. App. 619 , 173 S.E. 436 (1934); Rocker v. De Loach, 178 Ga. 480 , 173 S.E. 709 (1934); James v. Riley, 181 Ga. 454 , 182 S.E. 604 (1935); Kelley v. Spivey, 182 Ga. 507 , 185 S.E. 783 (1936); Warsaw Turpentine Co. v. Fort Barrington Club, 185 Ga. 540 , 195 S.E. 755 (1937); Sewell v. Sprayberry, 186 Ga. 1 , 196 S.E. 796 (1938); Cartledge v. Trust Co., 186 Ga. 718 , 198 S.E. 741 (1938); Reynolds v. Smith, 186 Ga. 838 , 199 S.E. 137 (1938); Stanley v. Laurens County Bd. of Educ., 188 Ga. 581 , 4 S.E.2d 164 (1939); Dorsey v. Dorsey, 189 Ga. 662 , 7 S.E.2d 273 (1940); Crump v. McEntire, 190 Ga. 684 , 10 S.E.2d 186 (1940); Metropolitan Life Ins. Co. v. Hall, 191 Ga. 294 , 12 S.E.2d 53 (1940); Flournoy v. United States, 115 F.2d 220 (5th Cir. 1940); Barnes v. Avery, 192 Ga. 874 , 16 S.E.2d 861 (1941); MacNeil v. Bazemore, 194 Ga. 406 , 21 S.E.2d 414 (1942); Hardy v. Brannen, 194 Ga. 252 , 21 S.E.2d 417 (1942); Dyal v. Sanders, 194 Ga. 228 , 21 S.E.2d 596 (1942); Holloway v. Woods, 195 Ga. 55 , 23 S.E.2d 254 (1942); Sharpe v. Stewart, 195 Ga. 610 , 24 S.E.2d 781 (1943); Hall v. Metropolitan Life Ins. Co., 198 Ga. 858 , 33 S.E.2d 1 (1945); Elliott v. Robinson, 198 Ga. 811 , 33 S.E.2d 95 (1945); Chalker v. Beasley, 72 Ga. App. 652 , 34 S.E.2d 658 (1945); Barfield v. Vickers, 200 Ga. 279 , 36 S.E.2d 766 (1946); Knighton v. Hosty, 200 Ga. 507 , 37 S.E.2d 382 (1946); Castile v. Burton, 200 Ga. 877 , 38 S.E.2d 919 (1946); Allen v. Bone, 202 Ga. 349 , 43 S.E.2d 311 (1947); Wright v. Anthony, 205 Ga. 47 , 52 S.E.2d 316 (1949); Blue Ridge Apt. Co. v. Telfair Stockton & Co., 205 Ga. 552 , 54 S.E.2d 608 (1949); Rogers v. Moore, 207 Ga. 182 , 60 S.E.2d 359 (1950); Bell v. Cone, 208 Ga. 467 , 67 S.E.2d 558 (1951); Farlow v. Brown, 208 Ga. 646 , 68 S.E.2d 903 (1952); Smith v. Powers, 208 Ga. 768 , 69 S.E.2d 374 (1952); Harrison v. Durham, 210 Ga. 187 , 78 S.E.2d 482 (1953); Floyd v. Carswell, 211 Ga. 36 , 83 S.E.2d 586 (1954); Thurston v. City of Forest Park, 211 Ga. 910 , 89 S.E.2d 509 (1955); Phillips v. Wheeler, 212 Ga. 603 , 94 S.E.2d 732 (1956); Wanamaker v. Wanamaker, 215 Ga. 473 , 111 S.E.2d 94 (1959); Blanton v. Moody, 265 F.2d 533 (5th Cir. 1959); Whitton v. Whitton, 218 Ga. 845 , 131 S.E.2d 189 (1963); Harrison v. Morris, 108 Ga. App. 566 , 133 S.E.2d 899 (1963); Shepherd v. Frasier, 223 Ga. 874 , 159 S.E.2d 58 (1968); Herrington v. City of Atlanta, 224 Ga. 465 , 162 S.E.2d 420 (1968); Howell v. Baynes, 225 Ga. 164 , 166 S.E.2d 359 (1969); Georgia Power Co. v. Gibson, 226 Ga. 165 , 173 S.E.2d 217 (1970); Stephens v. Cogdell, 227 Ga. 121 , 179 S.E.2d 45 (1971); Adair v. Atlanta Jewish Community, Inc., 228 Ga. 422 , 185 S.E.2d 921 (1971); United States v. Williams, 441 F.2d 637 (5th Cir. 1971); Whitworth v. Whitworth, 233 Ga. 53 , 210 S.E.2d 9 (1974); Jones v. Spindel, 239 Ga. 68 , 235 S.E.2d 486 (1977); Stephens v. Stephens, 239 Ga. 528 , 238 S.E.2d 71 (1977); Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977); Crosby v. Jones, 241 Ga. 558 , 246 S.E.2d 677 (1978); Fuller v. Smith, 245 Ga. 751 , 267 S.E.2d 23 (1980); Atlanta Trailer Mart, Inc. v. Ashmore Foods, Inc., 247 Ga. 254 , 275 S.E.2d 336 (1981); Ross v. Lowery, 249 Ga. 307 , 290 S.E.2d 61 (1982); Georgia Power Co. v. Irvin, 267 Ga. 760 , 482 S.E.2d 362 (1997); Roach v. Gwinnett County, 273 Ga. 741 , 545 S.E.2d 912 (2001); Trammell v. Whetstone, 250 Ga. App. 503 , 552 S.E.2d 485 (2001); Campbell v. Landings Ass'n, 289 Ga. 617 , 713 S.E.2d 860 (2011).

Adverse Possession
1. Requirements

Compliance with possession requirements necessary. - In defining the adverse possession which may be the foundation of a prescriptive title, it was best to state the necessary elements of such possession as those elements were stated in former Civil Code 1910, § 4164 (see O.C.G.A. § 44-5-161 ), relating to adverse possession, as in some cases the omission of any one of those elements may be ground for the grant of a new trial. Smith v. Board of Educ., 168 Ga. 755 , 149 S.E. 136 (1929).

Whether title by prescription was claimed under former Code 1933, § 85-406 (see O.C.G.A. § 44-5-163 ), relating to 20 years' actual adverse possession, or under former Code 1933, § 85-407 (see O.C.G.A. § 44-5-164 ), relating to adverse possession for seven years under written evidence of title, the possession relied upon must meet the requirements of former Code 1933, § 85-402 (see O.C.G.A. § 44-5-161 ), relating to the essentials of possession. Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940); Moore v. Stephens, 199 Ga. 500 , 34 S.E.2d 716 (1945).

Wherever the proof is that one in possession holds for oneself to the exclusion of all others, the possession so held is adverse to all others, whatever relation in interest and privity in which one may stand to others. Stallings v. Britt, 204 Ga. 250 , 49 S.E.2d 517 (1948).

Purchaser who buys in good faith and gets a paper claim of right acquires, in seven years, a prescriptive title. Lanier v. Graham, 179 Ga. 744 , 177 S.E. 574 (1934).

If a person buys land in good faith, believing the person is obtaining a good title, enters into possession thereof and remains there continuously, uninterruptedly, peaceably, etc., for seven years, that possession ripens into a good title, whether the title the person purchased originally was good or not. Latham v. Fowler, 192 Ga. 686 , 16 S.E.2d 591 (1941); Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

When all other elements of prescription are present, adverse possession of land under written evidence of title for seven years will give a good title by prescription. Knighton v. Hasty, 200 Ga. 507 , 37 S.E.2d 382 (1946); Hardin v. Council, 200 Ga. 822 , 38 S.E.2d 549 (1946).

Possession with cotenants insufficient for adverse possession. - Silent and peaceable possession of a tenant in common, with no act which can amount to an ouster of the cotenants, is not enough. There must be actual notice of the adverse claim or unequivocal acts making the possession visible, hostile, exclusive and notorious; otherwise, exclusive possession will be presumed to be in support of the common title. Fuller v. McBurrows, 229 Ga. 422 , 192 S.E.2d 144 (1972).

One claiming prescriptive title against a cotenant must not only show the usual elements of prescription as provided by former Code 1933, § 85-407 (see O.C.G.A. § 44-5-164 ), but must also show that one's claim of title by prescription meets at least one of the conditions stated in former Code 1933, § 85-1005 (see O.C.G.A. § 44-6-123 ). Fuller v. McBurrows, 229 Ga. 422 , 192 S.E.2d 144 (1972).

Easement. - Easement may be acquired by prescription in 20 years unless there is some color of title, in which case only seven years is required. Nodvin v. Plantation Pipe Line Co., 204 Ga. App. 606 , 420 S.E.2d 322 (1992).

Whether ouster results from occupation and possession is a question of fact for the jury. Roumillot v. Gardner, 113 Ga. 60 , 38 S.E. 362 , 53 L.R.A. 729 (1901).

Possession must be adverse. McLaren v. Irvin, 63 Ga. 275 (1879).

Adverse possession by tenant. - There can be adverse possession, whether under color of title, or acquiescence in line, by an owner of adjacent property who is also tenant of an adjacent property owner during such terms as the tenancy is in effect. Everett v. Culberson, 215 Ga. 577 , 111 S.E.2d 367 (1959).

Possession may be actual or constructive. Brookman v. Rennolds, 148 Ga. 721 , 98 S.E. 543 (1919).

Possession must be continuous. W.A. Greer & Co. v. Rainey, 120 Ga. 290 , 47 S.E. 939 (1904).

In order to constitute element of continuity which is essential to adverse possession as the foundation of a good prescriptive title, it is not necessary that adverse possession be maintained for the statutory period by the same person, since continuity may as effectively be shown by the successive bona fide possessions of several persons, provided the requisite privity exists between the people, so as to thus permit attacking of their unbroken successive possessions. Blalock v. Redwine, 191 Ga. 169 , 12 S.E.2d 639 (1940); Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 , 24 S.E.2d 59 (1943).

Requirement of continuity of possession is one of substance, and not of absolute mathematical continuity, provided there is no break so as to make a severance of two possessions. Chamblee v. Johnson, 200 Ga. 838 , 38 S.E.2d 721 (1946).

Opposing landowner's minority status affects prescription period. - Transferee's claim of adverse possession failed as such could not be based on a period of time in which the opposing landowner was a minor. Reece v. Smith, 276 Ga. 404 , 577 S.E.2d 583 (2003).

In order to show privity between successive occupants, all that is necessary is that one shall have received one's possession from the other by some act of such other person or by operation of law. Blalock v. Redwine, 191 Ga. 169 , 12 S.E.2d 639 (1940); Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 , 24 S.E.2d 59 (1943).

Tacking. - Possession by different holders may be tacked together when the character of the prior possession also meets the requirements of this statute. Worthy v. Kinamon, 44 Ga. 297 (1871); Brown v. Caraker, 147 Ga. 498 , 94 S.E. 759 (1917) (see O.C.G.A. § 44-5-164 ).

Adverse possession of land by promoters or officers of a corporation may be tacked to the adverse possession of the corporation after the corporation's organization and incorporation. Blalock v. Redwine, 191 Ga. 169 , 12 S.E.2d 639 (1940).

Good faith construed. - Good faith, as contemplated by the adverse possession statutes, has relation to the actual existing state of the mind, whether so from ignorance, skepticism, sophistry, delusion, or imbecility, and without regard to what it should be from given legal standards of law or reason. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Presumption of good faith arises from adverse possession; direct evidence of bona fides is not required. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Good faith presumed. - When actual possession had been shown, good faith in the origin of such possession, required by former Code 1933, §§ 85-402 and 85-407 (see O.C.G.A. §§ 44-5-161 and 44-5-164 ), will ordinarily be presumed; this will not be true if actual possession had been only alleged. Latham v. Fowler, 192 Ga. 686 , 16 S.E.2d 591 (1941).

Jury determines question of good faith. - Question of what is good faith, in a person claiming under color of title, is one of fact for the jury. Lee v. O'Quin, 103 Ga. 355 , 30 S.E. 356 (1898).

Ordinarily, the question of a prescriber's good faith is one of fact to be determined by the jury. Quarterman v. Perry, 190 Ga. 275 , 9 S.E.2d 61 (1940).

Motion for directed verdict properly denied. - See Wisenbaker v. Warren, 196 Ga. App. 551 , 396 S.E.2d 528 (1990).

2. Acts Creating Prescriptive Title

When prescriptive title ripened. - When the uncontradicted evidence shows that the plaintiff and the plaintiff's immediate grantor, in whom demises were properly laid, entered in good faith and were successively in continuous adverse possession of certain property, under color of title, of the land so described, for more than seven years before the alleged ouster, the evidence demanded a finding for the plaintiff on the basis of title by prescription. Elliott v. Robinson, 192 Ga. 682 , 16 S.E.2d 433 (1941).

When the evidence conclusively showed that the defendant and the defendant's predecessors in title acquired color of title to the property in dispute and bona fide entered into possession under their respective paper titles under a claim of right, and that the adverse possession of the defendant together with that of defendant's predecessors in title was for about 13 years (more than seven years), the prescriptive title of the defendant thereby ripened, extinguished all inconsistent titles and became the true title to the property. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Possession, use, and upkeep of a road by the public as a highway for 20 years ripens into prescriptive title. Hyde v. Chappell, 194 Ga. 536 , 22 S.E.2d 313 (1942).

Possession by tenant or agent under parol understanding with owner will suffice to support the owner's claim of a prescriptive title. Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 , 24 S.E.2d 59 (1943).

Prescription in favor of third persons against trust estate. - When interest of remainderman is equitable, and legal title is vested in trustee who holds such title, not only for the life tenant, but also for the remainderman, prescription will run in favor of third persons holding adversely to the trust estate. Mathis v. Solomon, 188 Ga. 311 , 4 S.E.2d 24 (1939).

Because a trust's predecessors in interest to a disputed parcel of land maintained public, exclusive, and continuous possession of a tract for the required time frames under both O.C.G.A. §§ 44-5-163 and 44-5-164 , and the original grantee's hostile possession of the property was done in good faith that a claim of right existed, the trial court did not err in adopting a special master's award and findings that the trust owned the disputed property against the rights of a contesting neighbor. Crawford v. Simpson, 279 Ga. 280 , 612 S.E.2d 783 (2005).

Reconstruction of dam and pond. - Ample evidence was presented of a landowner family's actual or constructive possession of the entirety of the property described in their deed, including their entry on the land to construct a dam and pond visible to their neighbors, well in excess of the seven-year time period required to establish prescriptive title by adverse possession pursuant to O.C.G.A. § 44-5-164 . Mathews v. Cloud, 294 Ga. 415 , 754 S.E.2d 70 (2014).

3. Acts Defeating Prescriptive Title

Possession adverse to mortgagee denied by purchase of encumbered title. - When the purchaser buys from the mortgagor and the purchaser's title is a deed from the mortgagor, with seven years' possession of the land, and if the mortgage is legal and has been recorded within the time prescribed by law, the purchaser buys the title of the mortgagor encumbered with the lien of the mortgage; the purchaser does not hold adversely to the mortgagee, and no title by prescription is acquired so as to defeat the mortgage lien. Fudge v. Bailey, 182 Ga. 119 , 185 S.E. 91 (1936).

Title divested by sheriff's sale. - All title asserted by defendant and any interest or claim that the defendant had because of deed was completely divested and extinguished by sheriff's legally conducted sale on an execution, admitted to be valid; after the sheriff executed and delivered to the bank the sheriff's deed to the land in controversy, defendant had no more interest in, or claim to the land, than one who had never professed to have title and had no written evidence of title on which to base seven years of possession for title by prescription. Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322 , 26 S.E.2d 727 (1943).

Title not prevented by homestead application made subsequent to deed. - When a homestead never became legally operative by reason of a deed made prior to the application for homestead, and if the alleged equitable redemption of the property under such deed was never asserted by proper legal or equitable proceedings, and none of the claimants were shown to be laboring under disabilities, a claim of homestead will not prevent title by prescription from ripening in persons in adverse possession of the property for over 40 years under a claim of right. Slade v. Barber, 200 Ga. 405 , 37 S.E.2d 143 (1946).

Prescription not defeated by prior deed. - Prescriptive title which meets the requirements prescribed by statute will not be defeated by the fact that a grant, through whom the claimants of prescription held, had made a deed prior to that under which the claimants claimed, even though it was of record. Hunt v. Pond, 67 Ga. 578 (1881).

Outstanding recorded title will not prevent ripening of title by prescription if the possessor enters in good faith under written evidence of title from another. Hearn v. Leverette, 213 Ga. 286 , 99 S.E.2d 147 (1957).

Proposed prescription defeated. - Trial court properly granted a renter summary judgment and removed an affidavit asserting adverse possession filed by the owner of the first floor of a building with regard to a 1,350 square foot space on the second floor of the building as the renter established that title was acquired via a quit claim deed, that the renter changed the door at the base of the stairwell and had sole access to the second floor space, as well as posted no trespassing signs. The owner of the first floor failed to establish a continuous, exclusive, and uninterrupted possession of the space based on sporadic repairs made to the roof of the entire building. MEA Family Invs., LP v. Adams, 284 Ga. 407 , 667 S.E.2d 609 (2008).

Color of Title
1. In General

Possession refers to title. - Possession, if held under a claim of right, refers to the title, actual or supposed, under which the right of possession is claimed. Patellis v. Tanner, 199 Ga. 304 , 34 S.E.2d 84 (1945).

Written evidence of title is essential in respect to a claim or defense based on adverse possession for seven years. Seaboard Coast Line R.R. v. Carter, 231 Ga. 5 , 200 S.E.2d 113 (1973).

To entitle the possessor to the benefit of the possessor's color of title, there must be a writing; it must purport to convey the property to the possessor (to one holding either the corporeal or the legal possession), and not to others whom the possessor does not hold; it must contain such a description of the property as to render it capable of identification, and the possessor must in good faith claim the land under it. Capers v. Camp, 244 Ga. 7 , 257 S.E.2d 517 (1979).

Phrase "written evidence of title" means color of title. Warlick v. Rome Loan & Fin. Co., 194 Ga. 419 , 22 S.E.2d 61 (1942); Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322 , 26 S.E.2d 727 (1943); Stallings v. Britt, 204 Ga. 250 , 49 S.E.2d 517 (1948); Bracewell v. King, 147 Ga. App. 691 , 250 S.E.2d 25 (1978).

"Color of title" defined. - Color of title is anything in writing which serves to define the extent and character of the claim with parties from whom it may come and to whom it may be made. Burdell v. Blain, 66 Ga. 169 (1880).

Color of title is a writing upon its face professing to pass title, but which does not do it, either from want of title in the person making the writing, or from the defective conveyance that is used - a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law. Warlick v. Rome Loan & Fin. Co., 194 Ga. 419 , 22 S.E.2d 61 (1942); Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322 , 26 S.E.2d 727 (1943); Herrington v. Church of Lord Jesus Christ, 222 Ga. 542 , 150 S.E.2d 805 (1966); Capers v. Camp, 244 Ga. 7 , 257 S.E.2d 517 (1979).

When deed is not defective in any way, it does not in fact meet the meaning of color of title which is usually a flaw arising from a defect of conveyance or from want of title in the maker. Bracewell v. King, 147 Ga. App. 691 , 250 S.E.2d 25 (1978).

Color of title may be only sign or semblance of title. Warlick v. Rome Loan & Fin. Co., 194 Ga. 419 , 22 S.E.2d 61 (1942).

"Color of title" implies that sign or semblance of title is not valid to pass title. Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322 , 26 S.E.2d 727 (1943).

Description of property necessary. - Deed is inadmissible as color of title unless it describes property or furnishes a key for description. McCrea v. Georgia Power Co., 187 Ga. 708 , 1 S.E.2d 664 (1939).

Same certainty of description which is requisite to constitute an instrument as a conveyance of title is required in an instrument which is relied upon as color of title. McCrea v. Georgia Power Co., 187 Ga. 708 , 1 S.E.2d 664 (1939).

Description not restricted by reference to another deed. - When a reference to another deed is made merely for the purpose of showing from what source title is derived, it will not operate to restrict the description relied upon in the deed from which reference is made. Adams v. Talmadge, 240 Ga. 193 , 240 S.E.2d 9 (1977).

Scope of color of title. - Color of title will not extend beyond the description contained in the grant. Bradley v. Shelton, 189 Ga. 696 , 7 S.E.2d 261 (1940).

Claimant in actual possession of a part of a tract may rely upon the presumption that the claimant's possession extends to the boundaries of the tract described in the claimant's paper title, although prescription will not run in the claimant's favor as against one having like constructive possession. Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940).

When land is bounded in a deed by the land of an adjacent owner, and if such boundary of the adjacent owner is undefined, there can be no prescription under the deed as against such owner, farther than the actual possession of the grantee in the deed extends. Quarterman v. Perry, 190 Ga. 275 , 9 S.E.2d 61 (1940).

One can acquire by prescription under a deed no greater title than that defined in the deed. Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322 , 26 S.E.2d 727 (1943).

Trial court properly granted summary judgment to the grantor's grandchildren as the grandchildren held the disputed parcel of property under color of title, via a deed to the grantor's child, albeit the fact that it was not effective as a deed conveying a present interest, for the prescription period of seven years, and the grantor's heirs at law did not contest it until suit was filed. Matthews v. Crowder, 281 Ga. 842 , 642 S.E.2d 852 (2007).

Possession must meet requirements of statute. - Because the trial court found that there was evidence to support the special master's determination that the contestant failed to establish prescriptive title to the disputed parcel, either under O.C.G.A. § 44-5-161(a) or O.C.G.A. § 44-5-164 , and that the disputed parcel showed no signs of having been disturbed by any of the contestant's alleged activities thereon, the trial court properly adopted the special master's recommendations that title vested in a railroad free of any claims by the contestant, and that the contestant's affidavits should be stricken from the deed records. Thompson v. Cent. of Ga. R.R., 282 Ga. 264 , 646 S.E.2d 669 (2007).

Honesty and good faith required for prescription. - Although a given paper may constitute color of title, no prescription can be based thereon unless the claimant entered thereunder honestly and in good faith. Lee v. O'Quin, 103 Ga. 355 , 30 S.E. 356 (1898); Johnson v. Key, 173 Ga. 586 , 160 S.E. 794 (1931).

2. Forgery or Fraud

Exceptions in statute are exhaustive. - Exceptions specified in this statute, by which a prescriptive title will be defeated, are exhaustive, and will not be enlarged by construction. Jones v. Bibins, 56 Ga. 538 (1876) (see O.C.G.A. § 44-5-164 ).

Nothing but fraud, want of good faith, will vitiate claim of right of adverse possessor. Lanier v. Graham, 179 Ga. 744 , 177 S.E. 574 (1934).

Fraud construed. - Fraud contemplated by the law is such as would affect the conscience of the claimant with bad faith and moral turpitude. Brady v. Walters, 55 Ga. 25 (1875); Prater v. Cox, 64 Ga. 706 (1880); Bower v. Cohen, 126 Ga. 35 , 54 S.E. 918 (1906); Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

To defeat prescriptive title, the fraud of the party claiming thereunder must be such as to charge one's conscience. Kelley v. Tucker, 175 Ga. 796 , 166 S.E. 187 (1932); Lanier v. Graham, 179 Ga. 744 , 177 S.E. 574 (1934).

It is not legal, but moral, fraud, a consciousness of doing wrong, which, in the origin of the possession of land prevents a prescription from running in favor of the possessor. Lanier v. Graham, 179 Ga. 744 , 177 S.E. 574 (1934).

Actual fraud required to defeat prescriptive title. - Fraud which will prevent possession of property from being the foundation of prescription must be actual or positive fraud. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Party must be cognizant of fraud, not by constructive, but by actual notice to defeat a prescriptive title. Kelley v. Tucker, 175 Ga. 796 , 166 S.E. 187 (1932); Lanier v. Graham, 179 Ga. 744 , 177 S.E. 574 (1934).

Since good faith is a prerequisite to acquiring title by prescription under color as provided in this statute, one holding possession under color of title, which one knows was fraudulently procured, cannot acquire prescriptive title regardless of the period of time such possession is held. Harrison v. Holsenbeck, 208 Ga. 410 , 67 S.E.2d 311 (1951) (see O.C.G.A. § 44-5-164 ).

If a purchaser has actual notice that the purchaser is purchasing a bad title when the purchaser takes possession, the purchaser's purchase is bad, and the purchaser goes into possession in fraud of the rights of the true owner, and the provisions of this statute cannot apply. West v. Rodahan, 46 Ga. 553 (1872); McCamy v. Higdon, 50 Ga. 629 (1874); Hunt v. Dunn, 74 Ga. 120 (1884) (see O.C.G.A. § 44-5-164 ).

Adverse possession of land, under written evidence of title for seven years in order to ripen into title by prescription, must be in good faith, and knowledge by a purchaser that land possessed under the purchaser's deed did not actually belong to the purchaser's grantor and could not have been conveyed will prevent such possession from ripening into a good title by prescription. Quarterman v. Perry, 190 Ga. 275 , 9 S.E.2d 61 (1940).

If the color of title is fraudulent and notice thereof is brought home to the claimant before or at the time of the commencement of the claimant's possession, no prescription can be based thereon. Johnson v. Key, 173 Ga. 586 , 160 S.E. 794 (1931).

Fraud cannot be founded on presumptive notice, on that sort of notice which is based upon record, or which is presumed from want of diligence. Lanier v. Graham, 179 Ga. 744 , 177 S.E. 574 (1934); Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Successive possessions presumed acquired in good faith. - When the uncontradicted evidence shows that the prescriber and each of the several persons under whom one claims maintained possession under warranty deeds executed upon a valuable consideration for successive terms less than seven years, but more than seven years in the aggregate, and it does not affirmatively appear that either of the several possessions originated in actual fraud upon the true owner, such several possessions will be presumed to be in good faith, and a verdict setting up the prescription will be demanded and may be directed by the judge. Rainey v. Whatley, 169 Ga. 172 , 150 S.E. 95 (1929).

Discovery of defect after seven years possession insufficient to show fraud. - When the evidence shows that plaintiff went into possession free from any fraud and under the belief that plaintiff owned the land, the discovery of any defects in the plaintiff's title after seven years of possession and the plaintiff's efforts to quiet the claims of others by purchase did not raise any issue of fact as to fraud or good faith for determination by the jury. Crews v. Stokes, 213 Ga. 397 , 99 S.E.2d 159 (1957).

Burden of proof. - When a party claims adversely, it is not necessary for the party to show that the party went into possession bona fide; the burden of showing fraud is upon the opposite party. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Alleged fraud did not defeat adverse possession. - Upon finding that the trial court had exclusive subject matter jurisdiction, the court also properly ruled that a sibling had prescriptive title to certain property under O.C.G.A. § 44-5-164 by possessing the property under color of title for a period greater than seven years, satisfying the requirements of O.C.G.A. § 44-5-161 ; the fraud alleged by the other siblings did not defeat the title, as the siblings were unaware of the fraud from 1989 to 2002. Goodrum v. Goodrum, 283 Ga. 163 , 657 S.E.2d 192 (2008).

3. Sufficient Instruments

Quitclaim deed may be good as color of title. Warlick v. Rome Loan & Fin. Co., 194 Ga. 419 , 22 S.E.2d 61 (1942).

Deed which, upon the deed's face, professed to pass title to entire tract but did not do so from a want of title in the grantor, even though it did not invest the grantees with legal title to the property, did bestow upon the grantees the color of title. Adams v. Talmadge, 240 Ga. 193 , 240 S.E.2d 9 (1977); Armour v. Peek, 271 Ga. 202 , 517 S.E.2d 527 (1999).

Deed executed during existing homestead constitutes color of title. - Deed from the head of a family upon whose application a homestead had been set apart under an earlier Constitution, executed during the existence of the homestead, did not convey title to the grantee, but was sufficient to constitute color of title for one entering into possession of the land thereunder, and in such a case prescription runs in favor of the grantee against both the homestead and the title estate. Dorsey v. Dorsey, 189 Ga. 662 , 7 S.E.2d 273 (1940).

Deed executed by decedent's husband. - Quitclaim deed which a decedent's husband gave to a grantee purported to convey fee simple title to real property and gave her color of title, and because the grantee was not aware that there were other heirs who had an interest in the property, she did not commit fraud to obtain title; furthermore, she lived on the property for more than seven years, thus, she acquired title by prescription, pursuant to O.C.G.A. § 44-5-164 . Gigger v. White, 277 Ga. 68 , 586 S.E.2d 242 (2003).

Deed from wife to her husband for sale of her separate estate is color of title, though the deed itself be void for lack of approval. Stallings v. Britt, 204 Ga. 250 , 49 S.E.2d 517 (1948).

Devise of land under duly recorded will is color of title, and adverse possession thereunder for a period of seven years ripens into a prescriptive title that is superior to the title of a grantee in a security deed executed by the testator. Blalock v. Webb, 190 Ga. 769 , 10 S.E.2d 747 (1940).

Judgment of probate court purporting to vest title to land of a decedent in the decedents widow for a year's support is generally color of title on which prescription can be based. Johnson v. Key, 173 Ga. 586 , 160 S.E. 794 (1931).

Sheriff's deed may be color of title, even though defective. Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940).

Deed properly executed by a sheriff pursuant to a sale under a tax execution, even if void for any reason, is such color of title as will support prescription by seven years' adverse possession. Memory v. Walker, 209 Ga. 916 , 76 S.E.2d 698 (1953).

Deed executed by unauthorized county officer. - Even though a deed is executed by a county officer without authority, and is therefore void, the deed may, if accepted in good faith as valid, afford good color of title. Calfee v. Jones, 54 Ga. App. 481 , 188 S.E. 307 (1936).

Deed executed by the administrator of decedent's estate, which purported to convey fee simple title, was sufficient as color of title, even though decedent did not own the property at the time of death - a fact unknown to all parties at the time of the transaction. Smart v. Miller, 260 Ga. 88 , 389 S.E.2d 757 (1990).

Effect of deeds without defect. - Since there was no defect in the deeds by which the parties acquired title, the deeds did not support a claim of adverse possession under color of title. Gay v. Strain, 261 Ga. App. 708 , 583 S.E.2d 529 (2003).

4. Insufficient Instruments

No color of title absent sufficient identification of property. - When a deed relied upon did not give color of title, as when the deed did not in fact describe the land in question, there could be no prescriptive title under former Civil Code 1895, § 3589 (see O.C.G.A. § 44-5-164 ); reliance in such a case must be had upon former Civil Code 1895, § 3588 (see O.C.G.A. § 44-5-163 ). Berry v. Clark, 117 Ga. 964 , 44 S.E. 824 (1903). See also Bunger v. Grimm, 142 Ga. 448 , 83 S.E. 200 , 1916C Ann. Cas. 173 (1914); May v. Sorrell, 149 Ga. 610 , 101 S.E. 535 (1919).

When the description of the property is so vague and indefinite as to afford no means of identifying any particular tract of land, the instrument is inoperative either as a conveyance or as color of title. Herrington v. Church of Lord Jesus Christ, 222 Ga. 542 , 150 S.E.2d 805 (1966).

Deed lacking in a description of the land sufficiently certain to effect a means of identification of description, standing alone, is inoperative as color of title. Donaldson v. Nichols, 223 Ga. 206 , 154 S.E.2d 201 (1967).

O.C.G.A. § 44-5-164 did not apply because a deed did not describe the subject property, and thus could not serve as color of title to the property. Bailey v. Moten, 289 Ga. 897 , 717 S.E.2d 205 (2011).

Quitclaim deed subject to security deed. - Quitclaim deed, reciting that it is subject to a security deed, passed title to the equity only, and is not color of title. Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322 , 26 S.E.2d 727 (1943).

Valid deed conveying title to land is never color of title. Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322 , 26 S.E.2d 727 (1943).

Will which leaves devise to others than claimant cannot be color of title to the claimant. White v. Rowland, 67 Ga. 546 , 44 Am. R. 731 (1881).

Payment of taxes is not itself evidence of title, yet it is admissible as a circumstance tending to prove adverse possession. Chamblee v. Johnson, 200 Ga. 838 , 38 S.E.2d 721 (1946).

Divorce decree was not written evidence of title because the decree did not award the property to the plaintiff claiming adverse possession under color of title. Coleman v. Coleman, 265 Ga. 568 , 459 S.E.2d 166 (1995).

5. Statute of Limitations

Period of limitation applicable to equitable suit for cancellation of deed is seven years from the date of the deed's execution. Stephens v. Walker, 193 Ga. 330 , 18 S.E.2d 537 (1942); Paden v. Matthews, 216 Ga. 458 , 117 S.E.2d 346 (1960).

Seven years time is permitted only absent special circumstances demanding earlier application; if such circumstances exist, calling for an interposition of the equitable doctrine of laches, equity will refuse relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right. Stephens v. Walker, 193 Ga. 330 , 18 S.E.2d 537 (1942).

Exception. - An exception to the rule that an equitable suit to cancel a deed is covered by a seven-year limitation period is that if suit is brought primarily for recovery of the land under an antecedent deed, against one holding, but with less than seven years' actual possession, under a junior deed. In such a case, cancellation of the subsequent deed under which the defendant claims is a mere incident to the question of title, and the fact that the deed may have been executed for more than seven years will not operate to prevent the deed's cancellation. Stephens v. Walker, 193 Ga. 330 , 18 S.E.2d 537 (1942).

Period of limitation for fraud is seven years from discovery. - When fraud is charged, the period of limitations applicable to an action for fraud is the same as that which would apply to an action for the land, that is seven years from the discovery of the fraud. Slade v. Barber, 200 Ga. 405 , 37 S.E.2d 143 (1946).

An action seeking cancellation of an alleged fraudulent deed must be brought within seven years from the time the fraud became known. Shirley v. Mulligan, 202 Ga. 746 , 44 S.E.2d 796 (1947).

While a deed to land procured by fraud will not ripen into prescriptive title regardless of the period of time possession is held thereunder, yet an action to cancel such deed upon the ground that it was fraudulently procured must be brought within seven years from the time the fraud is discovered, and is barred thereafter. Harrison v. Holsenbeck, 208 Ga. 410 , 67 S.E.2d 311 (1951).

Constructive fraud insufficient to toll statute of limitations. - Seven-year statute of limitations was not tolled by alleged fraud on the part of plaintiff's predecessor in title since the evidence showed only constructive fraud at most, and there were no separate and independent acts of actual fraud involving moral turpitude which would have prevented, debarred, or deterred defendants from bringing their action much more timely. Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986).

Period of seven years begins to run only from date of written color of title regardless of how long the claimants may have actually been in possession. Hobby v. Alford, 73 Ga. 791 (1884); Rock Run Iron Co. v. Heath, 155 Ga. 95 , 116 S.E. 590 (1923).

Period running from death of life tenant. - Prescription does not begin to run in favor of a grantee under a deed from a life tenant, against a remainderman who does not join in the deed, until the falling in of the life estate by the death of the life tenant, since until the remainderman has a right of entry and possession, the remainderman has no cause of action against such grantee. Mathis v. Solomon, 188 Ga. 311 , 4 S.E.2d 24 (1939).

Earliest time at which the seven-year period of adverse holding can begin against a person with fee simple title subject to a life estate is at the date of the death of the life tenant. Howard v. Henderson, 142 Ga. 1 , 82 S.E. 292 (1914); Drake v. Barrs, 225 Ga. 597 , 170 S.E.2d 684 (1969).

Action not brought within statutory period barred. - When one claiming land under written evidence of title delays for more than seven years after the knowledge of fraud to institute a suit to cancel such evidence of title upon the ground that the deed is fraudulent, the proceedings to cancel are barred by limitation. Shirley v. Mulligan, 202 Ga. 746 , 44 S.E.2d 796 (1947).

Unless an action is brought within the time in which it would ripen into prescriptive title under this statute, the action will be barred. Brown v. Brown, 208 Ga. 404 , 67 S.E.2d 128 (1951) (see O.C.G.A. § 44-5-164 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 1 et seq., 11, 13, 123 et seq.

C.J.S. - 2 C.J.S., Adverse Possession, §§ 200 et seq., 208.

ALR. - May adverse possession be predicated upon use or occupancy by one spouse of real property of other, 74 A.L.R. 138 .

Time during which dominant and servient tracts were in same ownership or under same control as excluded or included in determining easement by prescription, 98 A.L.R. 591 .

Adverse possession or prescription in respect to burial lot, 107 A.L.R. 1294 .

Adoption as period of prescription for easement the period prescribed by statute of limitations with reference to adverse possession as including condition of color of title or right or other conditions imposed by that statute, 112 A.L.R. 545 .

Adverse possession as affected by attempt during period thereof to change, or make more specific, the tract claimed, 115 A.L.R. 1299 .

Scope and application of the doctrine that one cannot successfully claim adverse possession under color of title where one has deprived himself or been deprived of the color relied on, 136 A.L.R. 1349 .

Adverse possession: mortgagee's possession before foreclosure as barring right of redemption, 7 A.L.R.2d 1131.

Acquisition of title to mines or minerals by adverse possession, 35 A.L.R.2d 124.

Possession of mortgagor or successor in interest as adverse to purchaser at foreclosure sale, 38 A.L.R.2d 348.

Adverse possession of landlord as affected by tenant's recognition of title of third person, 38 A.L.R.2d 826.

Adverse possession of executor or administrator or his vendee as continuous with that of ancestor and heirs, 43 A.L.R.2d 1061.

Title by or through adverse possession was marketable, 46 A.L.R.2d 544.

Judgment or decree as constituting color of title, 71 A.L.R.2d 404.

Procuring signature by fraud as forgery, 11 A.L.R.3d 1074.

Owner's surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse possession, 76 A.L.R.3d 1202.

44-5-165. How actual possession of lands evidenced.

Actual possession of lands may be evidenced by enclosure, cultivation, or any use and occupation of the lands which is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another. As to any claim which is not vested under this chapter prior to July 1, 2008, no party shall attempt to establish possession of lands for purposes of this article for any lands depicted within the applicable tract identified on the official map of any railroad filed with the Interstate Commerce Commission pursuant to the Railroad Valuation Act of March 1, 1913, Stat. 701, as amended, unless such party establishes that such occupancy interferes with the operations of such railroad corporation or railroad company; provided, however, that each railroad corporation and railroad company shall file and record such official map of the railroad with the superior court for the county in which such land depicted on such official railroad map is situated. Any court of this state shall take judicial notice of the information set forth in any such official map properly filed and recorded by such railroad corporation or railroad company. This Code section shall not be applied to adverse claims of aboveground utilities which have been initiated but which have not vested prior to July 1, 2008; provided, however, that a railroad corporation or railroad company shall not be precluded from enforcing rights of ownership against any adverse claims which have not vested.

(Orig. Code 1863, § 2639; Code 1868, § 2638; Code 1873, § 2680; Code 1882, § 2680; Civil Code 1895, § 3585; Civil Code 1910, § 4165; Code 1933, § 85-403; Ga. L. 2008, p. 210, § 4/HB 1283.)

The 2008 amendment, effective July 1, 2008, added the last three sentences.

Editor's notes. - Ga. L. 2008, p. 210, § 1, not codified by the General Assembly, provides: "(a) The General Assembly finds that the railroads and their rights of way in Georgia:

"(1) Are essential to the continued viability of this state;

"(2) Are valuable resources which must be preserved and protected;

"(3) Are essential for the economic growth and development of this state;

"(4) Provide a necessary means of transporting raw materials, agricultural products, other finished products, and consumer goods and are also essential for the safe passage of hazardous materials;

"(5) Relieve congestion on the highways and keep dangerous products and materials off our highways;

"(6) Are vital for national defense and national security; and

"(7) Provide the most energy efficient means of transportation through this state, thus minimizing air pollution and fuel consumption.

"(b) The purpose of this Act is to protect the rights of way of railroads from loss by claims of adverse possession or other claims by prescription and to recognize the dimensions of these rights of way as they were identified and defined nearly 100 years ago."

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Scope of prescription by mere possession. - Prescription by mere possession does not extend beyond the actual possessio pedis of the prescriber. Kerlin v. Southern Bell Tel. & Tel. Co., 191 Ga. 663 , 13 S.E.2d 790 (1941); Robertson v. Abernathy, 192 Ga. 694 , 16 S.E.2d 584 (1941), later appeal, 195 Ga. 704 , 25 S.E.2d 424 (1943); Arnold v. Shackelford, 219 Ga. 839 , 136 S.E.2d 384 (1964).

Facts as set out by the trial court and as recited by the brothers were insufficient as a matter of law to establish that the brothers were in such notorious possession that the brothers acquired title to the riverbed by prescriptive easement or adverse possession; all of the brothers' actions were consistent with their 1976 easement, and therefore did not give notice that claimed the entire riverbed to the exclusion of others. Thomas v. Henry County Water & Sewerage Auth., 317 Ga. App. 258 , 731 S.E.2d 66 (2012).

Requirement of continuity of possession is one of substance, not of absolute mathematical continuity, provided there is no break so as to make a severance of two possessions. Chamblee v. Johnson, 200 Ga. 838 , 38 S.E.2d 721 (1946).

Payment of taxes is not itself evidence of title, yet it is admissible as a circumstance tending to prove adverse possession. Chamblee v. Johnson, 200 Ga. 838 , 38 S.E.2d 721 (1946).

Outstanding recorded title will not prevent ripening of title by prescription if the possessor enters in good faith under written evidence of title from another. Hearn v. Leverette, 213 Ga. 286 , 99 S.E.2d 147 (1957).

Because the heirs produced evidence raising a material question of fact as to whether their ancestors possessed certain property for the requisite period of time under a claim of right pursuant to O.C.G.A. §§ 44-5-161(a) , 44-5-163 , and 44-5-165 , the record owner was not entitled to summary judgment. Walker v. Sapelo Island Heritage Auth., 285 Ga. 194 , 674 S.E.2d 925 (2009).

Cited in Hunt v. Pond, 67 Ga. 578 (1881); Burr v. Toomer, 103 Ga. 159 , 29 S.E. 692 (1897); Knight v. Isom, 113 Ga. 613 , 39 S.E. 103 (1901); Walker v. Steffes, 139 Ga. 520 , 77 S.E. 580 (1913); Connasauga River Lumber Co. v. Shippen, 293 F. 579 (5th Cir. 1923); Beeland v. Butler Payne Lumber Co., 48 Ga. App. 619 , 173 S.E. 436 (1934); Sewell v. Sprayberry, 186 Ga. 1 , 196 S.E. 796 (1938); Poole v. Atlanta Joint Stock Land Bank, 189 Ga. 59 , 5 S.E.2d 368 (1939); Bradley v. Shelton, 189 Ga. 696 , 7 S.E.2d 261 (1940); Flournoy v. United States, 115 F.2d 220 (5th Cir. 1940); Dyal v. Sanders, 194 Ga. 228 , 21 S.E.2d 596 (1942); Holloway v. Woods, 195 Ga. 55 , 23 S.E.2d 254 (1942); Strickland v. Padgett, 197 Ga. 589 , 30 S.E.2d 167 (1944); Elliott v. Robinson, 198 Ga. 811 , 33 S.E.2d 95 (1945); Toms v. Knighton, 199 Ga. 858 , 36 S.E.2d 315 (1945); Smith v. Jefferson County, 201 Ga. 674 , 40 S.E.2d 773 (1946); Powell v. Moore, 202 Ga. 62 , 42 S.E.2d 110 (1947); Rogers v. Moore, 207 Ga. 182 , 60 S.E.2d 359 (1950); Phillips v. Wheeler, 212 Ga. 603 , 94 S.E.2d 732 (1956); Spillers v. Jordan, 96 Ga. App. 426 , 100 S.E.2d 483 (1957); Davis v. Palmer, 213 Ga. 862 , 102 S.E.2d 478 (1958); Pridgen v. Coffee County Bd. of Educ., 218 Ga. 326 , 127 S.E.2d 808 (1962); Durand v. Reeves, 219 Ga. 182 , 132 S.E.2d 71 (1963); Harrison v. Morris, 108 Ga. App. 566 , 133 S.E.2d 899 (1963); Reid v. Wilkerson, 222 Ga. 282 , 149 S.E.2d 700 (1966); Herrington v. City of Atlanta, 224 Ga. 465 , 162 S.E.2d 420 (1968); Barnett v. Holliday, 228 Ga. 361 , 185 S.E.2d 397 (1971); Guagliardo v. Jones, 238 Ga. App. 668 , 518 S.E.2d 925 (1999).

Actual Possession
1. In General

Statute indicates how actual possession is evidenced. Rowland v. McLain, 86 Ga. App. 140 , 70 S.E.2d 918 (1952) (see O.C.G.A. § 44-5-165 ).

Essence of actual possession is use of land to such an extent and in such a manner as to put the world on notice. Cheek v. Wainwright, 246 Ga. 171 , 269 S.E.2d 443 (1980).

Evidence of defendant's actual adverse possession. - Evidence of color of title, continuous occupation, use of property to the exclusion of all others, construction of improvements on the land, payment of annual taxes and fire insurance premiums, cultivation of annual crops, and keeping of livestock and penalty shows that the defendant had actual adverse possession. Hughes v. Heard, 215 Ga. 156 , 109 S.E.2d 510 (1959) (see O.C.G.A. § 44-5-165 ).

Prescriptive title generally. - In a dispute over two subdivision lots, the trial court did not err in admitting evidence that was cumulative to properly admitted evidence showing a legal property owner's record title, and the evidence was not hearsay, as alleged by a claimant who sought title to the property by prescription; further, the evidence was relevant to the issue of whether a claimant's adverse possession ripened into title by prescription. Smith v. Stacey, 281 Ga. 601 , 642 S.E.2d 28 (2007).

Building a driveway insufficient. - Trial court erred in granting summary judgment on prescription and acquiescence grounds to the contestants to a tract of land without determining the validity or sufficiency of the legal descriptions of either deed to the property as there was insufficient evidence of possession and support for prescriptive title, and the construction of a driveway, apparently on the disputed tract was interrupted by a quiet title action filed within seven years by the heirs of the property. Henson v. Tucker, 278 Ga. App. 859 , 630 S.E.2d 64 (2006).

Occasional cleanup and mowing insufficient. - Trial court did not err when the court concluded that a buyer's tax deed did not ripen by prescription into a fee simple title because neither the buyer's payments of taxes nor occasional cleanup and mowing areas were sufficiently notorious or exclusive as to constitute actual possession. Washington v. McKibbon Hotel Group, Inc., 284 Ga. 262 , 664 S.E.2d 201 (2008).

Sporadic repairs insufficient. - Trial court properly granted a renter summary judgment and removed an affidavit asserting adverse possession filed by the owner of the first floor of a building with regard to a 1,350 square foot space on the second floor of the building as the renter established that title was acquired via a quit claim deed, that the renter changed the door at the base of the stairwell and had sole access to the second floor space, as well as posted no trespassing signs. The owner of the first floor failed to establish a continuous, exclusive, and uninterrupted possession of the space based on sporadic repairs made to the roof of the entire building. MEA Family Invs., LP v. Adams, 284 Ga. 407 , 667 S.E.2d 609 (2008).

Installation of sprinkler system insufficient. - Property owners could not establish that the alleged installation of a sprinkler system on the disputed property by a prior owner of the owners' property somehow bolstered the owners' claim of adverse possession because there was no evidence as to how long any previous owner allegedly maintained adverse possession of the disputed property, and the installation of a sprinkler system, by itself, would not establish adverse possession under the circumstances presented in the case. Campbell v. Landings Ass'n, 289 Ga. 617 , 713 S.E.2d 860 (2011).

Occasional mowing and clearing of vegetation insufficient. - Trial court did not err in denying a landowner's claim that the landowner held prescriptive title to certain property by possession for a period of more than 20 years under O.C.G.A. § 44-5-163 because neither the landowner nor the landowner's spouse cultivated the property or erected any structure or fence upon the property pursuant to O.C.G.A. § 44-5-165 , and the clearing of vegetation did not require a finding that possession had been established; photographs submitted in support of the landowner's claim that a pre-existing fence situated at one end of the property, together with the vegetation lines caused by the clearing and periodic mowing of the property, constituted an enclosure of the property so as to evidence possession and could allow the special master to conclude that the asserted enclosure was not so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another. Bailey v. Moten, 289 Ga. 897 , 717 S.E.2d 205 (2011).

Occasional maintenance and use did not amount to exclusive possession. - Evidence supported the trial court's conclusion that the landowners did not own the disputed property because the landowners' occasional maintenance and use of the disputed property did not amount to the type of exclusive possession for twenty years that would support a claim for prescriptive title under O.C.G.A. §§ 44-5-161 and 44-5-165 . Washington v. Brown, 290 Ga. 477 , 722 S.E.2d 65 (2012).

Successor in interest to the owner of property successfully redeemed the property from the purchaser of a tax deed by tendering an adequate amount, O.C.G.A. § 48-4-40(2) , although it was refused by the purchaser; the court rejected the purchaser's claim that the purchaser had acquired title by prescription under O.C.G.A. § 48-4-48 because the prescriptive period was not met and the purchaser's possession of the unfenced, uninhabited property was not sufficiently adverse. Nix v. 230 Kirkwood Homes, LLC, 300 Ga. 91 , 793 S.E.2d 402 (2016).

Building of pond and dam sufficient. - In a boundary dispute, the evidence was sufficient for the jury to find that a landowner was entitled to judgment pursuant to prescriptive title under O.C.G.A. § 44-5-161(a) because a dam creating the disputed pond broke in 1994, and the landowner reconstructed the dam at the landowner's sole cost; the neighbors raised no objection to this act of actual possession and ownership. These acts extended to the property line set forth in the landowner's deed even though some of the disputed land was not enclosed or cultivated. Mathews v. Cloud, 294 Ga. 415 , 754 S.E.2d 70 (2014).

When there is no evidence of enclosure or cultivation, notoriety and exclusivity became questions of fact for the jury. Friendship Baptist Church, Inc. v. West, 265 Ga. 745 , 462 S.E.2d 618 (1995).

Claim of prescriptive title to property failed. - Trial court erred in finding that a neighbor was the rightful owner of certain property because there was no evidence to support the conclusion that the neighbor owned the disputed property either by deed or by adverse possession; the legal description of the property contained in the neighbor's deed did not include the disputed property, and since the evidence showed that, at most, the neighbor made a claim to the disputed property for only eighteen years before being challenged by the landowners, the neighbor's claim to have gained prescriptive title to the property through adverse possession under O.C.G.A. §§ 44-5-161 and 44-5-165 failed as a matter of law. Washington v. Brown, 290 Ga. 477 , 722 S.E.2d 65 (2012).

2. Enclosure

Fencing is acceptable evidence of actual possession. Lyons v. Bassford, 242 Ga. 466 , 249 S.E.2d 255 (1978).

When land is bounded in a deed by the land of an adjacent owner, and if such boundary of the adjacent owner is undefined, there can be no prescription under the deed, as against such owner, rather than the actual possession of the grantee in the deed extends; on the other hand, if the deed provides that the land is bounded by an adjacent owner, and designated that boundary as the line of an existing fence, and the deed owner actually occupies the land up to the fence, when other requirements are met, one may obtain title by prescription up to the fence which is the limit of one's possession. Lyons v. Bassford, 242 Ga. 466 , 249 S.E.2d 255 (1978).

Fencing not required. Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977).

Failure to maintain fence prevents required notice. - Even though the adverse possessor may have taken possession of property by fencing the property at the time the possessor purchased the property, if in fact the possessor had not maintained the fence, it did not constitute notice such as is required by the provisions of this statute. Turner v. McKee, 97 Ga. App. 531 , 103 S.E.2d 658 (1958) (see O.C.G.A. § 44-5-165 ).

Planting trees on boundary lines and corners may be sufficient earmarks of possession. Howell v. United States, 519 F. Supp. 298 (N.D. Ga. 1981).

To constitute actual possession by enclosure, the land must be completely enclosed, but it is not necessary that the land should be completely enclosed, on every side, by artificial means, such as fences. Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80 , 3 S.E.2d 91 (1939).

Natural barriers. - Natural barriers in part may be utilized in connection with fences provided that the barriers constitute a complete enclosure which indicates complete and notorious dominion over the land. Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80 , 3 S.E.2d 91 (1965).

Telephone poles and wires outline general area in use. - When poles and wires were used in the operation of a telephone line or lines over the lands of another, they should be considered as having marked or outlined a general area in use according to the usual and ordinary manner; and if the outer limits of this space remained the same for the prescriptive period of 20 years, the resulting easement would apply at least to such general area, so that the stringing of additional wires anywhere therein consistently with customary location would be permissible as territorially within the easement, whether or not the identical space to be physically occupied by such wires had ever before been so occupied by other wires. Kerlin v. Southern Bell Tel. & Tel. Co., 191 Ga. 663 , 13 S.E.2d 790 (1941).

3. Cultivation

Cultivation, tillage of soil, planting, and harvesting crop are superior indicia of possession. May v. Sorrell, 153 Ga. 47 , 111 S.E. 810 (1922); Cheek v. Wainwright, 246 Ga. 171 , 269 S.E.2d 443 (1980).

Trees planted in rows along a public road give a clear and lasting notice that someone is exercising possession by changing the nature of the real estate. Cheek v. Wainwright, 246 Ga. 171 , 269 S.E.2d 443 (1980).

Use of land for timber will not alone amount to actual possession, even though the land is suitable only for such uses. McCook v. Crawford, 114 Ga. 337 , 40 S.E. 225 (1901); Robertson v. Abernathy, 192 Ga. 694 , 16 S.E.2d 584 (1941), later appeal, 195 Ga. 704 , 25 S.E.2d 424 (1943); Rowland v. McLain, 86 Ga. App. 140 , 70 S.E.2d 918 (1952); Cheek v. Wainwright, 246 Ga. 171 , 269 S.E.2d 443 (1980).

Use as cattle range alone will not amount to actual possession, even though the land is suitable only for such uses. McCook v. Crawford, 114 Ga. 337 , 40 S.E. 225 (1901).

Roaming cattle and hogs on a large area of swamp woodland does not amount to actual possession within the meaning of the law. Rowland v. McLain, 86 Ga. App. 140 , 70 S.E.2d 918 (1952); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80 , 3 S.E.2d 91 (1965).

Posting signs forbidding trespassing, and driving away hunters from time to time on a large area of swamp woodland does not amount to actual possession. Rowland v. McLain, 86 Ga. App. 140 , 70 S.E.2d 918 (1952); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80 , 3 S.E.2d 91 (1965).

Cultivation of annual crops is not required. Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977).

Cultivation is question of fact depending upon the character of possession, the extent of the visible signs of occupancy and its continuance. Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 10 et seq., 296 et seq.

C.J.S. - 2 C.J.S., Adverse Possession, § 34 et seq.

ALR. - Act of trespasser as interrupting adverse possession, 22 A.L.R. 1458 .

Adverse possession of railroad right of way, 50 A.L.R. 303 .

Interval between crops as affecting continuity of adverse possession, 76 A.L.R. 1492 .

Grantor's continued possession of land after execution of deed as notice of his claim adverse to title conveyed, 105 A.L.R. 845 .

Length of period of possession before accrual of rights of person sought to be affected by notice as affecting the rule regarding constructive notice from possession of real property, 105 A.L.R. 892 .

Purchase of, or offer to purchase or to settle, outstanding title, interest, or claim as interrupting continuity of adverse possession as regards another title, interest, or claim, 125 A.L.R. 825 .

Cutting of timber as adverse possession, 170 A.L.R. 887 .

Adverse possession: sufficiency, as regards continuity, of seasonal possession other than for agricultural or logging purposes, 24 A.L.R.2d 632.

Acquisition of title to mines or minerals by adverse possession, 35 A.L.R.2d 124.

Grantor's possession as adverse possession against grantee, 39 A.L.R.2d 353.

Adverse possession based on encroachment of building or other structure, 2 A.L.R.3d 1005.

Acquisition of title to land by adverse possession by state or other governmental unit or agency, 18 A.L.R.3d 678.

Grazing of livestock or gathering of natural crop as fulfilling traditional elements of adverse possession, 48 A.L.R.3d 818.

44-5-166. Constructive possession of lands; effect of constructive possession of same land by adjacent owners.

  1. Constructive possession of lands exists where a person who has paper title to a tract of land is in actual possession of only a part of such tract. In such case, his or her possession shall be construed to extend to the boundary of such tract. With respect to a railroad corporation or railroad company, construction of the road bed and track on the railroad right of way shall constitute actual possession and occupancy of all lands depicted within the applicable tract identified on the official map of the railroad filed with the Interstate Commerce Commission pursuant to the Railroad Valuation Act of March 1, 1913, Stat. 701, as amended; provided, however, that each railroad corporation and railroad company shall file and record such official map of the railroad with the superior court for the county in which such land depicted on such official railroad map is situated. Any court of this state shall take judicial notice of the information set forth in any such official map properly filed and recorded by such railroad corporation or railroad company.
  2. When land is included in the boundaries of more than one tract so that adjacent owners are in constructive possession of the same land, no prescription shall arise in favor of any of such owners.

    (Orig. Code 1863, § 2640; Code 1868, § 2639; Code 1873, § 2681; Code 1882, § 2681; Civil Code 1895, § 3586; Civil Code 1910, § 4166; Code 1933, § 85-404; Ga. L. 2008, p. 210, § 5/HB 1283.)

The 2008 amendment, effective July 1, 2008, in subsection (a), substituted "such" for "the" twice, in the second sentence, deleted "a" preceding "case,", inserted "or her", and added the last two sentences.

Editor's notes. - Ga. L. 2008, p. 210, § 1, not codified by the General Assembly, provides: "(a) The General Assembly finds that the railroads and their rights of way in Georgia:

"(1) Are essential to the continued viability of this state;

"(2) Are valuable resources which must be preserved and protected;

"(3) Are essential for the economic growth and development of this state;

"(4) Provide a necessary means of transporting raw materials, agricultural products, other finished products, and consumer goods and are also essential for the safe passage of hazardous materials;

"(5) Relieve congestion on the highways and keep dangerous products and materials off our highways;

"(6) Are vital for national defense and national security; and

"(7) Provide the most energy efficient means of transportation through this state, thus minimizing air pollution and fuel consumption.

"(b) The purpose of this Act is to protect the rights of way of railroads from loss by claims of adverse possession or other claims by prescription and to recognize the dimensions of these rights of way as they were identified and defined nearly 100 years ago."

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Policy of this statute. - It is not the policy of this statute to permit the true owner of land to be disseized by equivocal possession; but, if the occupant's possession be of such a character as to announce to the world and to the true owner that one's assertion of ownership, and that possession is under a duly recorded deed, it will be construed to extend to all the contiguous property embraced therein. G.S. Baxter & Co. v. Wetherington, 128 Ga. 801 , 58 S.E. 467 (1907) (see O.C.G.A. § 44-5-166 ).

Applicability. - When separate lots are conveyed not as a single tract, this statute does not apply. Barber v. Shaffer, 76 Ga. 285 (1886) (see O.C.G.A. § 44-5-166 ).

Actual adverse possession. - O.C.G.A. § 44-5-166 is inapplicable if one of two claimants to the disputed land had actual adverse possession of the land. Walker v. Hill, 253 Ga. 126 , 317 S.E.2d 825 (1984).

Evidence necessary to establish title. - Before one can establish title by reason of possession under color of title, one must show: (1) that the writing which one claims as color of title purports to confer title upon the possessor; (2) actual possession of some portion of the tract; and (3) a claim of ownership over the portion not held in actual possession. Sewell v. Sprayberry, 186 Ga. 1 , 196 S.E. 796 (1938).

Actual boundaries are question for jury. - Questions of location of actual boundaries indicated by written agreement are for jury. Shiels v. Lamar, 58 Ga. 590 (1877).

Recordation over the course of years of no consequence. - Claim of adverse possession, based on recordation of the various deeds over the course of eight years, in and of itself, had to fail in light of O.C.G.A. § 44-5-166(b) . Double 'D' bar 'C' Ranch v. Bell, 283 Ga. 386 , 658 S.E.2d 635 (2008).

Cited in Clark v. Hulsey, 54 Ga. 608 (1875); Anderson v. Dodd, 65 Ga. 402 (1880); Wood v. Crawford, 75 Ga. 733 (1885); Johnson v. Simerly, 90 Ga. 612 , 16 S.E. 951 (1892); Furgerson v. Bagley, 95 Ga. 516 , 20 S.E. 241 (1894); Ault v. Meager, 112 Ga. 148 , 37 S.E. 185 (1900); Crawford v. Verner, 122 Ga. 814 , 50 S.E. 958 (1905); Terrell v. McLean, 130 Ga. 633 , 61 S.E. 485 (1908); Dodge v. Cowart, 131 Ga. 549 , 62 S.E. 987 (1908); Durham Coal & Coke Co. v. Wingfield, 142 Ga. 725 , 83 S.E. 683 (1914); Rowe v. Henderson Naval Stores Co., 143 Ga. 756 , 85 S.E. 917 (1915); R.J. & B.F. Camp Lumber Co. v. Strickland, 144 Ga. 445 , 87 S.E. 413 (1915); Rowan v. Newbern, 32 Ga. App. 363 , 123 S.E. 148 (1924); Dinsmore v. Holcomb, 167 Ga. 20 , 144 S.E. 780 (1928); Beeland v. Butler Payne Lumber Co., 48 Ga. App. 619 , 173 S.E. 436 (1934); Warsaw Turpentine Co. v. Fort Barrington Club, 185 Ga. 540 , 195 S.E. 755 (1937); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80 , 3 S.E.2d 91 (1939); MacNeil v. Bazemore, 194 Ga. 406 , 21 S.E.2d 414 (1942); Hardy v. Brannen, 194 Ga. 252 , 21 S.E.2d 417 (1942); Holloway v. Woods, 195 Ga. 55 , 23 S.E.2d 254 (1942); Pittman v. Pittman, 196 Ga. 397 , 26 S.E.2d 764 (1943); Knighton v. Hasty, 200 Ga. 507 , 37 S.E.2d 382 (1946); Castile v. Burton, 200 Ga. 877 , 38 S.E.2d 919 (1946); Allen v. Bone, 202 Ga. 349 , 43 S.E.2d 311 (1947); Wright v. Anthony, 205 Ga. 47 , 52 S.E.2d 316 (1949); Harrison v. Durham, 210 Ga. 187 , 78 S.E.2d 482 (1953); Floyd v. Carswell, 211 Ga. 36 , 83 S.E.2d 586 (1954); Thurston v. City of Forest Park, 211 Ga. 910 , 89 S.E.2d 509 (1955); Maxwell v. Hollis, 214 Ga. 358 , 104 S.E.2d 893 (1958); Davis v. Newton, 215 Ga. 58 , 108 S.E.2d 809 (1959); Gordon v. Georgia Kraft Co., 217 Ga. 500 , 123 S.E.2d 540 (1962); Herrington v. City of Atlanta, 224 Ga. 465 , 162 S.E.2d 420 (1968); Trammell v. Thomas, 226 Ga. 148 , 173 S.E.2d 197 (1970); Pressley v. Jennings, 227 Ga. 366 , 180 S.E.2d 896 (1971); Smith v. E.B. Burney Constr. Co., 231 Ga. 772 , 204 S.E.2d 93 (1974); Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977); Department of Transp. v. Howard, 245 Ga. 96 , 263 S.E.2d 135 (1980).

Constructive Possession

Prescription by mere possession will not extend beyond actual possessio pedis of prescriber. Hall v. Gay, 68 Ga. 442 (1882).

Ordinarily actual possession under a recorded deed of a portion of several specified tracts or lots of land which are all contiguous and lie in one body (though not expressly designated as one parcel or tract by the terms of the deed) will extend by construction so as to include the entire premises conveyed; if, however, such possession is under an unrecorded deed, constructive possession will not extend beyond the tract or lot on which actual possession is maintained. Campbell v. Gregory, 200 Ga. 684 , 38 S.E.2d 295 (1946); Tucker v. Long, 207 Ga. 730 , 64 S.E.2d 69 (1951).

When in a dispute over the ownership of a parcel of land between a landowner and a railroad, the railroad showed the railroad had color of title to the disputed property, based on a prior deed, the railroad did not have constructive possession of the land as a matter of law, sufficient to satisfy the requirements of adverse possession, because the deed under which it had color of title was not recorded, so any constructive possession did not extend beyond the land actually possessed, and there was a genuine issue of material fact as to what land the railroad actually possessed. Watkins v. Hartwell R.R. Co., 278 Ga. 42 , 597 S.E.2d 377 (2004).

Because the neighbors' actual adverse possession was inconsistent with and prevailed over the owners' mere constructive possession under O.C.G.A. § 44-5-166(a) , the trial court did not err in entering the court's judgment and decree in favor of the neighbors under O.C.G.A. § 23-3-60 . Sacks v. Martin, 284 Ga. 712 , 670 S.E.2d 417 (2008).

Actual possession with title extends to boundary. - When, in addition to actual possession, there is also a paper title to the rest of the tract, it is the actual possession which extends to the boundary. Robertson v. Downing Co., 120 Ga. 833 , 48 S.E. 429 , 102 Am. St. R. 128 , 1 Ann. Cas. 757 (1904); Downing v. Anderson, 126 Ga. 373 , 55 S.E. 184 (1906).

Possession of land by one who has an unrecorded deed from one's vendor, conveying a definitely described tract or lot of land, and who resides upon the land and cultivates a part thereof and bona fide claims the whole, is sufficient to give notice to another, who subsequently lends money to one's vendor and takes a deed to the same land to secure the loan, as to the extent and character of the occupant's title to the whole lot. Atlanta & C.A.L. Ry. v. Colbert, 171 Ga. 196 , 154 S.E. 909 (1930), later appeal, 178 Ga. 450 , 173 S.E. 378 (1934).

When a deed describing the land conveyed as lot 168, "containing 157 acres more or less," purports to convey the entire lot, actual possession of a portion of the lot under such a deed gives the grantee constructive possession of the entire lot. Shahan v. Watkins, 194 Ga. 164 , 21 S.E.2d 58 (1942).

Under former Code 1933, §§ 85-404 and 85-405 (see O.C.G.A. §§ 44-5-166 and 44-5-167 ), a person claiming under a recorded deed may have constructive possession of lands and may acquire a prescriptive title to all lands which were covered by the deed and were contiguous by having actual possession of a part thereof for a period of seven years. Mincey v. Anderson, 206 Ga. 572 , 57 S.E.2d 922 (1950).

If there is actual possession under a deed of only a part of the property, the law construes the possession to extend to the boundary of the tract. Lyons v. Bassford, 242 Ga. 466 , 249 S.E.2d 255 (1978).

Color of title will not extend beyond description contained in grant. Bradley v. Shelton, 189 Ga. 696 , 7 S.E.2d 261 (1940).

Showing of notoriety. - In cases involving prescription and in other cases respecting adverse possession, the element of notoriety as to an asserted constructive possession is adequately shown whenever the party asserting the adverse constructive possession shows color of title covering the land in dispute and produces proof either: (1) that the party's actual adverse possession has been maintained on a part of the land in dispute; or (2) that, while the party's actual possession may not have been maintained on a part of the land in dispute, yet it has been maintained on a portion of the tract included in the party's color of title, and that the conveyance which constitutes the color of title was duly recorded, or was otherwise brought to the knowledge (actual or constructive) of the person against whose title the adverse possession is asserted. On the other hand, if the possessor has no actual possession of any part of the tract claimed by the person against whom the adverse constructive possession is asserted, and the party's deed (though it includes the land in dispute) is not recorded and notice of the boundaries has not otherwise been given, the possessor cannot assert adverse constructive possession to the tract in dispute. Campbell v. Gregory, 200 Ga. 684 , 38 S.E.2d 295 (1946).

Adjacent Owners

If adjacent owners possess constructively same tract, no prescription arises in favor of either. Harriss v. Howard, 126 Ga. 325 , 55 S.E. 59 (1906).

Claimant in actual possession of a part of a tract may rely upon the presumption that the claimant's possession extends to the boundaries of the tract described in the claimant's paper title, although prescription will not run in the claimant's favor as against one having like constructive possession. Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940).

If the strip of land 50 feet broad is included in the deeds of both the defendant and the plaintiff, and the plaintiff is in possession of a part of the land conveyed by the deed to it, the occupancy by the defendant of a part of that strip of land 50 feet broad cannot ripen into a prescriptive title as against the other claimant. Atlanta & C.A.L. Ry. v. Colbert, 171 Ga. 196 , 154 S.E. 909 (1930), later appeal, 178 Ga. 450 , 173 S.E. 378 (1934).

When the parties to an action of ejectment to recover a strip of land are adjacent owners, the petition cannot seek a recovery on the theory of constructive possession by virtue of seven years' actual possession under color of title since, as between such adjacent owners, no prescription by constructive possession arises in favor of either. Robertson v. Abernathy, 192 Ga. 694 , 16 S.E.2d 584 (1941), later appeal, 195 Ga. 704 , 25 S.E.2d 424 (1943).

When the petitioner's predecessor in title and the defendant were in possession of a portion of the land described in their respective deeds, each was in constructive possession of the five-acre tract, and no prescriptive title could ripen in favor of the petitioner's predecessor in title. Tucker v. Long, 207 Ga. 730 , 64 S.E.2d 69 (1951).

Superiority of title aside from prescription determines rights. - When adjacent owners possess constructively the same tract, no prescription arises in favor of either; superiority of title aside from the prescription determines the matter. Harriss v. Howard, 126 Ga. 325 , 55 S.E. 59 (1906).

Prior constructive possession creates superior rights. - If neither party has the true title, and neither party claims prescriptive title by actual adverse possession under color of title, the rights of one who had the prior constructive possession are the superior. Allen v. Johns, 235 Ga. 667 , 219 S.E.2d 369 (1975).

Party having oldest title duly recorded should prevail in cases when adjacent owners are in constructive possession of the same land. Singer v. Shellhouse, 175 Ga. 136 , 165 S.E. 73 (1932).

Party having clear title prevailed over party with vague deed. - In a boundary dispute, constructive possession of the entirety of the tract described in a landowner's title was not defeated by O.C.G.A. § 44-5-166(b) because the deed by which the adjoining owner's heirs claimed title to the disputed land was vague and set forth no measured boundaries with respect to the property line; thus, the evidence did not establish they also constructively possessed the disputed land by virtue of their title. Mathews v. Cloud, 294 Ga. 415 , 754 S.E.2d 70 (2014).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 27, 123, 124, 126, 127, 257 et seq.

C.J.S. - 2 C.J.S., Adverse Possession, §§ 85, 225, 228 et seq.

ALR. - Adverse possession of railroad right of way, 50 A.L.R. 303 .

Purchase of, or offer to purchase or to settle, outstanding title, interest, or claim as interrupting continuity of adverse possession as regards another title, interest, or claim, 125 A.L.R. 825 .

Acquisition of title to mines or minerals by adverse possession, 35 A.L.R.2d 124.

Grantor's possession as adverse possession against grantee, 39 A.L.R.2d 353.

Adverse possession involving ignorance or mistake as to boundaries - modern views, 80 A.L.R.2d 1171.

44-5-167. Extent of constructive possession under deed; judicial notice.

Possession under a duly recorded deed shall be construed to extend to all the contiguous property embraced in such deed. To the extent that any such property is bounded on one or more sides by a railroad, and the description of the property contained in such deed makes reference to the railroad or the railroad right of way as a boundary for such property, such reference shall be construed to mean that the boundary line is located at the edge of the tract depicted on the official map of the railroad filed with the Interstate Commerce Commission pursuant to the Railroad Valuation Act of March 1, 1913, Stat. 701, as amended, and such depictions contained on such official railroad map shall be conclusive as to the location of the boundary line between the property of the railroad and any adjoining property owner as of the date of such railroad map; provided, however, that each railroad corporation and railroad company shall file and record such official map of the railroad with the superior court for the county in which such land depicted on such official railroad map is situated. Any court of this state shall take judicial notice of the information set forth in any such official map properly filed and recorded by such railroad corporation or railroad company.

(Civil Code 1895, § 3587; Civil Code 1910, § 4167; Code 1933, § 85-405; Ga. L. 2008, p. 210, § 6/HB 1283.)

The 2008 amendment, effective July 1, 2008, in the first sentence substituted "shall" for "will", substituted "such" for "the", and added the last two sentences.

History of section. - This Code section is derived from the decisions in Griffin v. Lee, 90 Ga. 224 , 15 S.E. 810 (1892) and Johnson v. Simerly, 90 Ga. 612 , 16 S.E. 951 (1892).

Editor's notes. - Ga. L. 2008, p. 210, § 1, not codified by the General Assembly, provides: "(a) The General Assembly finds that the railroads and their rights of way in Georgia:

"(1) Are essential to the continued viability of this state;

"(2) Are valuable resources which must be preserved and protected;

"(3) Are essential for the economic growth and development of this state;

"(4) Provide a necessary means of transporting raw materials, agricultural products, other finished products, and consumer goods and are also essential for the safe passage of hazardous materials;

"(5) Relieve congestion on the highways and keep dangerous products and materials off our highways;

"(6) Are vital for national defense and national security; and

"(7) Provide the most energy efficient means of transportation through this state, thus minimizing air pollution and fuel consumption.

"(b) The purpose of this Act is to protect the rights of way of railroads from loss by claims of adverse possession or other claims by prescription and to recognize the dimensions of these rights of way as they were identified and defined nearly 100 years ago."

Law reviews. - For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For survey article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For comment on Campbell v. Gregory, 200 Ga. 684 , 38 S.E.2d 295 (1946), see 9 Ga. B.J. 204 (1946).

JUDICIAL DECISIONS

"Contiguous" defined. - Word "contiguous," as used in this section, means to touch. Morris v. Gibson, 35 Ga. App. 689 , 134 S.E. 796 (1926).

Tracts of land which corner with one another are contiguous. Morris v. Gibson, 35 Ga. App. 689 , 134 S.E. 796 (1926).

Applicability. - Statute has no application to partition proceedings. Rowe v. Henderson Naval Stores Co., 143 Ga. 756 , 85 S.E. 917 (1915) (see O.C.G.A. § 44-5-167 ).

Color of title will not extend beyond description contained in grant. Bradley v. Shelton, 189 Ga. 696 , 7 S.E.2d 261 (1940).

Claimant in actual possession of a part of a tract may rely upon the presumption that the claimant's possession extends to the boundaries of the tract described in the claimant's paper title, although prescription will not run in the claimant's favor as against one having like constructive possession. Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940).

Person claiming under a recorded deed may have constructive possession of lands and may acquire a prescriptive title to all lands which are covered by the deed and are contiguous by having actual possession of a part thereof for a period of seven years. Mincey v. Anderson, 206 Ga. 572 , 57 S.E.2d 922 (1950).

Conveyance of several noncontiguous tracts by same deed. - If the same deed makes independent conveyances of two or more separate and noncontiguous tracts of land, actual possession of one or more of such distinct entities as thus conveyed will not be extended by construction to include them all; but if the several tracts designated as being included by the terms of the conveyance actually adjoin or corner, so as to in fact constitute a single parcel, actual possession of a portion of the premises thus conveyed will be extended by construction to include the entire premises. Morris v. Gibson, 35 Ga. App. 689 , 134 S.E. 796 (1926).

Deed did not embrace public right of way. - When a builder's trucks damaged grass near a curb in front of a landowner's house, and the grass was entirely within a public right of way owned by a county, the landowner did not have standing to sue the builder for trespass based on O.C.G.A. § 44-5-167 ; possession under § 44-5-167 extended to the contiguous property embraced in a deed, and the landowner's deed did not embrace the right of way. Moses v. Traton Corp., 286 Ga. App. 843 , 650 S.E.2d 353 (2007), cert. denied, 2007 Ga. LEXIS 743 (Ga. 2007).

Scope of possession when deed unrecorded. - In the case of an unrecorded deed, possession will not ordinarily extend by construction beyond the possessio pedis, even as to the lot or parcel on which actual possession is maintained of a portion, unless actual possession has been maintained of a portion of the land in dispute. Campbell v. Gregory, 200 Ga. 684 , 38 S.E.2d 295 (1946) commented on in 9 Ga. B.J. 204 (1946).

Ordinarily actual possession under a recorded deed of a portion of several specified tracts or lots of land which are all contiguous and lie in one body will extend by construction so as to include the entire premises conveyed; if, however, such possession is under an unrecorded deed, constructive possession will not extend beyond the tract or lot on which actual possession is maintained. Campbell v. Gregory, 200 Ga. 684 , 38 S.E.2d 295 (1946); Tucker v. Long, 207 Ga. 730 , 64 S.E.2d 69 (1951).

Before one can establish title by reason of possession under color of title, one must show: (1) that the writing which one claims as color of title purports to confer title upon the possessor; (2) actual possession of some portion of the tract; and (3) a claim of ownership over the portion not held in actual possession. Sewell v. Sprayberry, 186 Ga. 1 , 196 S.E. 796 (1938).

What is most material and most certain in description shall prevail over that which is less material and less certain. Sewell v. Sprayberry, 186 Ga. 1 , 196 S.E. 796 (1938).

Public recordation provides notoriety. - Public recordation of the deed is such adequate notice to the true owner as to invest the constructive possession with the element of notoriety essential to its being adverse. Gordon v. Georgia Kraft Co., 217 Ga. 500 , 123 S.E.2d 540 (1962).

Evidence of notoriety. - In cases involving prescription and in other cases respecting adverse possession, the element of notoriety as to an asserted constructive possession is adequately shown whenever the party asserting the adverse constructive possession shows color of title covering the land in dispute and produces proof either: (1) that one's actual adverse possession has been maintained on a part of the land in dispute; or (2) that, while one's actual possession may not have been maintained on a part of the land in dispute, yet it has been maintained on a portion of the tract included in one's color of title, and that the conveyance which constitutes the color of title was duly recorded, or was otherwise brought to the knowledge (actual or constructive) of the person against whose title the adverse possession is asserted. On the other hand, if the possessor has no actual possession of any part of the tract claimed by the person against whom the adverse constructive possession is asserted, and one's deed (though it includes the land in dispute) is not recorded and notice of the boundaries has not otherwise been given, the possessor cannot assert adverse constructive possession to the tract in dispute. Campbell v. Gregory, 200 Ga. 684 , 38 S.E.2d 295 (1946).

Assertion of dominion over pond extended to uncultivated contiguous land. - In a boundary dispute, the evidence was sufficient for the jury to find that a landowner was entitled to judgment pursuant to prescriptive title under O.C.G.A. § 44-5-161(a) because a dam creating the disputed pond broke in 1994, and the landowner reconstructed the dam at the landowner's sole cost; the neighbors raised no objection to this act of actual possession and ownership. These acts extended to the property line set forth in the landowner's deed even though some of the disputed land was not enclosed or cultivated. Mathews v. Cloud, 294 Ga. 415 , 754 S.E.2d 70 (2014).

Cited in Parker v. Jones, 57 Ga. 204 (1876); Jones v. Patterson, 62 Ga. 527 (1879); Ford v. Williams, 73 Ga. 106 (1884); Griffin v. Lee, 90 Ga. 224 , 15 S.E. 810 (1892); Johnson v. Simerly, 90 Ga. 612 , 16 S.E. 951 (1892); Carstarphen v. Holt, 96 Ga. 203 , 23 S.E. 904 (1895); Knight v. Isom, 113 Ga. 613 , 39 S.E. 103 (1901); Baxley v. Baxley, 117 Ga. 60 , 43 S.E. 436 (1903); Tison v. South Ga. Ry., 8 Ga. App. 91 , 68 S.E. 651 (1910); Rowan v. Newbern, 32 Ga. App. 363 , 123 S.E. 148 (1924); Tucker v. Wimpey, 158 Ga. 820 , 124 S.E. 692 (1924); Anderson v. Black, 191 Ga. 627 , 13 S.E.2d 650 (1941); Hardy v. Brannen, 194 Ga. 252 , 21 S.E.2d 417 (1942); Holloway v. Woods, 195 Ga. 55 , 23 S.E.2d 254 (1942); Elliott v. Robinson, 198 Ga. 811 , 33 S.E.2d 95 (1945); Knighton v. Hasty, 200 Ga. 507 , 37 S.E.2d 382 (1946); Farrar v. Gulf Oil Corp., 208 Ga. 212 , 66 S.E.2d 55 (1951); Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977); Wisenbaker v. Warren, 196 Ga. App. 551 , 396 S.E.2d 528 (1990).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 27, 16 et seq., 25 et seq., 126, 127, 256 et seq.

C.J.S. - 2 C.J.S., Adverse Possession, §§ 71 et seq., 111, 228 et seq., 275.

ALR. - Adverse possession of railroad right of way, 50 A.L.R. 303 .

Tacking adverse possession of area not within description of deed or contract, 17 A.L.R.2d 1128.

44-5-168. Adverse possession of mineral rights under certain conditions; procedure to obtain title.

  1. Whenever mineral rights are conveyed or whenever real property is conveyed in fee simple but the mineral rights to such property are reserved by the grantor, the owner of the real property in fee simple or his heirs or assigns may gain title to such mineral rights by adverse possession if the owner of the mineral rights or his heirs or assigns have neither worked nor attempted to work the mineral rights nor paid any taxes due on them for a period of seven years since the date of the conveyance and for seven years immediately preceding the filing of the petition provided for in subsection (b) of this Code section.
  2. In order to obtain absolute title to mineral rights in the circumstances described in subsection (a) of this Code section:
    1. The owner of the real property in fee simple or his heirs or assigns may file in the superior court for the county where the land is located a petition requesting relief in the nature of declaratory judgment. The petition:
      1. Shall contain all essential, required paragraphs, including jurisdiction;
      2. Shall contain the name and last known address of the grantor of the property reserving the mineral rights and the names and last known addresses of his heirs or assigns or any other person known by the plaintiff to have an interest in the mineral rights;
      3. Shall show:
        1. That the plaintiff or his predecessors in title were granted and obtained a deed for the property in question;
        2. That the conveyance reserved mineral rights or that the plaintiff or his predecessors in title conveyed the mineral rights and reserved or retained the fee simple title to the real property; and
        3. That, for a period of seven years preceding the filing of the petition after the conveyance, the owner of the mineral rights or his heirs or assigns have neither worked nor attempted to work the mineral rights nor paid taxes on them; and
      4. Shall include any and all prayers regarding the land that the plaintiff may desire. Specifically, the petition may pray that the court find that the plaintiff has obtained title to the mineral rights through adverse possession and that the plaintiff be granted title to mineral rights;
    2. Upon a finding in the plaintiff's favor, the court shall issue a judgment and decree declaring that the mineral rights involved have been lost and that the plaintiff has gained absolute title to such mineral rights; and
    3. Service shall be perfected in the same manner as service on defendants in an in rem proceeding, including service by publication.
  3. Nothing in this Code section shall restrict the court from granting further plenary relief, whether legal or equitable; and the failure of the petition in the plaintiff's favor shall not affect the right of the plaintiff to any other relief, legal or equitable, to which he may be entitled.
  4. Any person named in the petition or any person having an interest in the mineral rights shall have the right to intervene in a case brought under this Code section.
  5. In order to maintain the status quo pending the adjudication of the questions or to preserve equitable rights, the court may grant injunctions and other interlocutory extraordinary relief.
  6. Nothing in this Code section shall apply to a lease for a specific number of years nor to an owner of mineral rights who has leased the mineral rights in writing to a licensed mining operator as defined in Part 3 of Article 2 of Chapter 4 of Title 12.

    (Code 1933, § 85-407.1, enacted by Ga. L. 1975, p. 725, § 1; Ga. L. 1987, p. 3, § 44.)

Cross references. - Provision that owner of real property owns upward and downward indefinitely, §§ 44-1-2 , 51-9-9 .

Law reviews. - For article discussing the effect of Texaco, Inc. v. Short, 454 U.S. 516 (1982) on marketable title laws, see 34 Mercer L. Rev. 1005 (1983). For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986).

JUDICIAL DECISIONS

Section constitutional. - Application of O.C.G.A. § 44-5-168 does not violate the state constitutional prohibition against impairment of the obligation of contracts. The preservation of the mineral owner's claim under § 44-5-168 depends only upon the owner's use of the minerals or upon returning them for taxes, which is a minimal burden that does not impair contractual obligations. Hayes v. Howell, 251 Ga. 580 , 308 S.E.2d 170 (1983); Georgia Marble Co. v. Whitlock, 260 Ga. 350 , 392 S.E.2d 881 (1990), cert. denied, 498 U.S. 1025, 111 S. Ct. 675 , 112 L. Ed. 2 d 667 (1991).

Protection against retroactive (or retrospective) laws prohibits the impairment of vested rights. Although owners of mineral interests may be said to have "vested rights," that property is held subject to the proper exercise of the police power by legislative bodies. O.C.G.A. § 44-5-168 does not divest the mineral owner of the owner's rights; it conditions the retention of those rights upon the requirements of either using the minerals or paying taxes upon the minerals for the public benefit. Hayes v. Howell, 251 Ga. 580 , 308 S.E.2d 170 (1983).

Exclusion of fixed duration leases and leases to certain licensed mining operators contained in subsection (f) of O.C.G.A. § 44-5-168 does not violate the equal protection clause of the fourteenth amendment. Mixon v. One Newco, Inc., 863 F.2d 846 (11th Cir. 1989).

Phrase "worked" or "attempted to work the mineral rights" is not unconstitutionally vague under the first amendment of the state or federal constitutions. Fisch v. Randall Mill Corp., 262 Ga. 861 , 426 S.E.2d 883 , cert. denied, 510 U.S. 824, 114 S. Ct. 84 , 126 L. Ed. 2 d 52 (1993).

O.C.G.A. § 44-5-168 actually is a "lapse" statute rather than a traditional "adverse possession" law. Mixon v. One Newco, Inc., 863 F.2d 846 (11th Cir. 1989).

Section strictly construed. - O.C.G.A. § 44-5-168 is in derogation of the common law and must be strictly construed. Larkin v. Laster, 254 Ga. 716 , 334 S.E.2d 158 (1985).

Word "since" in subsection (a) of O.C.G.A. § 44-5-168 does not necessarily imply "immediately following." Moreover, use of the indefinite article in the reference to "a period of seven years" as opposed to "the period" indicates that any seven-year period of nonuse or nonpayment of taxes following the date of conveyance would suffice. Mixon v. One Newco, Inc., 863 F.2d 846 (11th Cir. 1989).

Applicability to mineral rights obtained prior to 1975. - O.C.G.A. § 44-5-168 may be applied to mineral rights obtained prior to the statute's effective date, 1975, although suit could not be brought until 1982, seven years after the statute's effective date. Milner v. Bivens, 255 Ga. 49 , 335 S.E.2d 288 (1985).

Venue. - Landowner's suit is clearly not in equity if the landowner seeks to establish legal title by adverse possession as a matter of law in reliance on a statute. Venue is constitutionally in the county in which the land lies, as provided in paragraph (b)(1) of O.C.G.A. § 44-5-168 . Hayes v. Howell, 251 Ga. 580 , 308 S.E.2d 170 (1983).

Words "heirs" and "assigns" means only heirs and assigns of the real property in fee simple. Larkin v. Laster, 254 Ga. 716 , 334 S.E.2d 158 (1985).

"Work" defined. - To meet the requirement of working or attempting to work mineral rights under O.C.G.A. § 44-5-168 , the owner of the mineral interests must carry on an operation to explore for, use, produce, or extract minerals in the land - the owner must do more than conduct genealogical research and pick up rock samples to meet this standard. Fisch v. Randall Mill Corp., 262 Ga. 861 , 426 S.E.2d 883 , cert. denied, 510 U.S. 824, 114 S. Ct. 84 , 126 L. Ed. 2 d 52 (1993).

Complaint deemed "filed" on date attorney instructs delivery. - When attorney delivered petition claiming adverse possession to clerk on June 30 but instructed clerk to withhold delivery of summons and complaint to sheriff for service until further notice, complaint was deemed "filed" on the date attorney instructed delivery to be made, even though it was stamped "filed" on June 30. ITT Rayonier, Inc. v. Hack, 254 Ga. 324 , 328 S.E.2d 542 (1985).

Rights protected under subsection (f). - General Assembly intended to exclude from O.C.G.A. § 44-5-168 , and thereby protect the rights of, lessees of mineral rights whether such lessees held leases for a specific number of years or were licensed mining operators. Hinson v. Loper, 251 Ga. 239 , 304 S.E.2d 722 (1983).

Rights of successors in interest of party reserving mineral rights were protected under subsection (f) of O.C.G.A. § 44-5-168 . Hinson v. Loper, 251 Ga. 239 , 304 S.E.2d 722 (1983).

Adverse possession rights nonassignable. - Right to seek good title to mineral rights by adverse possession under O.C.G.A. § 44-5-168 cannot be assigned. Larkin v. Laster, 254 Ga. 716 , 334 S.E.2d 158 (1985).

Knowledge of record title holder. - Nothing in O.C.G.A. § 44-5-168 precludes the holder of record title from acquiring title to mineral rights if one is aware of the mineral right owner's failure to use the rights or to pay taxes during a seven year period. James F. Nelson, Jr. Family Ltd. Partnership v. Miller, 267 Ga. 466 , 479 S.E.2d 737 (1997).

Payment of taxes by corporation instead of stockholders avoided lapse of mineral rights. - Plaintiffs, a corporation and the corporation's three primary stockholders, avoided the lapse of their mineral rights under O.C.G.A. § 44-5-168(a) by paying taxes on the mineral rights, and the fact that taxes were paid by the corporation rather than by simply the individual stockholders for certain periods did not change the outcome since, for the purpose of payment of taxes on the mineral rights, there was such an identity of ownership and interest among the individual stockholders and the corporation that it was impossible to distinguish among the various plaintiffs in the allocation of the tax liability or its payment. Allgood Farm, LLC v. Johnson, 275 Ga. 297 , 565 S.E.2d 471 (2002).

Mineral owners cannot claim benefit of tax payments made by landowners. - O.C.G.A. § 44-5-168 contemplates payment of taxes upon the mineral rights, as such, by the holder of the mineral rights who is not the owner of the real property in fee simple. Having failed to make such payments, the mineral owner is not entitled to claim the benefit of tax payments made by the landowners. Hayes v. Howell, 251 Ga. 580 , 308 S.E.2d 170 (1983).

Payment of back taxes after suit immaterial. - Payment of the seven year's back taxes owed by the owner of mineral rights, after the petition for adverse possession was filed, had no effect under O.C.G.A. § 44-5-168 . Larkin v. Laster, 254 Ga. 716 , 334 S.E.2d 158 (1985).

Mineral owner must show work or payment of ad valorem taxes. - To retain one's interest in the mineral rights, the owner must attempt to work or work the mineral rights or return the property for and pay ad valorem taxes. Dubbers-Albrecht v. Nathan, 257 Ga. 111 , 356 S.E.2d 205 (1987).

Because the owner actually paid ad valorem taxes on all the mineral rights reserved on the property owned by a ranch, under the clear language of the Mineral Lapse Statute, O.C.G.A. § 44-5-168 , the ranch could not prevail on the ranch's adverse possession claim and the owner was entitled to summary judgment. Cartersville Ranch, LLC v. Dellinger, 295 Ga. 195 , 758 S.E.2d 781 (2014).

Payment of estate taxes will not suffice. - Payment of state or federal estate taxes on the interest of the mineral rights owner does not further the purposes of O.C.G.A. § 44-5-168 , as there is no assurance payment of such taxes will be required or occur during the seven-year period. Dubbers-Albrecht v. Nathan, 257 Ga. 111 , 356 S.E.2d 205 (1987).

Lump-sum tax payments without itemizing specific property interests. - When an owner of mineral rights had entered into an agreement with the county where the property was located to pay lump-sum taxes without itemizing the specific property interests, the agreement did not meet the requirements of O.C.G.A. § 48-5-15(c) , nor did it constitute payment of taxes due within the meaning of O.C.G.A. § 44-5-168 . Georgia Marble Co. v. Whitlock, 260 Ga. 350 , 392 S.E.2d 881 (1990), cert. denied, 498 U.S. 1025, 111 S. Ct. 675 , 112 L. Ed. 2 d 667 (1991).

Term of lease construed. - Agreement which created a lease to mine for a 50-year period and gave an option to continue that had to be exercised by mining within that period, qualified as a lease for a specific number of years, even though it was provided that the lease would continue indefinitely if the option were exercised. Parker v. Reynolds Metals Co., 747 F. Supp. 711 (M.D. Ga. 1990).

Failure to perform duties. - Trial court did not err in granting the personal representatives of a sister's estate summary judgment in their action against a brother's heirs seeking a declaration that a one-half mineral interest the brother held in certain land had reversed to the sister by operation of O.C.G.A. § 44-5-168 because there was no evidence presented that the brother or the brother's heirs performed the duties that would have avoided the effect of § 44-5-168 ; neither the heirs nor the brother paid any taxes on the one-half mineral interest after the land became titled in the sister, and there was no evidence that there was any attempt to work the mineral rights during the seven years prior to suit being filed. Knox v. Wilson, 286 Ga. 474 , 689 S.E.2d 829 (2010).

Equitable estoppel inapplicable. - Brother's heirs failed to present evidence justifying the application of the doctrine of equitable estoppel in an action filed by the personal representatives of a sister's estate, seeking a declaration that a one-half mineral interest the brother held in certain land had reversed to the sister by operation of O.C.G.A. § 44-5-168 because there was no evidence of an agreement by which the sister undertook to relieve the brother, and later his heirs, of the obligation to comply with the requirements of § 44-5-168 , and there was no evidence that the sister ever made any promise or commitment intended to influence the holders of the one-half mineral interest to neglect their obligations under § 44-5-168; there was no reasonable inference that any holder of any mineral interest relied upon any representation of the sister in neglecting to follow § 44-5-168. Knox v. Wilson, 286 Ga. 474 , 689 S.E.2d 829 (2010).

Cited in Nelson v. Bloodworth, 238 Ga. 264 , 232 S.E.2d 547 (1977); Johnson v. Bodkin, 241 Ga. 336 , 247 S.E.2d 764 (1978); Watson v. Wachovia Nat'l Bank, 207 Ga. App. 780 , 429 S.E.2d 111 (1993).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, § 278 et seq. 53A Am. Jur. 2d, Mines and Minerals, §§ 19, 20, 119.

C.J.S. - 58 C.J.S., Mines and Minerals, §§ 129 et seq., 150 et seq., 168, 195.

ALR. - Oil or gas or other mineral rights in land as affected by language in conveyance specifying purpose for which the property is to be used, 39 A.L.R. 1340 .

May adverse possession be predicated upon use or occupancy by one spouse of real property of other, 74 A.L.R. 138 .

Acquisition of title to mines or minerals by adverse possession, 35 A.L.R.2d 124.

Title by or through adverse possession as marketable, 46 A.L.R.2d 544.

Validity and construction of statutes providing for reversion of mineral estates for abandonment or nonuse, 16 A.L.R.4th 1029.

Method of calculating attorneys' fees awarded in common-fund or common-benefit cases - state cases, 56 A.L.R.5th 107.

44-5-169. Possession of land as notice; presumption from possession of husband and wife.

Possession of land shall constitute notice of the rights or title of the occupant. Possession by the husband with the wife is presumptively the possession of the husband, but this presumption may be rebutted.

(Civil Code 1895, § 3931; Civil Code 1910, § 4528; Code 1933, § 85-408.)

History of section. - This Code section is derived from the decision in Broome v. Davis, 87 Ga. 584 , 13 S.E. 749 (1891).

Cross references. - Gender-neutral statutory construction, § 1-3-1 .

Law reviews. - For article, "Noticing the Bankruptcy Sale: The Purchased Property May Not Be as 'Free and Clear of All Liens, Claims and Encumberances' as You Think," see 15 (No. 5) Ga. St. B.J. 12 (2010). For comment on NeSmith v. Calder, 163 Ga. 4 , 135 S.E. 67 (1926), see 1 Ga. L. Rev. No. 1 P. 49 (1927). For comment on Wren v. Wren, 199 Ga. 851 , 36 S.E.2d 77 (1945), see 9 Ga. B.J. 88 (1946).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Principle is not a new one and has always been the law of this state. Hadaway v. Smedley, 119 Ga. 264 , 46 S.E. 96 (1903).

Statute operates only in favor of a bona fide purchaser without notice. Williamson v. Floyd County Wildlife Ass'n, 216 Ga. 760 , 119 S.E.2d 344 (1961) (see O.C.G.A. § 44-5-169 ).

Provisions on cotenants construed in connection with this section. - Former Code 1933, §§ 85-1001, 85-1003, and 85-1005 (see O.C.G.A. §§ 44-6-120 , 44-6-121 , and 44-6-123 ), relating to the rights of cotenants, must be construed in connection with former Code 1933, § 85-408 (see O.C.G.A. § 44-5-169 ) relating to possession of land as notice of right and title. Wren v. Wren, 199 Ga. 851 , 36 S.E.2d 77 (1945); 9 Ga. B.J. 88 (1946).

Section has been applied in favor of the following persons: (1) a grantor after making a deed, Kent v. Simpson, 142 Ga. 49 , 82 S.E. 440 (1914); (2) a trustee holding through his tenants, Bridger v. Exchange Bank, 126 Ga. 821 , 56 S.E. 97 , 115 Am. St. R. 118 , 8 L.R.A. (n.s.) 463 (1906); (3) a cestui que trust in possession, Broadwell v. Maxwell, 30 Ga. App. 738 , 119 S.E. 344 (1923); and (4) a vendee, under bond for title, Burr v. Toomer, 103 Ga. 159 , 29 S.E. 692 (1897); Georgia State Bldg. & Loan Ass'n v. Faison, 114 Ga. 655 , 40 S.E. 760 (1902); Mayor of Savannah v. Standard Fuel Supply Co., 151 Ga. 145 , 106 S.E. 178 (1921).

For an exhaustive review of cases decided upon the principle inculcated by this statute, see McDonald v. Dabney, 161 Ga. 711 , 132 S.E. 547 (1926) (see O.C.G.A. § 44-5-169 ).

Cited in De Loach v. Sikes, 169 Ga. 465 , 150 S.E. 591 (1929); James v. Hudson, 170 Ga. 321 , 152 S.E. 829 (1930); Walker v. First Nat'l Bank, 178 Ga. 542 , 173 S.E. 430 (1934); Fite v. Walker, 183 Ga. 46 , 187 S.E. 95 (1936); Williford v. Swint, 183 Ga. 375 , 188 S.E. 685 (1936); Fulmore v. Macon Fed. Savs. & Loan Ass'n, 191 Ga. 151 , 11 S.E.2d 790 (1940); Joel v. Publix-Lucas Theater, Inc., 193 Ga. 531 , 19 S.E.2d 730 (1942); Pope v. Williams, 70 Ga. App. 834 , 29 S.E.2d 808 (1944); Davis v. Akridge, 199 Ga. 867 , 36 S.E.2d 102 (1945); Toms v. Knighton, 199 Ga. 858 , 36 S.E.2d 315 (1945); Rogers v. Manning, 200 Ga. 844 , 38 S.E.2d 724 (1946); Smith v. Lanier, 202 Ga. 165 , 42 S.E.2d 495 (1947); Clarke v. Phillips, 204 Ga. 772 , 51 S.E.2d 848 (1949); Lewis v. Lewis, 210 Ga. 330 , 80 S.E.2d 312 (1954); Phillips v. Wheeler, 212 Ga. 603 , 94 S.E.2d 732 (1956); Allen v. Bobo, 215 Ga. 707 , 113 S.E.2d 138 (1960); Ammons v. Central of Ga. Ry., 215 Ga. 758 , 113 S.E.2d 438 (1960); Williamson v. Floyd County Wildlife Ass'n, 215 Ga. 789 , 113 S.E.2d 626 (1960); Seay v. Malone, 219 Ga. 149 , 132 S.E.2d 261 (1963); Waddell v. City of Atlanta, 121 Ga. App. 94 , 172 S.E.2d 862 (1970); Davis v. Leach, 228 Ga. 139 , 184 S.E.2d 454 (1971); Gauker v. Eubanks, 230 Ga. 893 , 199 S.E.2d 771 (1973); Mrs. E.B. Smith Realty Co. v. Hubbard, 130 Ga. App. 672 , 204 S.E.2d 366 (1974); Cloud v. Jacksonville Nat'l Bank, 239 Ga. 353 , 236 S.E.2d 587 (1977); Pierce v. Thomas, 258 Ga. 469 , 369 S.E.2d 742 (1988).

Possession of Land as Notice
1. Required Elements

Possession must be present, peaceable, open, and notorious. Wilkinson v. Dix, 151 Ga. 605 , 107 S.E. 844 (1921).

Possession must be actual, exclusive, and unambiguous. - In order for the possession to have the effect of notice possession must be actual, open, visible, exclusive, and unambiguous. McDonald v. Dabney, 161 Ga. 711 , 132 S.E. 547 (1926).

To operate as notice, the possession must be open, visible, exclusive, unambiguous, and not liable to be misconstrued or misunderstood. It must not be a mixed or ambiguous possession. Yancey v. Harris, 234 Ga. 320 , 216 S.E.2d 83 (1975).

In order for possession to have the effect of notice, it must be actual, open, visible, exclusive, and unambiguous. Bacote v. Wyckoff, 251 Ga. 862 , 310 S.E.2d 520 (1984).

"Possession," such as would constitute notice, is restricted to "actual possession," for the notice is of whatever right the occupant has. Chandler v. Georgia Chem. Works, 182 Ga. 419 , 185 S.E. 787 (1936).

Actual possession by the cestui que trust is constructive notice to a purchaser of the occupant's equitable title, and a purchaser bona fide and for value from the trustee takes with notice of the equitable title. Bank of Arlington v. Sasser, 182 Ga. 474 , 185 S.E. 826 (1936).

Children's residence with father not sufficient to put purchaser upon notice of children's equity. - When minor children reside with their father, who is in possession of land to which he has the legal title, the children's residence on the land is not sufficient to put a purchaser from the father upon notice or inquiry as to any secret equity the children might have therein. Citizens' Bank v. Taylor, 169 Ga. 203 , 149 S.E. 861 (1929).

Possession of land must have element in it indicative that occupancy is exclusive in nature. McDonald v. Taylor, 200 Ga. 445 , 37 S.E.2d 336 (1946).

Exclusive nature of occupancy. - Possession of land effectual to impute notice must have some element in it indicative that the occupancy is exclusive in nature. Manning v. Manning, 135 Ga. 597 , 69 S.E. 1126 (1911).

Possession of land which will be notice of the occupant's title must have some element in it indicative that the occupancy is exclusive in its nature. McDonald v. Dabney, 161 Ga. 711 , 132 S.E. 547 (1926).

Effect of occupancy connected with another with relationship sufficient to account for situation. - Correct rule is that when the occupation by one is not exclusive, but in connection with another, with respect to whom there exists a relationship sufficient to account for the situation, and the circumstances do not suggest an inconsistent claim, then such a possession will not give notice of a right by an unrecorded grant. If, of the two occupants, one has the record title, a purchaser has the right to assume that the other has no title. Yancey v. Harris, 234 Ga. 320 , 216 S.E.2d 83 (1975).

Possession under unrecorded deed, together with grantor, not constructive notice. - Possession of land by the grantee, holding under an unrecorded deed, together with the grantor, is not constructive notice of the unrecorded deed to a subsequent purchaser. Bell v. Bell, 178 Ga. 225 , 172 S.E. 566 (1934).

Possession of land must be open, visible, exclusive, unambiguous, and not liable to be misconstrued or misunderstood. It must not be a mixed or ambiguous possession. Accordingly, possession of land by a grantee, holding under an unrecorded deed, together with the grantor, is not constructive notice of the unrecorded deed to a subsequent purchaser. McDonald v. Taylor, 200 Ga. 445 , 37 S.E.2d 336 (1946).

Purchaser from landlord takes with notice of tenant's rights. - When one purchases realty from a landlord, one takes with notice of whatever right or title the tenant in possession at the time may have. Blanton v. Moseley, 133 Ga. App. 144 , 210 S.E.2d 368 (1974).

Purchaser with absolute, recorded deed authorized to assume tenant's possession not adverse. - Possession of the tenant, being the possession of the landlord, and the landlord having apparently executed an absolute deed conveying to another, and that deed being recorded, the purchaser would be authorized to assume that, as a matter of law, the possession of the tenant was held under the grantee, and not adversely to the latter's title. Chestnut v. Weekes, 180 Ga. 701 , 180 S.E. 716 (1935).

Possession at time purchaser obtains title charges notice. - Prior possession of land is not notice to a purchaser; possession of real property which will charge a purchaser with notice is possession at the time the purchaser obtains title. Wood v. Bowden, 182 Ga. 329 , 185 S.E. 516 (1936); McDonald v. Taylor, 200 Ga. 445 , 37 S.E.2d 336 (1946).

Builder's possession of a lot in a subdivision which was not a development of the builder did not give notice of the builder's ownership of that lot. Palmer v. Forrest, Mackey & Assocs., 251 Ga. 304 , 304 S.E.2d 704 (1983).

2. Occupant's Right or Title

Party not estopped to claim land by allowing legal title in another. - Statute establishes a flat rule that one is not estopped to claim land by the mere act of allowing legal title to stand in the name of another. Yancey v. Harris, 234 Ga. 320 , 216 S.E.2d 83 (1975) (see O.C.G.A. § 44-5-169 ).

Actual possession is notice to the world of the right or title of the occupant. Chandler v. Georgia Chem. Works, 182 Ga. 419 , 185 S.E. 787 (1936); Perimeter Dev. Corp. v. Haynes, 234 Ga. 437 , 216 S.E.2d 581 (1975).

Possession is not only notice of the rights of the possessor, but of those under whom the possessor claims. Walker v. Neil, 117 Ga. 733 , 45 S.E. 387 (1903); Austin v. Southern Home Bldg. & Loan Ass'n, 122 Ga. 439 , 50 S.E. 382 (1905); McDonald v. Dabney, 161 Ga. 711 , 132 S.E. 547 (1926).

Bona fide possession under unrecorded deed is notice of character and extent of occupant's title as to the whole lot described. Terrell v. McLean, 130 Ga. 633 , 61 S.E. 485 (1908).

Possession of land is generally notice of whatever right or title the occupant has, and to have this effect the possession must have some element in it indicative that the occupancy is exclusive in its nature, and such possession must be open, visible, exclusive, unambiguous, and not liable to be misconstrued or misunderstood. Bell v. Bell, 178 Ga. 225 , 172 S.E. 566 (1934).

Notice not limited to what discovered by examining public records. - Possession of land is notice of whatever right or title the occupant has, and such a notice is not limited to what would be discovered by an examination of the public records. Moore v. Hartford Accident & Indem. Co., 102 Ga. App. 514 , 117 S.E.2d 206 (1960).

Mere naked possession may in time ripen into perfect and indefeasible title. - Actual occupation or mere naked possession of land is prima facie evidence of legal title in the possessor, and it may by length of time ripen into a perfect and indefeasible title, and if one dies in possession of land under a claim of ownership, such possession is prima facie evidence of title in the occupant and can be the basis of recovery in ejectment, unless a better title by adverse title or otherwise appears. Hicks v. Hicks, 193 Ga. 382 , 18 S.E.2d 763 (1942).

3. Purchaser's Duty to Inquire

Purchaser or contractor for lien must inquire into possessor's rights. - It is incumbent upon one who purchases or contracts for a lien on land to inquire into the right of any person in possession thereof. Neal v. Jones, 100 Ga. 765 , 28 S.E. 427 (1897); Yancey v. Montgomery & Young, 173 Ga. 178 , 159 S.E. 571 (1931); Collins v. Freeman, 226 Ga. 610 , 176 S.E.2d 704 (1970).

Knowledge chargeable to inquirer not limited to that in public records. - Knowledge chargeable to a party after the party is put on inquiry is not limited to such knowledge only as would be gained by an examination of the public records. Dyal v. McLean, 188 Ga. 229 , 3 S.E.2d 571 (1939).

Presumption that inquiry will disclose real adverse holder. - Principle upon which the rule embodied in this statute is found is that adverse possession of land is notice of whatever facts in reference to the title would be developed by an inquiry of the person in possession, the presumption being that an inquiry of one will disclose how, or under what right, one holds possession, and therefore lead to the discovery of the real adverse holder, whether one or another for whom one holds possession. Hall v. Turner, 198 Ga. 763 , 32 S.E.2d 829 (1945) (see O.C.G.A. § 44-5-169 ).

4. Grantor Remaining in Possession

Grantor must take step beyond mere possession. - While grantor may not adversely possess against a grantee where the grantor simply remains in possession after a conveyance, where a grantor in possession takes some additional step which gives unequivocal notice that one is claiming property as one's own, the prescriptive period begins to run. Seignious v. Metropolitan Atlanta Rapid Transit Auth., 252 Ga. 69 , 311 S.E.2d 808 (1984).

Section inapplicable to party in possession against own warranty deed. - Provisions of this statute can have no application to the case of a party who is endeavoring to avail oneself of one's possession in the fact of one's own warranty deed, spread on the record, as against an innocent purchaser for value and without notice. Malette v. Wright, 120 Ga. 735 , 48 S.E. 229 (1904) (see O.C.G.A. § 44-5-169 ).

Possession of land remaining with grantor and never surrendered is deemed as held under grantee. Such possession will be construed as consistent with the grantor's recorded deed, and is not notice to an innocent purchaser from the grantee of any mistake in the deed whereby a larger tract was inadvertently conveyed than the parties to the deed intended. Under these circumstances, such possession, although remaining with the grantor and never surrendered, is not deemed adverse to the title of the grantor's grantee, and a prescriptive title in favor of the grantor can never ripen under such possession. Stepp v. Stepp, 195 Ga. 595 , 25 S.E.2d 6 (1943).

That grantor found in possession after delivery suggestive of retention of some interest. - An absolute deed divests the grantor of the right of possession, as well as of the legal title, and when one is found in possession after delivery of one's deed, it is a fact inconsistent with the legal effect of the deed, and is suggestive that one still retains some interest in the premises; to say that the grantor is estopped by this deed is begging the question, for one's possession is notice to third parties of one's rights, and there is no principle of estoppel that would prevent one from asserting against purchasers or creditors any claim to the premises which one might assert against one's grantee. Chandler v. Georgia Chem. Works, 182 Ga. 419 , 185 S.E. 787 (1936).

Continued possession by grantor demands inquiry from purchaser. - Continued possession of a grantor who executes an absolute deed demands that one who purchases from the grantee inquire into the right of one's occupancy. Chandler v. Georgia Chem. Works, 182 Ga. 419 , 185 S.E. 787 (1936).

"Absolute" deed may be shown to be for grantor-possessor's benefit. - Deed "absolute" in form may be shown by parol evidence to have been made in trust for the benefit of the grantor if the maker remains in possession of the land. Chandler v. Georgia Chem. Works, 182 Ga. 419 , 185 S.E. 787 (1936).

When a vendor remains in possession after an absolute sale, this is prima facie evidence of fraud, which may be explained, and after possession is proved, the burden of explaining it rests upon those claiming under the sale. Robinson v. Wright, 217 Ga. 199 , 121 S.E.2d 640 (1961).

Possession retained by the vendor, after the absolute sale of real or personal property, is prima facie evidence of fraud, which may be explained, and after the possession is proven, the burden of explaining it rests upon those who claim under the sale. Perimeter Dev. Corp. v. Haynes, 234 Ga. 437 , 216 S.E.2d 581 (1975).

Possession remaining with vendor after conveyance evidence of fraud. - Possession of property, real or personal, remaining with the vendor after an absolute deed of conveyance, is evidence of fraud. Perimeter Dev. Corp. v. Haynes, 234 Ga. 437 , 216 S.E.2d 581 (1975).

5. Proof

Proof of possession must be clear and satisfactory. - Possession of land which will be notice of the occupant's right to title must be actual, open, visible, exclusive, and unambiguous at the time of the land's purchase by another, and the protection which the registration law gives to one taking title to lands upon the faith of the record title requires that proof of such possession be clear and satisfactory. Anderson v. Barron, 208 Ga. 785 , 69 S.E.2d 874 (1952).

Genuine Issue of Fact

Inquiry notice based on possession. - Trial court erred by granting summary judgment to the plaintiff because the record showed that there was an issue of fact as to whether the defendants' possession of the property put the plaintiff on inquiry notice of the defendants' title despite the defendants' deed not being recorded. Caraway v. Spillers, 332 Ga. App. 588 , 774 S.E.2d 162 (2015).

Onus of explanation, after possession is proven, is upon the grantee. Perimeter Dev. Corp. v. Haynes, 234 Ga. 437 , 216 S.E.2d 581 (1975).

When no proof of title by plaintiff, claimant bound to make good title. - Burden of proof in the trial of claim cases is on the plaintiff, when the defendant is not in possession of the property. The bare possession of the property by the defendant is evidence of defendant's ownership, and the claimant is bound, when that is shown, without any proof of title in the claimant by the plaintiff, to make good title. Hicks v. Hicks, 193 Ga. 382 , 18 S.E.2d 763 (1942).

6. Illustrative Cases

Subsequent purchaser of timber leases takes subject to first lessee in possession. - When a lessee of timber for turpentine purposes, while in possession of the timber under recorded leases, obtained and paid for extensions of such leases for one year, and after the purchase of such extensions, which were not recorded, a third person acquired by purchase from the same lessors conflicting leases on the same timber, to commence immediately after the expiration of the recorded leases of the first lessee, it could not be said as a matter of law that the subsequent purchaser, in the absence of an inquiry of the first lessee as to that lessee's rights in the timber as evidenced by that lessee's possession and use of the same for turpentine purposes, did not take subject to the interest of the latter under the latter's unrecorded extensions. Dyal v. McLean, 188 Ga. 229 , 3 S.E.2d 571 (1939).

Church property held in trust. - In a quiet title action involving church property, the trial court erred in making the legal conclusion that the founding pastor held the church property in fee simple absolute instead of in trust for and on behalf of the religious corporation as Georgia law expressly authorizes the creation of religious land trusts and the deed expressly referred to the pastor as a trustee. As such, the trial court erred in ruling that fee simple absolute title to the property vested in another congregation by virtue of a 1998 warranty deed executed by the pastor as the pastor had no legal authority to transfer the property without the consent and approval of the religious corporation. Second Refuge Church of Our Lord Jesus Christ, Inc. v. Lollar, 282 Ga. 721 , 653 S.E.2d 462 (2007).

Failure to probate a will meant notice lacking. - Trial court did not err in granting a bank's motion for summary judgment in the bank's quiet title action against a testator's niece and great-niece on the ground that under O.C.G.A. § 44-2-4(a) , the priority of a security deed the testator's stepson gave to a mortgage company, which assigned its interest in the property to the bank, was protected from the interests the niece and great-niece held that were grounded in the testator's unrecorded will because there was nothing in the record that would render O.C.G.A. § 44-2-4(a) inapplicable since the notice created by the possession of the niece and great-niece was only constructive notice, and there was no evidence that the company had any actual notice of the will or of the interests created thereby; the statute applies equally to give protection to those who take an interest in realty when there are other interests that exist, but are not of record, because of a failure to probate a will. Riggins v. Deutsche Bank Nat'l Trust Co., 288 Ga. 850 , 708 S.E.2d 266 (2011).

Gifts

Successor tenant in common by gift takes with notice of other tenant's equities. - When a successor tenant in common acquired that tenant's interest by deed of gift, that tenant took not as a bona fide purchaser, but with notice of whatever equities the other original tenant in common had in the property. Bowers v. Bowers, 208 Ga. 85 , 65 S.E.2d 153 (1951).

Donee by mere parol gift not vested with any rights against subsequent purchaser. - Possession of land under a voluntary agreement, based upon a meritorious consideration, with valuable improvements made upon the faith thereof, will invest the holder with such right or equity that the holder cannot be ousted by the donor, or by a purchaser from the holder with notice; a mere parol gift, however, is not, without more, sufficient to pass title, nor will it vest in the donee any right or equity as against a subsequent purchaser from the donor, with or without notice. Beetles v. Steadham, 186 Ga. 110 , 197 S.E. 270 (1938).

Parol gift becomes irrevocable when donee takes possession and makes valuable improvements. - Oral gift of land becomes complete and irrevocable when the donee takes possession of the donated premises and, on the faith of the gift, makes valuable improvements, and, as against the donor and those claiming under the donor with notice, a completed gift of land invests the donee with a perfect equitable title. Sharpton v. Givens, 209 Ga. 868 , 76 S.E.2d 806 (1953).

Sufficiency of improvements jury question. - Sufficiency of improvements which the donee must have made to complete a parol gift of land is a question for the jury to determine. Barfield v. Hilton, 235 Ga. 407 , 219 S.E.2d 719 (1975).

Evidence sufficient to find completed gift. - In an action to enjoin trespass on a certain acre of land, since the plaintiff's predecessor in title had orally given the land to a church for cemetery uses, pursuant to which corner stakes and lines were set up and two graves placed thereon, and there was testimony that the plaintiff, prior to the plaintiff's purchase of a larger tract of which the acre was a part, was informed of this gift and saw the graves, a verdict for the defendants was authorized by the evidence. Sharpton v. Givens, 209 Ga. 868 , 76 S.E.2d 806 (1953).

Husband and Wife

Possession of wife alone not notice to third party. - When the husband and the wife were in possession of land, the record title being in the husband, and the husband offered to sell and executed to a third party the bond for title, the possession of the wife did not constitute notice of her right and title to the land. Gleaton v. Wright, 149 Ga. 220 , 100 S.E. 72 (1919).

Effect of buyer's failure to make inquiry. - When the buyer failed to make inquiries as to the extent of a husband's interest therein, he is charged with notice of whatever facts would be developed by such an inquiry. Austin v. Southern Home Bldg. & Loan Ass'n, 122 Ga. 439 , 50 S.E. 382 (1905).

Title of lender to husband with record title superior to wife's equitable title. - When a husband and wife are in possession of land and the record title thereto is in the husband, who borrows money from another and executes his deed to the land to the lender to secure the money so borrowed, the title of the lender is superior to the wife's equitable title of which the lender had no notice, growing out of the fact that the wife's money had paid for the land. Federal Land Bank v. Harris, 176 Ga. 732 , 168 S.E. 778 (1933).

When wife in continuous actual possession under trust agreement without husband, husband not presumed possessor. - When a wife had been in continuous actual possession of the premises in dispute, claiming under a trust agreement, from a time prior to the execution of a security deed to a bank, up to the trial of the case, and it not otherwise appearing that her possession was with or in the right of her husband, the rule that possession by the husband with the wife is presumptively his possession does not apply. Bank of Arlington v. Sasser, 182 Ga. 474 , 185 S.E. 826 (1936).

Possession of land by the tenants of the wife gave notice to the purchaser under an execution sale against the husband. Sikes v. Seckinger, 164 Ga. 96 , 137 S.E. 833 (1927).

Prima facie case for widow's year's support when execution on deceased husband's possessed property. - When an execution is based on a judgment for a year's support and is levied on the land as the property of the deceased husband, and it is made to appear from the evidence that the husband claimed the property as his own, was in possession of it for many years, and died in possession, a prima facie case is made out for the widow, the burden shifts, and it is then incumbent upon the other claimants to establish their title. Hicks v. Hicks, 193 Ga. 382 , 18 S.E.2d 763 (1942).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 15, 17 et seq., 41, 42, 62 et seq., 154.

C.J.S. - 2 C.J.S., Adverse Possession, §§ 55, 56. 41 C.J.S., Husband and Wife, §§ 30, 31, 41.

ALR. - Writing as essential to color of title in adverse occupant of land, 2 A.L.R. 1457 .

Right of wife to exclude husband from possession, use, or enjoyment of family residence or homestead owned by her, 21 A.L.R. 745 .

Dower as affected by adverse possession, 41 A.L.R. 1115 .

Presumption of ownership of personal property as between husband and wife, 111 A.L.R. 1374 .

Possession of land by cotenant after acquisition of interest of another cotenant as notice to subsequent purchaser from or creditor of latter, 162 A.L.R. 209 .

Occupancy of premises by both record owner and another as notice of title or interest of latter, 2 A.L.R.2d 857.

Possession of real property by tenant as charging another purchaser with notice of tenant's agreement with owner-landlord to purchaser of property, 37 A.L.R.2d 1112.

44-5-170. Effect of disabilities on commencement of prescription.

Prescription shall not run against the rights of a minor during his or her minority, a person incompetent by reason of mental illness or intellectual disability so long as the mental illness or intellectual disability lasts, or a person imprisoned during his or her imprisonment. After any such disability is removed, prescription shall run against the person holding a claim to realty or personalty.

(Laws 1767, Cobb's 1851 Digest, p. 559; Ga. L. 1855-56, p. 233, § 19; Code 1863, § 2645; Code 1868, § 2644; Code 1873, § 2686; Code 1882, § 2686; Civil Code 1895, § 3593; Civil Code 1910, § 4173; Code 1933, § 85-411; Ga. L. 2015, p. 385, § 4-9/HB 252.)

The 2015 amendment, effective July 1, 2015, in the first sentence, inserted "or her" twice, substituted "intellectual disability so" for "retardation as", and substituted "intellectual disability" for "retardation".

Editor's notes. - Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

JUDICIAL DECISIONS

History of section. - See Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931).

Exceptions named in statute. Dean v. Feely, 69 Ga. 804 (1883).

Prescription may run against wife in favor of husband. - Prescription as to property, other than the home, may run against a wife in favor of the husband, though living together. Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931).

Prescription will not defeat rights of minors during infancy, nor persons under disability or pending disability. Miles v. Blanton, 211 Ga. 754 , 88 S.E.2d 273 (1955).

As to infancy in general, see Ladd & Wilson v. Jackson, 43 Ga. 288 (1871); Buchan v. Williamson, 131 Ga. 501 , 62 S.E. 815 (1908).

Transferee's claim of adverse possession failed as such could not be based on a period of time in which the opposing landowner was a minor. Reece v. Smith, 276 Ga. 404 , 577 S.E.2d 583 (2003).

Prescription cannot run against infants with legal title. - When the legal title to property is vested in a trustee for an infant, and when the trustee fails to sue for the title, so that the trustee's right of action is barred, the infant cestui que trusts, who have only an equitable interest in the property, will be also barred, but when the legal title is vested in the infants, or cast upon them by operation of law, then the statute does not run against them during their infancy. Wingfield v. Virgin, 51 Ga. 139 (1874).

Prescription cannot run against equitable estate when no one authorized to assert rights. - Time does not run against the equitable estate of minors since the legal estate does not reside in one authorized to assert their rights. Vinton v. Powell, 136 Ga. 687 , 71 S.E. 1119 (1911). See also Buchan v. Daniel, 147 Ga. 450 , 94 S.E. 578 (1917).

Grantor without mental capacity to understand simple subjects or transact business cannot undertake recovery suit. - If the grantor as alleged did not have the mental capacity to understand simple subjects or to transact any business during the time in question, the grantor would not have had the sufficient mental capacity to undertake to maintain a suit for the recovery of the grantor's property. Mullins v. Barrett, 204 Ga. 11 , 48 S.E.2d 842 (1948).

Cancellation of deed authorized when pronounced mental weakness, united with undue influence by fiduciary. - While a mere allegation of weakness of mind not amounting to imbecility is not sufficient to set forth a cause of action for the cancellation of a deed, there being no allegation of fraud or undue influence, nevertheless, when the mental weakness is pronounced, such as would prevent the grantor for understanding the nature of the grantor's act at the time the deed was executed, and especially when as alleged the mental impairment is united with alleged undue and controlling influence on the part of one occupying a confidential relationship with the illiterate grantor, it will authorize a cancellation on the ground of fraud. Mullins v. Barrett, 204 Ga. 11 , 48 S.E.2d 842 (1948).

Widow insane at date of husband's death is not barred from applying for dower until seven years after the removal of her disability. LaGrange Mills v. Kener, 121 Ga. 429 , 49 S.E. 300 (1904).

Lucid intervals may be aggregated to bar action. - Though no prescription works against the rights of an insane person so long as the insanity continues, yet different lucid intervals, amounting in the aggregate to as much as seven years, may be put together, and the effect will be to bar the right of action. Verdery v. Savannah, F. & W. Ry., 82 Ga. 675 , 9 S.E. 1133 (1889).

As a general rule, a party cannot hold a lien on one's own property; and this is never allowed except when equity intervenes to protect the title and thereby prevent a failure of justice. Wrenn v. Massell Inv. Co., 56 Ga. App. 802 , 194 S.E. 263 (1937).

Cited in Kelley v. Spivey, 182 Ga. 507 , 185 S.E. 783 (1936); Latham v. Fowler, 192 Ga. 686 , 16 S.E.2d 591 (1941); Gay v. Radford, 207 Ga. 38 , 59 S.E.2d 915 (1950); Blanton v. Moody, 265 F.2d 533 (5th Cir. 1959); Jordan v. Robinson, 229 Ga. 761 , 194 S.E.2d 452 (1972); Whitworth v. Whitworth, 233 Ga. 53 , 210 S.E.2d 9 (1974); Mobley v. Jackson Chapel Church, 281 Ga. 122 , 636 S.E.2d 535 (2006).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 152, 153, 166, 167, 171 et seq. 25 Am. Jur. 2d, Easements and Licenses, § 34. 51 Am. Jur. 2d, Limitations of Actions, § 223 et seq.

C.J.S. - 2 C.J.S., Adverse Possession, §§ 7, 117, 152, 194, 263, 264. 43 C.J.S., Infants, §§ 163, 164.

ALR. - Prescription or adverse possession as against one under disability of infancy, coverture, or mental incompetency, 43 A.L.R. 941 ; 147 A.L.R. 236 .

44-5-171. Effect of intervening disabilities; tacking.

Prescription shall not run against persons under disability during the period of the disability. Upon removal of the disability the prior possession may be tacked or added to the subsequent possession to make out the prescription.

(Orig. Code 1863, § 2646; Code 1868, § 2645; Code 1873, § 2687; Code 1882, § 2687; Civil Code 1895, § 3594; Civil Code 1910, § 4174; Code 1933, § 85-412.)

JUDICIAL DECISIONS

Rights of minors and persons under disability protected. - Prescription will not defeat rights of minors during infancy, nor persons under disability pending disability. Miles v. Blanton, 211 Ga. 754 , 88 S.E.2d 273 (1955).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 73, 76 et seq., 152 et seq., 166, 167, 171 et seq.

C.J.S. - 2 C.J.S., Adverse Possession, §§ 152, 194. 43 C.J.S., Infants, §§ 163, 164.

ALR. - Prescription or adverse possession as against one under disability of infancy, coverture, or mental incompetency, 43 A.L.R. 941 ; 147 A.L.R. 236 .

Rule that adverse possession of successive holders may be tacked, in determination of period of limitation, as applicable chattels, 135 A.L.R. 711 .

Adverse possession: right of remainderman or reversioner to tack his possession to that of life tenant, 150 A.L.R. 557 .

Tacking as applied to prescriptive easements, 72 A.L.R.3d 648.

44-5-172. Tacking of successive possessions.

An inchoate prescriptive title may be transferred by a person in possession to his successor so that successive possessions may be tacked to make out the prescription.

(Orig. Code 1863, § 2648; Code 1868, § 2647; Code 1873, § 2689; Code 1882, § 2689; Civil Code 1895, § 3598; Civil Code 1910, § 4178; Code 1933, § 85-416.)

JUDICIAL DECISIONS

Nature of successive possessions. - Although it is unnecessary that adverse possession be maintained for the statutory period by the same person, since continuity may be shown by the successive bona fide possessions of several persons, provided the requisite privity exists between the people, still it is necessary that the several possessions be of such a character as to the foundation of prescriptive title. Campbell v. Gregory, 200 Ga. 684 , 38 S.E.2d 295 (1946).

Requirement that prior possession be accompanied by claim of right. - For owners to tack onto the period of their possession the time that the property was used by a tenant of the owner, the burden is upon them to show by a preponderance of the evidence that prior possession was of such character as to be the foundation of prescription, and be adverse, and the foundation must meet all the requirements of former Code 1933, § 85-402 (see O.C.G.A. § 44-5-161 ), including the requirement that the possession must be accompanied by a claim of right. Olsen v. Noble, 209 Ga. 899 , 76 S.E.2d 775 (1953).

Reference in deed to former conveyance must be mentioned in conveyance by nonpossessor. - Mere color of title held by one who never takes possession, but who (without referring in one's deed to the former conveyance) subsequently conveys to another, who takes possession under such a conveyance, does not create by virtue of law any color of title in favor of the latter, additional to that arising from the conveyance. Turner v. Neisler, 141 Ga. 27 , 80 S.E. 461 (1913). See also Walker v. Steffes, 139 Ga. 520 , 77 S.E. 580 (1913).

Continuous successive possession of chattels tacked to make up prescribed time of adverse holding. - As in case of adverse possession of realty, adverse possession of chattels for the statutory period operates not merely to bar the remedy but vests absolute title in the possessor, which is equally available for attack or defense, and continuous possession in any one person is not necessary for the acquisition of title by adverse possession if there is a privity between successive occupants holding adversely to the true title continuously, the successive periods of occupation may be united or tacked to each other to make up the time of adverse holding prescribed by the statute as against the title. Woodcliff Gin Co. v. Kittles, 173 Ga. 661 , 161 S.E. 119 (1931).

Innocent purchaser cannot tack on possession of grantor whose possession originated in fraud. - An inchoate prescriptive title may be transferred by a possessor to a successor so that the successive possessions may be tacked to make out the prescription, except that the innocent purchaser may not tack to the purchaser's own the possession of a grantor whose possession originated in fraud of the true owner. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

One entering into portion of lot under unrecorded deed cannot prescribe against contiguous lots until the deed is recorded; when the deed is not recorded, the incomplete prescriptive title of one's predecessor cannot inure to one's benefit insofar as the constructive possession of the contiguous lots is concerned. Campbell v. Gregory, 200 Ga. 684 , 38 S.E.2d 295 (1946).

Inchoate prescriptive title was transferred by the possessor when successor produced stock certificates with blank assignments and a power of attorney to transfer the shares on the books of the company signed by original issue. Woodcliff Gin Co. v. Kittles, 173 Ga. 661 , 161 S.E. 119 (1931).

Evidence sufficient to show ripening of prescriptive title. - When the evidence conclusively showed that the defendant and defendant's predecessors in title acquired color of title to the property in dispute and bona fide entered into possession under their respective paper titles under a claim of right, and that the adverse possession of the defendant, together with that of defendant's predecessors in title, was for about 13 years (more than seven years), the prescriptive title of the defendant thereby ripened, extinguished all inconsistent titles, and became the true title to the property. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Cited in Reynolds v. Smith, 186 Ga. 838 , 199 S.E. 137 (1938); Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967); Adams v. Talmadge, 240 Ga. 193 , 240 S.E.2d 9 (1977); Swicord v. Hester, 240 Ga. 484 , 241 S.E.2d 242 (1978); Nebb v. Butler, 257 Ga. 145 , 357 S.E.2d 257 (1987); BMH Real Estate Pshp. v. Montgomery, 246 Ga. App. 301 , 540 S.E.2d 256 (2000); Trammell v. Whetstone, 250 Ga. App. 503 , 552 S.E.2d 485 (2001).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, § 76 et seq.

C.J.S. - 2 C.J.S., Adverse Possession, § 154 et seq.

ALR. - Time during which dominant and servient tracts were in same ownership or under same control as excluded or included in determining easement by prescription, 98 A.L.R. 591 .

Adverse possession: right of remainderman or reversioner to tack his possession to that of life tenant, 150 A.L.R. 557 .

Tacking as applied to prescriptive easements, 72 A.L.R.3d 648.

44-5-173. Prescription involving unrepresented estates, joint tenancies, or dismissed actions.

  1. Prescription shall not run against an unrepresented estate until representation is had thereon, provided such representation commences within five years.
  2. Prescription shall not run against a joint title which cannot be severally enforced or where any of the joint owners labor under one of the disabilities specified in Code Section 44-5-170.
  3. Prescription shall not run against a party when his action, timely commenced, is involuntarily dismissed or voluntarily dismissed for the first time if he recommences the same within six months.

    (Laws 1847, Cobb's 1851 Digest, p. 569; Ga. L. 1855-56, p. 233, §§ 21, 24, 33; Code 1863, § 2647; Code 1868, § 2646; Code 1873, § 2688; Code 1882, § 2688; Civil Code 1895, § 3595; Civil Code 1910, § 4175; Code 1933, § 85-413.)

JUDICIAL DECISIONS

For history of section and changes made in the common-law rule, see Bullock & Co. v. Dunbar, 114 Ga. 754 , 40 S.E. 783 (1902). See also Ross v. Central R.R. & Banking Co., 53 Ga. 371 (1874); Buchan v. Williamson, 131 Ga. 501 , 62 S.E. 815 (1908); Overby v. Scarborough, 145 Ga. 875 , 90 S.E. 67 (1916) (see O.C.G.A. § 44-5-173 ).

Provisions of this statute do not apply to trust estates. Ayer v. Chapman, 146 Ga. 608 , 91 S.E. 548 (1917) (see O.C.G.A. § 44-5-173 ).

Prescriptive title would not fail merely because possession of prescriber commenced after trustee's death. Jones v. Rountree, 138 Ga. 757 , 76 S.E. 55 (1912). See also Cushman v. Coleman, 92 Ga. 772 , 19 S.E. 46 (1894).

Homestead rights insufficient to prevent ripening of prescriptive title prior to administratrix's appointment. - Whatever rights may have existed under an alleged homestead are not sufficient to prevent title by prescription from ripening in the claimant by prescription prior to the appointment of an administratrix of the estate of the claimant under the alleged homestead. Slade v. Barber, 200 Ga. 405 , 37 S.E.2d 143 (1946).

Proof of date of intestate's death not required. - When there is proof of an interval of more than five years from an intestate's death, it is not required that the date of the intestate's death be proved. Brown v. Caraker, 147 Ga. 498 , 94 S.E. 759 (1917).

Prescription not suspended for any length of time due to estate's unrepresentation. - Prescription will not run against an unrepresented estate, provided the lapse of time does not exceed five years, but when an unrepresented estate continues without representation for more than five years, prescription will not be suspended for any length of time on account of the estate being unrepresented. Miles v. Blanton, 211 Ga. 754 , 88 S.E.2d 273 (1955).

When more than five years elapse after the death of an intestate before administration upon the intestate's estate, prescription will not be suspended for any length of time on account of the estate being unrepresented. Dozier v. Parker, 219 Ga. 725 , 135 S.E.2d 857 (1964).

No deduction from adverse possessor's term after five years. - If the estate remains unrepresented for more than five years, no deduction at all from the adverse possessor's term will be allowed in favor of the personal representative. Powell's Actions for Land, 448. Danielly v. Lowe, 161 Ga. 279 , 130 S.E. 687 (1925).

When intestate's spouse in possession at expiration of statutory period. - When, after the death of an intestate, the intestate's husband acquired possession of livestock belonging to the estate, and also acquired possession of the increase thereof, and from time to time sold some of the property and kept the proceeds for himself, and where the estate remained unrepresented for more than 13 years until the appointment of a temporary administrator, and where within the period of nine years from the death of the intestate no claim of title adverse to that of the husband was asserted to any of the property by anyone representing the heirs or creditors of the intestate, the husband, at the expiration of the nine years, had acquired title to the property by prescription, and no title to the property or right of possession thereof was vested in the temporary administrator of the estate afterwards appointed. Ulmer v. Ulmer, 53 Ga. App. 417 , 186 S.E. 433 (1936).

Concealment of right by one with duty to disclose prevents running of statute of limitations in favor of the party in default. It is a legal fraud. Hoyle v. Jones, 35 Ga. 40 , 89 Am. Dec. 273 (1866). See also Southwestern R.R. v. Atlantic & G.R.R., 53 Ga. 401 (1874).

When suit, proper for involuntary dismissal, reversed within six months of verdict, second suit saved. - When a suit which was not in fact nonsuited (now involuntarily dismissed), but which might properly have been is reversed in equity within six months of the verdict, the second suit will be held within the rule of this statute and saved from the statute of limitations. Jordan v. Faircloth, 27 Ga. 372 (1859) (see O.C.G.A. § 44-5-173 ).

For an illustration of a nonsuit (now involuntary dismissal), see McLaren v. Irvin, 63 Ga. 275 (1879).

Cited in Ewing v. Tanner, 184 Ga. 773 , 193 S.E. 243 (1937); Harris v. Mandeville, 195 Ga. 251 , 24 S.E.2d 23 (1943); Blanton v. Moody, 265 F.2d 533 (5th Cir. 1959); Georgia Power Co. v. Gibson, 226 Ga. 165 , 173 S.E.2d 217 (1970).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 96, 109, 110, 149, 171, 201 et seq. 27A Am. Jur. 2d, Equity, § 124 et seq. 51 Am. Jur. 2d, Limitations of Actions, § 222.

C.J.S. - 2 C.J.S., Adverse Possession, §§ 201, 283, 293.

44-5-174. Tacking of prior possession originating in fraud.

In making out a prescriptive title, an innocent purchaser may not tack to the time period of his own possession the time of possession of a grantor whose possession originated through fraud against the true owner.

(Civil Code 1895, § 3596; Civil Code 1910, § 4176; Code 1933, § 85-415.)

History of section. - This Code section is derived from the decision in Farrow v. Bullock, 63 Ga. 360 (1879).

JUDICIAL DECISIONS

Innocent purchaser cannot tack on possession of grantor whose possession originated in fraud. - An inchoate prescriptive title may be transferred by a possessor to a successor, so that the successive possessions may be tacked to make out the prescription, except that the innocent purchaser may not tack to one's own the possession of a grantor whose possession originated in fraud of the true owner. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Evidence sufficient to show ripening of prescriptive title. - When the evidence conclusively showed that the defendant and the defendant's predecessors in title acquired color of title to the property in dispute and bona fide entered into possession under their respective paper titles under a claim of right, and that the adverse possession of the defendant, together with that of the defendant's predecessors in title, was for about 13 years (more than seven years), the prescriptive title of the defendant thereby ripened, extinguished all inconsistent titles, and became the true title to the property. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945).

Cited in Ellis v. Dasher, 101 Ga. 5 , 29 S.E. 268 (1897); Bedingfield v. Moye, 143 Ga. 563 , 85 S.E. 856 (1915).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, § 76 et seq.

C.J.S. - 2 C.J.S., Adverse Possession, §§ 163, 207, 208.

ALR. - Adverse possession: right of remainderman or reversioner to tack his possession to that of life tenant, 150 A.L.R. 557 .

Tacking as applied to prescriptive easements, 72 A.L.R.3d 648.

44-5-175. Prescription involving incorporeal rights.

An incorporeal right which may be lawfully granted, such as a right of way or the right to throw water upon the land of another, may be acquired by prescription.

(Civil Code 1895, § 3590; Civil Code 1910, § 4170; Code 1933, § 85-409.)

History of section. - This Code section is derived from the decisions in Phinizy v. City Council, 47 Ga. 260 (1872), and Mitchell v. Mayor of Rome, 49 Ga. 260 (1872).

Law reviews. - For article, "Some Aspects of the Law of Easements," see 9 Ga. St. B.J. 287 (1973).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Cited in Waters v. Baker, 190 Ga. 186 , 8 S.E.2d 637 (1940); Warlick v. Rome Loan & Fin. Co., 194 Ga. 419 , 22 S.E.2d 61 (1942); Georgia R.R. & Banking Co. v. Flynt, 93 Ga. App. 514 , 92 S.E.2d 330 (1956); Forsyth Corp. v. Rich's, Inc., 215 Ga. 333 , 110 S.E.2d 750 (1959); City of Atlanta v. Williams, 218 Ga. 379 , 128 S.E.2d 41 (1962); Chancey v. Georgia Power Co., 238 Ga. 397 , 233 S.E.2d 365 (1977).

Rules

Prescriptive title to easement is governed by the same rules as prescriptive title to land. Georgia Power Co. v. Gibson, 226 Ga. 165 , 173 S.E.2d 217 (1970).

Right to prescription is measured by the actual use, and not by a capacity for more extended use, and the right does not begin to run until an actionable injury has been inflicted. Goble v. Louisville & N.R.R., 187 Ga. 243 , 200 S.E. 259 (1938).

Easement acquired by prescription in seven or 20 years. - An easement may be acquired by prescription in 20 years, unless there is some color of title, in which case only seven years is required. Smith v. Clay, 239 Ga. 220 , 236 S.E.2d 346 (1977).

Prescriptive period relates to the time of the use of the easement without regard to the actual entry by the prescriber on the adjacent tract over which the easement is asserted. Hogan v. Cowart, 182 Ga. 145 , 184 S.E. 884 (1936).

Particular Rights

Prescriptive right to maintain signs fails to arise if no use for 20 years. - Prescriptive right to maintain signs on the building of an owner does not arise if the use and enjoyment of the privilege has not existed for a period of 20 years, in the absence of color of title. Smith v. Jensen, 156 Ga. 814 , 120 S.E. 417 (1923).

Possession of road by public for 20 years ripens into title. - Possession, use, and upkeep of a road by the public as a highway for 20 years ripens into a prescriptive title. Hyde v. Chappell, 194 Ga. 536 , 22 S.E.2d 313 (1942).

Public authorities must have accepted road. - In order for a road to be declared a public one by prescription, the public authorities must have accepted the road or exercised dominion over the road. Maintenance or repair can constitute such acceptance. Jordan v. Way, 235 Ga. 496 , 220 S.E.2d 258 (1975).

When alley used by public for statutory period prior to obstruction, obstruction must be removed. - When the evidence was uncontradicted that an alley had been used by the public in general for more than 20 years prior to its obstruction for 30 years prior to trial, a finding was demanded that the public had acquired a prescriptive right to the free and unobstructed use of the alley and that it was a public alley, and since prescription does not run against a municipality as to land held for the benefit of the public, such as a public alley, the obstruction must be removed. Henderson v. Ezzard, 75 Ga. App. 724 , 44 S.E.2d 397 (1947).

Right to use water may be acquired by prescription. - Special right to a use of a watercourse, or to flow water upon the land of another, may in all cases be acquired by prescription. Anneberg v. Kurtz, 197 Ga. 188 , 28 S.E.2d 769 (1944).

As to the backflow of water, see Columbus Power Co. v. City Mills Co., 114 Ga. 558 , 40 S.E. 800 (1902).

As to the use of a watercourse for floating timber, see Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7 , 60 S.E. 868 (1908).

Right to maintain a private nuisance may be acquired by prescription. This is especially true if the nuisance is in the nature of an easement. Anneberg v. Kurtz, 197 Ga. 188 , 28 S.E.2d 769 (1944).

As to burial rights, see Roumillot v. Gardner, 113 Ga. 60 , 38 S.E. 362 , 53 L.R.A. 729 (1901).

Illustrative Cases

Right to use open agricultural ditch through lands of adjoining proprietor may be prescriptively acquired. - Owner of land may acquire by prescription an easement over the lands of another, the prescriptive period of adverse use being 20 years or longer, unless under color of title, and this may apply to the right of a proprietor to use an open agricultural ditch extending from the proprietor's lands through the lands of an adjoining proprietor and there connecting with a river, for the purpose of drainage, whether or not the prescriber ever actually entered or occupied the adjacent land. Hogan v. Cowart, 182 Ga. 145 , 184 S.E. 884 (1936).

Once general area for telephone line use outlined, stringing additional lines within easement permissible. - When poles and wires were used in the operation of a telephone line or lines over the lands of another, they should be considered as having marked or outlined a general area in use according to the usual and ordinary manner, and if the outer limits of this space remained the same for the prescriptive period of 20 years, the resulting easement would apply at least to the general area, so that the stringing of additional wires anywhere therein consistently with customary location would be permissible as territorially within the easement, whether or not the identical space to be physically occupied by such wires had ever before been so occupied by other wires. Kerlin v. Southern Bell Tel. & Tel. Co., 191 Ga. 663 , 13 S.E.2d 790 (1941).

Evidence demanded finding wall was subject to easement for support of adjacent building. - In an action by the owners of a lot against the corporate owner of an adjoining lot and a contractor to prevent the corporation from encroachment by inserting girders of its new building into the wall on the plaintiffs' lot, and to eject the corporation from the occupation of any part of the wall, the evidence demanded a finding that the wall in question was subject to an easement in favor of the corporation, giving the latter a right of a user in the wall for the support of its building, and that the use being exercised imposed on the wall no greater burden than that which had previously existed through the use by the corporation's predecessor in title, the former use having been under and by virtue of a valid claim of right, and having been acquiesced in by the plaintiffs and their predecessors for a length of time in excess of the prescriptive period. Joel v. Publix-Lucas Theater, Inc., 193 Ga. 531 , 19 S.E.2d 730 (1942).

Right to empty refuse into stream acquired by 20-year prescriptive use. - When a person in the operation of a canning plant has from June 1st to November 1st of each year, for more than 20 years emptied the refuse from the plant into a nonnavigable stream, the person has thereby acquired a prescriptive right so to do. Anneberg v. Kurtz, 197 Ga. 188 , 28 S.E.2d 769 (1944).

Easement to flood lands not acquired by merely maintaining trestle over flowing stream. - Railroad company which has for 25 years maintained a trestle, under which a stream flows, and abutments does not thereby acquire a prescriptive easement to flood lands, unless such flooding has been continuous and uninterrupted for a period sufficient to ripen into prescription. Goble v. Louisville & N.R.R., 187 Ga. 243 , 200 S.E. 259 (1938).

Beaver dams. - Landowner enjoys no prescriptive right to the continued existence of beaver dams in a creek which form a border of the landowner's property, because the dams are not erected through human agency. Dawson v. Wade, 257 Ga. 552 , 361 S.E.2d 181 (1987).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 121, 122, 308. 25 Am. Jur. 2d, Easements and Licenses, §§ 33 et seq., 73, 96, 101 et seq., 106.

C.J.S. - 2 C.J.S., Adverse Possession, § 62. 28A C.J.S., Easements, § 4 et seq.

ALR. - Implied easement upon severance of tract where building is near or encroaches upon the dividing line, 41 A.L.R. 1210 ; 53 A.L.R. 910 .

Easement by prescription for use of land near boundary line, 58 A.L.R. 1037 .

Use by public as affecting acquisition by individual of right of way by prescription, 111 A.L.R. 221 .

Nature and extent of interest acquired by railroad in right of way by adverse possession or prescription, 127 A.L.R. 517 .

Acquisition of right of way by prescription as affected by change of location or deviation during prescriptive period, 143 A.L.R. 1402 ; 80 A.L.R.2d 1095.

Acquisition of easement or other property right by prescription, predicated upon acts amounting to a private nuisance, 152 A.L.R. 343 .

Easement by prescription: presumption and burden of proof as to adverse character of use, 170 A.L.R. 776 .

Extinguishment of easement by implication or prescription, by sale of servient estate to purchaser without notice, 174 A.L.R. 1241 .

Rights derived from use by adjoining owners for driveway, or other common purpose, of strip of land lying over and along their boundary, 27 A.L.R.2d 332.

Necessary parties defendant to suit to prevent or remove obstruction or interference with easement of way, 28 A.L.R.2d 409.

Acquisition by user of prescription of right of way over unenclosed land, 46 A.L.R.2d 1140.

Right to maintain gate or fence across right of way, 52 A.L.R.3d 9.

Tacking as applied to prescriptive easements, 72 A.L.R.3d 648.

Extinguishment by prescription of natural servitude for drainage of surface waters, 42 A.L.R.4th 462.

Scope of prescriptive easement for access (easement of way), 79 A.L.R.4th 604.

44-5-176. Effect on prescription of notice of instrument creating a lien.

Prescription shall not run against the owner or holder of a mortgage, a deed to secure debt, a bill of sale to secure debt, or any other instrument creating a lien on or conveying an interest in real or personal property as security for debt in favor of a person who has actual or constructive notice of such instrument.

(Ga. L. 1937, p. 755, § 1.)

JUDICIAL DECISIONS

Statute cannot be given retroactive effect. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945) (see O.C.G.A. § 44-5-176 ).

Legislative intent. - There is nothing in this statute indicating an intention by the legislature to deprive a party in possession of any right the party had already acquired, or that the possession which had been running and ripening into title before the date this statute became effective, should be lost. Fraser v. Dolvin, 199 Ga. 638 , 34 S.E.2d 875 (1945) (see O.C.G.A. § 44-5-176 ).

Cited in Sweat v. Arline, 186 Ga. 460 , 197 S.E. 893 (1938); Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938); Thomas v. Stedham, 208 Ga. 603 , 68 S.E.2d 560 (1952); Reid v. Wilkerson, 222 Ga. 282 , 149 S.E.2d 700 (1966).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 12, 13, 15, 112 et seq., 169, 224 et seq. 264, 301.

C.J.S. - 2 C.J.S., Adverse Possession, § 208. 59 C.J.S., Mortgages, §§ 255, 695.

ALR. - Adverse possession by stranger as against mortgagee, 136 A.L.R. 782 .

Adverse possession: mortgagee's possession before foreclosure as barring right of redemption, 7 A.L.R.2d 1131.

44-5-177. Adverse possession of personal property.

Possession of personal property in conformance with the requirements of Code Section 44-5-161 for a period of four years confers title to the property by prescription. No prescription arises if the property is concealed, is removed from the state, or is otherwise not subject to reclamation.

(Laws 1847, Cobb's 1851 Digest, p. 569; Ga. L. 1855-56, p. 233, §§ 2, 4; Code 1863, § 2644; Code 1868, § 2643; Code 1873, § 2685; Code 1882, § 2685; Civil Code 1895, § 3592; Civil Code 1910, § 4172; Code 1933, § 85-1706.)

JUDICIAL DECISIONS

Purpose. - Statute is designed to protect a possession held under a title acquired in good faith, and not one taken in disregard of the rights of another person, of whose title the claimant had been informed, and about which, with proper inquiry, one might have had full knowledge. Hunt v. Dunn, 74 Ga. 120 (1884); Hicks v. Moyer, 10 Ga. App. 488 , 73 S.E. 754 (1912); Taylor v. Wilkins, 22 Ga. App. 723 , 97 S.E. 101 (1918) (see O.C.G.A. § 44-5-177 ).

Statute embodies the statute of limitations as to trover. Blocker v. Boswell, 109 Ga. 230 , 34 S.E. 289 (1889) (see O.C.G.A. § 44-5-177 ).

Prescription vests absolute title. - As in case of adverse possession of realty, adverse possession of chattels for the statutory period operates not merely to bar the remedy but vests absolute title in the possessor, which is equally available for attack or defense. Woodcliff Gin Co. v. Kittles, 173 Ga. 661 , 161 S.E. 119 (1931).

Nature of required possession same as for realty. - Nature of the possession of personal property and that of realty, required to give title by prescription is the same. Ewing v. Tanner, 184 Ga. 773 , 193 S.E. 243 (1937).

Rules for determining whether title to personalty has ripened by prescription are the same as those applying to real estate. Frye v. Commonwealth Inv. Co., 107 Ga. App. 739 , 131 S.E.2d 569 , aff'd, 219 Ga. 498 , 134 S.E.2d 39 (1963).

Successive periods of possession may be united or tacked to each other to make up the time of adverse holding prescribed by the statute. Woodcliff Gin Co. v. Kittles, 173 Ga. 661 , 161 S.E. 119 (1931).

Property must be adversely held under claim of title. - Title by prescription does not arise unless the property is held adversely under a claim of title as when the property is held by a bailee for the true owner. Rawson v. Tift, 53 Ga. App. 248 , 185 S.E. 397 (1936).

In order for the possession of a chattel to ripen into a prescriptive title, under the provisions of this statute, the possession must be adverse to the true owner. Culbreath v. Patton, 73 Ga. App. 667 , 37 S.E.2d 719 (1946) (see O.C.G.A. § 44-5-177 ).

Since there is a fiduciary relation between a corporation and the corporation's stockholders giving rise to the duty on its part to protect the stockholder against fraudulent transfers based upon forged or unauthorized endorsements or stock powers, there can be no adverse possession of the stock by the corporation which can become the foundation of a prescriptive title unless the facts clearly and unmistakably demonstrate that the character of its possession is in truth and in fact adverse. Frye v. Commonwealth Inv. Co., 107 Ga. App. 739 , 131 S.E.2d 569 , aff'd, 219 Ga. 498 , 134 S.E.2d 39 (1963).

Statute will not run until possession adverse. - If one claiming prescriptive title entered into permissive possession of a chattel, acknowledging that title thereto was in the original owner, before the owner could convert such permissive possession into an adverse possession, the owner would have to show knowledge on the part of the original owner that the owner claimed the property as the owner's own before the statute would commence to run in the owner's favor. Culbreath v. Patton, 73 Ga. App. 667 , 37 S.E.2d 719 (1946).

Statute of limitations does not run in favor of a bailee until the bailee sets up an adverse claim in respect of the bailment. Culbreath v. Patton, 73 Ga. App. 667 , 37 S.E.2d 719 (1946).

Statute does not begin to run until the possession of the trustee becomes adverse, tortious and wrongful, by the disloyal acts of the trustee, which must be open, continued and notorious, so as to preclude all doubt as to the character of the holding of the property, or the want of knowledge on the part of the cestui que trust. Frye v. Commonwealth Inv. Co., 107 Ga. App. 739 , 131 S.E.2d 569 , aff'd, 219 Ga. 498 , 134 S.E.2d 39 (1963).

Possession without claim of title will not ripen into title. - Possession of a chattel for more than four years without a claim of title thereto adverse to that of the owner will not ripen into a prescriptive title. Culbreath v. Patton, 73 Ga. App. 667 , 37 S.E.2d 719 (1946).

Possession must be for four years. - Adverse possession of personal property for less than four years does not give title thereto by prescription. Culbreath v. Patton, 73 Ga. App. 667 , 37 S.E.2d 719 (1946).

Payment of taxes on personal property by one in possession is not evidence in itself of a claim of title thereto adverse that of the owner, but is a circumstance to be considered by the court along with the other evidence in the case. Culbreath v. Patton, 73 Ga. App. 667 , 37 S.E.2d 719 (1946).

Abandonment of wife, without more, is insufficient to put the wife on notice that the husband was holding her property adversely. Allen v. Allen, 196 Ga. 736 , 27 S.E.2d 679 (1943).

Title acquired by prescription. - See Ulmer v. Ulmer, 53 Ga. App. 417 , 186 S.E. 433 (1936).

Cited in Southwestern R.R. v. Atlantic & G.R.R., 53 Ga. 401 (1874); Slay v. George, 145 Ga. 771 , 89 S.E. 830 (1916); Rogers v. Citizens Bank, 92 Ga. App. 399 , 88 S.E.2d 548 (1955).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, § 8.

C.J.S. - 73 C.J.S., Property, § 37.

ALR. - Larceny by finder of property, 36 A.L.R. 372 .

ARTICLE 8 ESCHEAT

44-5-190 through 44-5-199.

Reserved. Repealed by Ga. L. 1996, p. 504, § 9, effective January 1, 1998.

Editor's notes. - Ga. L. 1996, p. 504, § 9, effective January 1, 1998, repealed the Code sections formerly codified at this article, which consisted of §§ 44-5-190 through 44-5-199 and was based on Ga. L. 1984, p. 1124, § 1; Ga. L. 1985, p. 149, § 44. For new provisions concerning escheat, see Title 53, Chapter 2, Article 5.

Ga. L. 1984, p. 1124, § 1, effective March 29, 1984, repealed the Code sections formerly codified at this article, which consisted of §§ 44-5-190 through 44-5-195 and was based on Laws 1801, Cobbs 1851 Digest, pp 251, 254; Laws 1805, Cobbs 1851 Digest, p 252; Laws 1817, Cobbs 1851 Digest, p 254; Laws 1836, Cobbs 1851 Digest, p 255; Orig. Code 1863, §§ 2627, 2630-2633; Code 1868, §§ 2627, 2630-2633; Code 1873, §§ 2669, 2671-2674; Code 1882, §§ 2669, 2671-2674; Civil Code 1895, §§ 3575, 3577-3580; Civil Code 1910, §§ 4155, 4157-4160; Ga. L. 1917, p 101, § 2; Code 1933, §§ 85-1101, 85-1103 - 85-1108.

ARTICLE 9 FORFEITURE

Cross references. - Forfeiture based on convictions, Ga. Const. 1983, Art. I, Sec. I, Para. XX.

Construction against forfeiture in equity, § 23-1-23 .

Forfeiture of estates granted on condition, § 44-6-41 .

Forfeiture of life estates generally, § 44-6-83 .

Forfeiture of life estates in personalty, § 44-6-89 .

Forfeiture of estates for years, § 44-6-103 .

Forfeiture of easements, § 44-9-6 .

44-5-210. Lien of state for costs of prosecution.

The state shall hold a lien upon all the property of a convicted offender for the costs of the prosecution against him.

(Orig. Code 1863, § 2634; Code 1868, § 2634; Code 1873, § 2675; Code 1882, § 2675; Civil Code 1895, § 3581; Civil Code 1910, § 4161; Code 1933, § 85-1109.)

Cross references. - Prohibition against forfeiture of estate, Ga. Const. 1983, Art. I, Sec. I, Para. XX.

Further provisions regarding lien for costs of prosecution, § 17-11-1 .

Law reviews. - For article on whether one's property is forfeited after a conviction based on a nolo contendere plea, see 13 Ga. L. Rev. 723 (1979).

JUDICIAL DECISIONS

Inheritance provisions not changed by heir killing person inherited from. - Under the laws of Georgia, the fact that an heir kills the person from whom one expects to inherit will not change the application of the statutes of descent. The policy of this state is shown in this statute. Hagan v. Cone, 21 Ga. App. 416 , 94 S.E. 602 (1917) (see O.C.G.A. § 44-5-210 ).

Where a wife dies without issue, her husband is her sole heir, and his right of inheritance is not forfeited by reason of having murdered his wife. Crumley v. Hall, 202 Ga. 588 , 43 S.E.2d 646 (1947).

Section not violated by municipal ordinance requiring liquor seller to give bond. - Municipal ordinance, requiring one who engages in the sale of "near beer" in the municipality to give a good and solvent bond, conditioned that one will keep an orderly house and will not violate the state liquor laws or disobey the ordinances of the city regulating the liquor business, and the bond taken in pursuance thereof are not in violation of this statute, nor do they violate the Constitution. City of Albany v. Cassel, 11 Ga. App. 745 , 76 S.E. 105 (1912) (see O.C.G.A. § 44-5-210 ).

Confiscation of bribe money for payment of fine not a forfeiture. - When the trial court, in a bribery case, ordered the confiscation of bribe money and ruled that the money might be used toward the payment of the fine assessed in the case, and when the money did not exceed the maximum fine under former Code 1933, § 26-2301 (see O.C.G.A. § 16-10-2 ), the confiscation was not tantamount to a forfeiture. Hall v. State, 155 Ga. App. 724 , 272 S.E.2d 578 (1980).

Cited in Tennesco, Inc. v. Berger, 144 Ga. App. 45 , 240 S.E.2d 586 (1977).

RESEARCH REFERENCES

Am. Jur. 2d. - 27A Am. Jur. 2d, Escheat, § 10. 36 Am. Jur. 2d, Forfeitures and Penalties, § 14.

C.J.S. - 18 C.J.S., Convicts, §§ 3, 7. 37 C.J.S., Forfeitures, § 2 et seq.

ALR. - Forfeiture of property unauthorizedly used by servant in violating law, 5 A.L.R. 213 .

Items of cost of prosecution for which defendant may be held, 65 A.L.R.2d 854.

44-5-211. Forfeiture of abandoned cemetery lots; proceedings for reclamation and subsequent sale; disposition of proceeds.

  1. As used in this Code section, the term "lot" means any lot or portion of a lot in a cemetery owned by a county, municipality, or consolidated government which has not been used for the interment of human remains and for which no provision for perpetual care was made at the time the lot was sold or at any time subsequent to the time the lot was sold.
  2. The owner, the governing board, or other officials having control over a cemetery may maintain, in the superior court in the county in which the cemetery is located, a proceeding for the termination and forfeiture of the rights and interests of an owner of any lot or lots in the cemetery whenever the present owner of the lot is unknown to the owner, the governing board, or other officials and a period of at least 75 years has passed since any portion of the lot has been used for interment purposes.
    1. The proceeding shall be commenced by the filing of a verified petition with the clerk of the superior court.
    2. The petition shall:
      1. Identify the lot or lots;
      2. State that the portion of the lot to be reclaimed has not been used for the interment of human remains and that a core or sound test has been conducted to determine that the portion contains no remains;
      3. State that the present owner of the lot is unknown to the owner, governing board, or other officials;
      4. State that a period of at least 75 years has passed since any portion of the lot was used for interment purposes; and
      5. Request that the court issue an order declaring the lot abandoned and further declaring all of the rights and interests of the owner therein terminated and forfeited.
    3. The petition shall be accompanied by an affidavit by the owner, the governing board, or other officials stating that a diligent search to locate the present owner of the lot has been made but that such owner has not been located.
  4. Upon the filing of the petition and affidavit, the clerk of the superior court shall fix a time for a hearing on the petition, which time shall be not less than 30 days nor more than 90 days after the date of the filing.
    1. Notice of the hearing shall be given by the owner, the governing board, or other officials by posting copies of the notice in three conspicuous places in the cemetery which is owned or operated by the owner, the governing board, or other officials and by mailing a copy of the notice by registered or certified mail or statutory overnight delivery to the last known owner of the lot; and a notice of the hearing shall be published once each week for three successive weeks in some newspaper of general circulation in the county, the first publication being made not less than 30 days before the date of the hearing.
    2. The notice shall identify the lot and shall state:
      1. The name and address of the last known owner of the lot;
      2. That a hearing will be held to determine whether or not the present owner of the lot shall have his rights and interests therein terminated and forfeited by a declaration of abandonment of the lot; and
      3. The time and place of the hearing.
  6. If, upon the hearing, the court determines from the evidence presented that the present owner of the lot is unknown, that the owner, the governing board, or other officials have made a diligent search to locate the present owner, that a period of 75 years or more has passed since any portion of the lot has been used for human interment, and that a core or sound test has been conducted to determine that the lot contains no remains, a decree shall be entered adjudicating such lot, lots, or parts thereof to have been abandoned and further ordering the subsequent termination and forfeiture of all rights and interests of the owner therein.
  7. The court shall dismiss the proceeding if it determines any of the following from the evidence which is presented:
    1. That any of the material facts stated in the petition are not true;
    2. That the identity of the present owner of the lot is known; or
    3. That the owner, the governing board, or other officials have not made a diligent search to locate the present owner.
    1. Upon order of the court declaring the lot to be abandoned, the full title to such lot shall revert to the cemetery.
    2. The order of the court shall not become final until one year after the date on which it is entered. During that time, any person may petition the court to reopen the proceeding; and the court, after notice to the board or other officials, may reopen the proceeding, may hear and consider any additional evidence regarding the ownership of the lot, and may modify or amend the order which it made, provided that, if the court makes any of the determinations mentioned by subsection (g) of this Code section, it shall dismiss the proceeding.
    1. Within 30 days after the date on which the court order is entered, the cemetery owner, the governing board, or other officials shall publish notice of the order once in a newspaper of general circulation in the county in which the cemetery is located and shall mail a copy of the order by registered or certified mail or statutory overnight delivery to the last known owner of the lot or to the last known owner of the right of interment in the lot.
    2. The notice which is mailed and published shall identify the lot which is covered by the order and shall state:
      1. The name and address of the last known owner of the lot;
      2. That the court has ordered that the lot is to be declared abandoned and that the court has further ordered that the rights and interests of the owner therein are to be subsequently terminated and forfeited; and
      3. The date upon which the order of the court will become final.
  10. The lot shall be deemed abandoned and the rights and interests of the present owner therein shall be terminated and forfeited as of the date upon which the order of the court becomes final. Thereafter, the cemetery shall be the owner of the lot and may resell or otherwise recover it.
  11. The proceeds derived from any sale of a lot, ownership of which is obtained as provided in this Code section, shall be used as follows:
    1. First, to reimburse the petitioner for the costs of the action and necessary expenses, including attorney's fees, incurred by the petitioner in the proceeding; and
    2. Then, of the remainder of the proceeds:
      1. Not less than 75 percent shall be held in trust and shall be used only for the expenses of administration, maintenance, restoration, preservation, and other improvements of the cemetery; and
      2. Any amounts remaining thereafter shall be used for immediate improvements and maintenance of the cemetery.
  12. In no event shall any existing monument, retaining wall, fence, bench, or other ornamentation be altered or removed by the petitioner, by his agent or employee, or by any subsequent owner of a lot reclaimed and sold as provided in this Code section.

    (Code 1933, § 85-420, enacted by Ga. L. 1977, p. 1249, § 1; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, s. 16, not codified by the General Assembly, provides that the amendment to this Code section shall apply with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 160, 266. 14 Am. Jur. 2d., Cemeteries, § 19 et seq.

C.J.S. - 1 C.J.S., Abandonment, § 12 et seq. 2 C.J.S., Adverse Possession, §§ 10, 46. 14 C.J.S., Cemeteries, §§ 23, 24. 30A C.J.S., Equity, §§ 122, 126, 127.

ALR. - Validity and reasonableness of rules and regulations of cemetery company or association as to improvement or care of lot, 32 A.L.R. 1406 ; 47 A.L.R. 70 .

Injunction against removal of, or interference with, remains interred in burial lot, 33 A.L.R. 1432 .

Adverse possession or prescription in respect of burial lot, 107 A.L.R. 1294 .

Acquisition of title to ground through adverse possession by cemetery or graveyard authorities, 41 A.L.R.2d 925.

Measure of damages for condemnation of cemetery land, 42 A.L.R.3d 1314.

ARTICLE 10 DEDICATION

44-5-230. Dedication of lands to public use.

After an owner dedicates land to public use either expressly or by his actions and the land is used by the public for such a length of time that accommodation of the public or private rights may be materially affected by interruption of the right to use such land, the owner may not afterwards appropriate the land to private purposes.

(Orig. Code 1863, § 2643; Code 1868, § 2642; Code 1873, § 2684; Code 1882, § 2684; Civil Code 1895, § 3591; Civil Code 1910, § 4171; Code 1933, § 85-410.)

Law reviews. - For a note discussing the historical aspects and current law concerning the state's ownership rights in tidelands, see 17 Ga. L. Rev. 851 (1983).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Dedication is the setting apart of land for the public use. Hutchinson v. Clark, 169 Ga. 511 , 150 S.E. 905 (1929); Lowry v. Rosenfeld, 213 Ga. 60 , 96 S.E.2d 581 , later appeal, 213 Ga. 578 , 100 S.E.2d 447 (1957).

By dedication one may give a right to the public to use one's land. Jergens v. Stanley, 247 Ga. 543 , 277 S.E.2d 651 (1981).

Dedication must be to public. - Dedication, strictly speaking, must be made to the public generally. Western Union Tel. Co. v. Georgia R.R. & Banking Co., 227 F. 276 (S.D. Ga. 1915).

Establishment of public road. - A public road may be established in two ways: (1) by the public authorities; and (2) by immemorial usage, or dedication. In the latter case two things must be proven: (1) the dedication, and (2) the acceptance of it by the public. Chatham Motorcycle Club, Inc. v. Blount, 214 Ga. 770 , 107 S.E.2d 806 (1959).

Prescriptive title to highway possible. - Possession, use, and upkeep of a road by the public as a highway for 20 years ripens into prescriptive title. Hyde v. Chappell, 194 Ga. 536 , 22 S.E.2d 313 (1942).

If there is no intention to dedicate, but the public has taken possession of the property of an individual and used and maintained the property as a highway for a period of 20 years or more, a highway by prescription becomes complete. When there is an intention to dedicate, the maintenance of a way for less time will bring into existence a completed highway by dedication. Atlantic Coast Line Ry. v. Sweatman, 81 Ga. App. 269 , 58 S.E.2d 553 (1950), later appeal, 88 Ga. App. 674 , 77 S.E.2d 565 (1953).

Property devoted to public uses of sidewalks and public parking. - Trial court erred in finding that the area in which a lessee displayed merchandise came under the purview of City of Forest Park, Ga., Ordinance § 9-8-45 since it had been expressly dedicated to the public under O.C.G.A. § 44-5-230 because no deed or other public record was introduced that made an express dedication, and there was no evidence that the owner of the property on which the lessee's business sat specifically intended to make an express dedication of the property by installing parking areas and pathways; nonetheless, it was not necessary that there be an express dedication of property for that property to be brought into the ambit of § 9-8-45 because the trial court's order granting the city summary judgment also stated that a portion of the property had been devoted to the public uses of sidewalks and public parking, and it was clear from the evidence that such areas were created with the intention of pedestrian travel and vehicular parking. Braley v. City of Forest Park, 286 Ga. 760 , 692 S.E.2d 595 (2010).

Nature of title obtained. - Upon acceptance of dedication, the public stands in the position of a purchaser for value. Chapman v. Floyd, 68 Ga. 455 (1882).

Dedication may be estate in, or easement across, property. - Dedication of property can consist of the dedication of either an estate in, or an easement across, the dedicated property, and a dedication of only an easement across the property does not deprive the holder of legal title of one's estate in the property. Rather, the holder retains one's estate for every purpose of user and profit not inconsistent with the easement. Wiggins v. Southern Bell Tel. & Tel. Co., 245 Ga. 526 , 266 S.E.2d 148 (1980).

Dedication is jury question. - Dedication is a conclusion of fact to be drawn by the jury from the circumstances of each particular case. The whole question, as against the owner of the property, is whether there is sufficient evidence of an intention on this part to dedicate the land to the public use as a highway. Atlantic Coast Line Ry. v. Sweatman, 81 Ga. App. 269 , 58 S.E.2d 553 (1950), later appeal, 88 Ga. App. 674 , 77 S.E.2d 565 (1953).

Finding of dedication precludes taking of private property without just compensation. - Determination by Supreme Court that there had been a dedication of private property to public use precludes there having been a taking of private property for public use without just and adequate compensation. Jergens v. Stanley, 247 Ga. 543 , 277 S.E.2d 651 (1981).

Cited in East Atlanta Land Co. v. Mower, 138 Ga. 380 , 75 S.E. 418 (1912); Gartrell v. McCravey, 144 Ga. 688 , 87 S.E. 917 (1916); Smith v. Lemon, 166 Ga. 93 , 142 S.E. 554 (1928); Rosser v. Styron, 171 Ga. 238 , 155 S.E. 23 (1930); Morgan v. Shirley, 172 Ga. 727 , 158 S.E. 581 (1931); Gordon v. Whittle, 206 Ga. 339 , 57 S.E.2d 169 (1950); Norton v. City of Gainesville, 211 Ga. 387 , 86 S.E.2d 234 (1955); City Council v. Newsome, 211 Ga. 899 , 89 S.E.2d 485 (1955); East v. Mayor of Wrightsville, 217 Ga. 846 , 126 S.E.2d 407 (1962); Pridgen v. Coffee County Bd. of Educ., 218 Ga. 326 , 127 S.E.2d 808 (1962); Fountain v. Bryan, 229 Ga. 120 , 189 S.E.2d 400 (1972); Jackson v. McIntosh County, 232 Ga. 712 , 208 S.E.2d 813 (1974); Pair Dev. Co. v. City of Atlanta, 144 Ga. App. 239 , 240 S.E.2d 897 (1977); Smith v. Bruce, 241 Ga. 133 , 244 S.E.2d 559 (1978); Hughes v. Cobb County, 264 Ga. 128 , 441 S.E.2d 406 (1994); Givens v. Ichauway, Inc., 268 Ga. 710 , 493 S.E.2d 148 (1997); Strozzo v. Coffee Bluff Marina Prop., 250 Ga. App. 212 , 550 S.E.2d 122 (2001).

Requirements for Dedication
1. In General

There is no particular form of making a dedication. - Dedication may be done in writing, or by parol; or the dedication may be inferred from the owner's acts, or implied, in certain cases, from long use. A grant is not necessary to create the dedication. Dunaway v. Windsor, 197 Ga. 705 , 30 S.E.2d 627 (1944); Moon v. City of Conyers, 222 Ga. 526 , 150 S.E.2d 873 (1966).

Owner's intention and public acceptance required. - Dedication to a public use is effected when one, being the owner of lands, consents, either expressly or by one's action, that it may be used by the public for a particular purpose. Mayor of Macon v. Franklin, 12 Ga. 239 (1852); Parsons v. Trustees of Atlanta Univ., 44 Ga. 529 (1871); Chapman v. Floyd, 68 Ga. 455 (1882); Southwestern R.R. v. Mitchell, 69 Ga. 114 (1882); City Council v. Burum & Co., 93 Ga. 68 , 19 S.E. 820 , 26 L.R.A. 340 (1893); Atlanta Ry. & Power Co. v. Atlanta Rapid Transit Co., 113 Ga. 481 , 39 S.E. 12 (1901); Davis v. State, 9 Ga. App. 430 , 71 S.E. 603 (1911); Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981); Department of Transp. v. Ladson Invs., 158 Ga. App. 687 , 282 S.E.2d 171 (1981); Smith v. Gwinnett County, 248 Ga. 882 , 286 S.E.2d 739 (1982).

Dedication is not complete until two things appear: the owner's intention to dedicate the owner's property to the public use and the acceptance thereof by the public. Healey v. City of Atlanta, 125 Ga. 736 , 54 S.E. 749 (1906); Johnson v. State, 1 Ga. App. 195 , 58 S.E. 265 (1907); City of La Fayette v. Walker County, 151 Ga. 786 , 108 S.E. 218 (1921); Atlantic Coast Line Ry. v. Sweatman, 81 Ga. App. 269 , 58 S.E.2d 553 (1950), later appeal, 88 Ga. App. 674 , 77 S.E.2d 565 (1953); Lowry v. Rosenfeld, 213 Ga. 60 , 96 S.E.2d 581 , later appeal, 213 Ga. 578 , 100 S.E.2d 447 (1957); Chatham Motorcycle Club, Inc. v. Blount, 214 Ga. 770 , 107 S.E.2d 806 (1959); Moon v. City of Conyers, 222 Ga. 526 , 150 S.E.2d 873 (1966); Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967); Waldrep v. Hall County, 227 Ga. 554 , 181 S.E.2d 833 (1971); Lines v. State, 245 Ga. 390 , 264 S.E.2d 891 (1980); Jackson v. Stone, 210 Ga. App. 465 , 436 S.E.2d 673 (1993).

Essentials of dedication to public use are an offer, either express or implied, by the owner and an acceptance, either express or implied, of the use of the land by the public or public authorities. Carroll v. De Kalb County, 216 Ga. 663 , 119 S.E.2d 258 (1961).

Two basic requirements of dedication of property to public use are: (1) an intention by the owner to dedicate the land to public use; and (2) an acceptance thereof by the public. Such intention to dedicate need not be expressed, and neither must the acceptance by the public be expressed. Jergens v. Stanley, 247 Ga. 543 , 277 S.E.2d 651 (1981).

Dedication complete if public or private rights materially affected by interruption of enjoyment. - When public use has been made of the land for such a length of time that accommodation of public or private rights might be materially affected by the interruption of the enjoyment, the dedication is complete. Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981).

Mere use of property by public insufficient. - Mere use of one's property by a small portion of the public, even for an extended period of time, is not sufficient to authorize an inference that the property has been dedicated to a public use, unless it clearly appears that there was an intention to dedicate, and that this dedication was accepted by the public authorities, either in express terms or by implication resulting from the maintenance of a way public in its nature. Dunaway v. Windsor, 197 Ga. 705 , 30 S.E.2d 627 (1944); Atlantic Coast Line Ry. v. Sweatman, 81 Ga. App. 269 , 58 S.E.2d 553 (1950), later appeal, 88 Ga. App. 674 , 77 S.E.2d 565 (1953); Chatham Motorcycle Club, Inc. v. Blount, 214 Ga. 770 , 107 S.E.2d 806 (1959); Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967); Waldrep v. Hall County, 227 Ga. 554 , 181 S.E.2d 833 (1971); Lines v. State, 245 Ga. 390 , 264 S.E.2d 891 (1980).

Intention to dedicate and acceptance may be inferred. - Neither the intention nor the acceptance need be express, but if not express they must be clearly inferred from the character of the use and the owner's acquiescence in such use. Healy v. City of Atlanta, 125 Ga. 736 , 54 S.E. 749 (1906); Johnson v. State, 1 Ga. App. 195 , 58 S.E. 265 (1907); City of La Fayette v. Walker County, 151 Ga. 786 , 108 S.E. 218 (1921).

Intention to dedicate need not be shown by an express declaration, but may be inferred from acquiescence in the public use of the property. Acceptance likewise need not be express, but if the property be improved and maintained by the authorized public authorities and used by the public for such a length of time that the public accommodation and private rights might be materially affected by an interruption of the enjoyment, the dedication is complete. Lowry v. Rosenfeld, 213 Ga. 60 , 96 S.E.2d 581 , later appeal, 213 Ga. 578 , 100 S.E.2d 447 (1957); Moon v. City of Conyers, 222 Ga. 526 , 150 S.E.2d 873 (1966); Doby v. Brown, 232 Ga. 42 , 205 S.E.2d 299 (1974).

Both dedication and acceptance may be express or implied as long as a clear intent is manifested. Ross v. Hall County Bd. of Comm'rs, 235 Ga. 309 , 219 S.E.2d 380 (1975).

Burden of proof. - Party relying upon an express or implied offer of dedication of land and the acceptance of any such offer has the burden of proving the dedication. Lines v. State, 245 Ga. 390 , 264 S.E.2d 891 (1980).

Right to use need not be vested in corporate body. - It is not essential to constitute a valid dedication to the public that the right of use should be vested in a corporate body. If there be a dedication of land to public use prior to the existence of a municipal corporation, then, upon such corporation being organized, including such land within its limits, the use of the land in trust for the public at once vests in it. City of La Fayette v. Walker County, 151 Ga. 786 , 108 S.E. 218 (1921); Chatham Motorcycle Club, Inc. v. Blount, 214 Ga. 770 , 107 S.E.2d 806 (1959).

County's responsibility for services on easement owned in city. - County that held an easement over a drainage system located on commercial property that was initially located in the county but was later annexed by the city had the responsibility to repair and maintain the drainage system even after the property was annexed by the city. Although the Service Delivery Agreement provided that the city would perform stormwater services within the city's boundary, the city performed repairs at the right of way, not on private property. City of Norcross v. Gwinnett County, 355 Ga. App. 662 , 843 S.E.2d 31 (2020).

2. Dedication by Owner

Intention to dedicate required. - Whether express or implied, an intention on the part of the owner to dedicate one's property to the public use must be shown. Dunaway v. Windsor, 197 Ga. 705 , 30 S.E.2d 627 (1944); Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967); Waldrep v. Hall County, 227 Ga. 554 , 181 S.E.2d 833 (1971).

Intention may be shown by owner's acts. - Intention to dedicate property to public use is essential to a dedication, but this may be proved by acts showing an assent that property should be so used and enjoyed. Dunaway v. Windsor, 197 Ga. 705 , 30 S.E.2d 627 (1944).

An intent on the part of the owner to dedicate must be manifested by the conduct of the owner from the facts and circumstances of the particular case, based upon the acts of the owner, and not upon what is secreted in one's heart. Dunaway v. Windsor, 197 Ga. 705 , 30 S.E.2d 627 (1944).

Acts relied on must clearly indicate owner's purpose. - When an established dedication is claimed, the acts relied on to establish the dedication must be such as to clearly and satisfactorily indicate a purpose on the part of the owner to abandon the owner's personal dominion over the property and to devote the same to a definite public use. Swift v. Mayor of Lithonia, 101 Ga. 706 , 29 S.E. 12 (1897); Dunaway v. Windsor, 197 Ga. 705 , 30 S.E.2d 627 (1944); Atlantic Coast Line Ry. v. Sweatman, 81 Ga. App. 269 , 58 S.E.2d 553 (1950), later appeal, 88 Ga. App. 674 , 77 S.E.2d 565 (1953); Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1969); Waldrep v. Hall County, 227 Ga. 554 , 181 S.E.2d 833 (1971); Lines v. State, 245 Ga. 390 , 264 S.E.2d 891 (1980).

Public use not inconsistent with retention of dominion by owner. - Mere fact that the public uses the property of a private individual is not necessarily inconsistent with the retention of dominion by the owner. Dunaway v. Windsor, 197 Ga. 705 , 30 S.E.2d 627 (1944); Lines v. State, 245 Ga. 390 , 264 S.E.2d 891 (1980). See Seaboard Air-Line Ry. v. Greenfield, 160 Ga. 407 , 128 S.E. 430 (1925).

Dedication with reservation by owner permissible. - Land may be dedicated for a particular public use with a reservation by the owner of a right to use the land for a specified purpose not inconsistent with the legal character of the dedication. City of Abbeville v. Jay, 205 Ga. 743 , 55 S.E.2d 129 (1949).

When plat is made and recorded and lots are sold with reference thereto, the requisite intention is generally indisputable. Department of Transp. v. Ladson Invs., 158 Ga. App. 687 , 282 S.E.2d 171 (1981).

Recording subdivision plat showing areas for public use. - Recording of a subdivision plat showing areas set apart for the use of the public acts not only as a grant of an easement to the purchasers of the property, but also raises a presumption of intent to dedicate to the public. Smith v. Gwinnett County, 248 Ga. 882 , 286 S.E.2d 739 (1982).

3. Acceptance

Lack of public acceptance bars dedication. - Dedication of land by the owner thereof for public use as a public road, and the use of such road by the public as a route of travel, without some recognition of such road on the part of the county authorities, would not make such road a public road. Penick v. County of Morgan, 131 Ga. 385 , 62 S.E. 300 (1908); Hillside Cotton Mills v. Ellis, 23 Ga. App. 45 , 97 S.E. 459 (1918).

When dedication of land by a donor to a city for the purpose of a public street is in issue, the evidence must show not only that the owner gave the land, but that the public accepted the land before there can be a dedication. Hutchinson v. Clark, 169 Ga. 511 , 150 S.E. 905 (1929).

Before a municipality can acquire by dedication an easement over land, for use by the public as a street, there must be an acceptance of the dedication by the municipality. Chatham Motorcycle Club, Inc. v. Blount, 214 Ga. 770 , 107 S.E.2d 806 (1959).

When there has been an express offer on the part of the owner to dedicate land to the public, there must still be shown an acceptance, express or implied, of the use of the land by the public authorities. Jackson v. Chatham County, 225 Ga. 641 , 170 S.E.2d 418 (1969).

Private landowner may dedicate land by setting the land apart for public use, but the land must be accepted by the county before the land becomes a county road. Ross v. Hall County Bd. of Comm'rs, 235 Ga. 309 , 219 S.E.2d 380 (1975).

Repair or paving of road shows acceptance by public. - Frequent way of showing acceptance by the public in the case of a road or street is to prove that the proper authorities assumed control over such road or street as by having the road worked, graded, or paved. Moon v. City of Conyers, 222 Ga. 526 , 150 S.E.2d 873 (1966).

An implied acceptance by the public authority may be shown by proof that such authority maintained, improved, or repaired the strip as a public road. Jackson v. Chatham County, 225 Ga. 641 , 170 S.E.2d 418 (1969).

Proof that a public authority has impliedly accepted an offer of dedication may be made by showing that the authority has exercised control over the property, made improvements, or maintained the property's upkeep. Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981).

Entire street dedicated need not be improved to complete the acceptance. - When the extent of the grant is defined by the landowner personally in the landowner's statement making an express dedication to a municipality, it is not necessary that the public authorities should work the entire street within the confines of the grant to make effectual the act of acceptance; any improvements or repairs done on the street by the public authorities in recognition of the dedication of a defined strip of land for a street may be regarded as an acceptance of the dedication. Department of Transp. v. Ladson Invs., 158 Ga. App. 687 , 282 S.E.2d 171 (1981).

Occasional road-working is insufficient acceptance. - An occasional road-working of property by public authorities, there being no other evidence of maintenance, is not of itself sufficient to create the presumption of an intention to dedicate. The use and maintenance must be of the character, and for the length of time, sufficient to create a presumptive right of the public therein. Dunaway v. Windsor, 197 Ga. 705 , 30 S.E.2d 627 (1944); Chatham Motorcycle Club, Inc. v. Blount, 214 Ga. 770 , 107 S.E.2d 806 (1959).

Mere approval of plats insufficient to constitute acceptance. - County did not accept offers of dedication of land for public use contained in subdivision plats merely by approving plats containing offers of dedication. Smith v. Gwinnett County, 248 Ga. 882 , 286 S.E.2d 739 (1982).

Minutes of city officers sufficient to show acceptance. - Minutes of the mayor and council of a city are sufficient to prove ratification of a previous parol agreement dedicating certain lands owned by the city to a particular public use. Tillman v. Mayor of Athens, 206 Ga. 289 , 56 S.E.2d 624 (1949).

Right to accept continues until the wants and convenience of the public require the use, or until the offer has been withdrawn or revoked. Department of Transp. v. Ladson Invs., 158 Ga. App. 687 , 282 S.E.2d 171 (1981).

Public use need not be immediate or of entire property dedicated. - Acceptance by the public need not be immediate, but may be made when public necessity or convenience arises. As a corollary to this proposition, it follows that it is not necessary that the public use the entire property dedicated; any public use of a part of the property indicating a purpose to accept the gift fixes the public right to the whole. Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981).

Right of acceptance not forfeited by delay. - Department of Transportation did not forfeit its right of acceptance merely by waiting three years from the most recent expression of an intention to dedicate the property before exercising that right. Department of Transp. v. Ladson Invs., 158 Ga. App. 687 , 282 S.E.2d 171 (1981).

Acceptance by the public for public use is sufficient to complete the dedication without acceptance by the appropriate public authorities. Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981).

Length of time of public use is not as significant as the character of the use in determining whether the public has accepted the offer of dedication. Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981).

Acceptance of express offer to dedicate property may be shown by public use of the property for a period of time sufficient to indicate that the public is acting on the basis of a claimed right resulting from the dedicatory acts by the owner. Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981).

Public not required to use land for any specific period of time in order to accept impliedly the offer of dedication; rather, the public use must simply be over a period of time long enough to indicate an intent or purpose to accept the offer. Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981).

Seven-year period of use sufficient. - Because a seven-year period is sufficient time to raise the presumption of gift, the courts have held that seven years is a sufficient period of public use to establish the length of time necessary for the public to use the property allegedly dedicated to public use before acceptance of such dedication by the public may be implied. Jergens v. Stanley, 247 Ga. 543 , 277 S.E.2d 651 (1981).

When a county did not expressly accept a dedication of land for public use, no implication of acceptance may be inferred when the county has not improved or maintained any part of the area or when there is no evidence of any use of the area by the general public. Smith v. Gwinnett County, 248 Ga. 882 , 286 S.E.2d 739 (1982).

Public uses insufficient to prove intent to dedicate may constitute implied acceptance of express offer. - Public uses of a beach which are insufficient to prove that the owner of the property intended to dedicate the land to the public may be sufficient to constitute an implied acceptance of the property when an express offer of dedication has been made. Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981).

Deed recitals concerning a cemetery. - Trial court did not err in finding an implied dedication of a cemetery for public use because, given the deeds among family members which excepted the cemetery, the neighboring residents and family members were estopped to deny by the deed recitals that there had been no dedication of the cemetery, and the cemetery had been in existence for more than 40 years before the family acquired the property which surrounded the cemetery. Thus, having been dedicated, any authority over the cemetery which the neighboring residents and family members might have had as owners was lost. Brannon v. Perryman Cemetery, Ltd., 308 Ga. App. 832 , 709 S.E.2d 33 (2011).

Implied Dedication

Dedication may under certain circumstances be implied. Dunaway v. Windsor, 197 Ga. 705 , 30 S.E.2d 627 (1944).

Intention to dedicate need not be shown by an express declaration to that effect. Atlantic Coast Line Ry. v. Sweatman, 81 Ga. App. 269 , 58 S.E.2d 553 (1950), later appeal, 88 Ga. App. 674 , 77 S.E.2d 565 (1953).

Mere showing of public use insufficient. - When theory that owner has impliedly dedicated property is relied on, party so contending must show more than simply that the public made uses of the property which were consistent with the uses made by the owner. Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981).

Acquiescence by owner in public's use of land. - Intention to dedicate property to public use may be inferred from acquiescence by the owner in the use of the owner's land by the public, if the use be of such character as to clearly indicate that the public accepted the dedication to public use. Atlantic Coast Line Ry. v. Sweatman, 81 Ga. App. 269 , 58 S.E.2d 553 (1950), later appeal, 88 Ga. App. 674 , 77 S.E.2d 565 (1953); Moon v. City of Conyers, 222 Ga. 526 , 150 S.E.2d 873 (1966).

Exclusive public control of property for period of time. - In every case of implied dedication, it must appear that the property has been in the exclusive control of the public for a period long enough to raise a presumption of a gift. Hutchinson v. Clark, 169 Ga. 511 , 150 S.E. 905 (1929); Dunaway v. Windsor, 197 Ga. 705 , 30 S.E.2d 627 (1944); Lines v. State, 245 Ga. 390 , 264 S.E.2d 891 (1980).

Length of time of public use critical when needed to prove implied dedication. - Length of time of public use becomes critical only when its proof is necessary in order to establish the owner's dedicatory intent as in the case of proving an implied dedication. Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981).

Isolated instances of public travel over property insufficient. - An acquiescence cannot be effective to deprive the owner of the owner's property when the claimed acquiescence amounts to no more than a failure to protect in isolated instances when some members of the public travel over one's land. Dunaway v. Windsor, 197 Ga. 705 , 30 S.E.2d 627 (1944); Waldrep v. Hall County, 227 Ga. 554 , 181 S.E.2d 833 (1971).

Use by trespassers can give rise to no rights in the public under this statute. Central R.R. v. Brinson, 70 Ga. 207 (1883); City of Atlanta v. Georgia R.R., 148 Ga. 635 , 98 S.E. 83 (1919) (see O.C.G.A. § 44-5-230 ).

Owner's acquiescence implies knowledge of public's claim on land. - While an intention to dedicate need not be shown by an express declaration to that effect, but may be inferred under certain circumstances from an acquiescence by the owner in the use of the owner's property by the public, such acquiescence is in the nature of an estoppel in pais, and implies a knowledge on the part of the owner of the claim by the public to the right to appropriate the owner's property to the public use. Dunaway v. Windsor, 197 Ga. 705 , 30 S.E.2d 627 (1944).

Proof that whole area taken to exclusion of owner required. - When an implied dedication is relied upon, it is necessary for the contending party to show that the whole area contended for was taken in possession by the public adversely to, and to the exclusion of, the contended dedicating owner. Lines v. State, 245 Ga. 390 , 264 S.E.2d 891 (1980).

Unimproved property shows failure to dedicate. - Although the offer to dedicate may be implied from conduct, when the property is not improved and the public use and enjoyment of private rights would not be materially injured by interruption no dedication is shown. Lines v. State, 245 Ga. 390 , 264 S.E.2d 891 (1980).

Mere ownership of a parcel of land by a cemetery corporation does not constitute a dedication of that parcel for cemetery purposes. Melwood, Inc. v. DeKalb County, 255 Ga. 247 , 336 S.E.2d 571 (1985).

Absence of abandonment of personal dominion and public use. - Because the facts relied upon by an adjacent landowner failed to clearly indicate a purpose to abandon both personal dominion over the property and devote the property to a definite public use, and the declaration involving the property at issue specifically provided that any easements created under the declaration were not to be construed as creating any rights by the general public, the appeals court declined to find that an implied dedication existed. Wilcox Holdings, Ltd. v. Hull, 290 Ga. App. 179 , 659 S.E.2d 406 (2008).

Express Dedication

There are express means other than by deed to dedicate land for public use. Ross v. Hall County Bd. of Comm'rs, 235 Ga. 309 , 219 S.E.2d 380 (1975).

Express dedication by recorded map. - When the owner of a tract of land subdivides the land into lots and records a map or plat showing such lots, with designated streets, and sells lots with reference to such map or plat, the owner will be presumed to have expressly dedicated the streets designated on the map to the public. Ross v. Hall County Bd. of Comm'rs, 235 Ga. 309 , 219 S.E.2d 380 (1975); Smith v. State, 248 Ga. 154 , 282 S.E.2d 76 (1981).

Express dedication may be found even though plat was unrecorded. - Since an express dedication may be shown by parol evidence as well as by documentary evidence, it would be illogical to hold that evidence fails to establish an express dedication simply because a plat is unrecorded. Department of Transp. v. Ladson Invs., 158 Ga. App. 687 , 282 S.E.2d 171 (1981).

Acceptance by public without acceptance by authorities is sufficient. - When the owner of lands expressly dedicates the land to public use as a public road, acceptance by public use is sufficient to complete the dedication without acceptance by the public authorities of the county; when the land is so used for such a length of time that the public accommodation and private rights will be materially affected by an interruption of the enjoyment, the owner and those holding under the owner may not afterwards appropriate the land to private purposes. Chatham Motorcycle Club, Inc. v. Blount, 214 Ga. 770 , 107 S.E.2d 806 (1959).

Acceptance may be shown by use. - When the dedication is express, acceptance may be shown by use in fact, even though the period of such use be less than seven years. Davis v. State, 9 Ga. App. 430 , 71 S.E. 603 (1911); Hillside Cotton Mills v. Ellis, 23 Ga. App. 45 , 97 S.E. 459 (1918).

Dedication found. - Curb cut had been dedicated to public use by the trust that owned the land in question, and under O.C.G.A. § 44-5-230 , the dedication could not be revoked; it was undisputed that in 1976, the trustees had given express oral permission for the curb cut to be created on their property and that they understood that it would be used by the public, and acceptance by the public was implied by the public's use of the curb cut for over 20 years. Postnieks v. Chick-fil-A, Inc., 285 Ga. App. 724 , 647 S.E.2d 281 (2007).

In a quiet title action, the trial court properly determined that there was no issue of fact with regard to dedication of a road. A recorded plat survey created a presumption of express dedication, which was not contradicted by an unrecorded plat document, and a county had accepted the dedication by partially paving and maintaining the street. Harbuck v. Houston County, 284 Ga. 4 , 662 S.E.2d 107 , cert. denied, 129 S. Ct. 641 , 172 L. Ed. 2 d 613 (2008).

Reversion to Owner

Streets or highways cannot be vacated unless it is for the benefit of the public that such action should be taken. Kinney v. Brown, 234 Ga. 578 , 216 S.E.2d 798 (1975).

Title may be lost only by legal abandonment. - Statute is silent as to what would be the effect of a failure to keep the way in repair after a prescriptive title has been acquired by seven years' use. The duty to repair, no doubt, continues, but on principle it would seem that when the title vested, it could not be divested by neglect, but only by abandonment. Kirkland v. Pitman, 122 Ga. 256 , 50 S.E. 117 (1904) (see O.C.G.A. § 44-5-230 ).

Title or easement, once vested in the public, is not lost by neglect of the governing or controlling officials, but may be lost only by a legal abandonment under the statutes and general law, not by such officials alone, but also by the public which has used and may continue to use the land. Calfee v. Jones, 54 Ga. App. 481 , 188 S.E. 307 (1936); Southern Ry. v. Wages, 203 Ga. 502 , 47 S.E.2d 501 (1948).

Mere nonuse does not work a forfeiture of the right to the use of a public road. Doby v. Brown, 232 Ga. 42 , 205 S.E.2d 299 (1974).

Mere nonuse of a dedicated street is insufficient to show abandonment. Garner v. Young, 214 Ga. 109 , 103 S.E.2d 302 (1958).

Improved dedicated lands may not be revoked at will. - If lands of a city are dedicated to a particular public use, and citizens contribute money for necessary improvements to effectuate such use, the city may not revoke at will the dedication or license. Tillman v. Mayor of Athens, 206 Ga. 289 , 56 S.E.2d 624 (1949).

Title is in adjacent landowners upon vacation of street. - Whenever a street is vacated, the presumption is that the fee is in the adjacent landowners, and that the right of each extends to the middle of the way. Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312 , 66 S.E.2d 726 (1951).

Owner may not revoke dedication by sale of land. - Dedication of land to public use is in the nature of an estoppel in pais, and if an attempt is made by the original owner to revoke the dedication by a sale of the land, the owner may be enjoined by any person interested in the use. City of Abbeville v. Jay, 205 Ga. 743 , 55 S.E.2d 129 (1949).

When lands are dedicated, and are enjoyed as such, and rights are acquired by individuals in reference to such dedication, the law considers it in the nature of an estoppel in pais, which precludes the original owner from revoking it; the proprietor is still the owner of the fee and can alien that, or maintain an action for an injury done to the freehold, but the use in the public follows the fee wherever it may go. Tillman v. Mayor of Athens, 206 Ga. 289 , 56 S.E.2d 624 (1949).

Standing to oppose reappropriation by owner. - When a county adopts a zoning ordinance for the accommodation of the public, since the public accommodation will be materially affected by the reappropriation of the land impliedly dedicated for street purposes, the county has standing to enforce the county's implied dedication and prohibit the county's reappropriation by the former fee owner. Lee v. Warren, 230 Ga. 165 , 195 S.E.2d 909 (1973); Kinney v. Brown, 234 Ga. 578 , 216 S.E.2d 798 (1975).

Owner prohibited from appropriating land for private purposes. - See Haslerig v. Watson, 205 Ga. 668 , 54 S.E.2d 413 (1949).

OPINIONS OF THE ATTORNEY GENERAL

No funeral home on property for cemetery use. - Funeral home may not be established on real property dedicated to cemetery use. 1990 Op. Att'y Gen. No. 90-26.

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 71, 72, 268 et seq.

C.J.S. - 2 C.J.S., Adverse Possession, § 13 et seq.

ALR. - Necessity of acceptance of dedicated street to relieve it from taxation, 5 A.L.R. 1537 .

Implied or constructive dedication of land between street line and building, 7 A.L.R. 727 .

Validity and effect of condition of dedication that remaining property shall not be subject to assessments for improvements, 16 A.L.R. 499 ; 37 A.L.R. 1357 .

Validity and effect of restrictions or reservations in dedication of property in respect of right to operate public utilities, 58 A.L.R. 854 .

Attempted dedication as affecting right to assert after-acquired title, 62 A.L.R. 480 .

Sufficiency as common-law dedication of incomplete statutory dedication, or ineffectual attempt to make statutory dedication, 63 A.L.R. 667 .

Dedication: time for acceptance, 66 A.L.R. 321 .

Validity and effect of conditions or covenants in deed of property for streets relating to the use of the property or the street, 69 A.L.R. 1047 .

Use by public as affecting acquisition by individual of right of way by prescription, 111 A.L.R. 221 .

Reservation of right of way for railroad or street railway in dedicating property for highway, 131 A.L.R. 1472 .

Dedication: acceptance of some streets, alleys, and the like appearing on plat as acceptance of all, 32 A.L.R.2d 953.

Construction or maintenance of sewers, water pipes, or the like by public authorities in roadway, street, or alley as indicating dedication or acceptance thereof, 52 A.L.R.2d 263.

Right of owner of servient tenement subject to right of way to dedicate his land, 69 A.L.R.2d 1236.

Width and boundaries of public highway acquired by prescription or adverse user, 76 A.L.R.2d 535.

Revocation or withdrawal of dedication by grantees or successors in interest of dedicator, 86 A.L.R.2d 860.

Use of property by public as affecting acquisition of title by adverse possession, 56 A.L.R.3d 1182.

Implied acceptance, by public use, of dedication of beach or shoreline adjoining public waters, 24 A.L.R.4th 294.

CHAPTER 6 ESTATES

Article 1

In General.

Article 2

Fee Simple Estates.

Article 3

Estates Granted upon Conditions.

Article 4

Remainders and Reversions.

Article 5

Life Estates.

Article 6

Estates for Years.

Article 7

Tenancy in Common.

Part 1

I N GENERAL .

Part 2

P ARTITION .

Subpart 1

Equitable Partition.

Subpart 2

Statutory Partition.

Subpart 3

Uniform Partition of Heirs Property.

Article 8

Joint Tenancy with Survivorship.

Article 9

Uniform Statutory Rule Against Perpetuities.

Cross references. - Applicability of estates law to both real and personal property, § 44-1-11 .

Law reviews. - For article regarding "Usufructs and Estates for Years Distinguished," see 18 Ga. St. B.J. 116 (1982). For article, "A Primer on Heirs Property and Georgia's New Uniform Partition of Heirs Property Act: Protecting Owners of Heirs Property," see 19 G. St. B.J. 16 (Oct. 2013).

RESEARCH REFERENCES

ALR. - Estate created by deed to persons described as husband and wife but not legally married, 9 A.L.R.4th 1189.

Contract of sale or granting of option to purchase, to third party, by both or all of joint tenants or tenants by entirety as severing or terminating tenancy, 39 A.L.R.4th 1068.

Validity and effect of one spouse's conveyance to other spouse of interest in property held as estate by the entireties, 18 A.L.R.5th 230.

ARTICLE 1 IN GENERAL

Law reviews. - For article, "Georgia's Proposed Dynasty Trust: Giving the Dead Too Much Control," see 35 Ga. L. Rev. 1 (2000).

44-6-1. Rule against perpetuities; exception for certain trusts for employees.

Reserved. Repealed by Ga. L. 1990, p. 1837, § 1, effective May 1, 1990.

Editor's notes. - Former § 44-6-1 , pertaining to the rule against perpetuities, was based on Orig. Code 1863, § 2249; Code 1868, § 2241; Code 1873, § 2267; Code 1882, § 2267; Civil Code 1895, § 3102; Civil Code 1910, § 3678; Code 1933, § 85-707; Ga. L. 1953, Jan.-Feb. Sess., p. 42, § 1. For present provisions as to the rule against perpetuities, see § 44-6-200 et seq.

RESEARCH REFERENCES

ALR. - Lease renewal provision as violating rule against perpetuities or restraints on alienation, 99 A.L.R.6th 591.

44-6-2. Merger of lesser estate into greater.

If two estates in the same property shall unite in the same person in his individual capacity, the lesser estate shall be merged into the greater.

(Orig. Code 1863, § 2253; Code 1868, § 2245; Code 1873, § 2271; Code 1822, § 2271; Civil Code 1895, § 3106; Civil Code 1910, § 3682; Code 1933, § 85-710.)

Law reviews. - For article, "Descendible Future Interests in Georgia: The Effect of the Preference for Early Vesting," see 7 Ga. L. Rev. 443 (1973). For comment on Lathem v. Smith, 188 Ga. 472 , 4 S.E.2d 27 (1939), see 2 Ga. B.J. 44 (1939).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Purpose of doctrine of merger. - Doctrine of merger of estates is designed primarily for the benefit of one who acquires an interest in property greater than one possessed in the first instance, and will not be held to apply, against one's will, to one's disadvantage. Seaboard Air-Line Ry. v. Holliday, 165 Ga. 200 , 140 S.E. 507 (1927); Pope v. Hammond, 168 Ga. 818 , 149 S.E. 204 (1929); Landrum v. Carey, 185 Ga. 76 , 194 S.E. 362 (1937); Gosnell v. Waldrip, 158 Ga. App. 685 , 282 S.E.2d 168 (1981).

Merger incomplete without title. - Because at the time the appellee executed the deed to the appellant the appellee had no title to the easement which the appellee attempted to convey to appellant, the appellant's claim of title by estoppel was completely without merit. Elrod v. Elrod, 272 Ga. 188 , 526 S.E.2d 339 (2000).

Doctrine of merger has its foundation in the convenience of the parties interested; therefore whenever the rights of strangers, not parties to the act, that would otherwise work an extinguishment of the particular estate, require it, the two estates will still be considered as having a separate continuance. Fraser v. Martin, 195 Ga. 683 , 25 S.E.2d 307 (1943).

Doctrine applies to rights other than rights in land. - While in strict technical meaning, the doctrine of merger of estates appears to have been derived from the principles applicable to feudal tenures, and hence have relation only to estates in land, the term "merger" is applicable to rights other than rights in land. Bostwick v. Felder, 73 Ga. App. 118 , 35 S.E.2d 783 (1945).

Doctrine of legal merger is now practically extinct both in England and the United States, equitable principles being generally applied by the courts of both countries. Pope v. Hammond, 168 Ga. 818 , 149 S.E. 204 (1929).

Merged estate liable for debts. - When the lesser estate was destroyed by merging in the greater, the limitations and restrictions thrown around the lesser as to its not being subject to levy and sale were also removed when it ceased to exist; having become an absolute estate or estate in fee, it is subject to the debts of the owner, just as other estates held in the same manner. Lowe v. Webb, 85 Ga. 731 , 11 S.E. 845 (1890).

Cited in Marshall v. Dixon, 82 Ga. 435 , 9 S.E. 167 (1889); Ferris v. Van Ingen & Co., 110 Ga. 102 , 35 S.E. 347 (1900); Coleman & Burden Co. v. Rice, 115 Ga. 510 , 42 S.E. 5 (1902); Thompson v. Sanders, 118 Ga. 928 , 45 S.E. 715 (1903); Muscogee Mfg. Co. v. Eagle & Phenix Mills, 126 Ga. 210 , 54 S.E. 1028 , 7 L.R.A. (n.s.) 1139 (1906); Wellhouse v. Central Leases, Inc., 41 Ga. App. 731 , 154 S.E. 708 (1930); Thomas v. Couch, 171 Ga. 602 , 156 S.E. 206 (1930); Dodson v. Trust Co., 216 Ga. 499 , 117 S.E.2d 331 (1960); Wallace v. City of Atlanta, 228 Ga. 166 , 184 S.E.2d 576 (1971); Summers v. Allison, 127 Ga. App. 217 , 193 S.E.2d 177 (1972); Tomkus v. Parker, 236 Ga. 478 , 224 S.E.2d 353 (1976); Nash v. Miller, 212 Ga. App. 513 , 441 S.E.2d 924 (1994); Legacy Cmtys. Group, Inc. v. Branch Banking & Trust Co., 310 Ga. App. 466 , 713 S.E.2d 670 (2011), aff'd in part, rev'd in part, 290 Ga. 724 , 723 S.E.2d 674 , vacated in part, 316 Ga. App. 496 , 729 S.E.2d 612 (2012).

Requirements for Merger

Necessity of being in same person. - One estate cannot be merged in another unless both estates are owned by the same person in the same right. Pool v. Morris, 29 Ga. 374 , 74 Am. Dec. 68 (1859); Seaboard Air-Line Ry. v. Holliday, 165 Ga. 200 , 140 S.E. 507 (1927).

Doctrine of merger of estates rests upon actualities, not upon mere possibilities. Coincidence of two independent estates, presently held by one and the same person or class of persons, is a necessary prerequisite to merger. Luquire v. Lee, 121 Ga. 624 , 49 S.E. 834 (1905).

No merger can take place until such identity of person and of present interest in point of fact exists. Luquire v. Lee, 121 Ga. 624 , 49 S.E. 834 (1905); Seaboard Air-Line Ry. v. Holliday, 165 Ga. 200 , 140 S.E. 507 (1927).

Absolute proprietary interest in at least one estate required. - If there is to be a merger of two estates, the person in whom the two estates unite must have an absolute proprietary interest in at least one of the two separate estates. An example of such a merger as is intended by this statute would be where one owning in one's own right and individual capacity a remainderman's interest in certain property, secures the outstanding life estate in the same property, thereby merging the life estate, the lesser, in the remainderman's estate, the greater. Bostwick v. Felder, 73 Ga. App. 118 , 35 S.E.2d 783 (1945) (see O.C.G.A. § 44-6-2 ).

Estates must be coextensive and commensurate. - In order for legal and equitable estates to merge, the estates must be coextensive and commensurate. Seaboard Air-Line Ry. v. Holliday, 165 Ga. 200 , 140 S.E. 507 (1927).

Fractional legal estates and fractional equitable estates cannot merge when fractions are not the same. An equitable undivided interest in an equity of redemption cannot merge with the legal fee. Seaboard Air-Line Ry. v. Holliday, 165 Ga. 200 , 140 S.E. 507 (1927).

Intent of Parties

An intent not to merge will be presumed and will control. Gosnell v. Waldrip, 158 Ga. App. 685 , 282 S.E.2d 168 (1981); Tompkins v. United States, 946 F.2d 817 (11th Cir. 1991).

Intent as affecting merger. - Merger does not, in general, take place when the person in whom the two estates meet intends that it shall not take place. Knowles v. Lawton, 18 Ga. 476 , 63 Am. Dec. 29, overruled on other grounds, Williams v. Terrell, 54 Ga. 462 (1855); Edmonds v. Beatie, 62 Ga. App. 246 , 8 S.E.2d 559 (1940).

Intention of the holder of two estates in the same property that they shall not merge generally prevents merger. Landrum v. Carey, 185 Ga. 76 , 194 S.E. 362 (1937).

When a property owner did not intend that a covenant merge when the owner acquired a larger estate, that intention controlled and the covenant did not merge. Desai v. OK Oil, Inc., 233 Ga. App. 855 , 505 S.E.2d 271 (1998).

Intent is controlling consideration. - Wherever a merger will operate inequitably, it will be prevented. The controlling consideration is the intention, express or implied, of the person in whom the estates unite, provided the intention is just and fair, and a merger will not be permitted contrary to such intent. Fraser v. Martin, 195 Ga. 683 , 25 S.E.2d 307 (1943); Gosnell v. Waldrip, 158 Ga. App. 685 , 282 S.E.2d 168 (1981).

Merger of estates does not occur if the result would extinguish a loan, contrary to the expectations and intentions of the parties. In re Gaites, 466 F. Supp. 248 (M.D. Ga. 1979).

Equity presumes intent consistent with party's best interests. - If there is no expression of intention with respect to a merger, it will be sought for in all the circumstances of the transaction, and may be gathered not only from the acts and declarations of the owner of the several independent rights, but from a view of the situation as affecting one's interests, at least prior to the presence of some right in a third person. Equity will presume such an intent as is consistent with the best interests of the party. Fraser v. Martin, 195 Ga. 683 , 25 S.E.2d 307 (1943).

Merger cannot be defeated by other parties. - When it is manifest that the person in whom the two estates meet intends that the merger shall take place, it cannot be defeated by other parties. Wilder v. Holland, 102 Ga. 44 , 29 S.E. 134 (1897); Muscogee Mfg. Co. v. Eagle & Phenix Mills, 126 Ga. 210 , 54 S.E. 1028 , 7 L.R.A. (n.s.) 1139 (1906).

Burden of proof that no merger was intended. - If two estates in the same property united in the same person in the same capacity, and it is contended that no merger took place, the person making such contention, if entitled to do so, must allege and prove facts negativing the existence of such merger. Muscogee Mfg. Co. v. Eagle & Phenix Mills, 126 Ga. 210 , 54 S.E. 1028 , 7 L.R.A. (n.s.) 1139 (1906); Pitts Banking Co. v. Fenn, 160 Ga. 854 , 129 S.E. 105 (1925); Franklin Mtg. Co. v. McDuffie, 43 Ga. App. 604 , 159 S.E. 599 (1931).

When one person is the owner of different estates in the same land, the burden of showing that no merger took place is on the party asserting that a merger did not take place. Landrum v. Carey, 185 Ga. 76 , 194 S.E. 362 (1937).

Question is one of fact. - Question of intention on the part of a person acquiring both the equitable interest in land and the legal title thereto is one of fact. Franklin Mtg. Co. v. McDuffie, 43 Ga. App. 604 , 159 S.E. 599 (1931).

Courts of Equity

Doctrine of merger is not favored. - In equity the rules of law are not followed, and the doctrine of merger is not favored. Equity will prevent or permit a merger as will best subserve the purposes of justice and the actual and just intent of the parties, whether express or implied. Fraser v. Martin, 195 Ga. 683 , 25 S.E.2d 307 (1943).

Court will act according to intent of parties. - Since a court of equity is not bound by the legal rules of merger, it will prevent or permit a merger of estates according to the intent of the parties, either actually proved or implied from the fact that the merger would be against the interest of the party in whom the several estates or interests have united. Pope v. Hammond, 168 Ga. 818 , 149 S.E. 204 (1929); Fraser v. Martin, 195 Ga. 683 , 25 S.E.2d 307 (1943).

Whether a merger of estates occurs is governed by the intentions of the parties and principles of equity. In re Gaites, 466 F. Supp. 248 (M.D. Ga. 1979).

General rule at law is that the mortgage becomes merged in the deed, the latter conveying a greater estate than the mortgage; but in equity the lesser security is not merged in the greater when it appears that the holder of both intended that a merger should not take place. The intent controls. Ferris v. Van Ingen & Co., 110 Ga. 102 , 35 S.E. 347 (1900); Pitts Banking Co. v. Fenn, 160 Ga. 854 , 129 S.E. 105 (1925).

In equity there are exceptions to the rule propounded by law, one of which is that the lesser is not merged in the greater when it appears that the person in whom the two estates meet intends that it shall not take place. Fraser v. Martin, 195 Ga. 683 , 25 S.E.2d 307 (1943).

Mortgages

Presumptively a mortgage is merged when the mortgagee takes from the mortgagor a warranty deed absolute in form to the mortgaged property. Furthermore, such a deed is presumptively one of bargain and sale. Pitts Banking Co. v. Fenn, 160 Ga. 854 , 129 S.E. 105 (1925).

An absolute deed conveying land as security for a debt is a security of a higher nature than a mortgage for the same debt on the same premises, and when the mortgage is entered satisfied, and surrendered up because of the execution of such deed, the transaction operates as a novation and amounts to a merger. Pitts Banking Co. v. Fenn, 160 Ga. 854 , 129 S.E. 105 (1925); Bostwick v. Felder, 73 Ga. App. 118 , 35 S.E.2d 783 (1945).

Merger extinguishes mortgage. - When the mortgagee purchases the mortgaged property from the mortgagor, the mortgage is extinguished by merger. Pitts Banking Co. v. Fenn, 160 Ga. 854 , 129 S.E. 105 (1925).

When the mortgagee purchases the equity or redemption under a junior lien, the whole estate is vested in the mortgagee; and both the mortgage and the debt upon which it is founded are extinguished, unless the actual value of the mortgaged property is ascertained by foreclosure and sale, or express stipulation between the parties. Pitts Banking Co. v. Fenn, 160 Ga. 854 , 129 S.E. 105 (1925); Franklin Mtg. Co. v. McDuffie, 43 Ga. App. 604 , 159 S.E. 599 (1931); Wrenn v. Massell Inv. Co., 56 Ga. App. 802 , 194 S.E. 263 (1937).

Interest under first mortgage is merged into title of purchaser. Bank of Stephens v. Growers Fin. Corp., 168 Ga. 108 , 147 S.E. 113 (1929).

If the owner of the equitable or beneficial interest in land acquires the outstanding legal title, conveyed by one's predecessor in title to a third person to secure a debt, the equitable interest and the legal title become merged, and the debt for which the legal title was held as security is extinguished, unless there is an agreement to the contrary, or it is the manifest intention of the party in whom such equitable and legal estate unite that there should be no merger. Franklin Mtg. Co. v. McDuffie, 43 Ga. App. 604 , 159 S.E. 599 (1931).

Intent not to merge. - If the holder of a security deed subsequently receives a warranty deed subject to the loan evidenced by the security deed to the land conveyed in the former deed, but does not surrender or cancel the note or the deed securing the note, a merger of the two estates being against the interest of such holder, and inequitable, and there being no evidence of an intent upon one's part to effect a merger, an intent not to merge will be presumed, and a court of equity will decree that no merger was effected. Fraser v. Martin, 195 Ga. 683 , 25 S.E.2d 307 (1943).

Effect of such intent. - When the mortgagee became the purchaser of the equity of redemption in the two halves of the mortgaged lot of land, and the facts were such as to require the presumption that the purchaser intended the equity of redemption in one of the halves to merge; but the equity of redemption in the other not to merge, the decision was that as to the first mentioned half, there was a merger; and as to the other half, none. Jackson v. Tift, 15 Ga. 557 (1854).

Holder of security interests from different debts. - Merger of estates in one holding only security interests in the property as the result of two different debts has never been permitted. Bostwick v. Felder, 73 Ga. App. 118 , 35 S.E.2d 783 (1945).

No merger of judgment lien and subsequent security interest. - When a judgment creditor accepted a bill of sale as security for a second loan (the judgment being on the first loan) which the creditor had made to the debtor, and obtained thereby only a security interest in the property covered by the bill of sale, such security interest being subject to the prior judgment lien in the absence of any stipulation to the contrary, the security interest instead of being in itself a proprietary interest in the property, is but incidental to the ownership of the debt secured, and so long as that debt retains its identity the security will also retain a distinct identity, and no merger of the lien in the bill of sale occurred. Bostwick v. Felder, 73 Ga. App. 118 , 35 S.E.2d 783 (1945).

Security title does not merge with subsequent title subject to a life estate, acquired by deed. Drake v. Barrs, 225 Ga. 597 , 170 S.E.2d 684 (1969).

Illustrative Cases

Single trustee who is sole beneficiary. - If there is but a single trustee who is also the sole beneficiary, merger of legal and equitable interests results. Smith v. Francis, 221 Ga. 260 , 144 S.E.2d 439 (1965).

Plural trustees, one of whom is sole beneficiary. - When there are plural trustees, one of whom is the sole beneficiary, there is no merger and the trust is valid. Smith v. Francis, 221 Ga. 260 , 144 S.E.2d 439 (1965).

Two life estates for two separate persons. - Two life estates in the same property being for the lives of two separate persons cannot merge as one life estate within the meaning of this statute. McDaniel v. Bagby, 204 Ga. 750 , 51 S.E.2d 805 (1949) (see O.C.G.A. § 44-6-2 ).

Debt secured by two parcels of property was not extinguished prior to foreclosure under the doctrine of merger of estates by the voluntary surrender of one of the parcels of property. Reeves v. Sanderlin Agric. Servs., 249 Ga. App. 882 , 549 S.E.2d 837 (2001).

Intervening judgment lien. - There is no merger by a security deed holder taking a quitclaim deed and transfer of tax executions after judgment lien has intervened. Pope v. Hammond, 168 Ga. 818 , 149 S.E. 204 (1929).

Merger of homestead and reversionary interest. - When the sole beneficiary of a homestead estate acquires an absolute title to the reversionary interest in the property out of which the homestead estate was carved, and it does not appear that it was the intention of such beneficiary to keep the two estates separate, the lesser, or homestead estate, would become merged in the absolute estate, and the property would be subject to the payment of the debts of the person in whom the two estates united. Goodell v. Hall, 112 Ga. 435 , 37 S.E. 725 (1900); Pitts Banking Co. v. Fenn, 160 Ga. 854 , 129 S.E. 105 (1925).

Merger of life estate, power of disposition, and reversion. - When one had vested in oneself a life estate annexed to which was a power of disposition by will, which was derived from the will of one's grandfather, and one had also vested in one the reversion which was undisposed of by one's grandfather's will; the life estate, coupled with the power, became merged into the greater estate, that is, the fee represented by the reversion. Wilder v. Holland, 102 Ga. 44 , 29 S.E. 134 (1897).

Merger of life estate and absolute fee. - Merger of estates occurs if two or more persons having, as tenants in common, a life estate in realty, acquire in common the absolute fee thereto. Lowe v. Webb, 85 Ga. 731 , 11 S.E. 845 (1890); Stringfellow v. Stringfellow, 112 Ga. 494 , 37 S.E. 767 (1900); Bardwell & Co. v. Edwards, 117 Ga. 824 , 45 S.E. 40 (1903); Luquire v. Lee, 121 Ga. 624 , 49 S.E. 834 (1905).

When the possible remaindermen hold a life estate together with X, but the remainder is limited to those only who survive X, the uncertainty of knowing who will actually survive would alone prevent the merger of the estates. Luquire v. Lee, 121 Ga. 624 , 49 S.E. 834 (1905).

Merger of life estate and year's support. - Having a life estate in the use of the property by reason of the homestead, and having afterwards acquired an absolute estate in the same property by reason of its being set apart to the wife as a year's support, the life estate, being the lesser, is merged in the absolute estate. Lowe v. Webb, 85 Ga. 731 , 11 S.E. 845 (1890).

Equitable title of decedent and year's support were merged into an absolute estate by deed to the widow and children. Hines v. Moore, 168 Ga. 451 , 148 S.E. 162 (1929).

Merger of easement upon union of dominant and servient estates. - When there is a union of an absolute title to and possession of the dominant and servient estates in the same person, it operates to extinguish any such easement absolutely and forever for the single reason that no man can have an easement in one's own land. Muscogee Mfg. Co. v. Eagle & Phenix Mills, 126 Ga. 210 , 54 S.E. 1028 , 7 L.R.A. (n.s.) 1139 (1906).

Merger doctrine operated to extinguish a purported perpetual easement. Because one could not have an easement in one's own land, a common grantor's attempt to create an easement across one portion of the grantor's property for the benefit of another portion while the grantor still owned both was ineffective, and the purported easement was invalid. Gilbert v. Fine, 288 Ga. App. 20 , 653 S.E.2d 775 (2007), cert. denied, 2008 Ga. LEXIS 232 (Ga. 2008).

Merger in class. - It is doubtless true that if the entire interest in a life estate is held by a class of persons, under a deed or will which does not provide for survivorship, and subsequently the estate in remainder is vested in all of the members of this class, as tenants in common, by inheritance or otherwise, the life estate becomes merged into the greater estate which they acquire. But if it is vested in a lesser number than the whole, they do not merge. Luquire v. Lee, 121 Ga. 624 , 49 S.E. 834 (1905).

Merger of water rights with estates. - When four persons formed a water company, there was no legislative restriction preventing a merger of rights running in favor of some of the lots purchased for the benefit of others, when all became the property of one person, although before the incorporation. Muscogee Mfg. Co. v. Eagle & Phenix Mills, 126 Ga. 210 , 54 S.E. 1028 , 7 L.R.A. (n.s.) 1139 (1906).

When lessee has only right of possession and use of the leased premises, not a proprietary interest therein, there is no "merger of estates" when the lessee purchases the subject property. Life Chiropractic College, Inc. v. Carter & Assocs., 168 Ga. App. 38 , 308 S.E.2d 4 (1983).

Equitable exception to merger doctrine did not apply. - Equitable exception to the merger doctrine did not apply. Whether merger operated against the interest of the common grantor was irrelevant, as the common grantor was not a party to the action and was not harmed by the trial court's ruling; furthermore, it would be inequitable to find that the plaintiffs' property was subject to an easement for the defendants' benefit when the deed from the common grantor to the plaintiffs did not mention such an easement. Gilbert v. Fine, 288 Ga. App. 20 , 653 S.E.2d 775 (2007), cert. denied, 2008 Ga. LEXIS 232 (Ga. 2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 378, 423 et seq.

C.J.S. - 26A C.J.S., Deeds, § 263. 31 C.J.S., Estates, §§ 116, 134, 148 et seq., 177. 96 C.J.S., Wills, § 1192. 97 C.J.S., Wills, §§ 1348, 1349.

ALR. - Merger, as to other than intervening lienor, on purchase of paramount mortgage by owner of fee, 46 A.L.R. 322 .

Merger of estate for years in fee or lesser estate, 143 A.L.R. 93 .

Deed from mortgagor to mortgagee or from purchaser to vendor as merger of mortgage or of vendor's lien as regards intervening liens, 148 A.L.R. 816 .

44-6-3. Lien on one's own property; purchase of lien on own property and enforcement thereof.

As a general rule, a party may not hold a lien on his own property; but the owner of property which is subject to a lien created or imposed against the property by another person may protect himself by purchasing the lien and levying it on other property of the person liable to pay the same or holding it as a claim against such person.

(Civil Code 1895, § 3107; Civil Code 1910, § 3683; Code 1933, § 85-711.)

History of section. - This Code section is derived from the decisions in Clay v. Banks, 71 Ga. 363 (1883); Georgia Chem. Works v. Chartledge, 77 Ga. 547 , 4 Am. St. R. 96 (1886).

Cross references. - Liens generally, Ch. 14 of this title.

JUDICIAL DECISIONS

Cited in Bearden v. Carter Merchandise Co., 101 Ga. 169 , 28 S.E. 678 (1897); McDuffie v. Merchants Bank, 168 Ga. 231 , 147 S.E. 111 (1929); Franklin Mtg. Co. v. McDuffie, 43 Ga. App. 604 , 159 S.E. 599 (1931); Edmonds v. Beatie, 62 Ga. App. 246 , 8 S.E.2d 559 (1940); Bostwick v. Felder, 73 Ga. App. 118 , 35 S.E.2d 783 (1945); Barron Buick, Inc. v. Kennesaw Fin. Co., 105 Ga. App. 451 , 124 S.E.2d 918 (1962).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 89, 90. 51 Am. Jur. 2d, Liens, § 10 et seq.

C.J.S. - 31 C.J.S., Estates, § 104 et seq.

ALR. - Subrogation of purchaser who discharges superior lien as part of purchase price, as against recorded junior lien, 37 A.L.R. 384 ; 113 A.L.R. 958 .

Requiring security from life tenant for protection of remainderman, 101 A.L.R. 271 ; 138 A.L.R. 440 .

ARTICLE 2 FEE SIMPLE ESTATES

Law reviews. - For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).

JUDICIAL DECISIONS

Cited in Southwell v. Purcell, 172 Ga. 739 , 158 S.E. 588 (1931).

RESEARCH REFERENCES

ALR. - Scope and import of term "owner" in statutes relating to real property, 2 A.L.R. 778 ; 95 A.L.R. 1085 .

Perpetual lease or covenant to renew lease perpetually as violation of rule against perpetuities or the suspension of the power of alienation, 3 A.L.R. 498 ; 162 A.L.R. 1147 .

Right of purchaser under land contract to anticipate time of payment fixed by contract, 17 A.L.R. 866 .

Right of vendee who enters under parol contract, to recover for improvements where vendor refuses to convey, 17 A.L.R. 949 .

Right of owner of fee burdened with easement in nature of street, private or public, to compensation on condemnation of property for public street, 17 A.L.R. 1249 .

Absolute power of disposition in life tenant as elevating life estate to fee, 76 A.L.R. 1153 .

Nature of estates or interests created by grant or devise to one and heirs if donee should have any heirs, 16 A.L.R.2d 670.

Grant, reservation, or exception as creating separate and independent legal estate in solid minerals or as passing only incorporeal privilege or license, 66 A.L.R.2d 978.

Deed to railroad company as conveying fee or easement, 6 A.L.R.3d 973.

44-6-20. "Absolute or fee simple estate" defined.

An absolute or fee simple estate is one in which the owner is entitled to the entire property with unconditional power of disposition during his life and which descends to his heirs and legal representatives upon his death intestate.

(Orig. Code 1863, § 2226; Code 1868, § 2220; Code 1873, § 2246; Code 1882, § 2246; Civil Code 1895, § 3081; Civil Code 1910, § 3657; Code 1933, § 85-501.)

JUDICIAL DECISIONS

Fee simple is the greatest estate that any person can hold in property. Regents of Univ. Sys. v. Trust Co., 186 Ga. 498 , 198 S.E. 345 (1938).

Since a fee simple estate is the greatest estate that can be owned or conveyed, anything different must be less. Regents of Univ. Sys. v. Trust Co., 186 Ga. 498 , 198 S.E. 345 (1938).

An estate in fee simple is the entire and absolute property in the land; no person can have a greater estate or interest. Jenkins v. Shuften, 206 Ga. 315 , 57 S.E.2d 283 (1950); Houston v. Coram, 215 Ga. 101 , 109 S.E.2d 41 (1959).

Court will not by construction reduce an estate once devised absolutely in fee, by limitations contained in subsequent parts of the will, unless the intent to limit the devise is clearly and unmistakably manifested. Houston v. Coram, 215 Ga. 101 , 109 S.E.2d 41 (1959).

Cited in Sanders v. Hinton, 171 Ga. 702 , 156 S.E. 812 (1931); Atlantic Coast Line R.R. v. Sweat, 177 Ga. 698 , 171 S.E. 123 (1933); Comer v. Citizens & S. Nat'l Bank, 182 Ga. 1 , 185 S.E. 77 (1935); Milner v. Allgood, 184 Ga. 288 , 191 S.E. 132 (1937); Taylor v. Trustees of Jesse Parker Williams Hosp., 190 Ga. 349 , 9 S.E.2d 165 (1940); First Nat'l Bank v. Robinson, 209 Ga. 582 , 74 S.E.2d 875 (1953); National Bank v. First Nat'l Bank, 234 Ga. 734 , 218 S.E.2d 23 (1975); Peacock v. Owens, 244 Ga. 203 , 259 S.E.2d 458 (1979); DeKalb County Bd. of Tax Assessors v. W.C. Harris & Co., 248 Ga. 277 , 282 S.E.2d 880 (1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, § 12 et seq.

C.J.S. - 31 C.J.S., Estates, §§ 7, 8.

ALR. - Validity and effect of contract or deed which purports to cover or convey an undivided interest in land without specifying the amount of the interest, 123 A.L.R. 912 .

Construction of deed of undivided interest in land, as to fractional interest in oil, gas, or other minerals, or in royal reserved or excepted, 163 A.L.R. 1132 .

Gift or grant in terms sufficient to carry the whole property absolutely as so operating where followed by a purported limitation over of property not disposed of by the first taker, 17 A.L.R.2d 7.

Validity of restraint, ending not later than expiration of a life or lives in being, on alienation of an estate in fee, 42 A.L.R.2d 1243.

Conveyance of "right of way," in connection with conveyancing of another tract, as passing fee or easement, 89 A.L.R.3d 767.

44-6-21. Words necessary to create absolute estate; preference for construing as conveyance; maker's intention controls; parol evidence.

The word "heirs" or its equivalent is not necessary to create an absolute estate. Every properly executed conveyance shall be construed to convey the fee unless a lesser estate is mentioned and limited in that conveyance. If a lesser estate is expressly limited, the courts shall not, by construction, increase such estate into a fee but, disregarding all technical rules, shall give effect to the intention of the maker of the instrument, as far as the same is lawful, if the intention can be gathered from the contents of the instrument. If the court cannot gather the intention of the maker from the contents of the instrument, it may hear parol evidence to prove the maker's intention.

(Laws 1821, Cobb's 1851 Digest, p. 169; Code 1863, § 2228; Code 1868, § 2222; Code 1873, § 2248; Code 1882, § 2248; Civil Code 1895, § 3083; Civil Code 1910, § 3659; Code 1933, § 85-503.)

Law reviews. - For comment on Grant v. Haymes, 164 Ga. 371 , 138 S.E. 892 (1927), see 1 Ga. L. Rev. 45 (1927). For comment on Bienvenu v. First Nat'l Bank, 193 Ga. 101 , 17 S.E.2d 257 (1941), see 4 Ga. B.J. 45 (1942).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Purpose of section. - In England, it was necessary in order to create a fee that some word of inheritance should be contained in the conveyance. A deed of land to A vested a life estate only. In this state every man is his own scrivener. It was found that in many, if not in most deeds, words of inheritance were omitted, notwithstanding it was the intention of the parties to pass the fee. Clements v. Glass, 23 Ga. 395 (1857).

Purpose of this statute is to enlarge estates and make a fee more easily created than at common law. Burton v. Black, 30 Ga. 638 (1860) (see O.C.G.A. § 44-6-21 ).

Estates by implication are not favored. McCord v. Whitehead, 98 Ga. 381 , 25 S.E. 767 (1896); Comer v. Citizens & S. Nat'l Bank, 182 Ga. 1 , 185 S.E. 77 (1935); Raines v. Duskin, 247 Ga. 512 , 277 S.E.2d 26 (1981).

Construction to favor fee. - Whenever one seeks to sell property or negotiates for its sale, the presumption is that one's purpose is to convey an absolute estate, unless a lesser estate is expressly mentioned and limited. Richards v. East Tenn., V. & Ga. Ry., 106 Ga. 614 , 33 S.E. 193 (1899).

Every conveyance properly executed shall be a fee unless expressly limited. Hill v. Terrell, 123 Ga. 49 , 51 S.E. 81 (1905).

Every conveyance should be construed to convey the fee unless a lesser estate is mentioned and limited. Comer v. Citizens & S. Nat'l Bank, 182 Ga. 1 , 185 S.E. 77 (1935).

Applicability to estates in easements. - No less estate in an easement being expressed, an estate in fee therein should be understood, in harmony with this statute. Trustees, Atlanta Univ. v. City of Atlanta, 93 Ga. 468 , 21 S.E. 74 (1893) (see O.C.G.A. § 44-6-21 ).

Words importing fee unnecessary. - Any word or words which import a fee simple can have no effect upon the conveyance as to the quantity of the estate, but the conveyance will pass the fee without, as effectually as with them; except when a less estate is expressed, the fee always passes. Wilkerson v. Clark, 80 Ga. 367 , 7 S.E. 319 , 12 Am. St. R. 258 (1888); Featherston Mining Co. v. Young, 118 Ga. 564 , 45 S.E. 414 (1903).

Use of the word "heirs" is wholly unnecessary under this statute. Andrews v. Atlanta Real Estate Co., 92 Ga. 260 , 18 S.E. 548 (1893) (see O.C.G.A. § 44-6-21 ).

Words of inheritance are no longer necessary to convey an estate in fee simple to the grantor by reservation in a deed. In the case of an exception, words of inheritance are necessary. Grant v. Haymes, 164 Ga. 371 , 138 S.E. 892 (1927).

No mention of heirs or successors or assigns is necessary to convey a complete title. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591 , 84 L. Ed. 1013 (1940).

Intent to pass lesser estate must be clear. - Court will not by construction reduce an estate once devised absolutely in fee by limitations contained in subsequent parts of the will, unless the intention to limit the estate is clearly and unmistakably manifest. Smith v. Slade, 151 Ga. 176 , 106 S.E. 106 (1921); Daniel v. Stewart, 152 Ga. 423 , 110 S.E. 178 (1921); Nicholls v. Wheeler, 182 Ga. 502 , 185 S.E. 800 (1936); Frost v. Dixon, 204 Ga. 268 , 49 S.E.2d 664 (1948); Aiken v. Aiken, 209 Ga. 819 , 76 S.E.2d 481 (1953); Dillard v. Dillard, 217 Ga. 176 , 121 S.E.2d 766 (1961).

Estate in fee will not be reduced to a life estate by a subsequent limitation in a deed or will unless the intent to limit is unmistakable. Budreau v. Mingledorff, 207 Ga. 538 , 63 S.E.2d 326 (1951).

Failure to mention lesser estate passes fee. - Deed providing "and sold to said D, for the support of herself, her present and future children. . . to have and to hold the same in fee simple for the purpose aforesaid" does not mention an estate less than a fee and thus conveys fee. Morris v. Davis, 75 Ga. 169 (1885).

When a deed otherwise purports to convey the fee, and contains no words such as would impose a limitation as to the quantum of the estate conveyed, a clause which does nothing more than inform the grantee that there is a prior mortgage or security deed on the property, and states that it is understood and agreed that such is the case, cannot properly be construed as cutting down the quantum of the estate sought to be conveyed. Federal Land Bank v. Bank of Lenox, 192 Ga. 543 , 16 S.E.2d 9 (1941).

Effect of failure to clearly indicate limitation on fee. - When by codicil to a will an absolute estate is given, without any referential words carrying back the bequest, under limitations in previous provisions, courts cannot supply such intent by construction. If the devise is complete, separate, and unequivocal, the law inhibits the construction of lesser estates when no words of limitation are employed by the testator. Felton v. Hill, 41 Ga. 554 (1871).

Devise conveying property to X "without limitation or reserve, for her to do as she thinks best for herself and all my lawful heirs," conveys a fee. Wood v. Owen, 133 Ga. 751 , 66 S.E. 951 (1910).

Language, "It is my will that one-half of my property. . . shall belong to my wife in fee simple," created a fee simple estate. The words that follow those in the will, "and to be disposed of by her at her death as she may think proper," did not diminish the quantity of interest which the devisee took in the property, and was not a limitation creating a less estate than that which the words first quoted import. Lane v. Malcolm, 141 Ga. 424 , 81 S.E. 125 (1914).

When, under a joint will of a husband and wife, the survivor is expressly devised a fee simple estate in the property of the testator first dying, and following such a devise are the words, "to be used and owned fully in any way such survivor may desire," these words are clearly not a limitation upon the fee and do not show an intention of the testator to reduce the estate of the survivor from a fee simple to a life estate. Callaway v. Faust, 212 Ga. 596 , 94 S.E.2d 379 (1956).

Express intent to limit estate will pass restricted estate. - When a lesser estate than a fee is expressly limited, the court is bound to give effect to the manifest intention of the testator. Nussbaun & Dannenberg v. Evans, 71 Ga. 753 (1883).

When a testator gives an absolute estate in one part of the testator's will, and by a subsequent clause expressly cuts down such absolute estate to a lesser estate, the prior gift is restricted accordingly. Budreau v. Mingledorff, 207 Ga. 538 , 63 S.E.2d 326 (1951).

Intent of the parties is of prime importance in conveyancing. Parker v. Smith, 140 Ga. 789 , 80 S.E. 12 (1913); Burch v. King, 14 Ga. App. 153 , 80 S.E. 664 (1914); DOT v. Knight, 238 Ga. 225 , 232 S.E.2d 72 (1977).

Terms of the whole instrument are to be construed together to give effect to the entire deed and to uphold the intention of the grantor. Cole v. Thrasher, 246 Ga. 683 , 272 S.E.2d 696 (1980).

All technical rules must be disregarded so as to give effect to the intention of the maker of the instrument if the intention can be gathered from its contents. Burch v. King, 14 Ga. App. 153 , 80 S.E. 664 (1914); Banks v. Morgan, 163 Ga. 468 , 136 S.E. 434 (1927).

Doubts resolved in favor of fee. - If the expression relied upon to limit the fee is doubtful, the doubt should be resolved in favor of the absolute estate. Nicholls v. Wheeler, 182 Ga. 502 , 185 S.E. 800 (1936), overruled on other grounds, Bailey v. Johnson, 245 Ga. 823 , 268 S.E.2d 147 (1980); Aiken v. Aiken, 209 Ga. 819 , 76 S.E.2d 481 (1953); Dillard v. Dillard, 217 Ga. 176 , 121 S.E.2d 766 (1961).

Law favors the vesting of estates at the earliest possible period. Bailey v. Ross, 66 Ga. 274 (1881); Sumpter v. Carter, 115 Ga. 893 , 42 S.E. 324 , 60 L.R.A. 274 (1902); Perdue v. Anderson, 142 Ga. 309 , 82 S.E. 884 (1914); Patterson v. Patterson, 147 Ga. 44 , 92 S.E. 882 (1917).

Deed conveyed life estate and then an estate in remainder. - Trial court erred in declaring that a deed conveyed a joint tenancy to a decedent and widow because the trial court construed the deed in a manner contrary to the deed's terms, ignoring the provision granting the decedent's widow a tenancy in common for their joint lives; instead, the deed should have been construed to convey first a life estate and then an estate in remainder so as to give effect to all of the deed's provisions. Greene v. Greene, 311 Ga. App. 132 , 714 S.E.2d 650 (2011).

Cited in Harris v. Smith, 16 Ga. 545 (1855); Hill v. Alford, 46 Ga. 247 (1872); Gibson v. Hardaway, 68 Ga. 370 (1882); Wetter v. United Hydraulic Cotton Press Co., 75 Ga. 540 (1885); Craig v. Ambrose, 80 Ga. 134 , 4 S.E. 1 (1887); Matthews v. Hudson, 81 Ga. 120 , 7 S.E. 286 , 12 Am. St. R. 305 (1888); Chewning v. Shumate, 106 Ga. 751 , 32 S.E. 544 (1889); McDonough & Co. v. Martin, 88 Ga. 675 , 16 S.E. 59 , 18 L.R.A. 343 (1892); McCord v. Whitehead, 98 Ga. 381 , 25 S.E. 767 (1896); Terrell v. Huff, 108 Ga. 655 , 34 S.E. 345 (1899); Davis v. Hollingsworth, 113 Ga. 210 , 38 S.E. 827 , 84 Am. St. R. 233 (1901); Sumpter v. Carter, 115 Ga. 893 , 42 S.E. 324 , 60 L.R.A. 274 (1902); Hill v. Terrell, 123 Ga. 49 , 51 S.E. 81 (1905); Stamey v. McGinnis, 145 Ga. 226 , 88 S.E. 935 (1916); Megahee v. Hatcher, 146 Ga. 498 , 91 S.E. 677 (1917); Hollomon v. Board of Educ., 168 Ga. 359 , 147 S.E. 882 (1929); Lumpkin v. Patterson, 170 Ga. 94 , 152 S.E. 448 (1930); Woods v. Flanders, 180 Ga. 835 , 181 S.E. 83 (1935); McArthur v. Bone, 183 Ga. 796 , 189 S.E. 831 (1937); Watts v. Finley, 187 Ga. 629 , 1 S.E.2d 723 (1939); Palmer v. Atwood, 188 Ga. 99 , 3 S.E.2d 63 (1939); Sanders v. First Nat'l Bank, 189 Ga. 450 , 6 S.E.2d 294 (1939); Walden v. Walden, 191 Ga. 182 , 12 S.E.2d 345 (1940); Bienvenu v. First Nat'l Bank, 193 Ga. 101 , 17 S.E.2d 257 (1941); Trimble v. Fairbanks, 209 Ga. 741 , 76 S.E.2d 16 (1953); Wright v. Pritchett, 213 Ga. 865 , 102 S.E.2d 602 (1958); Stephens v. Stephens, 218 Ga. 671 , 130 S.E.2d 208 (1963); White v. Howell, 117 Ga. App. 778 , 161 S.E.2d 892 (1968); Floyd v. Hoover, 141 Ga. App. 588 , 234 S.E.2d 89 (1977); LeBlanc v. Easterwood, 242 Ga. 99 , 249 S.E.2d 567 (1978); O'Neill v. Myers, 148 Ga. App. 749 , 252 S.E.2d 638 (1979); Tucker v. Black, 253 Ga. 46 , 315 S.E.2d 910 (1984); Bandy v. Henderson, 284 Ga. 692 , 670 S.E.2d 792 (2008).

Rules of Construction

Conveyances at common law. - By the common law, the word "heirs" is necessary to be employed in a grant, in order to pass an inheritable fee; but, under statutory law, words of restraint must be added in order to carry a less estate. Cook v. Walker, 15 Ga. 457 (1854).

Conveyance "to A" would have, by the English rules of construction, only conveyed a life estate. The Georgia rule, however, is to the contrary. Raines v. Duskin, 247 Ga. 512 , 277 S.E.2d 26 (1981).

Effect. - Conveyance to a person is a conveyance to the person, the person's heirs, and assigns, and a conveyance to a corporation is one to the corporation and the corporation's successors and assigns. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591 , 84 L. Ed. 1013 (1940).

Court would not construe an agreement and a deed together as creating a fee simple subject to a condition subsequent because a month-long gap between the execution of the agreement and the deed was too great of a gap in time to deem the documents as being executed contemporaneously. Nor would the court reform the documents to do so as the creditor failed to demonstrate a mistake of present or past fact relievable in equity, either by rescission or reformation. Kelley v. McCormack (In re Mitchell), 548 Bankr. 862 (Bankr. M.D. Ga. 2016).

Devise or a grant to A and A's heirs conveys a fee to A. Craig v. Ambrose, 80 Ga. 134 , 4 S.E. 1 (1887); Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888); Douglas v. Johnson, 130 Ga. 472 , 60 S.E. 1041 (1908); Thomas v. Owens, 131 Ga. 248 , 62 S.E. 218 (1908); Ragan v. Rogers, 146 Ga. 818 , 92 S.E. 647 (1917).

Rule in Shelley's Case. - This statute, which requires that technical rules be disregarded, is an obstacle to any possible application of the Rule in Shelley's Case to a conveyance with the remainder limited to heirs, lineal heirs, lawful heirs, issue, or the like, and inhibits the enlargement of the estate granted to A into a fee by construction, a less estate, to wit, one for life, being mentioned and limited. Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888) (see O.C.G.A. § 44-6-21 ).

Conveyance "to B for life, remainder to his heirs" gave B a fee simple estate at common law, by the Rule in Shelley's Case. The Rule in Shelley's Case is not followed in Georgia. Raines v. Duskin, 247 Ga. 512 , 277 S.E.2d 26 (1981).

Defeasible fee with an executory limitation is created when a testator devises real estate to two persons in fee simple, but provides that upon the death of one of the people the property shall vest in fee simple in the survivor. Trimble v. Fairbanks, 209 Ga. 741 , 76 S.E.2d 16 (1953).

Estate with limitation over. - Annexing of a limitation over to an estate otherwise made a fee would not reduce such estate to an estate tail, inasmuch as such condition would not have reduced it to an estate tail at common law. The estate is a fee determinable upon condition. Burton v. Black, 30 Ga. 638 (1860).

Life estate with right of disposition. - If A was given a life estate with absolute right of disposition, and A exercised the right by executing a quitclaim, the estate A conveyed was presumed a fee simple in the absence of a less estate being limited. Prudential Inv. & Dev. Co. v. Hilton, 153 Ga. 415 , 112 S.E. 464 (1922).

Conveying for specified purpose. - Deed providing that the estate shall be used only for specified purposes conveys an absolute unconditional fee. If, by its terms, this covenant had created a forfeiture upon condition broken, the court ought to construe it to prevent that result. Doe v. Roe, 39 Ga. 202 (1869).

An estate to X as long as X shall remain satisfied thereon, to revert in case X is not satisfied conveys a fee making it X's duty to elect to become satisfied within a reasonable time. Crumpler v. Barfield & Wilson Co., 114 Ga. 570 , 40 S.E. 808 (1902).

When a deed contains no words of forfeiture, but does contain a stipulation that the property would be used to terminate a railroad line and for the building of offices, such stipulation in the deed is a covenant and not a forfeiture which would cause title to the property to revert to the grantor upon abandonment of the property for the purposes stipulated in the deed. Richmond County Property Owners Ass'n v. Augusta-Richmond County Coliseum Auth., 233 Ga. 94 , 210 S.E.2d 172 (1974).

Parol evidence not admissible to show intent that security interest be perpetual. - Use of the words "forever, in fee simple" in a security deed were not an "affirmative statement" within the meaning of O.C.G.A. § 44-14-80 (a)(2) such that title to the property did not revert to the grantor for 20 years, rather than seven years, because those words related to the estate granted rather than the duration of the security interest. Parol evidence was not admissible and § 44-14-80 controlled over O.C.G.A. § 44-6-21 . Vineville Capital Group, LLC v. McCook, 329 Ga. App. 790 , 766 S.E.2d 156 (2014).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 212, 226 et seq. 28 Am. Jur. 2d, Estates, § 15 et seq. 80 Am. Jur. 2d, Wills, §§ 1119, 1260 et seq.

C.J.S. - 26A C.J.S., Deeds, §§ 169 et seq., 182 et seq., 245 et seq., 280 et seq. 96 C.J.S., Wills, § 1192 et seq.

ALR. - Meaning of term "issue" where used as a word of purchase, 2 A.L.R. 930 ; 117 A.L.R. 691 .

Effect of omission of words of inheritance from a reservation, exception, or provision for forfeiture in a deed, 34 A.L.R. 695 .

Nature of estate created by grant or gift to one and his children, 161 A.L.R. 612 .

Nature of estates or interests created by grant or devise to one and heirs if donee should have any heirs, 16 A.L.R.2d 670.

Conveyance of "right of way," in connection with conveyance of another tract, as passing fee or easement, 89 A.L.R.3d 767.

44-6-22. Creation of estate to commence in future; fee in abeyance; fee limited upon fee.

An absolute estate may be created to commence in the future, and the fee may be in abeyance without detriment to the rights of subsequent remainders. A fee may be limited upon a fee, either by deed or will, where the plain intention of the grantor or testator requires it and no other rule of law is violated thereby.

(Orig. Code 1863, § 2227; Code 1868, § 2221; Code 1873, § 2247; Code 1882, § 2247; Civil Code 1895, § 3082; Civil Code 1910, § 3658; Code 1933, § 85-502.)

Law reviews. - For article, "Creation of Defeasible Fees," see 15 Ga. B.J. 20 (1952). For article, "Descendible Future Interests in Georgia: The Effect of the Preference for Early Vesting," see 7 Ga. L. Rev. 443 (1973). For article, "The Rule Against Perpetuities as Applied to Georgia Wills and Trusts," see 16 Ga. L. Rev. 235 (1982). For comment on Jenkins v. Shuften, 266 Ga. 315 , 57 S.E.2d 283 (1950), see 12 Ga. B.J. 477 (1950).

JUDICIAL DECISIONS

Remainder or executory devise at common law could not be limited upon a fee, but since the Code of 1863 this statute has been the law. Greer v. Pate, 85 Ga. 552 , 11 S.E. 869 (1890) (see O.C.G.A. § 44-6-22 ).

Common-law rule that a fee cannot be limited on a fee has been abolished. Sanders v. First Nat'l Bank, 189 Ga. 450 , 6 S.E.2d 294 (1939).

Determinable fee legal. - Grant of a qualified or determinable fee subject to be divested upon the sufficiency of certain conditions is legal because a fee may be limited upon a fee. Davis v. Hollingsworth, 113 Ga. 210 , 38 S.E. 827 , 84 Am. St. R. 233 (1901); Shealy v. Wammock, 115 Ga. 913 , 42 S.E. 239 (1902); Dean v. Wall, 154 Ga. 637 , 115 S.E. 78 (1922).

There is no obstacle to a holding that though the remaindermen took estates in fee, vested as of the date of the death of the testator, yet, since the fees were defeasible fees, the executory devise would take effect if the contingency provided for in the will should eventuate. Sanders v. First Nat'l Bank, 189 Ga. 450 , 6 S.E.2d 294 (1939).

Defeasible fee is a present, possessory freehold estate of inheritance; it may endure forever, but may also be brought to an end by a stated event. It has the attributes of a fee interest, such as general inheritability, but is not a fee simple due to the fact that it may be defeased. The event may be the continuance or end of some situation, the happening or failure of happening of some occurrence or the performance or nonperformance of some condition. McDonald v. Suarez, 212 Ga. 360 , 93 S.E.2d 16 (1956).

Essentials of a defeasible fee are that the grantee must first take an estate in fee; that is to say, an estate which may run indefinitely with the general attributes of a fee simple, but subject to being defeated by some contingency which may arise after the grantee's estate has become vested. Sanders v. First Nat'l Bank, 189 Ga. 450 , 6 S.E.2d 294 (1939); McDonald v. Suarez, 212 Ga. 360 , 93 S.E.2d 16 (1956).

Creation of defeasible fee with executory limitation. - A defeasible fee with an executory limitation is created when a testator gives land to one in fee simple, but subsequently provides in the testator's will that, in case a certain event does or does not happen, the estate will go to another. Jenkins v. Shuften, 206 Ga. 315 , 57 S.E.2d 283 (1950); Trimble v. Fairbanks, 209 Ga. 741 , 76 S.E.2d 16 (1953); McDonald v. Suarez, 212 Ga. 360 , 93 S.E.2d 16 (1956).

Fee need not pass out of grantor. - It is not necessary, whether a trust for the life tenant is created or not, for the fee to pass out of the grantor or devisor with the particular estate. Fleming v. Hughes, 99 Ga. 444 , 27 S.E. 791 (1896).

Reversionary interest created by a fee simple determinable is alienable. Flaum v. Middlebury, Inc., 246 Ga. 682 , 272 S.E.2d 695 (1980).

Fee simple determinable provides for automatic reversion of the estate upon the occurrence of the limitation. Flaum v. Middlebury, Inc., 246 Ga. 682 , 272 S.E.2d 695 (1980).

Devise to the wife and children of a yet-unmarried son is valid and the executor holds the property in abeyance as quasi-trustee until the marriage of the son, when it vests in the wife, subject to be shared by future born children of the husband. Knowles v. Knowles, 132 Ga. 806 , 65 S.E. 128 (1909).

Power of appointment upon divesting qualified fee. - When, under a deed, a base or qualified fee is conveyed subject to be divested upon the happening or nonhappening of an event, with power in the grantee to appoint the property to any member of a designated class in the event the qualified fee is divested, the nonexercise of such power by the grantee does not enlarge the qualified fee into an absolute fee. Guess v. Morgan, 196 Ga. 265 , 26 S.E.2d 424 (1943).

Interpretation of will to avoid creation of estate tail. - Since an estate tail is void but a fee may be limited upon a fee, the court held that the probable intent of the testator was to give a fee, subject to be reduced or divested upon certain contingencies, such interpretation being possible, rather than an estate tail. Phinizy v. Wallace, 136 Ga. 520 , 71 S.E. 896 (1911).

Cited in Nelson v. Estill, 175 Ga. 526 , 165 S.E. 820 (1932); Taylor v. Trustees of Jesse Parker Williams Hosp., 190 Ga. 349 , 9 S.E.2d 165 (1940); Padgett v. Hatton, 200 Ga. 209 , 36 S.E.2d 664 (1946); Jenkins v. Shuften, 206 Ga. 315 , 57 S.E.2d 283 (1950); Stahl v. Russell, 206 Ga. 699 , 58 S.E.2d 135 (1950); Trimble v. Fairbanks, 209 Ga. 741 , 76 S.E.2d 16 (1953); Lanier v. Lanier, 218 Ga. 137 , 126 S.E.2d 776 (1962); Mann v. Blalock, 286 Ga. 541 , 690 S.E.2d 375 (2010).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 13, 14, 403.

C.J.S. - 31 C.J.S., Estates, §§ 3, 16.

ALR. - Gift or grant in terms sufficient to carry the whole property absolutely as so operating where followed by a purported limitation over of property not disposed of by the first taker, 17 A.L.R.2d 7.

44-6-23. Construction of words such as "heirs" or "heirs of body."

Limitations over to "heirs," "heirs of the body," "lineal heirs," "lawful heirs," "issue," or words of similar meaning shall be held to mean "children" whether the parents are alive or dead. Under such words the children and the descendants of deceased children by representation in being at the time of the vesting of the estate shall take.

(Orig. Code 1863, § 2229; Code 1868, § 2223; Code 1873, § 2249; Code 1882, § 2249; Civil Code 1895, § 3084; Civil Code 1910, § 3360; Code 1933, § 85-504.)

Law reviews. - For article discussing problems in construction of instrument conveying gift to a group or class, see 6 Ga. St. B.J. 169 (1969). For article, "Descendible Future Interests in Georgia: The Effect of the Preference for Early Vesting," see 7 Ga. L. Rev. 443 (1973). For article surveying legislative and judicial developments in Georgia's will, trusts, and estate laws, see 31 Mercer L. Rev. 281 (1979). For comment on Walters v. Donaldson, 184 Ga. 45 , 191 S.E. 429 (1937), see 5 Ga. B.J. 64 (1943). For comment on Brooks v. Williams, 227 Ga. 59 , 178 S.E.2d 880 (1970), see 23 Mercer L. Rev. 399 (1972).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Purpose and effect of section. - This statute works a radical change in the prior law by making certain words and phrases, or other like words, always import purchase and not limitation when used in limitations over. According to the Rule in Shelley's Case, such words, so used, would generally be taken as words of limitation and not of purchase. This statute totally extirpates that celebrated rule, and establishes the very reverse of its doctrine, as to all limitations over. Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888) (see O.C.G.A. § 44-6-23 ).

Section enlarges class of remaindermen. - Statute introduces children of deceased children into the class, and its effect upon the general rule is to enlarge the class of remaindermen, when designated as heirs, lawful heirs, or the like, so as to include children of deceased children. Lumpkin v. Patterson, 170 Ga. 94 , 152 S.E. 448 (1930) (see O.C.G.A. § 44-6-23 ).

Effect upon Rule in Shelley's Case. - This statute, which provides that any descriptions which embrace children will enable the children to take, if the children are in being at the time of the vesting of the estate, is an obstacle to any possible application of the Rule in Shelley's Case to a conveyance with the remainder limited to heirs, lineal heirs, lawful heirs, issue, or the like. Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888) (see O.C.G.A. § 44-6-23 ).

Code abrogates the Rule in Shelley's Case, wipes it out utterly as a rule of law in limitations over, but this is only as to conveyances executed since 1862. Wilkerson v. Clark, 80 Ga. 367 , 7 S.E. 319 , 12 Am. St. R. 258 (1888).

This statute worked a radical change in the prior law, and modified the Rule in Shelley's Case by making the words, "heirs," "heirs of body," and words of similar import, always import purchase and not limitation when used in limitation over. McArthur v. Bone, 183 Ga. 796 , 189 S.E. 831 (1937) (see O.C.G.A. § 44-6-23 ).

A conveyance "to B for life, remainder to his heirs" gave B a fee simple estate by the Rule in Shelley's Case. The law is now to the contrary in Georgia. Raines v. Duskin, 247 Ga. 512 , 277 S.E.2d 26 (1981).

A deed to A for life and after A's death to the heirs of A, or to devisee if A should make a will and dispose of the same is a life estate with remainder over, and not a conveyance to A and A's children or issues, and falls directly within the terms of this statute. Brown v. Brown, 97 Ga. 531 , 25 S.E. 353 , 33 L.R.A. 816 (1895); Wright v. Hill, 140 Ga. 554 , 79 S.E. 546 (1913); Bush v. Williams, 141 Ga. 62 , 80 S.E. 286 (1913) (see O.C.G.A. § 44-6-23 ).

Under this statute, a deed to A, and at A's decease to A's child or children or representative of child or children as A may leave in life, conveys a life estate to A, with remainder to the designated remaindermen. Goodrich v. Pearce, 83 Ga. 781 , 10 S.E. 451 (1889); King v. McDuffie, 144 Ga. 318 , 87 S.E. 22 (1915); Megahee v. Hatcher, 146 Ga. 498 , 91 S.E. 677 (1917); Edwards v. Edwards, 147 Ga. 12 , 92 S.E. 540 (1917); Stanley v. Reeves, 149 Ga. 151 , 99 S.E. 376 (1919) (see O.C.G.A. § 44-6-23 ).

Rule where conveyance has no limitation over. - Grants to one and the heirs of one's body, or one's bodily heirs, or one's heirs by a particular person, convey an absolute fee, when the conveyance contains no limitation over. In that class of cases, the expression "bodily heirs" or words of similar import are words of limitation and not of purchase, and are inoperative to qualify or limit the character of the estate that passes under the deed. Rainey v. Spence, 185 Ga. 763 , 196 S.E. 416 (1938).

While a gift or grant to A and the heirs of A's body, or words of similar import, operates to vest the full fee simple title in A, that rule would not apply when a less estate has been carved out, and the term "heirs of his body" is used in connection with a limitation over in remainder. McArthur v. Bone, 183 Ga. 796 , 189 S.E. 831 (1937).

Grant or devise without a limitation over, not to A and A's "heirs," or "heirs of her body," but to A and A's children, where there are no children at the time the instrument becomes effective, operates to vest full fee simple title in A. Singer v. First Nat'l Bank & Trust Co., 195 Ga. 269 , 24 S.E.2d 47 (1943).

Meaning of statute. - This statute means that in limitations over, as, for instance, in a devise to A for life and at A's death to A's heirs, such words shall give a vested remainder to the children of A at the testator's death and who might afterwards be born, and in case any such child dies in the lifetime of the life tenant, the deceased child's descendants in esse when the life estate falls in shall take the share by representation; just as is now done in an express devise in remainder to the children of A and to the descendants of such children who die before the life tenant. Both of the devises, being defeasible vested remainders in the children, are clearly distinguishable from a devise in remainder to the children of A as a class. Crawley v. Kendrick, 122 Ga. 183 , 50 S.E. 41 , 2 Ann. Cas. 643 (1905) (see O.C.G.A. § 44-6-23 ).

This statute is expressly confined to limitations over, in which the enumerated words of limitation are used, and was solely intended to change the common law as to such limitations over, by changing these words into words of purchase, so as to cut down the first taker's estate to a life tenancy and include all persons who could fall within these words as words of purchase. Crawley v. Kendrick, 122 Ga. 183 , 50 S.E. 41 , 2 Ann. Cas. 643 (1905) (see O.C.G.A. § 44-6-23 ).

"Limitation over" construed. - A "limitation over" in the sense intended by this statute includes any estate in the same property created or contemplated by the conveyance to be enjoyed after the first estate granted expires or is exhausted. Thus in a gift to A for life, remainder to the heirs of A's body, the remainder is "a limitation over" to the heirs of the body, and under this statute the children of A and the descendants of deceased children would take the remainder as purchasers. And the same persons would take the same estate in the same capacity were the remainder limited to heirs, lineal heirs, lawful heirs, issue, or the like. Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888); Rainey v. Spence, 185 Ga. 763 , 196 S.E. 416 (1938); Lane v. Citizens & S. Nat'l Bank, 195 Ga. 828 , 25 S.E.2d 800 (1943); Dodson v. Trust Co., 216 Ga. 499 , 117 S.E.2d 331 (1960) (see O.C.G.A. § 44-6-23 ).

When two or more estates of freehold in the same property are granted by the same conveyance to be enjoyed successively, or one in lieu of another, each of them, except the first, is a limitation over. Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888); Lane v. Citizens & S. Nat'l Bank, 195 Ga. 828 , 25 S.E.2d 800 (1943).

Section inapplicable to adoption rights. - This statute was enacted only as a rule of property different from the former law, and does not purport to deal in any manner with the adoption of children or with any right flowing from such adoption. Comer v. Comer, 195 Ga. 79 , 23 S.E.2d 420 (1942).

Cited in Herring v. Rogers, 30 Ga. 615 (1860); Butler v. Ralston, 69 Ga. 485 (1882); Cooper v. Mitchell Inv. Co., 133 Ga. 769 , 66 S.E. 1090 , 29 L.R.A. (n.s.) 291 (1910); Burch v. King, 14 Ga. App. 153 , 80 S.E. 664 (1914); Rogers v. Smith, 145 Ga. 234 , 88 S.E. 963 (1916); Rumble v. Strange, 154 Ga. 512 , 114 S.E. 881 (1922); Bristol Sav. Bank v. Nixon, 169 Ga. 282 , 150 S.E. 148 (1929); Aiken v. Baynes, 170 Ga. 784 , 154 S.E. 451 (1930); Ward v. Ward, 176 Ga. 849 , 169 S.E. 120 (1933); Aycock v. Williams, 185 Ga. 585 , 196 S.E. 54 (1938); Curtis v. Moss, 189 Ga. 165 , 5 S.E.2d 654 (1939); Jones v. Federal Land Bank, 189 Ga. 419 , 6 S.E.2d 52 (1939); Deck v. Deck, 193 Ga. 739 , 20 S.E.2d 1 (1942); English v. Davis, 195 Ga. 89 , 23 S.E.2d 394 (1942); Patellis v. Tanner, 197 Ga. 471 , 29 S.E.2d 419 (1944); Cooper v. Littleton, 197 Ga. 381 , 29 S.E.2d 606 (1944); Padgett v. Hatton, 200 Ga. 209 , 36 S.E.2d 664 (1946); Smith v. Smith, 200 Ga. 373 , 37 S.E.2d 367 (1946); Brooks v. Williams, 227 Ga. 59 , 178 S.E.2d 880 (1970); Dunn v. Sanders, 243 Ga. 684 , 256 S.E.2d 366 (1979); McGill v. McGill, 247 Ga. 428 , 276 S.E.2d 587 (1981).

Words of Similar Import

Terms are words of purchase. - Words in the first sentence were previously construed as words of limitation; but subsequently to the adoption of the Code of 1863 those words and words of similar import were construed to mean children, and that word has been taken as a word of purchase, and not of limitation. Lumpkin v. Patterson, 170 Ga. 94 , 152 S.E. 448 (1930).

In a deed or devise to "A for life," with remainder to "his heirs," or words of like import, the words "his heirs" are words of purchase, and not of limitation, and the instrument creates two estates, one to A for life, and at A's death another estate to A's children. Cooper v. Harkness, 188 Ga. 121 , 2 S.E.2d 918 (1939).

Effect if children are in esse at time of vesting. - "Children" or words made of that import are words of purchase if the children are in esse at the time of vesting, otherwise the common law is unchanged and they are words of limitation. Cooper v. Mitchell Inv. Co., 133 Ga. 769 , 66 S.E. 1090 , 29 L.R.A. (n.s.) 291 (1910).

"Heirs at law" is a phrase of description, under which are to be determined the substitute takers in the event the name taker fails to qualify as tenant. The phrase is referable to the testator, and the persons who may ultimately take by reason of being within its description take directly from the testator, as purchasers. Cooper v. Harkness, 188 Ga. 121 , 2 S.E.2d 918 (1939).

"Heirs at law" construed. - Whenever the words "heirs at law" are found in a will, unaccompanied by any qualifying or explanatory expressions, those words will be given the meaning which the law ordinarily gives those words, and only the persons will come within the class thus described who would take the property of the decedent under the statute of distributions if there had been no will. Cooper v. Harkness, 188 Ga. 121 , 2 S.E.2d 918 (1939).

Words "heirs at law" must be treated as words of similar import to those mentioned in this statute. Lane v. Citizens & S. Nat'l Bank, 195 Ga. 828 , 25 S.E.2d 800 (1943) (see O.C.G.A. § 44-6-23 ).

Terms "heirs" and "lawful heirs" necessarily mean the same as "heirs at law." No one can be an "heir" or a "lawful heir" unless one is made so by law, there being no absolute right on the part of anyone to inherit from another, and all inheritance being the result of a statute, of "law." Lane v. Citizens & S. Nat'l Bank, 195 Ga. 828 , 25 S.E.2d 800 (1943).

Since the words "heirs at law" are words of similar import to those listed in this statute, the words must be construed as meaning children and the descendants of children, no intention to the contrary being manifested. Dodson v. Trust Co., 216 Ga. 499 , 117 S.E.2d 331 (1960) (see O.C.G.A. § 44-6-23 ).

"Legal heirs" construed. - Statute established the meaning of the words "legal heirs" (being words of similar import to those contained in the section) to be children and the descendants of children. Dodson v. Trust Co., 216 Ga. 499 , 117 S.E.2d 331 (1960) (see O.C.G.A. § 44-6-23 ).

"Living heirs" construed. - Words "and her living heirs," as used in a legacy to K "and her living heirs," are to be taken as words of purchase, if, at the time of the execution of the will and at the time of the death of the testatrix, K had two living children, and under such a construction, these children, together with their mother, all took equal shares as tenants in common in the property left by the legacy. McArthur v. Bone, 183 Ga. 796 , 189 S.E. 831 (1937).

When there is no limitation over, so as to come within the provisions of this statute, the words, "heirs," "heirs of body," etc., imply limitation and not purchase; but addition of the word "living" to the word "heirs" (so that devise was "to K and her living heirs") would operate to change the rule. McArthur v. Bone, 183 Ga. 796 , 189 S.E. 831 (1937) (see O.C.G.A. § 44-6-23 ).

"Bodily heirs," or words of similar import, are held to mean children. Craig v. Ambrose, 80 Ga. 134 , 4 S.E. 1 (1887); Stanley v. Reeves, 149 Ga. 151 , 99 S.E. 376 (1919); Thomas v. Berry, 151 Ga. 7 , 105 S.E. 478 (1921); Starnes v. Sanders, 151 Ga. 632 , 108 S.E. 37 (1921).

"Heirs by a particular person". - In cases where there is a limitation over to heirs or issue, the words "heirs or issue" shall be held to mean children. But grants to one and "her heirs by a particular person," or "her issue" (as distinguished from a grant to A for life with limitation over to A's issue) convey an absolute estate, to the exclusion of any children that may be in life at the time of the conveyance. Johnson v. Sirmans, 69 Ga. 617 (1882); Whatley v. Barker, 79 Ga. 790 , 4 S.E. 387 (1887); Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888); McCraw v. Webb, 134 Ga. 579 , 68 S.E. 324 (1910).

"Children" does not mean grandchildren. - Word "children" has never included grandchildren. The term only embraces the first generation. Willis v. Jenkins, 30 Ga. 167 (1860).

"Heirs of the body" means children. - Under this statute the words "heirs of the body" mean children, and not grandchildren. Baynes v. Aiken, 166 Ga. 898 , 144 S.E. 736 (1928) (see O.C.G.A. § 44-6-23 ).

Taking by Children and Descendants

"The time of the vesting of the estate," mentioned in this statute, when the children and descendants of deceased children, by representation, take the estate in remainder absolutely, must mean the vesting of the remainder in possession at the life tenant's death, in order to give the words a proper and legal sense. Crawley v. Kendrick, 122 Ga. 183 , 50 S.E. 41 , 2 Ann. Cas. 643 (1905) (see O.C.G.A. § 44-6-23 ).

Time for determining heirs at law. - Language in this statute, to wit, "in being at the time of the vesting of the estate," refers to "the descendants of deceased children, by representation," and does not refer to and does not qualify the word "children." In other words, this statute properly punctuated in the second sentence, means that "children" shall take in the instances enumerated, and that "the descendants of deceased children, by representation, in being at the time of the vesting of the estate, shall take." Lumpkin v. Patterson, 170 Ga. 94 , 152 S.E. 448 (1930) (see O.C.G.A. § 44-6-23 ).

Man has heirs at law who inherit from him at only one time and that is at the moment of death. Prior to death, his children and possibly his wife, and if none of these his next kin, are heirs expectant and have no vested inheritable rights. They continue to be heirs only because they attained that identity at their ancestor's death. Raney v. Smith, 242 Ga. 809 , 251 S.E.2d 554 (1979).

Title must have vested in child for descendants to take. - When the estate is a vested remainder in the children, defeasible only upon the contingency of their dying in the lifetime of the life tenant, leaving children, no descendants of a deceased child could take under it by representation, unless their parent was seized of a vested interest in the lifetime of the life tenant. Crawley v. Kendrick, 122 Ga. 183 , 50 S.E. 41 , 2 Ann. Cas. 643 (1905); Lumpkin v. Patterson, 170 Ga. 94 , 152 S.E. 448 (1930).

This statute means that title to the remainder must first have vested in a child before the descendants of such child could take by purchase under the instrument by representation. If title had first vested, then, whether the deceased remainderman be alive or dead at the time of the vesting of the estate in possession at the death of the life tenant, descendants of deceased children would take by representation as purchasers under the instrument. Britt v. Fincher, 202 Ga. 661 , 44 S.E.2d 372 (1947) (see O.C.G.A. § 44-6-23 ).

Child need not be in esse at time of vesting of possession. - Child or children having already taken during the existence of the life estate a vested remainder, it is not necessary for such child or children to be in esse at the time of the vesting of the estate in possession when the life estate ended, in order for her heirs to take by inheritance. The foregoing is subject to the rule that the vested remainder, in such case, may open and take in other children who may be born subsequently to the death of the testator and prior to the death of the life tenant. Lumpkin v. Patterson, 170 Ga. 94 , 152 S.E. 448 (1930).

Deceased child with no descendants. - Under a deed from a father conveying real property to his daughter "for and during her natural life, and at her death to her heirs," where the life tenant gave birth to only one child, and it was born dead, the husband did not take the property as her sole heir, but the remainder estate failed; for no estate beyond that granted to the life tenant passed out of the grantor, and, upon the death of the life tenant and the failure of the remainder, the grantor or his heirs were entitled to the property. Beasley v. Calhoun, 178 Ga. 613 , 173 S.E. 849 (1934).

First taker must have less than fee simple. - Before the heirs will take as children, there must be an estate less than a fee simple in the parent or the first taker. Munford v. Peeples, 152 Ga. 31 , 108 S.E. 454 (1921).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, § 243 et seq. 28 Am. Jur. 2d, Estates, §§ 332 et seq. 80 Am. Jur. 2d, Wills, §§ 1018, 1047 et seq.

C.J.S. - 26A C.J.S., Deeds, § 264 et seq. 96 C.J.S., Wills, §§ 910, 911, 917, 926 et seq., 935, 947, 949, 957 et seq., 1202 et seq.

ALR. - Meaning of term "issue" where used as a word of purchase, 2 A.L.R. 930 ; 117 A.L.R. 691 .

Fee simple conditional, 114 A.L.R. 602 .

Doctrine as to possibility of issue being extinct as affecting property rights or taxation, 146 A.L.R. 794 ; 98 A.L.R.2d 1285.

Nature of estate created by grant or gift to one and his children, 161 A.L.R. 612 .

Time of ascertaining persons to take, under deed or inter vivos trust, where designated as the "heirs," "next of kin," "children," "relations," etc., of life tenant or remainderman, 65 A.L.R.2d 1408.

Husband or wife as heir within provision of will or trust, 79 A.L.R.2d 1438.

Modern status of the Rule in Shelley's Case, 99 A.L.R.2d 1161.

44-6-24. Estates tail abolished; effect of limitations which would create estate tail by implication.

  1. Estates tail are prohibited and abolished and the law shall not presume or imply such an estate. Gifts or grants to a person and the heirs of his body, to his male heirs or female heirs, to his heirs by a particular person, to his children, or to his issue shall convey an absolute fee.
  2. Limitations which, by the English rules of construction, would create an estate tail by implication shall give a life estate to the first taker and with remainder over in fee to his children and their descendants, as provided in Code Section 44-6-23, and, if none is living at the time of his death, with remainder over in fee to the beneficiaries intended by the maker of the instrument.

    (Laws 1799, Cobb's 1851 Digest, p. 167; Laws 1821, Cobb's 1851 Digest, p. 169; Code 1863, § 2230; Code 1868, § 2224; Code 1873, § 2250; Code 1882, § 2250; Civil Code 1895, § 3085; Civil Code 1910, § 3661; Code 1933, § 85-505; Ga. L. 1984, p. 22, § 44.)

Law reviews. - For article, "Estates Tail in Georgia," see 13 Ga. B.J. 27 (1950). For article surveying real property law, see 34 Mercer L. Rev. 255 (1982). For comment on Brooks v. Williams, 227 Ga. 59 , 178 S.E.2d 880 (1970), see 23 Mercer L. Rev. 399 (1972).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Estate tail never presumed. - Estates tail being illegal, the law will never presume or imply such an estate. Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888).

Clear intention to create estate tail required. - By this statute, before an estate tail can be held to be created by any words in a will, those words must show such intention in the testator's mind very clearly. Gibson v. Hardaway, 68 Ga. 370 (1882) (see O.C.G.A. § 44-6-24 ).

Test for creation of estate tail. - Question whether or not an estate tail is created is always resolvable into two others, of which one is, what persons are intended to take the property and the other is, do these persons constitute a class, having succession from generation to generation, and to the end of the blood? Gaboury v. McGovern, 74 Ga. 133 (1884).

To create an estate tail, the limitation over must be to the heirs, general or special, of the holder of the freehold to be affected. Smith v. Collins, 90 Ga. 411 , 17 S.E. 1013 (1892).

Intent deduced from whole instrument. - Devise to "the children of my first wife and their children after them" created an estate in remainder rather than an estate tail, for the law will never presume an estate tail if a remainder was likely intended, as deduced from the instrument as a whole. Cooper v. Mitchell Inv. Co., 133 Ga. 769 , 66 S.E. 1090 , 29 L.R.A. (n.s.) 291 (1910); Phinizy v. Wallace, 136 Ga. 520 , 71 S.E. 896 (1911).

Section applicable to personalty. - Bequests of personal property expressed in such terms as would have passed an estate tail by the Statute De Donis Conditionalibus, will vest in the persons to whom they are made an absolute, unconditional, fee simple estate. Gray v. Gray, 20 Ga. 804 (1856).

No distinction as to creation of estate by will or deed. - This statute makes no distinction as to whether such estates are created by deed or by will. Baird v. Brookin, 86 Ga. 709 , 12 S.E. 981 , 12 L.R.A. 157 (1891) (see O.C.G.A. § 44-6-24 ).

Section inapplicable to fee conditional estate. - When estate is given to the widow during her widowhood to be divided between her and the testator's children upon her marriage, and if she should die without children by second marriage, her part to go to testator's children, this did not create an estate tail so as to become a fee simple under this statute. It created a fee conditional estate. Clements v. Glass, 23 Ga. 395 (1857) (see O.C.G.A. § 44-6-24 ).

Or to determinable fee. - Devise to T, T's heirs, executors, and assigns forever, except should T die "without lineal descendants" to go over to X, does not create an estate tail, because it cannot be inferred that "lineal descendants" created an estate in perpetuity; for the estate of the first taker is to be a fee simple excluding the "lineal descendants," if T dies with lineal descendants, but if T does not die with them, the property is to go over. There is no entailment, devisor leaving it to devisee to provide for devisee's own issue, and hence this statute has no application. Forman v. Troup, 30 Ga. 496 (1860); Burton v. Black, 30 Ga. 638 (1860) (see O.C.G.A. § 44-6-24 ).

Devise to D "and her child or children, should she have any," with remainder over to X, should she die leaving no children or grandchildren, creates a determinable fee in D and not an estate tail. Greer v. Pate, 85 Ga. 552 , 11 S.E. 869 (1890).

Devise in a will to J in fee simple, "and should my son J die without leaving any child or children, to revert back to my estate to be sold," conveys to J an estate in fee, defeasible on J's dying childless. Kinard v. Hale, 128 Ga. 485 , 57 S.E. 761 (1907).

Estate tail converted to absolute fee. - See Hose v. King, 24 Ga. 424 (1858); Wayne v. Lawrence, 58 Ga. 15 (1877); Johnson v. Sirmans, 69 Ga. 617 (1882); Craig v. Ambrose, 80 Ga. 134 , 4 S.E. 1 (1887); Whatley v. Barker, 79 Ga. 790 , 4 S.E. 387 (1887); Griffin v. Stewart, 101 Ga. 720 , 29 S.E. 29 (1897); Ellis v. Gray, 110 Ga. 611 , 36 S.E. 97 (1900); McCraw v. Webb, 134 Ga. 579 , 68 S.E. 324 (1910); Stamey v. McGinnis, 145 Ga. 226 , 88 S.E. 935 (1916); Perkins v. Perkins, 147 Ga. 122 , 92 S.E. 875 (1917); Lane v. Cordell, 147 Ga. 100 , 92 S.E. 887 (1917); Harper v. John Hancock Mut. Life Ins. Co., 173 Ga. 51 , 159 S.E. 687 (1931); Cole v. Ogg, 180 Ga. 343 , 179 S.E. 116 (1935).

Estates made determinable fees or life estates with remainders over. - See Gibson v. Hardaway, 68 Ga. 370 (1882); Daniel v. Daniel, 102 Ga. 181 , 28 S.E. 167 (1897); Chewning v. Shumate, 106 Ga. 751 , 32 S.E. 544 (1899); Hertz v. Abrahams, 110 Ga. 707 , 36 S.E. 409 , 50 L.R.A. 361 (1900); English v. Davis, 195 Ga. 89 , 23 S.E.2d 394 (1942).

Cited in Mallery v. Dudley, 4 Ga. 52 (1848); Kemp v. Daniel, 8 Ga. 385 (1850); Robert v. West, 15 Ga. 122 (1854); Smith v. Dunwoody, 19 Ga. 237 (1856); Childers v. Childers, 21 Ga. 377 (1857); Carroll v. Carroll, 25 Ga. 260 (1858); Andrews v. Bonner, 26 Ga. 520 (1858); Brown v. Weaver, 28 Ga. 377 (1859); Caraway v. Smith, 28 Ga. 541 (1859); Ford v. Cook, 73 Ga. 215 (1884); Wilkerson v. Clark, 80 Ga. 367 , 7 S.E. 319 , 12 Am. St. R. 258 (1888); Griffin v. Stewart, 101 Ga. 720 , 29 S.E. 29 (1897); Hertz v. Abrahams, 110 Ga. 707 , 36 S.E. 409 , 50 L.R.A. 361 (1900); Hill v. Terrell, 123 Ga. 49 , 51 S.E. 81 (1905); Phinizy v. Wallace, 136 Ga. 520 , 71 S.E. 896 (1911); Pace v. Forman, 148 Ga. 507 , 97 S.E. 70 (1918); Slappey v. Vining, 150 Ga. 792 , 105 S.E. 353 (1920); Reynolds v. Dolvin, 154 Ga. 496 , 114 S.E. 879 (1922); Lumpkin v. Patterson, 170 Ga. 94 , 152 S.E. 448 (1930); Southwell v. Purcell, 172 Ga. 739 , 158 S.E. 588 (1931); Beasley v. Calhoun, 178 Ga. 613 , 173 S.E. 849 (1934); Palmer v. Atwood, 188 Ga. 99 , 3 S.E.2d 63 (1939); Jones v. Federal Land Bank, 189 Ga. 419 , 6 S.E.2d 52 (1939); Guess v. Morgan, 196 Ga. 265 , 26 S.E.2d 424 (1943); Patellis v. Tanner, 197 Ga. 471 , 29 S.E.2d 419 (1944); Folds v. Hartry, 201 Ga. 783 , 41 S.E.2d 142 (1947); Brooks v. Williams, 227 Ga. 59 , 178 S.E.2d 880 (1970); Whittle v. Speir, 235 Ga. 14 , 218 S.E.2d 775 (1975); Worley v. Smith, 236 Ga. 888 , 225 S.E.2d 911 (1976); Dunn v. Sanders, 243 Ga. 684 , 256 S.E.2d 366 (1979).

Conveyance of Absolute Fee

Effect of enumerated words of entail. - Scheme of this statute with regard to words of entail pure and simple, used as such, unqualified by concomitant or explanatory terms, is briefly this: In the examples enumerated in subsection (a) and in them only, they are words of limitation, and as the law recognizes but one species of inheritance, that of heirs general, they pass an absolute fee. In all other instances of their use, they are treated as limitations over, and the words of entail are converted into words of purchase. Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888) (see O.C.G.A. § 44-6-24 ).

Terms are not words of purchase. - Words creating estates tail as enumerated here are not intended as words of purchase because former Code 1882, § 2249 (see O.C.G.A. § 44-6-23 ) made the generic terms, "heirs of body" and "issue," words of purchase only in "limitations over." Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888).

Although in cases when there is a limitation over to heirs or issue, the words "heirs or issue" shall be held to mean children under former Civil Code 1895, § 3084 (see O.C.G.A. § 44-6-23 ), granted to one and "her heirs by a particular person," or "her issue," convey an absolute estate under former Civil Code 1895, § 3085 (see O.C.G.A. § 44-6-24 ) to the exclusion of any children that may be in life at the time of the conveyance. The grant being to her, "her heirs and issue by W," the combination of two sets of words of limitation cannot by any sort of legal alchemy convert them into words of purchase. McCraw v. Webb, 134 Ga. 579 , 68 S.E. 324 (1910).

Terms are words of purchase in limitation over. - It is only when the distributive words change the line of descent marked out for property, by the words upon which they are engrafted, that the latter are taken as words of purchase. Hollifield v. Stell, 17 Ga. 280 (1855).

When a particular estate was created with a limitation over to heirs, heirs of the body, lineal heirs, lawful heirs, issue, or words of similar import, the words will be held to mean children, and hence words of purchase under former Code 1882, § 2249 (see O.C.G.A. § 44-6-23 ), but if a devise was made to one and one's bodily heirs, this, under the Rule in Shelley's Case, would create an estate in perpetuity, and would convey a fee simple to the devisee named. Craig v. Ambrose, 80 Ga. 134 , 4 S.E. 1 (1887).

Interpretation of "heirs of the body" as words of purchase. - While the words "heirs of the body" prima facie import an estate tail, yet notwithstanding they sound like words of limitation upon circumstances and the intention of the parties, they may be construed as words of purchase, and descriptive of the person who is to take. Evans v. Edenfield, 170 Ga. 805 , 154 S.E. 257 (1930).

While a gift or grant to A and the heirs of A's body, or words of similar import, operates to vest the full fee simple title in A, this rule would not apply if a less estate has been carved out, and the term "heirs of his body" is used in connection with a limitation over in remainder. McArthur v. Bone, 183 Ga. 796 , 189 S.E. 831 (1937).

Words of "living heirs". - If there is no limitation over, so as to come within the provisions of this statute, the words "heirs," "heirs of body," etc., imply limitation and not purchase; but the addition of the word "living" to the word "heirs" (so that devise was "to K and her living heirs") would operate to change the rule. McArthur v. Bone, 183 Ga. 796 , 189 S.E. 831 (1937) (see O.C.G.A. § 44-6-24 ).

Interpretation of "heirs of the body" as words of limitation. - Prior to the adoption of this statute, the term "heirs of the body," when used in conveyances, unless modified or controlled by qualifying or explanatory words, were words of limitation, not words of purchase. This statute leaves them still words of limitation, if no less estate than the fee is expressed, and if they are used not by way of limitation over, but of direct and immediate limitation of the estate granted. When they take effect as words of limitation, they pass not a fee tail but a fee simple. Wilkerson v. Clark, 80 Ga. 367 , 7 S.E. 319 , 12 Am. St. R. 258 (1888) (see O.C.G.A. § 44-6-24 ).

Limitation power of the term, "heirs of the body," is neither more nor less than that of "heirs," but just the same. Wilkerson v. Clark, 80 Ga. 367 , 7 S.E. 319 , 12 Am. St. R. 258 (1888).

Language to "the buyer, his heirs and assigns" referring to conveyance of property operates to convey an absolute fee simple only in the named purchasers. Black v. Georgia Mem. Park Cem., 173 Ga. App. 290 , 325 S.E.2d 901 (1985).

Interpretation of "issue". - Words "after her death, if no lawful issue" were construed to mean without lawful issue at the death of the deceased, and to constitute a good limitations in an executory devise. Atwell Ex'rs v. Barney, 1 Dudley 207 (1831).

Devise over on failure of increase. - Devise to A as trustee and testamentary guardian for S and S's increase "to deliver over the entire estate to E in case of failure of increase," could not mean a delivery over in case of an indefinite failure of issue, but referred to issue living at death of S. Benton v. Patterson, 8 Ga. 146 (1850). See Tucker v. Adams, 14 Ga. 548 (1854); Hollifield v. Stell, 17 Ga. 280 (1855).

Definite failure of issue prevents entailment. - When the limitation over is upon a definite failure of issue an estate tail could never be implied, and this statute could have no application in such cases. The definiteness of the failure may be shown by the terms themselves limiting the failure to the life of the life tenant either expressly or by superadded words having that effect, as when the will designates that the executor is to make the division upon such failure. Groce v. Rittenberry, 14 Ga. 232 (1853); Claxton v. Weeks, 21 Ga. 265 (1857); Doe v. Roe, 30 Ga. 453 (1860); Forman v. Troup, 30 Ga. 496 (1860); Burton v. Black, 30 Ga. 638 (1860); Tennell v. Ford, 30 Ga. 707 (1860); Hill v. Alford, 46 Ga. 247 (1872); Matthews v. Hudson, 81 Ga. 120 , 7 S.E. 286 , 12 Am. St. R. 305 (1888); Greer v. Pate, 85 Ga. 552 , 11 S.E. 869 (1890); Hertz v. Abrahams, 110 Ga. 707 , 36 S.E. 409 , 50 L.R.A. 361 (1900) (see O.C.G.A. § 44-6-24 ).

Meaning of "children". - According to the English law, all the words enumerated in subsection (a) are primarily words of entail except "children," which is primarily a word of purchase. While the other words when used alone are not ambiguous, this one is; and its introduction into the clause with the others upon an apparent equality, as though it were as free as they from ambiguity, is what makes the chief difficulty of construction. According to Wilde's case, when this word is coupled in the gift or grant immediately with the ancestor, as in the language of the Code, it imports limitation, and consequently an estate tail, if there be no child or children in esse at the time of the conveyance; but otherwise, even when so connected, it is a word of purchase. Its real quality in any given instance, where it is used alone in such connection, depends upon an extrinsic fact, to wit, the existence or nonexistence at the time of the gift or grant of persons, or at least of a person to whom the word can properly be applied. The Code betrays not the slightest consciousness of this double or conditional signification of the term, but seems to treat it as if its meaning were as fixed and invariable as that of the words with which it is associated. Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888) (see O.C.G.A. § 44-6-24 ).

When attention is confined to the word "children" as a word of entail, the ambiguity of the word, though still existing in the law as whole, disappears from this statute and ceases to disturb it. As one of entail, the word has but a single meaning, and that alone is within the clause; consequently the clause, though apparently ambiguous, is not really so, but is wholly free from ambiguity. Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888) (see O.C.G.A. § 44-6-24 ).

Application of "children" limited. - Word "children," as used in this statute, applies only when the grantee has no children in esse when the grant takes effect. Stamey v. McGinnis, 145 Ga. 226 , 88 S.E. 935 (1916) (see O.C.G.A. § 44-6-24 ).

Effect of "children" when there are no children in esse. - Devise to the daughters of a testator of property to be settled upon them before the consummation of any marriage, "so that the same may be enjoyed by them and their children after them;" there being no children in esse, would create an estate tail, and therefore a fee simple title would vest in the first taker under this statute. Butler v. Ralston, 69 Ga. 485 (1882) (see O.C.G.A. § 44-6-24 ).

Devise to X and X's children creates a tenancy in common if the children be in life, but, if they be not in life, it is an estate tail converted into a fee simple by this statute. Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888); Estill v. Beers, 82 Ga. 608 , 9 S.E. 596 (1889); Baird v. Brookin, 86 Ga. 709 , 12 S.E. 981 , 12 L.R.A. 157 (1891); McCord v. Whitehead, 98 Ga. 381 , 25 S.E. 767 (1896); Hollis v. Lawton, 107 Ga. 102 , 32 S.E. 846 , 73 Am. St. R. 114 (1899); Sumpter v. Carter, 115 Ga. 893 , 42 S.E. 324 , 60 L.R.A. 274 (1902) (see O.C.G.A. § 44-6-24 ).

Under this statute, a conveyance to three daughters and their children, one of them having a child at the time and the others none, passes an estate in common to the one daughter and her child, and sole estate in fee to each of the other daughters. Estill v. Beers, 82 Ga. 608 , 9 S.E. 596 (1889) (see O.C.G.A. § 44-6-24 ).

When the testator devised to the testator's daughter certain land "to her and her children," the daughter then having no children, the daughter took an absolute estate, and children born to her after the testator's death took under the will no estate by way of remainder or otherwise. Bank of Graymont v. Kingery, 170 Ga. 771 , 154 S.E. 355 (1930).

Effect of "children, should any be born". - Legal effect of the words "and her children or child, should any be born to her," is the same as if it had been made to D and D's children (D having no children at the time), which, standing alone would create an express estate tail and invest D, under this statute, with the absolute fee. Butler v. Ralston, 69 Ga. 485 (1882); Lofton v. Murchison, 80 Ga. 391 , 7 S.E. 322 (1888); Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888); Estill v. Beers, 82 Ga. 608 , 9 S.E. 596 (1889); Goodrich v. Pearce, 83 Ga. 781 , 10 S.E. 451 (1889); Baird v. Brookin, 86 Ga. 709 , 12 S.E. 981 , 12 L.R.A. 157 (1891); Davis v. Hollingsworth, 113 Ga. 210 , 38 S.E. 827 , 84 Am. St. R. 233 (1901) (see O.C.G.A. § 44-6-24 ).

Section inapplicable when "children" is word of purchase. - Will "to C and at her death to go to her children," created an estate for life in the daughter of the testator with remainder to her children living at her death and therefore is not an entailment under this statute. Ford v. Cook, 73 Ga. 215 (1884) (see O.C.G.A. § 44-6-24 ).

Word "children" is a word of purchase and not of limitation, and a conveyance to a husband and wife and "to their children" carries title in fee simple to such children of the husband and wife as are in esse at the time of the conveyance, as tenants in common with their parents, even though such children are not designated by their names. This statute has no application to such a case. Keith v. Chastain, 157 Ga. 1 , 121 S.E. 233 (1923) (see O.C.G.A. § 44-6-24 ).

Limitation over or reversion limits to determinable fee. - Deed to X "and her children should any be born to her" (she having no child at that time), "and in the event she die without any in life, then to revert" conveys a determinable fee to X. Davis v. Hollingsworth, 113 Ga. 210 , 38 S.E. 827 , 84 Am. St. R. 233 (1901).

Deed to X and heirs of X's body with provision of reverter in case of such failure of heirs conveys a fee tail which is converted into a fee simple under this statute and made a determinable fee by the reverter provision. Shealy v. Wammock, 115 Ga. 913 , 42 S.E. 239 (1902) (see O.C.G.A. § 44-6-24 ).

Life estate with remainder in fee created. - Under this statute, a deed to one and the heirs of one's body after one's death conveys a life estate to the first taker, with a remainder over to one's children. Bristol Sav. Bank v. Nixon, 169 Ga. 282 , 150 S.E. 148 (1929); Evans v. Edenfield, 170 Ga. 805 , 154 S.E. 257 (1930) (see O.C.G.A. § 44-6-24 ).

Implied Estates Tail

Construction of subsection (b). - Subsection (b) of this statute should be held to mean that limitations which, under the English rules of construction, would create an estate tail by implication, and which are not illegal, are to be construed as provided by it. In other words, it would in some cases save provisions in deeds and wills which might otherwise be brought under the ban of the statute making all estates tail illegal. Slappey v. Vining, 150 Ga. 792 , 105 S.E. 353 (1920) (see O.C.G.A. § 44-6-24 ).

Estates tail by implication arose in England under devises wherein a greater estate than for the life of the first taker was irresistibly inferred when the devise was to A, without the added words "and his heirs," and the same estate was limited over upon words importing an indefinite failure of issue; and hence, in such devises, as, to A, and if A dies without issue, to B, the devise was construed by necessary implication to be equivalent to a devise to A and A's issue, and if A dies without issue, to B, so as to bring it within the intent, if not the letter, of the statute De Donis. Hertz v. Abrahams, 110 Ga. 707 , 36 S.E. 409 , 50 L.R.A. 361 (1900) (see O.C.G.A. § 44-6-24 ).

Life estate to A, remainder to children, does not create estate tail. - An estate to B for life, remainder to B's children, if any, but if none, then to R, cannot possibly be made an estate tail, for the term "children" does not describe any such class. In its proper sense, it includes only the next generation to B and to make it include more, there must be something in the will to show that it is used in a broader sense. The persons who take under the description of children must all be in life at the death of B. The conveyance exhausts itself on a single generation, and creates nothing which bears a resemblance to an estate tail. An estate tail by implication can arise only in cases of the absence of an expressed intention. Burton v. Black, 30 Ga. 638 (1860); Tennell v. Ford, 30 Ga. 707 (1860).

When a limitation is to a parent for life, and to the parent's children by way of remainder, there seems to be no ground, whether there are children or not, for holding the parent to be a tenant in tail. Gaboury v. McGovern, 74 Ga. 133 (1884).

Subsection (b) inapplicable to conveyance with limitation referred to in § 44-6-25 . - Since a limitation of the type referred to in former Code 1933, § 85-506 (see O.C.G.A. § 44-6-25 ) will no longer be construed to refer to an indefinite failure of issue, but must now be construed to mean a definite failure of issue at the death of the first taker, no fee tail can be implied from such a limitation by the English rules of construction. Thus, the portion of subsection (b) of former Code 1933, § 85-505 (see O.C.G.A. § 44-6-24 ) referring to implied fee tails by the English rules of construction was inapplicable to a conveyance containing such a limitation. Raines v. Duskin, 247 Ga. 512 , 277 S.E.2d 26 (1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 48 et seq., 415 et seq. 80 Am. Jur. 2d, Wills, §§ 993, 1010.

C.J.S. - 26A C.J.S., Deeds, §§ 247, 249, 263 et seq., 274 et seq. 31 C.J.S., Estates, § 24 et seq. 96 C.J.S., Wills, §§ 1258 et seq., 1270, 1310.

ALR. - Fee simple conditional, 114 A.L.R. 602 .

Restraint upon voluntary alienation of legal life estate, 160 A.L.R. 639 .

Nature of estate created by grant or gift to one and his children, 161 A.L.R. 612 .

Husband or wife as heir within provision of will or trust, 79 A.L.R.2d 1438.

Estate created by deed to one and his "blood heirs" or "blooded heirs,", 89 A.L.R.2d 1222.

Modern status of the Rule in Shelley's Case, 99 A.L.R.2d 1161.

44-6-25. Construction and effect of limitations over after death of first taker.

All limitations over after the death of the first taker, upon his "dying without heirs," "dying without issue," "dying without leaving heirs or issue," "on failure of issue," or other and equivalent terms, shall be construed to mean a failure of heirs or issue at the time of the death of the first taker and shall convey the estate in the manner prescribed in Code Section 44-6-24.

(Ga. L. 1853-54, p. 72, § 1; Code 1863, § 2231; Code 1868, § 2225; Code 1873, § 2251; Code 1882, § 2251; Civil Code 1895, § 3086; Civil Code 1910, § 3662; Code 1933, § 85-506.)

Law reviews. - For article, "Descendible Future Interests in Georgia: The Effect of the Preference for Early Vesting," see 7 Ga. L. Rev. 443 (1973). For article surveying real property law, see 34 Mercer L. Rev. 255 (1982).

JUDICIAL DECISIONS

Will made prior to 1854 controlled by common law. - Whether words in a will made by a testator who died before the Act of February 17, 1854, create an estate tail is to be controlled by the decisions of the English courts construing such or similar words in devises of real property in connection with the Statute De Donis Conditionalibus. Hertz v. Abrahams, 110 Ga. 707 , 36 S.E. 409 , 50 L.R.A. 361 (1900).

Common-law devise limited upon indefinite failure of issue. - At common law, a devise to A and, in case of A's death without issue, to B, was a devise limited upon an indefinite failure of issue, which, under the English rules of interpretation, created an estate tail by implication under the Statute De Donis. An executory devise which was limited upon words importing an indefinite failure of issue of the first taker was void for remoteness. Hertz v. Abrahams, 110 Ga. 707 , 36 S.E. 409 , 50 L.R.A. 361 (1900).

Effect. - This statute swept away at one blow all the mass of legal lore on limitations and perpetuities. Gray v. Gray, 20 Ga. 804 (1856); Forman v. Troup, 30 Ga. 496 (1860) (see O.C.G.A. § 44-6-25 ).

This statute is not a declaratory statute of any former law, and the statute converts into a defeasible fee what before the statute's enactment was an estate tail by implication. Worrill v. Wright, 25 Ga. 657 (1858); Hertz v. Abrahams, 110 Ga. 707 , 36 S.E. 409 , 50 L.R.A. 361 (1900) (see O.C.G.A. § 44-6-25 ).

Effect upon Rule in Shelley's Case. - Effect of this statute is the vertical abolition of the Rule in Shelley's Case as to limitations over in conveyances. This abolition results only incidentally from the change in the rules of construction which previously obtained, so that now the words of limitation enumerated are made words of purchase and the children take from the grantor or devisor as purchasers rather than from the devisee or grantee by inheritance. Smith v. Collins, 90 Ga. 411 , 17 S.E. 1013 (1892) (see O.C.G.A. § 44-6-25 ).

Section prevents creation of implied fee tail. - Since a limitation of the type referred to in O.C.G.A. § 44-6-25 will no longer be construed to refer to an indefinite failure of issue, but must now be construed to mean a definite failure of issue at the death of the first taker, no fee tail can be implied from such a limitation by the English rules of construction. Raines v. Duskin, 247 Ga. 512 , 277 S.E.2d 26 (1981).

"Lineal heirs" equivalent to "issue". - It is quibbling to say that "lineal heirs" is not an equivalent term to "issue." The mischief in both cases is the same, and the same remedy applies. Forman v. Troup, 30 Ga. 496 (1860).

Dying "without bodily heirs". - "Bodily heirs" is not specifically enumerated in O.C.G.A. § 44-6-25 . However, dying "without bodily heirs" is equivalent to dying "without issue." Raines v. Duskin, 247 Ga. 512 , 277 S.E.2d 26 (1981).

Section applied to create determinable fee. - See Greer v. Pate, 85 Ga. 552 , 11 S.E. 869 (1890); Davis v. Hollingsworth, 113 Ga. 210 , 38 S.E. 827 , 84 Am. St. R. 233 (1901); Shealy v. Wammock, 115 Ga. 913 , 42 S.E. 239 (1902); Kinard v. Hale, 128 Ga. 485 , 57 S.E. 761 (1907); Nottingham v. McKelvey, 149 Ga. 463 , 100 S.E. 371 (1919); Scranton-Lackawanna Trust Co. v. Bruen, 206 Ga. 872 , 59 S.E.2d 397 (1950).

Will devising to T to hold the same to T's heirs, executors, and assigns forever, except should T die without lineal heirs to go to the children of X, or the survivors, refers to a definite failure of issue, and creates a fee simple determinable upon death without lineal descendants; passing in such case to the children of X, rather than creating a fee tail and hence a fee simple in T, under Laws 1821, Cobb's 1851 Digest, p. 169 (see O.C.G.A. § 44-6-24 ). Forman v. Troup, 30 Ga. 496 (1860); Burton v. Black, 30 Ga. 638 (1860).

Unless there is something to indicate a contrary intent on the part of the testator, a devise or bequest to a named person, followed by a provision that if one shall die childless the property shall pass to some other person, conveys to one a fee, subject to be divested upon one's dying childless, or, as it is sometimes called, a base or qualified fee. Scranton-Lackawanna Trust Co. v. Bruen, 206 Ga. 872 , 59 S.E.2d 397 (1950).

Section applied to create life estate with contingent remainder. - See Fulcher v. Mixon, 55 Ga. 72 (1875); Nussbaun & Dannenberg v. Evans, 71 Ga. 753 (1883); Lumpkin v. Patterson, 170 Ga. 94 , 152 S.E. 448 (1930).

Devise to X "for his life with remainder in fee to his surviving issue, if any; and if none then to the heirs" of Y, created a life estate in X with a contingent remainder in X's heirs which accords with this statute. Wright v. Hill, 140 Ga. 554 , 79 S.E. 546 (1913) (see O.C.G.A. § 44-6-25 ).

Cited in Cook v. Walker, 15 Ga. 457 (1854); Hollifield v. Stell, 17 Ga. 280 (1855); Childers v. Childers, 21 Ga. 377 (1857); Wilkerson v. Clark, 80 Ga. 367 , 7 S.E. 319 , 12 Am. St. R. 258 (1888); Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888); Crawley v. Kendrick, 122 Ga. 183 , 50 S.E. 41 , 2 Ann. Cas. 643 (1905); Megahee v. Hatcher, 146 Ga. 498 , 91 S.E. 677 (1917); Whittle v. Speir, 235 Ga. 14 , 218 S.E.2d 775 (1975); Dunn v. Sanders, 243 Ga. 684 , 256 S.E.2d 366 (1979).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 48 et seq., 415 et seq.

C.J.S. - 26A C.J.S., Deeds, §§ 247, 253, 254, 264 et seq., 274 et seq. 31 C.J.S., Estates, §§ 24 et seq., 145 et seq. 70 C.J.S., Perpetuities, §§ 11, 13, 18. 96 C.J.S., Wills, §§ 1258, 1261 et seq., 1270.

ALR. - Meaning of term "issue" where used as a word of purchase, 2 A.L.R. 930 ; 117 A.L.R. 691 .

Fee simple conditional, 114 A.L.R. 602 .

Nature of estates or interests created by grant or devise to one and heirs if donee should have any heirs, 16 A.L.R.2d 670.

Validity of restraint, ending not later than expiration of a life or lives in being, on alienation of an estate in fee, 42 A.L.R.2d 1243.

ARTICLE 3 ESTATES GRANTED UPON CONDITIONS

Law reviews. - For article, "Creation of Defeasible Fees," see 15 Ga. B.J. 20 (1952). For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978). For comment on Phillips v. Naff, 332 Mich. 389, 52 N.W.2d 158 (1952), see 15 Ga. B.J. 71 (1952).

JUDICIAL DECISIONS

While forfeitures are not favored, forfeitures are not altogether prohibited in this state. Cotton States Mut. Ins. Co. v. Torrance, 110 Ga. App. 4 , 137 S.E.2d 551 (1964), aff'd, 220 Ga. 639 , 140 S.E.2d 840 (1965).

Cited in Golden v. National Life & Accident Ins. Co., 189 Ga. 79 , 5 S.E.2d 198 (1939).

RESEARCH REFERENCES

ALR. - Commencement of development within fixed term as extending term of oil and gas lease, 67 A.L.R. 526 .

Deed in consideration of support of grantor as creating an estate upon condition or a conditional limitation, 76 A.L.R. 742 .

Use or exploitation of property for a purpose other than, but not exclusive of, use specified by a deed creating a determinable fee or a fee simple subject to condition subsequent, 137 A.L.R. 639 .

"Divide and pay over" rule, for purpose of determining vested or contingent character of future estate, 144 A.L.R. 1155 ; 16 A.L.R.2d 1383.

Commencement of running of statute of limitations respecting actions by owners of right of re-entry, or actions against third persons by reversioners, 19 A.L.R.2d 729.

Construction and application of "first refusal" option contained in trust instrument and relating to sale or shares of stock, 51 A.L.R.3d 1327.

Laches or delay in bringing suit as affecting right to enforce restrictive building covenant, 25 A.L.R.5th 233.

44-6-40. Grant of estates upon conditions.

An estate may be granted upon either express or implied conditions. The estate shall commence, be enlarged, or be defeated upon the performance or breach of the conditions.

(Orig. Code 1863, § 2275; Code 1868, § 2268; Code 1873, § 2294; Code 1882, § 2294; Civil Code 1895, § 3136; Civil Code 1910, § 3716; Code 1933, § 85-901.)

JUDICIAL DECISIONS

Instruments containing conditions construed to enforce intent. - Cardinal rule of construction, under both common and statutory law, is that instruments containing conditions, limitations, and restrictions are to be construed in each case in such a way as to carry into effect the intent of the parties as gathered from the instrument as a whole. Wadley Lumber Co. v. Lott, 130 Ga. 135 , 60 S.E. 836 (1908).

General rule of construction for condition subsequent. - While it is not always easy to determine whether the condition created by the terms of a conveyance is precedent or subsequent, the general rule is that if the act or condition required does not necessarily precede the vesting of the estate, but may accompany or follow the estate, and if the act may as well be done after as before vesting of the estate, or if from the nature of the act to be performed, it is evidently the intention of the parties that the estate shall vest and the grantee perform the act after taking possession, then the condition is subsequent. Gordon v. Whittle, 206 Ga. 339 , 57 S.E.2d 169 (1950).

Words necessary to create conditions in wills. - No precise form of words is necessary to create conditions in wills. Any expression disclosing the intention will be sufficient to create a condition, but such intention must be definitely expressed. Hilton v. Sherman, 155 Ga. 624 , 118 S.E. 356 (1923).

Deed not construed as grant on condition subsequent unless express language used or intent clear. - Deed will not be construed as a grant on condition subsequent, unless the language used by express terms creates an estate on condition, or unless the intent of the grantor to create a conditional estate is manifest from a reading of the entire instrument. Gordon v. Whittle, 206 Ga. 339 , 57 S.E.2d 169 (1950); Floyd v. Hoover, 141 Ga. App. 588 , 234 S.E.2d 89 (1977).

Words of covenant distinguished from condition. - When the words, "On the express understanding and agreement on the part of said A.H.S. (the grantee) that the lot of land so conveyed is never to be sold to or occupied by negroes," are attached to a deed, those are words of covenant and not of condition. Anthony v. Stephens, 46 Ga. 241 (1872).

Words of forfeiture, avoidance, or defeasance will convey estate in fee on a condition subsequent. Floyd v. Hoover, 141 Ga. App. 588 , 234 S.E.2d 89 (1977).

Conditions subsequent in deeds, although not favored, will be enforced by the court when the conditions are clearly created and are not inconsistent with the other terms of the conveyance, and are not rendered impossible by act of God or by subsequent conduct of the grantor. Evans v. Brown, 196 Ga. 634 , 27 S.E.2d 300 (1943).

Deed conditioned upon paying judgments by time certain deemed condition subsequent. - Deed which was conditioned upon the payment of certain judgments by a time certain and to become absolute on default thereof is a deed upon a condition subsequent and not a mortgage. Burnside v. Terry, 45 Ga. 621 (1872).

Grantor may convey land on condition that grantee shall care for grantor for life, and provide therein that a failure to perform the condition shall have the effect of defeating the estate granted. Jones v. Williams, 132 Ga. 782 , 64 S.E. 1081 (1909).

Without proper words, grantor given only equity action to rescind support contract if grantee insolvent. - Deed executed upon a consideration to support the grantor, without apt or proper words to create a condition, a breach of which would render the estate defeasible at the grantor's election, passes title to the grantee, and the failure of the grantee to maintain and support the grantor may give the latter a right of action in equity to rescind the contract if the grantee is insolvent. McCardle v. Kennedy, 92 Ga. 198 , 17 S.E. 1001 , 44 Am. St. R. 85 (1893); Jones v. Williams, 132 Ga. 782 , 64 S.E. 1081 (1909).

Devise with condition subsequent inhibiting alienation to devisee's wife or her children valid. - Devise of land in fee with a condition subsequent inhibiting alienation to the wife of the devisee or her children directly, or indirectly as by "any legal proceedings or order of court," as the restriction against alienation was limited to one person and her children and did not extend generally to all persons, was valid as against the objection that it was repugnant to the estate devised, nor was it void on the ground that it was repugnant to the nature of the estate granted, contrary to law, contrary to public policy, or prevented performance of parental duties. Blevins v. Pittman, 189 Ga. 789 , 7 S.E.2d 662 (1940).

Grant of land "so long as". - Provision granting land so long as used for school purposes creates estate upon condition subsequent, upon the breach of which the land would revert to the grantor, the grantor's estate, or heirs. Williams v. Thomas County, 208 Ga. 103 , 65 S.E.2d 412 (1951).

Conditional estate not created by deed entitling grantor to purchase property upon violation of agreement. - When a deed in consideration of $10.00 was executed by a corporation and delivered, purporting to convey fee simple title to a tract of land, which deed contained an agreement that the property "will be used for county school purposes only, and should this provision be violated, the grantor herein shall have the right to purchase the above property for $2,000.00," such clause did not create a conditional estate dependent upon a condition subsequent. Gearhart v. West Lumber Co., 212 Ga. 25 , 90 S.E.2d 10 (1955).

Cited in Johnson v. Hobbs, 149 Ga. 587 , 101 S.E. 583 (1919); Hollomon v. Board of Educ., 168 Ga. 359 , 147 S.E. 882 (1929); Lucas v. Lucas, 171 Ga. 806 , 156 S.E. 680 (1931); Moore v. Wells, 212 Ga. 446 , 93 S.E.2d 731 (1956); Roe v. Doe, 246 Ga. 138 , 268 S.E.2d 901 (1980).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, § 148.

C.J.S. - 21 C.J.S., Covenants, § 1. 26A C.J.S., Deeds, §§ 246, 273, 304 et seq., 326. 31 C.J.S., Estates, §§ 7, 8, 10, 12, 21 et seq. 96 C.J.S., Wills, §§ 1238, 1239, 1254 et seq, 1280. 97 C.J.S., Wills, § 1380.

ALR. - Reservation by successive grantors of re-entry for breach of conditions subsequent in deeds, 114 A.L.R. 566 .

Distinction between contingent estates and estates vested, subject to defeasance, 131 A.L.R. 712 .

Provision of will for forfeiture in case of contest, as applied to contest by one not a beneficiary, 7 A.L.R.2d 1357.

Nature of estate conveyed by deed for park or playground purposes, 15 A.L.R.2d 975.

Validity and effect of transfer of possibility of reverter or right of re-entry, following conveyance of determinable fee or fee subject to condition subsequent, 53 A.L.R.2d 224.

44-6-41. Conditions precedent and subsequent distinguished; preferred construction and remedy.

Conditions may be either precedent or subsequent; conditions precedent require performance before the estate shall vest, and conditions subsequent may cause a forfeiture of a vested estate. The law favors conditions to be subsequent rather than precedent and to be remediable by damages rather than by forfeiture.

(Orig. Code 1863, § 2276; Code 1868, § 2269; Code 1873, § 2295; Code 1882, § 2295; Civil Code 1895, § 3137; Civil Code 1910, § 3717; Code 1933, § 85-902.)

Law reviews. - For article discussing problems in construction of instrument conveying gift to a group or class, see 6 Ga. St. B.J. 169 (1969).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Estate vested when immediate or fixed right of enjoyment. - An estate is vested when there is an immediate right of enjoyment, or a present fixed right of future enjoyment. Lassiter v. Bank of Dawson, 191 Ga. 208 , 11 S.E.2d 910 (1940).

Cited in Grantham v. Royal Ins. Co., 34 Ga. App. 415 , 130 S.E. 589 (1925); Roberts v. Hardin, 179 Ga. 114 , 175 S.E. 362 (1934); Perkins v. Citizens & S. Nat'l Bank, 190 Ga. 29 , 8 S.E.2d 28 (1940); Hogan v. Brodgon, 194 Ga. 474 , 22 S.E.2d 54 (1942); Mendel v. Pinkard, 108 Ga. App. 128 , 132 S.E.2d 217 (1963); Churches Homes for Bus. Girls, Inc. v. Manget Found., Inc., 110 Ga. App. 539 , 139 S.E.2d 138 (1964); Raby v. Minshew, 238 Ga. 41 , 231 S.E.2d 53 (1976).

Conditions Precedent

Vesting of prior estate dependent upon prescribed event not condition precedent. - Generally where a prior estate is made to depend upon any prescribed event, and the second estate is to arise upon the determination of that event, the vesting of the prior estate is not to be taken as a condition precedent, but upon its failure the second estate takes effect. Jossey v. Brown, 119 Ga. 758 , 47 S.E. 350 (1904).

Stipulation providing for payment before entry to cut timber. - Stipulation in an instrument conveying timber, providing for part payment down and the remainder upon entering to cut, does not make payment of the balance a condition precedent to the entering to cut. McRae v. Stillwell, Millen & Co., 111 Ga. 65 , 36 S.E. 604 , 55 L.R.A. 513 (1900).

Under Georgia law, conditions precedent were disfavored and a contractual provision was interpreted as a condition precedent only if it is clear that the parties intended it to operate that way; because the program agreements did not indicate that the parties intended the monthly billing requirement to be a condition precedent to the company's reimbursement obligation, the court would not treat it as one. Williams Serv. Group v. Nat'l Union Fire Ins. Co., F.3d (11th Cir. Oct. 23, 2012)(Unpublished).

Direction that executors furnish home to testator's wife. - When a testator directs that his executors shall furnish to his wife a home to be selected by her and to be her property, to be used as a home for herself and his minor children and any other of his children who may desire to reside there, such gift is absolute and unconditional; and failure of the wife to select the home during her life will not defeat the legacy, the right of section of the home not being a condition precedent, the nonperformance of which will defeat the gift. Hilton v. Sherman, 155 Ga. 624 , 118 S.E. 356 (1923).

Provision held to be covenant, not words of condition. - Lease provision requiring lessor to modify building in accordance with blueprint and city requirements was a covenant, and not words of condition; the remedy for a breach was an action for damages, not a forfeiture of the estate for condition broken. Fulton County v. Collum Properties, Inc., 193 Ga. App. 774 , 388 S.E.2d 916 (1989).

Conditions Subsequent
1. Rules of Construction

Termination of estate for years. - Estate for years may be made to terminate upon contingency or condition subsequent. P.H. Snook & Austin Furn. Co. v. Steiner & Emery, 117 Ga. 363 , 43 S.E. 775 (1903).

General rule of construction. - While it is not always easy to determine whether the condition created by the terms of a conveyance is precedent or subsequent, the general rule is that if the act or condition required does not necessarily precede the vesting of the estate, but may accompany or follow the estate, and if the act may as well be done after as before vesting of the estate, or if from the nature of the act to be performed, it is evidently the intention of the parties that the estate shall vest and the grantee perform the act after taking possession, then the condition is subsequent. Gordon v. Whittle, 206 Ga. 339 , 57 S.E.2d 169 (1950).

Conditions subsequent are construed strictly, because conditions tend to destroy estates, and the rigorous exaction of the conditions is a species of summum jus, and in many cases hardly reconcilable with conscience. If it is doubtful whether a clause in a deed is a covenant or a condition, the courts will incline against the latter construction, for a covenant is far preferable to the tenant. Doe v. Roe, 39 Ga. 202 (1869).

Distinction between condition subsequent and limitation upon condition. - Difference between a limitation and a condition subsequent is that in the latter the grantor must reenter, or make a claim in case reentry is impossible or impracticable. In case of a condition at common law, the grantor or the grantor's heirs alone can defeat the estate by entry for condition broken. In a conditional limitation, the estate determines, ipso facto, upon the happening of the event, and goes over at once to the grantor by reverter, or to the person to whom it is limited upon the happening of the contingency. Atlanta Consol. S. Ry. v. Jackson, 108 Ga. 634 , 34 S.E. 184 (1899).

When instrument doubtful, words construed to create covenant. - If, upon a strict construction of a deed in its entirety (there being no express words of defeasance), it should be doubtful whether the instrument created an estate upon a condition subsequent, or the words employed imported a covenant, the latter construction should be adopted. Fulford v. Fulford, 225 Ga. 9 , 165 S.E.2d 848 (1969).

Construction when no provision for forfeiture or reversion. - When a deed purports to convey a fee simple title and there is no provision in the deed for a forfeiture of the estate or a reversion to the grantor in the event the grantee conveyed the property to another without the consent of the grantee's brothers, restrictive words in the deed are words of covenant and not a condition subsequent. Fulford v. Fulford, 225 Ga. 9 , 165 S.E.2d 848 (1969).

Deed not construed as condition subsequent unless express language or manifest intent. - Deed will not be construed as a grant on condition subsequent unless the language used by express terms creates an estate on condition, or unless the intent of the grantor to create a conditional estate is manifest from a reading of the entire instrument. Thompson v. Hart, 133 Ga. 540 , 66 S.E. 270 (1909); Self v. Billings, 139 Ga. 400 , 77 S.E. 562 (1913); Johnson v. Hobbs, 149 Ga. 587 , 101 S.E. 583 (1919); Jones v. Reid, 184 Ga. 764 , 193 S.E. 235 (1937); Gordon v. Whittle, 206 Ga. 339 , 57 S.E.2d 169 (1950); Fulford v. Fulford, 225 Ga. 9 , 165 S.E.2d 848 (1969); DOT v. Knight, 238 Ga. 225 , 232 S.E.2d 72 (1977).

Technical words are not required to create condition subsequent. Jones v. Williams, 132 Ga. 782 , 64 S.E. 1081 (1909).

Construction depends upon parties' intention. - Authorities generally agree that the construction must depend upon the intention of the parties as gathered from the whole instrument; technical rules of construction are to be disregarded when obedience to such rules would defeat the intention of the parties. Mayor of Gainesville v. Brenau College, 150 Ga. 156 , 103 S.E. 164 (1920).

No precise technical words are required to create a condition subsequent; and the construction must always be founded upon the intention of the parties as disclosed in the conveyance. Lucas v. Lucas, 171 Ga. 806 , 156 S.E. 680 (1931); Rustin v. Butler, 195 Ga. 389 , 24 S.E.2d 318 (1943).

Words used may serve as guides to construction. Words of time, such as "so long as," "while," "until," and "during," usually denote limitation. Words of qualification or condition, such as "provided" and "upon condition," are most often used to create conditions subsequent. DOT v. Knight, 238 Ga. 225 , 232 S.E.2d 72 (1977).

Presence of reentry clause. - Important consideration in determining whether clause is condition subsequent is presence of reentry clause by the grantor or the grantor's heirs. Floyd v. Hoover, 141 Ga. App. 588 , 234 S.E.2d 89 (1977).

Words "to make right of way for said road" do not alone create conditional estate. DOT v. Knight, 238 Ga. 225 , 232 S.E.2d 72 (1977).

Conditions subsequent in deeds, although not favored, will be enforced by the court when the conditions are clearly created and are not inconsistent with the other terms of the conveyance, and are not rendered impossible by act of God or by subsequent conduct of the grantor. Evans v. Brown, 196 Ga. 364 , 27 S.E.2d 300 (1943).

Possibility of reverter not taxable. - If condition subsequent exists, mere possibility of reverter which remains is not an estate in land and is not subject to taxation. Moss v. Chappell, 126 Ga. 196 , 54 S.E. 968 , 11 L.R.A. (n.s.) 398 (1906); Wadley Lumber Co. v. Lott, 130 Ga. 135 , 60 S.E. 836 (1908); Mayor of Gainesville v. Brenau College, 150 Ga. 156 , 103 S.E. 164 (1920).

2. Illustrative Cases

Condition subsequent found. - Instrument showed that the contract was for a sale of machinery and an interest in land for the purpose of maintaining and operating a gin at the designated location, upon condition subsequent that the location should revert to the owner of the balance of the tract when the buyer should cease to use the tract for such purpose. Doe v. Roe, 39 Ga. 202 (1869); P.H. Snook & Austin Furn. Co. v. Steiner & Emery, 117 Ga. 363 , 43 S.E. 775 (1903); Jones v. Williams, 132 Ga. 782 , 64 S.E. 1081 (1909); Thompson v. Hart, 133 Ga. 540 , 66 S.E. 270 (1909); Lawson v. Georgia S. & F. Ry., 142 Ga. 14 , 82 S.E. 233 (1914); Hilton v. Central of Ga. Ry., 146 Ga. 812 , 92 S.E. 642 (1917); Davis v. Jones, 153 Ga. 639 , 112 S.E. 891 (1922).

Although the words "condition precedent" may be used in a will in connection with a bequest of income, yet when the duty imposed was a continuing one of furnishing the testator's child with a home in a benevolent institution and caring for the child "as comfortably as the facts and circumstances of the case will warrant," when the corpus was given to the institution in remainder, after the death of the child, provided a Christian burial should be given to the child, and when from the entire will it is apparent that the estate was not intended to be left to the legatee upon a condition precedent, properly so called, the title will be construed to have vested, and the condition for support, made in connection with the bequest of the income, will be held to be in the nature of a condition subsequent. Winn v. Tabernacle Infirmary, 135 Ga. 380 , 69 S.E. 557 , 32 L.R.A. (n.s.) 512 (1910).

Conveyance upon condition that the grantee assume certain indebtedness, and if the grantee fails, to revert, creates a condition subsequent. Mayor of Gainesville v. Brenau College, 150 Ga. 156 , 103 S.E. 164 (1920).

Devise of land in fee with a condition subsequent inhibiting alienation to the wife of the devisee or her children directly, or indirectly as by "any legal proceedings or order of court," as the restriction against alienation was limited to one person and her children and did not extend generally to all persons was valid as against the objection that it was repugnant to the estate devised, nor was it void on the ground that it was repugnant to the nature of the estate granted, contrary to law, contrary to public policy, or prevented performance of parental duties. Blevins v. Pittman, 189 Ga. 789 , 7 S.E.2d 662 (1940).

When the grantor put into a deed of property for a school the condition that "should the same not be used for school purposes," the title was to revert, there arose a condition subsequent with a right of reentry on abandonment of the property for school uses. Rustin v. Butler, 195 Ga. 389 , 24 S.E.2d 318 (1943).

Provision in a deed granting land for a schoolhouse and yard so long as it was used for school purposes creates an estate upon a condition subsequent, upon the breach of which the land would revert to the grantor, the grantor's estate, or heirs. Williams v. Thomas County, 208 Ga. 103 , 65 S.E.2d 412 (1951).

Condition subsequent not found. - In the case of Moss v. Chappell, 126 Ga. 196 , 54 S.E. 968 , 11 L.R.A. (n.s.) 398 (1906), it appears that the deed to the railroad company conveying the land in controversy contained this provision: "provided that should said strips of land cease to be used for railroad purposes, it shall revert to the grantors." And it was held that the words created a condition subsequent, a breach of which would work a forfeiture. The deed under consideration in the present case contains no such stipulation. Harrold v. Seaboard Air-Line Ry., 131 Ga. 360 , 62 S.E. 326 (1908).

When an owner of land conveys the land to a city, and states in the deed that the land is to be used for a specified purpose, the owner may have such an interest as to prevent the land's sale or diversion from that purpose to others, or perhaps the owner may have an action of covenant. But such language alone does not create a condition subsequent, on breach of which a forfeiture results and the original owner may recover the land. City of Atlanta v. Jones, 135 Ga. 376 , 69 S.E. 571 (1910). See also Wadley Lumber Co. v. Lott, 130 Ga. 135 , 60 S.E. 836 (1908).

Conveyance by warranty deed to the Board of Education of Stewart County of an acre of land, in consideration of $5.00 to the grantor in hand paid, the land "to be used by said board of education as a public school for whites," with the habendum clause, "to have and to hold the same for the uses aforesaid forever," did not create an estate upon a condition subsequent, or an estate with a conditional limitation; such conveyance does not convey a mere easement, and an implied trust did not arise in favor of the grantor in this deed from the fact that the board of education had discontinued the operation of a school for whites on this lot. Heyward v. Hatfield, 182 Ga. 373 , 185 S.E. 519 (1936).

Deed that the grantor, in consideration of payment by the grantees of a certain indebtedness and of their support and maintenance of the grantor during the remainder of the grantor's life, conveyed the described premises, but did not create a condition subsequent which, upon failure of the grantees to support and maintain the grantor, would result in a forfeiture of the estate conveyed, but such language created a covenant binding the grantees therein to perform; upon their failure to perform, if the grantor had been in life, the grantor might have rescinded the contract by restoring to the grantees that part of the consideration represented by the payment of the indebtedness, offset by any profits they might have derived from the conveyance to them. Jones v. Reid, 184 Ga. 764 , 193 S.E. 235 (1937).

When the deed did not expressly state a condition that the breach thereof should cause forfeiture of the estate granted, the clause as to providing a home and necessaries of life for the grantor might, by acceptance of the deed and entry of possession thereunder, become binding upon the grantee as a covenant, but the deed did not create a condition subsequent, the breach of which would cause a forfeiture or termination of title conveyed by the deed. Arrington v. Arrington, 189 Ga. 725 , 7 S.E.2d 665 (1940).

When a deed in consideration of $10.00 was executed by a corporation and delivered, purporting to convey fee simple title to a tract of land, which deed contained an agreement that the property "will be used for county school purposes only, and should this provision be violated, the grantor herein shall have the right to purchase the above property for $2,000.00," this clause did not create a conditional estate dependent upon a condition subsequent. Gearhart v. West Lumber Co., 212 Ga. 25 , 90 S.E.2d 10 (1955).

Remedies

Forfeitures are not favored. Goss v. Finger, 28 Ga. App. 410 , 111 S.E. 212 (1922).

Forfeitures are abhorred in equity and are favored in law, and provisions for forfeitures are regarded with disfavor and construed with strictness, when applied to contracts and the forfeiture relates to a matter admitting of compensation or restoration. When adequate compensation can be made, the law in many cases and equity in all cases discharges the forfeiture upon such compensation being made. The law inclines to remedy breach of condition by damages rather than by forfeiture. Hays v. Jordan & Co., 85 Ga. 741 , 11 S.E. 833 , 9 L.R.A. 373 (1890).

Law does not incline to construe conditions or covenants so as to work a forfeiture. City of Atlanta v. Jones, 135 Ga. 376 , 69 S.E. 571 (1910).

Forfeiture provisions in contracts are not favored, and the law inclines to construe such conditions as remediable by damages rather than by forfeiture. J.G.T., Inc. v. Brunswick Corp., 119 Ga. App. 719 , 168 S.E.2d 847 (1969).

Courts of equity have struggled hard to construe conditions subsequent into covenants, and send the party aggrieved to law to get the party's damages for the nonperformance. Taylor v. Sutton, 15 Ga. 103 , 60 Am. Dec. 682 (1854).

Forfeiture favored in mining leases. - In leases of lands for mining purposes, when the rent reserved is a royalty, the courts do not hesitate, but look with favor upon provisions for forfeiture for nonexploitation. Such a covenant is a condition, the breach of which works a forfeiture. Duncan v. Campbell, 154 Ga. 824 , 115 S.E. 651 (1923).

Equity seeks to relieve against forfeitures when rules of construction will allow. Kiser v. Warner Robins Air Park Estates, Inc., 237 Ga. 385 , 228 S.E.2d 795 (1976).

Parties desiring forfeiture should so state. - If parties desire that a forfeiture shall result, or that an estate shall terminate because of breach of covenant or failure to use property for the purpose mentioned in the deed, the parties should so state. City of Atlanta v. Jones, 135 Ga. 376 , 69 S.E. 571 (1910).

Forfeiture where expressly provided. - Law inclines to construe conditions subsequent so as to render their breach remediable in damages rather than by forfeiture, but when the plain words of the grant declare that a breach of the condition shall defeat the estate granted, there is no room for construction. Jones v. Williams, 132 Ga. 782 , 64 S.E. 1081 (1909).

It is true that the law inclines to construe conditions to be subsequent rather than precedent, and to be remediable by damages rather than by forfeiture. But when the parties expressly stipulate for forfeiture for breach of covenant, and when precise compensation cannot be made for such breach, the forfeiture will be enforced. While equity generally abhors a forfeiture, it does not do so when the forfeiture is equitable and just, and when the enforcement of the forfeiture is the only means of protecting the landowner against the laches of the lessee, and when the lease is of no value to the landowner until developed. Duncan v. Campbell, 154 Ga. 824 , 115 S.E. 651 (1923).

Condition subsequent, with right of reentry, and forfeiture of the estate conveyed to the grantee, is not void because it could work a forfeiture. If a valid limitation imposed against alienation is interwoven with, so as to constitute a part of, the grant itself, the grant will be treated as a defeasible estate, and upon the inhibition being violated, the estate conveyed is forfeited and terminates. Floyd v. Hoover, 141 Ga. App. 588 , 234 S.E.2d 89 (1977).

Whole estate does not cease when land put to minor use. - When land is conveyed to be used for a certain purpose, with a clause of forfeiture if it cease to be used for the object specified, the whole estate does not cease if the land is permitted to be put to a minor use, provided that in the main the land is used for the purpose for which the land was conveyed. Lawson v. Georgia S. & F. Ry., 142 Ga. 14 , 82 S.E. 233 (1914); Hilton v. Central of Ga. Ry., 146 Ga. 812 , 92 S.E. 642 (1917).

Fee in grantee until entry or legal recovery. - Breach of a condition subsequent in a deed does not, of itself alone, defeat the grantee's estate nor revest title in the grantor until after entry or recovery in an action brought by him or his heirs; and the same rule is applicable in case of the lease of realty for a term of years. Peacock & Hunt Naval Stores Co. v. Brooks Lumber Co., 96 Ga. 542 , 23 S.E. 835 (1895).

When a conveyance of land is made upon a condition subsequent, the fee remains in the grantee until a breach of condition and a reentry by the grantor. Wadley Lumber Co. v. Lott, 130 Ga. 135 , 60 S.E. 836 (1908).

Forfeiture may be expressly released, or waived. - As was said in Moss v. Chappell, 126 Ga. 196 , 54 S.E. 968 , 11 L.R.A. (n.s.) 398 (1906), "forfeitures resulting from the breach of a condition may be expressly released, or may be the subject of a waiver, and a waiver may result from circumstances, as well as express language to that effect." All this is well settled, and when the release or waiver extends to the whole forfeiture, all benefit to be derived from the forfeiture is gone. Jones v. Williams, 132 Ga. 782 , 64 S.E. 1081 (1909); Wilkes v. Groover, 138 Ga. 407 , 75 S.E. 353 (1912).

When no forfeiture, action for damages is remedy for breach. - When there are no express words of defeasance, forfeiture, or reversion, words in a deed will be construed as words of covenant and not words of condition. The remedy for a breach by one having the right to enforce the same is an action for damages and not a forfeiture of the estate for condition broken. Fulford v. Fulford, 225 Ga. 9 , 165 S.E.2d 848 (1969).

Remedy when promise by grantee to support grantor is consideration of deed. - When the consideration recited in a deed is "one dollar, furnishing grantor a home, food, medicine, doctor's bills, hospital bills, burial expenses, and all the other necessities of life during grantor's lifetime," and the grantee has failed and refused to furnish the grantor the specified items, ordinarily the remedy of the grantor is an action for damages. Dumas v. Dumas, 205 Ga. 238 , 52 S.E.2d 845 (1949).

When the consideration of a deed is a promise by the grantee to support the grantor and the grantee breaches the contract, ordinarily the remedy of the grantor would be an action for damages. Dillard v. Brannan, 217 Ga. 179 , 121 S.E.2d 768 (1961).

Forfeiture not found. - Forfeitures are abhorred in equity and are never favored in law, and a contract will not be construed so as to work a forfeiture, unless the terms of the contract plainly require such construction. It is not at all likely that the parties to this contract intended that the land conveyed, which according to the evidence was worth several times the amount of the debt, should vest absolutely in the creditor upon the failure to pay the debt on the day the debt fell due; and the terms of the contract do not make it clear that they so intended. McDaniel v. Gray & Co., 69 Ga. 433 (1882); Chapman v. Ayer, 95 Ga. 581 , 23 S.E. 131 (1895).

Deed executed partly upon a consideration to support the grantor during the remainder of the grantor's life, without apt or proper words to create a condition a breach of which would render the estate defeasible at the grantor's election, passes title to the grantees, and in such a case, upon failure of the grantees to support and maintain the grantor as provided, there would be no forfeiture of the estate conveyed, but a right of action in the grantor for a breach of covenant. Jones v. Reid, 184 Ga. 764 , 193 S.E. 235 (1937).

OPINIONS OF THE ATTORNEY GENERAL

Conveyance providing title reverts should stated purposes cease gives grantee fee on condition subsequent. - Conveyance of land which provides that it is for stated purposes, and that should it cease to be used for such purposes the title is to revert back, gives the grantee a fee on condition subsequent, and upon breach thereof, the grantor has a right of reentry; this right of reentry can also be asserted against the state as grantee. 1958-59 Op. Att'y Gen. p. 281.

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, § 151 et seq.

C.J.S. - 26A C.J.S., Deeds, §§ 304 et seq., 315, 316, 320, 335 et seq., 353 et seq., 369 et seq. 31 C.J.S., Estates, §§ 1, 10, 21 et seq. 51 C.J.S., Landlord and Tenant, § 178 et seq. 96 C.J.S., Wills, §§ 1238, 1239, 1254 et seq., 1323, 1336, 1337, and 1360. 97 C.J.S., Wills §§ 1394 et seq., 1403, 1404.

ALR. - Commencement of development within fixed term as extending term of oil and gas lease, 67 A.L.R. 526 .

Provision of will for forfeiture in case of contest, as applied to contest by one not a beneficiary, 7 A.L.R.2d 1357.

Nature of estate conveyed by deed for park or playground purposes, 15 A.L.R.2d 975.

Nature of estates or interests created by grant or devise to one and heirs if donee should have any heirs, 16 A.L.R.2d 670.

Devisability of possibility of reverter, or of right of re-entry for breach of condition subsequent, 16 A.L.R.2d 1246.

Validity and effect of transfer of possibility of reverter or right of re-entry, following conveyance of determinable fee or fee subject to condition subsequent, 53 A.L.R.2d 224.

Testamentary devise or bequest conditioned upon beneficiary's supporting or rendering services to named person as providing for condition subsequent or precedent, 25 A.L.R.3d 762.

44-6-42. Right of entry after breach of condition subsequent.

Upon the breach of a condition subsequent, which breach works a forfeiture of the estate, the person to whom the estate is limited may enter immediately.

(Orig. Code 1863, § 2280; Code 1868, § 2273; Code 1873, § 2299; Code 1882, § 2299; Civil Code 1895, § 3141; Civil Code 1910, § 3721; Code 1933, § 85-906.)

JUDICIAL DECISIONS

Provision that title reverts upon breach of condition creates valid condition subsequent. - Provision in a deed that title "reverts back to the grantor if the grantee denies grantor her right to live on said property with him as his wife or without him" created a valid condition subsequent, and stipulated that a breach of the condition by the grantee husband would cause the title to revert; this would give to the grantor wife the right of reentry. However, if performance by the husband of such a condition subsequent was made impossible by acts or conduct on the part of the wife herself, the rule would be otherwise. Turner v. Turner, 186 Ga. 223 , 197 S.E. 771 (1938).

Provision in a deed granting land for a schoolhouse and yard so long as it was for school purposes creates an estate upon condition subsequent, upon the breach of which the land would revert to the grantor, the grantor's estate, or heirs. Williams v. Thomas County, 208 Ga. 103 , 65 S.E.2d 412 (1951).

Breach of condition subsequent in deed does not ipso facto defeat the grantee's estate, or revest title in the grantor; until reentry or an action for recovery of the land by the grantor, the possession by the grantee continues to be lawful. Evans v. Brown, 196 Ga. 634 , 27 S.E.2d 300 (1943).

Grantor has a right to reenter upon condition being broken. Wilkes v. Groover, 138 Ga. 407 , 75 S.E. 353 (1912).

Grantor not revested with title until entry. - Grantor in a deed containing a condition subsequent, upon a breach thereof, is not revested with the title until there has been an entry. City of Barnesville v. Stafford, 161 Ga. 588 , 131 S.E. 487 , 43 A.L.R. 1045 (1926).

Grantor must perform grantor's part of contract prior to reentry. - Grantor, in order to reenter upon breach of the condition, must, as a condition to such reentry perform the grantor's part of the grantor's contract. Wadley Lumber Co. v. Lott, 130 Ga. 135 , 60 S.E. 836 (1908).

Stranger cannot make reentry. Richmond Cotton Oil Co. v. Castellaw, 134 Ga. 472 , 67 S.E. 1126 (1910).

Grantor, upon breach, can enter peaceably or maintain action for recovery. - Grantor in a deed containing a condition subsequent may, upon the condition's breach, enter peaceably if the grantor can do so, or the grantor may maintain the grantor's action for recovery of the premises in event the grantee refuses to surrender possession. Such an action is the equivalent of an entry. Until there has been an entry, the grantee or those holding under the grantee are entitled to the possession and are to be treated as the owners. But they are subject to be evicted by a judgment rendered in an action by the grantor brought for the purpose of enforcing the forfeiture. Georgia R.R. & Banking Co. v. Mayor of Macon, 86 Ga. 585 , 13 S.E. 21 (1891); Peacock & Hunt Naval Stores Co. v. Brooks Lumber Co., 96 Ga. 542 , 23 S.E. 835 (1895); Moss v. Chappell, 126 Ga. 196 , 54 S.E. 968 , 11 L.R.A. (n.s.) 398 (1906); Wadley Lumber Co. v. Lott, 130 Ga. 135 , 60 S.E. 836 (1908).

Grantor in a deed containing a condition subsequent may, upon the condition's breach, enter peaceably if the grantor can do so, or the grantor may maintain the grantor's action for the recovery of the premises in the event the grantee refuses to surrender possession. Such an action is the equivalent of an entry. Moss v. Chappell, 126 Ga. 196 , 54 S.E. 968 , 11 L.R.A. (n.s.) 398 (1906).

Person to whom the condition subsequent is limited may, upon breach of the condition, enter peaceably if the person can, or assert the person's right to enter by an action for recovery of possession of the land against the grantee and those claiming under the grantee. Blevins v. Pittman, 189 Ga. 789 , 7 S.E.2d 662 (1940).

Grantor may waive grantor's right of reentry. Wilkes v. Groover, 138 Ga. 407 , 75 S.E. 353 (1912).

Cited in Fulford v. Fulford, 225 Ga. 9 , 165 S.E.2d 848 (1969); Preferred Real Estate Equities, Inc. v. Hous. Sys., 248 Ga. App. 745 , 548 S.E.2d 646 (2001).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 175 et seq., 189.

C.J.S. - 26A C.J.S., Deeds, §§ 304 et seq., 315 et seq., 320, 326, 331 et seq., 339 et seq., 351. 31 C.J.S., Estates, § 21 et seq. 52A C.J.S., Landlord and Tenant, § 178 et seq. 52B C.J.S., Landlord and Tenant, § 1329 et seq. 97 C.J.S., Wills, § 1414.

ALR. - Reservation by successive grantors of reentry for breach of conditions subsequent in deeds, 114 A.L.R. 566 .

Provision of will for forfeiture in case of contest, as applied to contest by one not a beneficiary, 7 A.L.R.2d 1357.

Devisability of possibility of reverter, or of right of reentry for breach of condition subsequent, 16 A.L.R.2d 1246.

Waiver of, or estoppel to assert, condition subsequent or its breach, 39 A.L.R.2d 1116.

44-6-43. Certain conditions void.

Conditions which are repugnant to the estate granted, which require impossible or illegal acts to be performed, or which in themselves are contrary to the policy of the law are void.

(Orig. Code 1863, § 2277; Code 1868, § 2270; Code 1873, § 2296; Code 1882, § 2296; Civil Code 1895, § 3138; Civil Code 1910, § 3718; Code 1933, § 85-903.)

Law reviews. - For annual survey of wills, trusts, and administration, see 43 Mercer L. Rev. 457 (1991). For summary review article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008). For comment criticizing Williams v. S.M. High Co., 200 Ga. 230 , 36 S.E.2d 667 (1946), holding perpetual right of renewal in lease granted to corporation did not violate rule against perpetuities, see 8 Ga. B.J. 420 (1946). For comment on Jenkins v. Shuften, 206 Ga. 315 , 57 S.E.2d 283 (1950), see 12 Ga. B.J. 477 (1950). For comment, "Injunction Remedy for Breach of Restrictive Covenants: An Economic Analysis," see 45 Mercer L. Rev. 543 (1993).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Right to dispose of land incident to fee simple estate. - An estate in fee simple carries with it as a natural incident the right to sell or otherwise dispose of the land conveyed. Alderman v. Crenshaw, 84 Ga. App. 344 , 66 S.E.2d 265 (1951).

Repugnant conditions are those which tend to the utter subversion of the estate, such as those that prohibit entirely the alienation or use of the property. Conditions which prohibit the property's alienation to particular persons or for a limited period, or the property's subjection to particular uses, are not subversive of the estate; those conditions do not destroy or limit the property's alienable or inheritable character. Floyd v. Hoover, 141 Ga. App. 588 , 234 S.E.2d 89 (1977).

Cited in Lassiter v. Bank of Dawson, 191 Ga. 208 , 11 S.E.2d 910 (1940); Wright v. Pritchett, 213 Ga. 865 , 102 S.E.2d 602 (1958); Fulford v. Fulford, 225 Ga. 9 , 165 S.E.2d 848 (1969); DOT v. City of Atlanta, 255 Ga. 124 , 337 S.E.2d 327 (1985); Phillips v. Phillips, 260 Ga. 265 , 392 S.E.2d 523 (1990).

Conditions Void

Restriction on power of alienation of fee void. - Statute declares that a condition repugnant to the estate granted is void. It requires no argument to support the proposition that a restriction on the power of alienation is repugnant to a grant in fee. Freeman v. Phillips, 113 Ga. 589 , 38 S.E. 943 (1901) (see O.C.G.A. § 44-6-43 ).

Power of alienation is necessarily incident to every estate in fee, and a condition in a devise of lands in fee simple altogether preventing alienation is repugnant to the estate and void. Crumpler v. Barfield & Wilson Co., 114 Ga. 570 , 40 S.E. 808 (1902).

Restraint upon alienation being repugnant to the nature of a fee simple estate is void. Cowart v. Singletary, 140 Ga. 435 , 79 S.E. 196 , 47 L.R.A. (n.s.) 621, 1915A Ann. Cas. 1116 (1913).

Devise in fee with an inhibition against alienation is repugnant to the fee, and is therefore void. Farkas v. Farkas, 200 Ga. 886 , 38 S.E.2d 924 (1946).

It has always been the rule in Georgia that a restriction in a deed inhibiting alienation is void. This rule applies to a restriction in a deed inhibiting alienation without the consent of the grantor, and this is true even though the grantor is a tenant in common. Alderman v. Crenshaw, 84 Ga. App. 344 , 66 S.E.2d 265 (1951).

Provision in a deed or will that a fee simple estate may not be sold is void as being repugnant to the estate granted. Wills v. Pierce, 208 Ga. 417 , 67 S.E.2d 239 (1951).

Power of alienation is necessarily incident to every estate in fee simple absolute, and no one can create what is intended in law to be a fee simple absolute and at the same time deprive the owner of those rights and privileges which the law attaches to that estate. Such a condition is inconsistent with the fee, repugnant to the estate granted, and is void. Floyd v. Hoover, 141 Ga. App. 588 , 234 S.E.2d 89 (1977).

Will provision which allowed the decedent's sons to build a house on bequeathed real estate did not grant the sons an easement in gross as to the property because such a grant would have been repugnant to the fee simple interest in the property granted to one son, and the lack of any limitation as to time, place, or manner would have impermissibly restricted the property's alienability. Dyer v. Dyer, 275 Ga. 339 , 566 S.E.2d 665 (2002).

Grantor could not create a fee simple estate in certain property and simultaneously prohibit entirely the alienation or use of the property, despite grantor's intention on creating a fee simple subject to a condition subsequent. Statham v. Kelly, 276 Ga. 877 , 584 S.E.2d 246 (2003).

Will gave the decedent's spouse a fee simple estate in the decedent's undivided half-interest in certain realty. As the will attempted to bar the spouse's sale of the property without the approval of the executor, this was a restraint on the alienation of a fee simple estate, and therefore void under O.C.G.A. § 44-6-43 . Bandy v. Henderson, 284 Ga. 692 , 670 S.E.2d 792 (2008).

Habendum repugnant to premises is void. - First part of a deed clearly conveys the title and the present estate in the land to the grantee and the attempt by the grantor in a subsequent part of the deed to retain the title in the grantor is inconsistent with the first part of the deed, wherein the grantor had already conveyed the title out of the grantor, and the former must prevail. If the habendum be repugnant to the premises, it is void, for a condition repugnant to the estate granted is void. White v. Hopkins, 80 Ga. 154 , 4 S.E. 863 (1887).

Provisions granting broad powers in trustee also retaining interest in grantor. - If any of the provisions granting broad powers to the trustee should be construed as retaining an interest in the grantor, such provisions would be void as repugnant to the grant. Lewman v. Owens, 132 Ga. 484 , 64 S.E. 544 (1909); Galland v. Reuben, 155 Ga. 293 , 116 S.E. 302 (1923).

Conditions Not Void

Incumbrance upon property requested by grantor and grantee not repugnant to grant. - When a husband settled property on his wife free from all his liabilities except such incumbrances as the two together shall request the trustee to make, the exception is not repugnant to the grant, but is merely a qualification thereof. Aetna Ins. Co. v. Brodinax, 48 F. 892 (C.C.S.D. Ga. 1883), aff'd, 128 U.S. 236, 9 S. Ct. 61 , 32 L. Ed. 445 (1888).

Spendthrift trusts are allowed by statute, but only in certain defined cases under former Civil Code 1910, § 3729. Wright v. Hill, 140 Ga. 554 , 79 S.E. 546 (1913).

Limitation over not inconsistent with determinable fee. - Provision that should the wife's sister die childless before the wife is not inconsistent with the grant to the wife of a fee determinable upon condition. If the devisee in remainder under such condition should die without child or children, the wife would have the added right of disposition. Tyler v. Theilig, 124 Ga. 204 , 52 S.E. 606 (1905).

Devise of fee with condition subsequent inhibiting alienation to wife of devisee or children valid. - Devise of land in fee with a condition subsequent inhibiting alienation to the wife of the devisee or her children directly, or indirectly as by "any legal proceedings or order of court," as the restriction against alienation was limited to one person and her children and did not extend generally to all persons, was valid as against the objection that it was repugnant to the estate devised. Nor was it void on the ground that it was repugnant to the nature of the estate granted, contrary to law, contrary to public policy, or prevented performance of parental duties. Blevins v. Pittman, 189 Ga. 789 , 7 S.E.2d 662 (1940).

Testator has right to place executory limitation upon estate devised by testator's will; this is not such a condition repugnant to the estate granted as is prohibited by this statute. McDonald v. Suarez, 212 Ga. 360 , 93 S.E.2d 16 (1956) (see O.C.G.A. § 44-6-43 ).

Testator's right to place executory limitation upon estate. - Residuary clause of a will devising all the residue of the testator's real and personal property to his wife free from all charge and limitation, with the provision that should she not dispose of the same in her lifetime it would pass in fee simple to the testator's brothers and sisters, created and vested in the testator's widow a defeasible fee subject to an executory limitation, which does not offend the provisions of this statute. Jenkins v. Shuften, 206 Ga. 315 , 57 S.E.2d 283 (1950), for comment, see 12 Ga. B.J. 477 (1950) (see O.C.G.A. § 44-6-43 ).

Under the provisions of a will, the plaintiff had an estate in fee of a one-half undivided interest in the property, subject to being divested by her dying before the defendant, in which event the defendant, as the survivor, would become vested with the fee simple title to the entire interest. The provisions as to the use and sale of the property during the lifetime of the devisees did not create a trust estate, nor did the limitation placed on the sale of the property during the lifetime of the devisees violate this statute. Trimble v. Fairbanks, 209 Ga. 741 , 76 S.E.2d 16 (1953) (see O.C.G.A. § 44-6-43 ).

Restriction against alienating life estate valid. - Devise of the life interest to the wife was not such a grant of an estate to her as to make the subsequent provision against its transfer void on account of repugnancy. Trammell v. Johnston, 54 Ga. 340 (1875).

Inhibition against selling a life estate is valid when the creation of the life estate is accompanied by an estate over in remainder to another, with a provision for a forfeiture of the life estate in favor of the remainderman, to take effect upon the prohibited attempted alienation. Farkas v. Farkas, 200 Ga. 886 , 38 S.E.2d 924 (1946).

Restrictive covenant preventing "For Sale" signs. - Restrictive covenant preventing "For Sale" signs in a subdivision was not an unenforceable restraint on alienation under O.C.G.A. § 44-6-3 . The covenant did not directly prohibit the sale of a homeowner's residence. Godley Park Homeowners Ass'n v. Bowen, 286 Ga. App. 21 , 649 S.E.2d 308 (2007).

Occupancy age restrictions. - Condominium occupancy limitation restricting permanent residence to persons 16 years old or older is not so unusual or so unreasonable as to be repugnant to the estate granted. Hill v. Fontaine Condominium Ass'n, 255 Ga. 24 , 334 S.E.2d 690 (1985).

Declaration amendment restricting leasing property. - Trial court's grant of summary judgment to the homeowners' association was proper because two-thirds of homeowners voted to restrict leasing in their neighborhood; thus, an amendment to the declaration challenged by the plaintiff complied with O.C.G.A. § 44-3-226(a) and the plaintiff did not have an unfettered right to lease the plaintiff's property thereafter. Pasha v. Battle Creek Homeowners Ass'n, 350 Ga. App. 433 , 829 S.E.2d 618 (2019).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 154 et seq., 192 et seq.

C.J.S. - 26A C.J.S., Deeds, §§ 310 et seq., 324, 325, 345 et seq. 31 C.J.S., Estates, § 21 et seq. 96 C.J.S., Wills, §§ 1215 et seq., 1231. 97 C.J.S., Wills, §§ 1383 et seq., 1412, 1415 et seq.

ALR. - Restraint upon voluntary alienation of legal life estate, 160 A.L.R. 639 .

Provision of will for forfeiture in case of contest, as applied to contest by one not a beneficiary, 7 A.L.R.2d 1357.

Gift or grant in terms sufficient to carry the whole property absolutely as so operating where followed by a purported limitation over of property not disposed of by the first taker, 17 A.L.R.2d 7.

Validity and effect of provision or condition against alienation in gift for charitable trust or to charitable corporation, 100 A.L.R.2d 1208.

Pre-emptive rights to realty as violation of rule against perpetuities or rule concerning restraints on alienation, 40 A.L.R.3d 920.

44-6-44. Effect of legal disabilities on conditions; notice of condition.

No legal disability except that of being non compos mentis shall excuse a person from failing to comply with a condition annexed to his estate. No notice of such condition is required to be given by the person claiming under the limitation over.

(Orig. Code 1863, § 2278; Code 1868, § 2271; Code 1873, § 2297; Code 1882, § 2297; Civil Code 1895, § 3139; Civil Code 1910, § 3719; Code 1933, § 85-904.)

JUDICIAL DECISIONS

Interest in property by reason of rights as judgment creditor is estate with condition annexed, and that condition requires, in case of a sale of land by the defendant to a bona fide purchaser for a valuable consideration, who is in possession of the land, that the plaintiff proceed by a levy within four years from the time when the possession commences or the estate is divested and the bona fide purchaser holds the land discharged from the lien of the judgment. In this view of the case, no legal disability whatever, except being non compos mentis, will relieve the plaintiff from failing to comply with the condition. Chapman v. Akin, 39 Ga. 347 (1869).

Cited in Evans v. Brown, 196 Ga. 634 , 27 S.E.2d 300 (1943).

RESEARCH REFERENCES

C.J.S. - 26A C.J.S., Deeds, §§ 318, 324, 325.

ARTICLE 4 REMAINDERS AND REVERSIONS

Law reviews. - For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).

RESEARCH REFERENCES

ALR. - Effect of premature termination of precedent estate to accelerate remainder of which there is an alternative substitutional gift, 5 A.L.R. 460 ; 164 A.L.R. 1297 .

Effect of premature termination of precedent estate to accelerate contingent remainder, 5 A.L.R. 473 ; 164 A.L.R. 1433 .

Failure or renunciation of the precedent life estate given by a will, as accelerating the vesting of a remainder limited thereon where enjoyment is postponed by the allotment of dower of the necessity of compensating disappointed legatees, 5 A.L.R. 480 .

Requiring security from life tenant for protection of remaindermen, 14 A.L.R. 1066 ; 101 A.L.R. 271 ; 138 A.L.R. 440 .

Time of assessment of succession tax on future contingent interests, 30 A.L.R. 478 .

Right of remainderman or his privies to require disclosure or accounting by life tenant, 45 A.L.R. 519 .

Doctrine as to possibility of issue extinct as affecting property rights or taxation, 67 A.L.R. 538 ; 146 A.L.R. 794 ; 98 A.L.R.2d 1285.

Future estate or interest in property as asset in bankruptcy, 68 A.L.R. 773 .

Deed in consideration of support of grantor as creating an estate upon condition or a conditional limitation, 76 A.L.R. 742 .

Contribution or allowance as between cotenants in remainder as affected by fact that one or more of them owns, or did own, the life estate or an interest therein, 98 A.L.R. 859 .

Life interest and remainder in corporate stock as affecting stockholder's statutory liability, 99 A.L.R. 505 .

Income tax in respect of that part of extraordinary cash dividend on stock held by trustee that is allocated to corpus as regards respective rights of life beneficiary and remaindermen, 99 A.L.R. 518 .

Relative rights of life beneficiary and remainderman as to return on bonds or other obligations for the payment of money, bought at a premium or at a discount, 101 A.L.R. 7 ; 131 A.L.R. 1426 .

Words of survivorship in will disposing of remainder upon termination of life or other precedent or intervening estate as referable to time of testator's death or to time of termination of such intervening estate, 114 A.L.R. 4 ; 20 A.L.R.2d 830.

Rights of life tenant (legal or equitable) and remaindermen in respect of amount paid by lessee in consideration of release, 121 A.L.R. 900 .

Grant to one for life, and afterwards, either absolutely or contingently, to grantor's heirs or next of kin, as leaving reversion or creating remainder, 125 A.L.R. 548 ; 16 A.L.R.2d 691.

Death of life tenant before death of testator as causing lapse or "acceleration" of remainder, 133 A.L.R. 1367 .

Remaindermen as necessary or proper parties to action or proceeding between life tenant and trustee, 136 A.L.R. 696 .

"Divide and pay over" rule, for purpose of determining vested or contingent character of future estate, 144 A.L.R. 1155 ; 16 A.L.R.2d 1383.

Death of life beneficiary without ever having had a child as equivalent of death of all his children, which by terms of will was condition of remainder interest, 161 A.L.R. 181 .

Uniform Principal and Income Act as applicable to estates under administration, 166 A.L.R. 428 .

Prior estate as affected by remainder void for remoteness, 168 A.L.R. 321 .

Commencement of running of statute of limitations respecting actions by owners of right of reentry, or actions against third persons by reversioners, 19 A.L.R.2d 729.

Murder of life tenant by remainderman or reversioner as affecting latter's rights to remainder or reversion, 24 A.L.R.2d 1120.

Title to buildings when school lands revert for nonuse for school purposes, 28 A.L.R.2d 564.

Time as of which members of class described as remainderman's or life tenant's "heirs," "next of kin," "descendants," "issue," "family," or the like, substituted by will to take in place of deceased remainderman, are to be ascertained, 33 A.L.R.2d 242.

Provision of will that children, etc., of remainderman who dies before expiration of precedent estate or time fixed for distribution to remaindermen, shall take the share to which he would have been entitled, as affecting the character of remainder as vested or contingent, 47 A.L.R.2d 900.

When is a gift by will or deed or trust one to a class, 61 A.L.R.2d 212; 13 A.L.R.4th 978.

Nature of remainder created by inter vivos trust giving settlor, trustee, or life beneficiary power to exhaust trust fund or otherwise terminate trust, 61 A.L.R.2d 477.

Disposition of decedent's share of income or property during interval between deaths of life beneficiaries sharing therein, where remainder was given over after death of all life beneficiaries, 71 A.L.R.2d 1332.

Distribution as between life tenant and remainderman of proceeds of condemned property, 91 A.L.R.2d 963.

Duty as between life tenant and remainderman as respects payment of improvement assessments, 10 A.L.R.3d 1309.

Time to which condition of remainderman's death refers, under gift or grant to one for life or term of years and then to remainderman, but if remainderman dies without issue, then over to another, 26 A.L.R.3d 407.

Validity and effect of provision in deed attempting to make reservation or exception in favor of grantor's spouse, 52 A.L.R.3d 753.

Wills: gift to persons individually named but also described in terms of relationship to testator or another as class gift, 13 A.L.R.4th 978.

44-6-60. Nature of estates in remainder and in reversion; rights of reversioner.

  1. An estate in remainder is one limited to be enjoyed after another estate is terminated or at a time specified in the future.
  2. An estate in reversion is the residue of an estate, usually the fee left in the grantor and his heirs after the termination of a particular estate which he has granted out of it.
  3. The rights of the reversioner are the same as those of a vested remainderman in fee.

    (Orig. Code 1863, § 2245; Code 1868, § 2237; Code 1873, § 2263; Code 1882, § 2263; Civil Code 1895, § 3098; Civil Code 1910, § 3674; Code 1933, § 85-701.)

Cross references. - Right of action for injury to remainder or reversionary interest in personalty, § 51-10-5 .

Law reviews. - For article, "Descendible Future Interests in Georgia: The Effect of the Preference for Early Vesting," see 7 Ga. L. Rev. 443 (1973). For note discussing construction and interpretation of wills, see 1 Ga. L. Rev. No. 1, p. 46 (1927).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Rules on salability and leviable interests applicable to both remainders and reversions. - As both a remainder and a reversion are referred to in this statute as "an estate," whatever rule is properly applied as to the salability or leviable interest in the one would apply to the other. Cooper v. Davis, 174 Ga. 670 , 163 S.E. 736 (1932) (see O.C.G.A. § 44-6-60 ).

Rule against perpetuities is not applicable to vested remainder or reversion. Smith v. Francis, 221 Ga. 260 , 144 S.E.2d 439 (1965).

Cited in Taylor v. Trustees of Jesse Parker Williams Hosp., 190 Ga. 349 , 9 S.E.2d 165 (1940); Buchanan v. Nicholson, 192 Ga. 754 , 16 S.E.2d 743 (1941); Saxon v. Aycock, 72 Ga. App. 728 , 34 S.E.2d 914 (1945); Shedden v. Donaldson, 207 Ga. 77 , 60 S.E.2d 158 (1950); Stokes v. Trust Co., 507 F.2d 177 (5th Cir. 1975); Seymour v. Presley, 239 Ga. 572 , 238 S.E.2d 347 (1977); Georgia Dist. Council of Assemblies of God, Inc. v. Atlanta Faith Mem. Church, Inc., 267 Ga. 59 , 472 S.E.2d 66 (1996).

Estates in Remainder

No technical language is needed to create a remainder. Smith v. Smith, 200 Ga. 373 , 37 S.E.2d 367 (1946).

Words creating multiple estates with temporary exclusive possession create remainder. - Any words that show it was the intention of the creator to create, by one instrument, two or more estates, so that the possession incident to one is temporarily exclusive of the possession incident to another, will create an estate in remainder. Smith v. Smith, 200 Ga. 373 , 37 S.E.2d 367 (1946).

Estate in remainder is one limited to be enjoyed upon the determination of another estate. National Audubon Soc'y, Inc. v. Marshall, 424 F.2d 717 (5th Cir. 1970).

"Limitation over", or remainder, includes any estate in the same property created or contemplated by the conveyance to be enjoyed after the first estate granted expires or is exhausted. When two or more estates of freehold in the same property are granted by the same conveyance to be enjoyed successively, or one in lieu of another, each of the estates, except the first, is a limitation over. Lane v. Citizens & S. Nat'l Bank, 195 Ga. 828 , 25 S.E.2d 800 (1943).

Remainder part of whole title. - While no particular estate is necessary to sustain a remainder, nevertheless an estate in remainder is but a part of the whole title. Torbit v. Jones, 145 Ga. 610 , 89 S.E. 696 (1916).

Life estate not inconsistent with remainder. - When estates for life under former Civil Code 1910, § 3663 (see O.C.G.A. § 44-6-81 ) and estates in remainder under former Civil Code 1910, § 3674 (see O.C.G.A. § 44-6-60 ) were created by the same grant in the same land in favor of different persons, the possession of the life tenant was not adverse to the estate in remainder; accordingly, in such cases prescription will not run against the remaindermen, based on the possession of the life tenant or the life tenant's privy in estate, during the term of the life tenant. Ayer v. Chapman, 146 Ga. 608 , 91 S.E. 548 (1917).

Remainder estate is not necessarily entire estate that is left after previous estate is determined. A legatee may have an estate for life, the legatee's own or that of some other person, and still be a remainderman. Dodson v. Trust Co., 216 Ga. 499 , 117 S.E.2d 331 (1960).

Contingent remainder an estate. - Some courts and text writers declare a contingent remainder not an estate, but only a chance to have one; whatever differences may have heretofore existed between courts and text writers upon this subject, this statute has settled it by declaring that a contingent remainder is an estate. McGowan v. Lufburrow, 82 Ga. 523 , 9 S.E. 427 , 14 Am. St. R. 178 (1889) (see O.C.G.A. § 44-6-60 ).

Contingent remainder is an estate. Cooper v. Davis, 174 Ga. 670 , 163 S.E. 736 (1932).

Contingent remainder interest in land is an "estate". Phelps v. Palmer, 192 Ga. 421 , 15 S.E.2d 503 (1941).

Contingent remainderman may sell and assign the contingent estate. Cooper v. Davis, 174 Ga. 670 , 163 S.E. 736 (1932).

Reversion of remainder to testator's estate. - When contingency on which it is based never happens, remainder estate reverts to testator's estate. Kemp v. Lewis, 147 Ga. 254 , 93 S.E. 404 (1917).

Remainder vested when present capacity for possession exits. - An estate is vested when there is an immediate right of enjoyment or a present fixed right of future enjoyment. It is the present capacity of taking effect in possession, if the possession were to become vacant, that distinguishes a vested from a contingent remainder. Refinance Corp. v. Wilson, 183 Ga. 336 , 188 S.E. 707 (1936).

Interest limited to stockholder upon death of another vested remainder. - When a corporate resolution uses the term "reversion" to describe the estate of a stockholder, the estate is a vested remainder if the remainder interest is limited to that stockholder upon the death of another, and the stockholder's rights are the same as those of a vested remainderman. J.B. McCrary Co. v. Peacock, 223 Ga. 476 , 156 S.E.2d 57 (1967).

Construction of defeasible fee as remainder. - If remainder is a defeasible fee, law favors construction making fee absolute at earliest time, consistent with intent of the testator, as expressed in the will. Sanders v. First Nat'l Bank, 189 Ga. 450 , 6 S.E.2d 294 (1939).

Deed conveyed life estate and an estate in remainder. - Trial court erred in declaring that a deed conveyed a joint tenancy to a decedent and widow because the trial court construed the deed in a manner contrary to the deed's terms, ignoring the provision granting the decedent's widow a tenancy in common for their joint lives; instead, the deed should have been construed to convey first a life estate and then an estate in remainder, so as to give effect to all of the deed's provisions. Greene v. Greene, 311 Ga. App. 132 , 714 S.E.2d 650 (2011).

Deed conveyed to a widow a fee simple estate in the property upon a decedent's death because the deed conveyed to the decedent and widow a life estate in the property as tenants in common, which terminated upon the death of either of them, and the language of the deed conveyed a fee simple estate in remainder to the surviving grantee; therefore, upon the decedent's death, the life estate of the decedent and widow in the property ended and fee simple title to the property vested in the widow. Greene v. Greene, 311 Ga. App. 132 , 714 S.E.2d 650 (2011).

Estates in Reversion

Land reverts to grantor when company abandons right of way with conditional limitation. - If the grant had been to the railroad company or the company's assigns "for railroad purposes only," with no words of reverter or of limitation, the deed would pass the fee. The phrase "for railroad purposes only" would be merely a declaration of the purpose for which the land conveyed was intended to be used. There would be no reversion. But there are the added words, "and for the time that they shall so use it." The habendum clause was a conditional limitation, and the land reverted to the grantor when the company abandoned the right of way. Lawson v. Georgia S. & F. Ry., 142 Ga. 14 , 82 S.E. 233 (1914).

Reversion created in estate when will creates beneficiary for life with no remainder. - When one is a beneficiary for life with no remainder created by the will, a reversion is created in the estate, which reversionary interest vests immediately upon the testator's death. Smith v. Francis, 221 Ga. 260 , 144 S.E.2d 439 (1965).

When remainder estate fails because of want of remainderman, realty reverts to estate of testatrix, to be disposed of as intestate property. Armstrong Junior College Comm'n v. Livesey, 189 Ga. 825 , 7 S.E.2d 678 (1940).

Testator by will created a trust estate with a limitation over to the testator's heirs at law who might be in life at the time of the termination of the trust estate. Applying the provisions of former Code 1933, § 85-504 (see O.C.G.A. § 44-6-23 ), the words "heir at law" would mean children and the descendants of children, and since the only children of the testator had died without issue, this remainder failed, and the reversionary interest in the testator's estate vested, upon the testator's death, in those who were then the testator's heirs at law, with the right of possession postponed until the death of the last life tenant. Dodson v. Trust Co., 216 Ga. 499 , 117 S.E.2d 331 (1960).

Effect of qualified fee with power of appointment. - When the owner, by deed of gift, conveyed certain described lands to the owner's daughter, her bodily heirs and assigns forever, and if no bodily heirs then to be left to her choice any member of her family, brother or sister, nephew or niece, she took a base, or qualified fee, subject to be divested upon her dying without bodily heirs, and having died without bodily heirs subsequent to the death of the grantor intestate, and having failed to exercise the power of appointment, a reversion resulted upon her death to the heirs at law of the grantor. Guess v. Morgan, 196 Ga. 265 , 26 S.E.2d 424 (1943).

Title reverting to testator's estate goes to those who were testator's heirs at testator's death. - When a will provides that the title, on a certain contingency, reverts to the testator's estate, the language means that it goes to the heirs of the testator. This means those who were the heirs at law of the testator at the time of the testator's death. Shockley v. Storey, 185 Ga. 790 , 196 S.E. 702 (1938).

Heirs previously took such contingent estate as assignable during devisee's lifetime. - Under a will which gave lands to a certain devisee but contained a provision that, if the devisee dies without issue, the land should revert to the devisee's estate, the heirs at law of the testator took such a contingent estate therein as was assignable during the lifetime of the devisee. Shockley v. Storey, 185 Ga. 790 , 196 S.E. 702 (1938).

No reversion when grant for named purpose only. - When the grant is for a named purpose only, with no words of reverter or of limitation, the grant is a mere declaration of the purpose to which the land conveyed was intended to be used, and in such a case there is no reversion. Heyward v. Hatfield, 182 Ga. 373 , 185 S.E. 519 (1936).

Rights of a reversioner are the same as those of a vested remainderman, and such an estate devolves by operation of law upon those who answer the description of heirs at law as of the time of the testator's or grantor's death, with possession postponed until the termination of the prior estate. Guess v. Morgan, 196 Ga. 265 , 26 S.E.2d 424 (1943).

When a reversion is contingent, the rights would be the same as contingent remainders. Cooper v. Davis, 174 Ga. 670 , 163 S.E. 736 (1932).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 197 et seq., 217 et seq.

C.J.S. - 26A C.J.S., Deeds, § 249 et seq. 31 C.J.S., Estates, §§ 97, 130, 131. 96 C.J.S., Wills, §§ 1269, 1302.

ALR. - Postponing distribution until payment of debts or settlement of estate as violating rule against perpetuities, 13 A.L.R. 1033 .

Conveyance by life tenant and remaindermen in esse as cutting off interest of unborn persons under devise for life with remainder to a class, 25 A.L.R. 770 .

Relative rights of life beneficiary and remainderman as to return on bonds or other obligations for the payment of money, bought at a premium or at a discount, 101 A.L.R. 7 ; 131 A.L.R. 1426 .

Necessity that living members of the same class be parties to give court jurisdiction, under the doctrine of representation in respect of interests of unborn contingent remaindermen, 120 A.L.R. 876 .

Relative rights of tenant for years or life and remainderman as to return on bonds or other obligations for the payment of money bought at a premium or discount, 131 A.L.R. 1426 .

Rule limiting duration of restraints on alienation as applicable to covenant in deed restricting use of property, 10 A.L.R.2d 824.

Grant to one for life, and afterwards, either absolutely or contingently, to grantor's heirs or next of kin, as leaving reversion or creating remainder, 16 A.L.R.2d 691.

Devisability of possibility of reverter, or of right of reentry for breach of condition subsequent, 16 A.L.R.2d 1246.

Title to buildings when school lands revert for nonuse for school purposes, 28 A.L.R.2d 564.

Provision of will that children, etc., of remainderman who dies before expiration of precedent estate or time fixed for distribution to remaindermen, shall take the share to which he would have been entitled, as affecting the character of remainder as vested or contingent, 47 A.L.R.2d 900.

44-6-61. Vested and contingent remainders distinguished.

Remainders are either vested or contingent. A vested remainder is a remainder which is limited to a certain person at a certain time or which is dependent upon the happening of a necessary event. A contingent remainder is a remainder which is limited to an uncertain person or which is dependent upon an event which may or may not happen.

(Orig. Code 1863, § 2247; Code 1868, § 2239; Code 1873, § 2265; Code 1882, § 2265; Civil Code 1895, § 3100; Civil Code 1910, § 3676; Code 1933, § 85-703.)

Law reviews. - For article discussing problems in construction of instrument conveying gift to a group or class, see 6 Ga. St. B.J. 169 (1969). For article, "Descendible Future Interests in Georgia: The Effect of the Preference for Early Vesting," see 7 Ga. L. Rev. 443 (1973). For article, "The Rule Against Perpetuities as Applied to Georgia Wills and Trusts," see 16 Ga. L. Rev. 235 (1982). For note discussing construction and interpretation of wills, see 1 Ga. L. Rev. 46 (1927). For comment on Cunningham v. Cunningham, 230 Ga. 493 , 197 S.E.2d 731 (1973), see 8 Ga. L. Rev. 502 (1974).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

One named as the beneficiary of a life estate may also take a remainder interest. Schriber v. Anderson, 205 Ga. 343 , 53 S.E.2d 490 (1949).

Statute merely defines the terms "vested remainder" and "contingent remainder" but confers no rights. Owens v. Davis, 224 Ga. 146 , 160 S.E.2d 352 (1968) (see O.C.G.A. § 44-6-61 ).

Distinction between vested and contingent remainders. - Taking effect of a remainder in possession may be uncertain, and yet be a vested remainder. The question whether it is a vested remainder does not depend upon the fact of the remaindermen outliving the life tenant, but upon their capacity to have taken by any means which might have determined the life estate. The present capacity of taking effect in possession if the possession will become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent. Olmstead v. Dunn, 72 Ga. 850 (1884); Roberts v. Wadley, 156 Ga. 35 , 118 S.E. 664 (1923).

An estate is vested when there is an immediate right of enjoyment, or a present fixed right of future enjoyment. It is the present capacity of taking effect in possession, if the possession were to become vacant, that distinguishes a vested from a contingent remainder. Wilbur v. McNulty, 75 Ga. 458 (1885).

Various tests have been suggested for determining whether in a given case a future estate is a vested or a contingent remainder. One of these tests is: "The present capacity of taking effect in possession, if the possession were to become vacant, distinguishes a vested remainder from one that is contingent." Schley v. Williamson, 153 Ga. 245 , 111 S.E. 917 (1922).

Present capacity of taking effect in possession, if the possession were to become vacant, distinguishes a vested remainder from one that is contingent. Lumpkin v. Patterson, 170 Ga. 94 , 152 S.E. 448 (1930).

A gift which is made presently with payment postponed creates a vested interest, but a gift which is suspended altogether until a future time creates a contingent interest. Stokes v. Trust Co., 507 F.2d 177 (5th Cir. 1975).

Transferability of remainders. - Vested remainder is transferable by the party in whom it is vested, while a contingent remainder is nontransferable. Stokes v. Trust Co., 507 F.2d 177 (5th Cir. 1975).

Cited in McCoy v. Olive, 168 Ga. 492 , 148 S.E. 327 (1929); Cooper v. Davis, 174 Ga. 670 , 163 S.E. 736 (1932); Padgett v. Hatton, 200 Ga. 209 , 36 S.E.2d 664 (1946); Shedden v. Donaldson, 207 Ga. 77 , 60 S.E.2d 158 (1950); Erskine v. Klein, 218 Ga. 112 , 126 S.E.2d 755 (1962); Scott v. Scott, 218 Ga. 732 , 130 S.E.2d 499 (1963); Nash v. Crowe, 222 Ga. 173 , 149 S.E.2d 88 (1966); Walker v. Bogle, 244 Ga. 439 , 260 S.E.2d 338 (1979); First Presbyterian Church v. Price, 248 Ga. 38 , 280 S.E.2d 830 (1981).

Vested Remainders
1. Rules of Construction

Law favors vesting of remainders. - Law favors vested remainders, and it is an established rule that the court never construes a remainder to be contingent when it can be taken to be vested. Vickers v. Stone, 4 Ga. 461 (1848); Fields v. Lewis, 118 Ga. 573 , 45 S.E. 437 (1903); Lumpkin v. Patterson, 170 Ga. 94 , 152 S.E. 448 (1930).

A vested remainder is one limited to a certain person at a certain time, or upon the happening of a certain event. The law favors the vesting of remainders in all cases of doubt, and in construing wills, words of survivorship will refer to the death of the testator in order to vest remainders, unless a manifest intention to the contrary appears. Olmstead v. Dunn, 72 Ga. 850 (1884).

Under the provisions of state law, and under the decisions of the Supreme Court, it is well established that in Georgia the policy of the law is to favor the vesting of remainders at the earliest possible time unless the intention of the testator is clearly manifest to the contrary. Miller v. Brown, 215 Ga. 148 , 109 S.E.2d 741 (1959).

Instrument so construed to favor vesting. - When an instrument is susceptible to two constructions, the one favorable to vested and unfavorable to contingent remainders should be adopted. Miller v. Brown, 215 Ga. 148 , 109 S.E.2d 741 (1959).

Conditions for a vested remainder are: that the estate is certain, the person or class of persons to whom it is devised is certain, and the event fixing the time when its enjoyment should commence is a necessary one. Bull v. Walker, 71 Ga. 195 (1883).

Estate vested when present right of enjoyment exists. - An estate is vested when there is an immediate right of enjoyment, or a present fixed right of future enjoyment. Lumpkin v. Patterson, 170 Ga. 94 , 152 S.E. 448 (1930).

Any form of present enjoyment in an estate will indicate that the estate vests presently, even though full payment may be postponed until a future time. Stokes v. Trust Co., 507 F.2d 177 (5th Cir. 1975).

Classes of vested remainders may be stated as follows: (1) vested remainders that are absolutely and indefeasibly fixed and determined; (2) vested remainders to a class, which is subject to open and take in additional remaindermen after the time the estate becomes vested; and (3) vested remainders whether to a person or to a class, but subject to be thereafter divested upon the happening of a contingent event. A vested remainder may in its nature partake of the characteristics of both of the last-mentioned classes. Britt v. Fincher, 202 Ga. 661 , 44 S.E.2d 372 (1947).

Vested remainder may be subject to being divested. Cunningham v. Cunningham, 230 Ga. 493 , 197 S.E.2d 731 (1974).

When remainders are subject to be divested, in whole or in part, by the disposition of the whole or some part of the property left by the testator, this contingency does not deprive the remainder of its character as vested. Walters v. Walters, 163 Ga. 884 , 137 S.E. 386 (1927). See also Melton v. Camp, 121 Ga. 693 , 49 S.E. 690 (1905).

Divesting clauses, especially as to remainders, following grant of absolute estate should be strictly construed so as to vest the estate absolutely at the earliest possible time. Miller v. Brown, 215 Ga. 148 , 109 S.E.2d 741 (1959).

Distinction between vesting of title and vesting of possession excludes those dying before title vested. - On account of the remainder being vested absolutely in the children in esse at the time of the vesting of title, the shares of such children who should die between the vesting of the title and the vesting of the estate in possession would go to their heirs under this statute, which would include their descendants. Thus, we see, there are two vestings of a vested remainder - viz.; one of the title, and the other of the estate in possession, - each of which is important in fixing the devolution of the title to such remainders; that the law designating the beneficiaries thereunder excludes a grandchild of the life tenant whose parent died before the testator died. Davie v. Wynn, 80 Ga. 673 , 6 S.E. 183 (1888); Tolbert v. Burns, 82 Ga. 213 , 8 S.E. 79 (1888); Martin v. Trustees of Mercer Univ., 98 Ga. 320 , 25 S.E. 522 (1896). See also Crawley v. Kendrick, 122 Ga. 183 , 50 S.E. 41 , 2 Ann. Cas. 643 (1905) (see O.C.G.A. § 44-6-61 ).

In "limitation over" to "heirs," persons answering description given vested remainder. - By former Code 1882, § 2249 (see O.C.G.A. § 44-6-23 ), in a "limitation over" to "heirs", "heirs of body", "lawful heirs", and "lineal heirs", persons answering the description take as purchasers upon the vesting of the estate. The term "limitation over" is made to mean any estate in the same property to be enjoyed after the expiration of the first estate, whether by succession or substitution. This seems to give such persons a vested remainder. Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888); Crawley v. Kendrick, 122 Ga. 183 , 50 S.E. 41 , 2 Ann. Cas. 643 (1905).

When "heir" dies without issue, remainder fails and estate reverts to testator's estate. - Testator by will created a trust estate with a limitation over to the testator's "heirs at law" who might be in life at the time of the termination of the trust estate. Applying the provisions of former Code 1933, § 85-504 (see O.C.G.A. § 44-6-23 ), the words "heir at law" would mean children and the decedents of children, and since the only children of the testator had died without issue, this remainder failed, the estate reverted, and the reversionary interest in the testator's estate vested, upon the testator's death, in those who were then the testator's heirs at law, with the right of possession postponed until the death of the last life tenant. Dodson v. Trust Co., 216 Ga. 499 , 117 S.E.2d 331 (1960).

Section 44-6-23 inapplicable to express devise to life tenant's children, or children as class. - Former Civil Code 1895, § 3084 (see O.C.G.A. § 44-6-23 ) had no application to remainders to children as a class, nor to an expressed devise of a remainder to children of a life tenant. The law governing this has been fixed for centuries and vests the title absolutely in the children in esse at the death of the testator (subject to open in certain cases), and such remainder being vested, the shares of such children who should die between the vesting of title and the vesting of the estate in possession would go under former Civil Code 1895, § 3100 (see O.C.G.A. § 44-6-61 ), to their heirs, which would include their descendants. Crawley v. Kendrick, 122 Ga. 183 , 50 S.E. 41 , 2 Ann. Cas. 643 (1905).

Referring to a devise to A for life with remainder to A's children as a class, both at common law and under the decisions of this court, such a devise in remainder has always been held, in accordance with an established principle of law which has become a rule of property to vest the title only in the children in esse at the death of the testator, subject to open and take in all other children born up to the vesting of the estate in possession at the life tenant's death. Crawley v. Kendrick, 122 Ga. 183 , 50 S.E. 41 , 2 Ann. Cas. 643 (1905); Lamkin v. Hines Lumber Co., 158 Ga. 785 , 124 S.E. 694 (1924).

Remainder to "children". - When remainder is to "children", children of deceased child take interest of deceased parent. The remainders to the children vested at the time of the execution and delivery of the deed. Ward v. Ward, 176 Ga. 849 , 169 S.E. 120 (1933).

Children of daughter of testator who dies before father. - Property being given to the testator's children as a class, the children of the daughter of the testator, who died before her father, took no interest under the will. Toucher v. Hawkins, 158 Ga. 482 , 123 S.E. 618 (1924).

Interest created where death between vesting of title and vesting of possession. - A devise to X for life, then in fee to M and M's heirs, and if M has none to the children of J, two of whom, S and P, died after the testator but before the vesting of the possession of the estate, created a vested remainder in S and P, which was transmissible to their heirs. Payne v. Rosser, 53 Ga. 662 (1875).

As the parents were in esse when the deed was executed and delivered to the trustee, their rights to the property in dispute became vested, and their dying before the life tenant did not defeat the rights of their children to their several distributive shares. Wilbur v. McNulty, 75 Ga. 458 (1885).

As a general rule, when there is a devise to a class, the members of the class are to be ascertained upon the death of the testator as the will takes effect on that date. In a devise to children as a class by way of a remainder, children in esse at the death of the testator take vested interests and the interest of any that might die before the period of distribution passed to their heirs. Crawley v. Kendrick, 122 Ga. 183 , 50 S.E. 41 , 2 Ann. Cas. 643 (1905); Irvin v. Porterfield, 126 Ga. 729 , 55 S.E. 946 (1906); Milner v. Gay, 145 Ga. 858 , 90 S.E. 65 (1916); Gibbons v. International Harvester Co., 146 Ga. 467 , 91 S.E. 482 (1917); Powell v. McKinney, 151 Ga. 803 , 108 S.E. 231 (1921).

When a will gave a tract to the plaintiff's grandmother for life, with a remainder at her death to their father, "his heirs and assigns," but without any limitation over to any "heirs" of the father after his death, the father therefore acquired a vested remainder, and when he died intestate after the testator died, and before the death of the life tenant, without having disposed of the remainder, the plaintiffs took nothing as devisees directly under the will of their grandfather, but only such interest as they might have acquired solely as heirs of their father, which was subject to a year's support from his estate, if that support was valid or good against them. Jones v. Federal Land Bank, 189 Ga. 419 , 6 S.E.2d 52 (1939).

Under former Code 1933, § 85-504 (see O.C.G.A. § 44-6-63 ), if the deceased remainderman had at the time of the deceased's death an estate which had absolutely and indefeasibly vested, the deceased's heirs at law inherited the deceased's vested remainder interest with right of possession deferred until the termination of the antecedent estate. Britt v. Fincher, 202 Ga. 661 , 44 S.E.2d 372 (1947).

When under a will two named daughters took a remainder interest in a one-third share of the estate devised to the testator's wife for life or widowhood, which remainder interest had become vested at the time the estate was divided (by provision of the will), but was subject to be divested in favor of the respective grandchildren in the event such named children should predecease the life tenant leaving children of their own, the divesting contingency in favor of the grandchildren became impossible of happening as to one daughter in that she had no children at the time of her dying intestate prior to the termination of the life estate. Upon the death of the life tenant, the husband of this daughter was entitled to take, not under the will, but by inheritance from his wife, that vested share of the estate to which his wife would have been entitled had she not predeceased the life tenant. McDougald v. Kennedy, 203 Ga. 144 , 45 S.E.2d 654 (1947).

Vested remainder interest in life tenant not prevented. - Fact that a life tenant could not enjoy the estate in remainder, because the remainder interest would not be distributed until the death of the life tenant, does not prevent a vested title in the remainder interest being in the life tenant, which might be sold and conveyed by the remainderman, or devised to, or be inherited by, the remainderman's heirs, who would take a vested remainder interest. Schriber v. Anderson, 205 Ga. 343 , 53 S.E.2d 490 (1949).

When the heirs at law of the testator at the time of the testator's death were the testator's two sons, the fact that the sons were life tenants of the trust estate created by the testator would not prevent the vesting in them of the reversionary interest in the remainder estate. Dodson v. Trust Co., 216 Ga. 499 , 117 S.E.2d 331 (1960).

2. Illustrative Cases

Vested remainder found. - When property was settled upon the wife for life, remainder to the husband for life, remainder to the heirs general of the husband, the husband took a vested remainder in fee. Varner v. Boynton, 46 Ga. 508 (1872).

When a testator devised certain lands to his wife for life, and after her death to his son for life, and after his death to his children living at his death, in fee, the son took a vested remainder estate, subject to be divested upon his death before that of the first life tenant. Lufburrow v. Koch, 75 Ga. 448 (1885).

Devise to "A for life with remainder to the children of my brothers and sisters" created a vested remainder in the children living at the testator's death, under this statute and the holding of McGinnis v. Foster, 4 Ga. 377 (1848); Legwin v. McRee, 79 Ga. 430 , 4 S.E. 863 (1887) (see O.C.G.A. § 44-6-61 ).

When an estate was given to X for life with remainder to Y if living, Y took a vested remainder, subject to be divested upon dying before the life tenant. McDonald v. Taylor, 107 Ga. 43 , 32 S.E. 879 (1899).

An estate to X for life, then to her children by her present husband, four of the children being in esse at the time and another being born later, created under this statute a vested remainder in all of the children except the unborn child, and a contingent remainder in it before birth, but upon birth, the remainder to the other children opened to take in such a child. Fields v. Lewis, 118 Ga. 573 , 45 S.E. 437 (1903) (see O.C.G.A. § 44-6-61 ).

Where one bequeaths property to his wife "during her lifetime," and further provides that at her death it shall belong to a named daughter and the heirs of her body, the remainder is one limited to certain person upon the happening of a necessary event, and such remainder is vested. Pearson v. Cochran, 152 Ga. 276 , 109 S.E. 498 (1921).

An estate to X and Y for life, and if Y should die without marrying then to S, or if Y should marry one half to S, created a vested remainder in S. Schley v. Williamson, 153 Ga. 245 , 111 S.E. 917 (1922).

Will to X and Y during life or the period of remaining single, then to S in fee, created a vested remainder in S. De Vane v. Young, 154 Ga. 832 , 115 S.E. 661 (1923).

When a testator by will bequeathed and devised a life estate in described property to his wife and daughters, and the will further provided, "in case any of my daughters should die leaving no children or grandchildren surviving her, I direct that her share of my estate revert to the other legatees herein named, if all are living at the time; if not, to those living or to the children or grandchildren of such as may be dead taking per stirpes," and where one of the daughters of the testator had three children, one of whom predeceased his mother, and before his death mortgaged his interest in the estate, this grandchild of the testator took a vested remainder in the property in controversy, subject to be divested upon the mother dying without child or grandchildren. Federal Reserve Bank v. Spearman, 176 Ga. 236 , 167 S.E. 603 (1933).

When an unqualified limitation over in a deed is expressly to the children of a life tenant as a class, the children in esse at the time the instrument creating the remainder becomes effective, take, as purchasers under the instrument, a vested remainder interest, which is subject to open and in like manner take in other children of the life tenant born subsequently to the vesting of title in the first-born remainderman. Britt v. Fincher, 202 Ga. 661 , 44 S.E.2d 372 (1947).

Provision of the will of a testatrix that "the remaining assets of my estate of whatever kind and nature * * *. I hereby give, bequeath, and devise to my stepson," upon the death of the testatrix conveyed a vested remainder interest to the stepson in the residue of the estate. Schriber v. Anderson, 205 Ga. 343 , 53 S.E.2d 490 (1949).

When a testator bequeaths a certain fund to a trustee, providing that the trustee shall manage, invest, sell, exchange, and reinvest the fund, and pay a stated amount therefrom each month to "A" during A's lifetime, and at the death of "A" the balance of the fund, if any, shall be divided between "B" and "C" (children of "A"), and in the next succeeding paragraph of the will provides that if "B" or "C" does not live until the time for payment to "B" or "C", leaving children surviving "B" or "C", then such children of "B" and "C" as survive the parent shall take the parent's share - the remainder interest of "B" and "C" in the trust fund is a defeasible vested interest, subject to be divested by their death without children before the death of "A." Love v. McManus, 208 Ga. 447 , 67 S.E.2d 218 (1951).

When a corporate resolution uses the term "reversion" to describe the estate of a stockholder, the estate is a vested remainder if the remainder interest is limited to that stockholder upon the death of another, and the stockholder's rights are the same as those of a vested remainderman. J.B. McCrary Co. v. Peacock, 223 Ga. 476 , 156 S.E.2d 57 (1967).

Trial court erred in the court's construction of a deed because the deed was clear as written and, as such, the heir received a one-third undivided interest in the property, and the executor individually and the estate each received a one-third undivided interest as the vested remaindermen who each received an interest in the property under O.C.G.A. § 44-6-66 . Wilkes v. Fraser, 324 Ga. App. 642 , 751 S.E.2d 455 (2013).

Effect of legislation on vested right to pension benefits. - When fireman had been retired in 1932, and was receiving a "pension" of $100.00 a month up to the time of his death in 1937, and when, during the period of such payments and at the time of his death, he had a wife, the widow, even though she had not yet drawn the "pension" at the time of the 1935 statutory provision reducing pensions, and was not entitled thereto until after the death of the husband, nevertheless had a vested right which could not be altered by later legislation. Such a right was not merely contingent, but was more analogous to a vested remainder or salable interest, subject to be divested and to go to other beneficiaries upon her dying or remarrying before receiving payments. West v. Anderson, 187 Ga. 587 , 1 S.E.2d 671 (1939).

Vested remainder not found. - Deed provided that "at the death or marriage of F the property shall go to and vest in the child or children of the said J then in life, and in case of the death of such child during the life or widowhood of F leaving issue alive, such issue shall take in place of such child." This does not constitute a vested remainder, because in a vested remainder there is some person in esse, known and ascertained who, by the will or deed creating the estate, is to take and enjoy the estate upon the expiration of the existing particular estate, and whose right to such remainder no contingency can defeat. City Council v. Radcliffe, 66 Ga. 469 (1881).

Contingent Remainders

Contingent remainder interest in land is an "estate." Phelps v. Palmer, 192 Ga. 421 , 15 S.E.2d 503 (1941).

Different classes of contingent remainders may be stated as follows: (1) contingent remainders when the estate is to an uncertain person; (2) contingent remainders when the person is certain, but when the vesting of the estate in possession is conditioned upon the happening of an uncertain event. Britt v. Fincher, 202 Ga. 661 , 44 S.E.2d 372 (1947).

There is distinction between uncertainty of contingent remainder and uncertainty of estate ever taking effect in possession, which is incidental to even a vested remainder. In a vested remainder, the time of possession and the enjoyment being deferred, there is always an uncertainty as to whether the estate will ever be enjoyed in possession. Walters v. Walters, 163 Ga. 884 , 137 S.E. 386 (1927).

Uncertainty as to mere quantum of property to be possessed does not make remainders contingent. The remaindermen are subject to be divested in whole or in part by the sale or disposal of the whole, or some part, of the property left by the testator. This contingency, however, does not deprive the remainders of their character of being vested. Cochran v. Groover, 156 Ga. 323 , 118 S.E. 865 (1923).

Contingent remainder must vest on or before termination of preceding estate, or happening of contingency. - Though a contingent remainder may become vested, if persons answering the description of the remaindermen come into being during the existence of the particular estate, or by the time the remainder is to vest (Ardis v. Printup, 39 Ga. 648 (1869); Kollock v. Webb, 113 Ga. 762 , 39 S.E. 339 (1901)), nevertheless, when the remaindermen are not in esse at the time of the making of the deed, nor come into existence pending the precedent estate when the remainder is to vest, the remainder can never thereafter vest. A contingent remainder must vest on or before the termination of the particular estate, or the happening of the contingency, which is to vest it, or it will be defeated. Edwards v. Edwards, 147 Ga. 12 , 92 S.E. 540 (1917).

Remaindermen cannot be divested during existence of life estate except by appropriate legal proceedings. - It is the general rule that the right of contingent remaindermen constitutes an estate in land of which they cannot be divested during the existence of the life estate except by appropriate legal proceedings to which they are made parties. Mason v. Young, 203 Ga. 121 , 45 S.E.2d 643 (1947).

Remainderman should be held amenable to court processes by one holding apparent preexisting title to remove what amounts to a cloud thereon. Mason v. Young, 203 Ga. 121 , 45 S.E.2d 643 (1947).

Contingent remainderman cannot cancel deed executed by life tenant. - Remainderman whose estate is equitable and contingent cannot, during the existence of a precedent life estate, maintain a suit to cancel a security deed executed by the life tenant and the trustees, purporting to convey the entire trust estate. Stout v. Massachusetts Mut. Life Ins. Co., 183 Ga. 649 , 189 S.E. 248 (1936).

Contingent remainder found. - Bequest to A at the death of the wife of the testator, or when A marries or becomes of age, is a contingent interest, dependent for its transmission to A's representatives upon her being in life at the happenings of some one of the named contingencies. If she dies before that time (as the legatee did in this case), there is nothing in her to pass to her administrator. Allen v. Whitaker, 34 Ga. 6 (1864).

After S deeded land to X in trust for Y, and upon Y's death to her children, and if she dies without children then to X in fee, X took a contingent remainder, the remainder being limited upon an event which may or may not happen. Morse v. Proper, 82 Ga. 13 , 8 S.E. 625 (1889).

Interest of the "legal heirs" of a beneficiary in one-half of the income of the trust property was a remainder estate, contingent on one's death prior to a termination of the trust estate, and the rules of former Code 1933, § 85-504 (see O.C.G.A. § 44-6-23 ) would require a construction of the words "legal heirs" to mean children and the descendants of children. This remainder failed because of the failure of issue of the beneficiary and the estate reverted to the testator's estate and should be distributed to the widows of the two sons of the testator. Dodson v. Trust Co., 216 Ga. 499 , 117 S.E.2d 331 (1960).

OPINIONS OF THE ATTORNEY GENERAL

Remainder interest in stock in foreign corporation owned for life by nonresident is vested remainder in that it is limited upon the happening of a necessary event. 1963-65 Op. Att'y Gen. p. 49.

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, § 248 et seq.

C.J.S. - 26A C.J.S., Deeds, §§ 251, 252. 31 C.J.S., Estates, §§ 1, 82 et seq., 168 et seq. 96 C.J.S., Wills, § 1320.

ALR. - Contingent remainder as subject to levy and sale by creditor, 60 A.L.R. 803 .

Constitutionality, construction, and effect of statutes relating to determination or extinguishment of contingent interest in real property, 69 A.L.R. 924 .

Provision of will that children, etc., of remainderman who dies before expiration of precedent estate or time fixed for distribution to remaindermen, shall take the share to which he would have been entitled, as affecting character of remainder as vested or contingent, 109 A.L.R. 5 ; 47 A.L.R.2d 900.

Vested or contingent character of remainder which is subject to be defeated by death of remainderman without issue before termination of particular estate, 109 A.L.R. 136 .

Vested or contingent character of remainder under devise of a remainder to a certain person or persons "or" his or their heirs or other class, 128 A.L.R. 306 .

Distinction between contingent estates and estates vested, subject to defeasance, 131 A.L.R. 712 .

Vested or contingent character of remainder as affected by fact that, if vested, certain person or persons will share in the property who were excluded by express terms of the will, 138 A.L.R. 1435 .

Right of owner of contingent or defeasible future interest to maintain action for relief in respect of property, 144 A.L.R. 769 .

Gift or grant to one upon marriage, if married, payable at marriage, or the like, as vested or contingent, 30 A.L.R.2d 127.

Character of remainder limited generally to the life tenant's children, 57 A.L.R.2d 103.

Character of remainder limited to surviving children of life tenant, 57 A.L.R.2d 197.

Where will names two or more remaindermen to take under different contingencies, must the one whose contingency occurs survive the other to make his interest transmissible?, 90 A.L.R.2d 312.

Relinquishment of interest by life beneficiary in possession as accelerating remainder of which there is substitutional gift in case primary remainderman does not survive life beneficiary, 7 A.L.R.4th 1084.

44-6-62. Effect of defeat of estate on remainder.

Since no particular estate is necessary to sustain a remainder, the defeat of the particular estate for any cause does not destroy the remainder.

(Orig. Code 1863, § 2246; Code 1868, § 2238; Code 1873, § 2264; Code 1882, § 2264; Civil Code 1895, § 3099; Civil Code 1910, § 3675; Code 1933, § 85-702; Ga. L. 1984, p. 22, § 44.)

Law reviews. - For article discussing destructibility of contingent remainders, see 3 Ga. B.J. 57 (1940). For article, "Descendible Future Interests in Georgia: The Effect of the Preference for Early Vesting," see 7 Ga. L. Rev. 443 (1973). For article, "The Rule Against Perpetuities as Applied to Georgia Wills and Trusts," see 16 Ga. L. Rev. 235 (1982).

JUDICIAL DECISIONS

Section presupposes some estate. Lanier v. Lanier, 218 Ga. 137 , 126 S.E.2d 776 (1962) (see O.C.G.A. § 44-6-62 ).

Contingent-remainder interest in land is an "estate." Phelps v. Palmer, 192 Ga. 421 , 15 S.E.2d 503 (1941).

Section widely differs from the common law, and wholly abrogates any defeat of remainders by the destruction or defeat of the particular estate; correspondingly, if any doctrine of representation or quasi representation by the life tenant of the remaindermen, so far as to bind the remaindermen by a judgment against the life tenant, was established, it does not exist under Georgia law. Brown v. Brown, 97 Ga. 531 , 25 S.E. 353 , 33 L.R.A. 816 (1895) (see O.C.G.A. § 44-6-62 ).

Election by widow to take against will. - Ordinarily, election of the widow to take against will has effect of accelerating any remainders limited to take effect after a life estate given to her. Toombs v. Spratlin, 127 Ga. 766 , 57 S.E. 59 (1907); Bank of Statesboro v. Futch, 164 Ga. 181 , 138 S.E. 60 (1927).

Remainder held not accelerated. - When an estate was left by will to support the family until the widow's death, but the widow elected to take dower, the remainder was not accelerated by her part of the life estate ending for a remainder will not fail for want of a particular estate. Nor did the estate stand as if the testator had died intestate for the defeat of a particular estate does not destroy the remainder. Toombs v. Spratlin, 127 Ga. 766 , 57 S.E. 59 (1907).

Remainder in property bequeathed to other for life vests at death of testator. - L and L's brother N each took a vested remainder in the property bequeathed to M for life, and this remainder vested in L and N when the will took effect at the death of the testator. Vason v. Estes, 77 Ga. 352 , 1 S.E. 163 (1887).

Cited in Cooper v. Davis, 174 Ga. 670 , 163 S.E. 736 (1932); Raney v. Smith, 242 Ga. 809 , 251 S.E.2d 554 (1979).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 230, 241 et seq.

C.J.S. - 26A C.J.S., Deeds, § 249 et seq. 31 C.J.S., Estates, § 95 et seq. 96 C.J.S., Wills, § 910.

ALR. - Effect of premature termination of precedent estate to accelerate remainder of which there is an alternative substantial gift, 164 A.L.R. 1297 .

Effect of premature termination of precedent estate to accelerate a contingent remainder, 164 A.L.R. 1433 .

44-6-63. Interest of heirs of remainderman.

Reserved. Repealed by Ga. L. 1994, p. 364, § 2, effective March 25, 1994.

Editor's notes. - This Code section was based on Orig. Code 1863, § 2248; Code 1868, § 2240; Code 1873, § 2266; Code 1882, § 2266; Civil Code 1895, § 3101; Civil Code 1910, § 3677; Code 1933, § 85-704.

44-6-64. Creation of remainders by parol.

Estates in remainder may not be created by parol.

(Orig. Code 1863, § 2250; Code 1868, § 2242; Code 1873, § 2268; Code 1882, § 2268; Civil Code 1895, § 3103; Civil Code 1910, § 3679; Code 1933, § 85-705.)

JUDICIAL DECISIONS

Former Civil Code 1910, § 3744, allowing trustees to be removed upon petition by the beneficiaries, must be construed in connection with and in the light of former Civil Code 1910, § 3679 (see O.C.G.A. § 44-6-64 ). Nelson v. Estill, 175 Ga. 526 , 165 S.E. 820 (1932).

Remainder by parol held not attempted. - See Alderman v. Chester, 34 Ga. 152 (1865).

Cited in Cooper v. Davis, 174 Ga. 670 , 163 S.E. 736 (1932); Milton v. Milton, 192 Ga. 778 , 16 S.E.2d 573 (1941).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, Statute of Frauds, § 49 et seq.

C.J.S. - 37 C.J.S., Frauds, Statute of, § 69.

44-6-65. Creation of remainder for persons not in being; vested remainder subject to open.

Estates in remainder may be created for persons not in being. If such a remainder is vested, it will open to take in all persons within the description who come into being up to the time the enjoyment of the estate commences.

(Orig. Code 1863, § 2250; Code 1868, § 2242; Code 1873, § 2268; Code 1882, § 2268; Civil Code 1895, § 3103; Civil Code 1910, § 3679; Code 1933, § 85-706.)

Law reviews. - For article discussing problems in construction of instrument conveying gift to a group or class, see 6 Ga. St. B.J. 169 (1969).

JUDICIAL DECISIONS

Former Civil Code 1910, § 3744 must be construed in connection with and in the light of former Civil Code 1910, § 3679 (see O.C.G.A. § 44-6-65 ). Nelson v. Estill, 175 Ga. 526 , 165 S.E. 820 (1932).

Section changes the rule of estates in remainder at common law. Britt v. Fincher, 202 Ga. 661 , 44 S.E.2d 372 (1947) (see O.C.G.A. § 44-6-65 ).

Section applies to both deeds and wills. Hill v. Lang, 211 Ga. 484 , 86 S.E.2d 498 (1955) (see O.C.G.A. § 44-6-65 ).

When children granted remainder, those living get vested right, subject to open for after-born children. - When an estate is granted to one for life, and to such of one's children as should be living after one's death, a present right to the future possession vests at once in such as are living, subject to open and let in after-born children, and to be divested as to those who shall die without issue. Doe v. Newton, 171 Ga. 418 , 156 S.E. 25 (1930).

When there is a grant of a remainder to children as a class, the children in esse at the time of the execution of the deed take a vested remainder, which opens for the purpose of letting in after-born children. Ward v. Ward, 176 Ga. 849 , 169 S.E. 120 (1933).

Remainder to unborn child is contingent until birth, when title vests. - Remainder given to the unborn child or children was, of course, contingent until the birth of such child, when the remainder given to the named children, if vested, would open to take in the after-born child. Wilbur v. McNulty, 75 Ga. 458 (1885); Fields v. Lewis, 118 Ga. 573 , 45 S.E. 437 (1903).

T, the son of J, one of the second life tenants, not being in esse at the death of the testator, the remainder is construed to be contingent until the birth of the child in whom the title to the remainder immediately vests, subject to open and take in all other children born before the termination of the life estate. Crawley v. Kendrick, 122 Ga. 183 , 50 S.E. 41 , 2 Ann. Cas. 643 (1905); Gibbons v. International Harvester Co., 146 Ga. 467 , 91 S.E. 482 (1917); Cock v. Lipsey, 148 Ga. 322 , 96 S.E. 628 (1918).

When remainders may be created, in a deed, for the future benefit of persons not in being, if there is no child in esse when the instrument becomes effective, the remainder is at first necessarily contingent, but only so up until the time a child is born, when title to the remainder vests in the child, subject to open and take in children born after title to the remainder has vested in the first child. All such children who come into being prior to the termination of the antecedent estate take as purchasers under the instrument. Britt v. Fincher, 202 Ga. 661 , 44 S.E.2d 372 (1947).

Remainder may be created for future wife. - Valid remainder can be created for children unborn and who may never be born, and a like remainder may be created for a future wife. Citizens & S. Nat'l Bank v. Howell, 186 Ga. 47 , 196 S.E. 741 (1938).

Cut-off date for determining class membership. - When father reserved life estate, while conveying to his daughter and her children a future interest in his property, the critical date for determining the time the enjoyment of the estate commenced, and thus the cut-off date for class membership was not the date of the daughter's death, but the date of the father's death. Chester v. Cannon, 258 Ga. 486 , 371 S.E.2d 387 (1988).

Vested remainderman proper person to prosecute action for waste by life tenant. - When the remainder vested in the remainderman upon the death of the testator, subject to being divested in the event of her predeceasing the life tenant, she alone is the proper person to prosecute an action for waste and the failure of the life tenant to protect the property. Smith v. Minich, 215 Ga. 386 , 110 S.E.2d 649 (1959).

Vested remainder found. - Trial court erred in the court's construction of a deed because the deed was clear as written and, as such, the heir received a one-third undivided interest in the property, and the executor individually and the estate each received a one-third undivided interest as the vested remaindermen who each received an interest in the property under O.C.G.A. § 44-6-66 . Wilkes v. Fraser, 324 Ga. App. 642 , 751 S.E.2d 455 (2013).

Cited in Padgett v. Hatton, 200 Ga. 209 , 36 S.E.2d 664 (1946); Nash v. Crowe, 222 Ga. 173 , 149 S.E.2d 88 (1966).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 33, 35. 28 Am. Jur. 2d, Estates, §§ 231, 255, 258. 51 Am. Jur. 2d, Life Tenants and Remaindermen, § 6 et seq.

C.J.S. - 26A C.J.S., Deeds, § 250 et seq. 31 C.J.S., Estates, § 92. 96 C.J.S., Wills, §§ 1328, 1352, 1369.

ALR. - Conveyance by life tenant and remaindermen in esse as cutting off interest of unborn persons under devise for life with remainder to a class, 25 A.L.R. 770 .

Constitutionality, construction, and effect of statutes relating to determination or extinguishment of contingent interest in real property, 69 A.L.R. 924 .

Words of survivorship in will disposing of remainder upon termination of life or other precedent or intervening estate as referable to time of testator's death or to time of termination such intervening estate, 114 A.L.R. 4 ; 20 A.L.R.2d 830.

Death of life beneficiary without ever having had a child as equivalent of death of all his children, which by terms of will condition of remainder interest, 161 A.L.R. 181 .

Validity, under rule against perpetuities, of gift in remainder to creator's great-grandchildren, following successive life estates to children and grandchildren, 18 A.L.R.2d 671.

Time of ascertaining persons to take, under deed or inter vivos trust, where designated as the "heirs," "next of kin," "children," "relations," etc., of life tenant or remainderman, 65 A.L.R.2d 1408.

Where will names two or more remaindermen to take under different contingencies, must the one whose contingency occurs survive the other to make his interest transmissible?, 90 A.L.R.2d 312.

Modern status of presumption against possibility of issue being extinct, 98 A.L.R.2d 1285.

44-6-66. Preference for vested remainders; construction of words of survivorship in wills.

The law favors the vesting of remainders in all cases of doubt. In construing wills, words of survivorship shall refer to those survivors living at the time of the death of the testator in order to vest remainders unless a manifest intention to the contrary shall appear.

(Orig. Code 1863, § 2251; Code 1868, § 2243; Code 1873, § 2269; Code 1882, § 2269; Civil Code 1895, § 3104; Civil Code 1910, § 3680; Code 1933, § 85-708.)

Law reviews. - For article, "Descendible Future Interests in Georgia: The Effect of the Preference for Early Vesting," see 7 Ga. L. Rev. 443 (1973). For annual survey article discussing wills, trusts, and administration of estates, see 51 Mercer L. Rev. 487 (1999). For note discussing construction and interpretation of wills, see 1 Ga. L. Rev. 46 (1927). For comment on Lanier v. Lanier, 218 Ga. 137 , 126 S.E.2d 776 (1962), executory interests and the rule against perpetuities, see 14 Mercer L. Rev. 275 (1962). For comment on Burton v. Hicks, 220 Ga. 29 , 136 S.E.2d 759 (1964), see 1 Ga. St. B.J. 361 (1965).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Vested remainder interest in a life estate is subject to levy and sale as the property of the heir, though the life estate is not terminated, if the executor has assented to the legacy for life. Pound v. Faulkner, 193 Ga. 413 , 18 S.E.2d 749 (1942).

Cited in Hudgens v. Wilkins, 77 Ga. 555 (1886); Johnson v. Johnson, 158 Ga. 534 , 124 S.E. 18 (1924); Schoen v. Israel, 168 Ga. 779 , 149 S.E. 124 (1929); Comer v. Citizens & S. Nat'l Bank, 182 Ga. 1 , 185 S.E. 77 (1935); Bryant v. Green, 187 Ga. 89 , 199 S.E. 804 (1938); Walters v. Suarez, 188 Ga. 190 , 3 S.E.2d 575 (1939); Armstrong Junior College Comm'n v. Livesey, 189 Ga. 825 , 7 S.E.2d 678 (1940); Perkins v. Citizens & S. Nat'l Bank, 190 Ga. 29 , 8 S.E.2d 28 (1940); Shedden v. Donaldson, 207 Ga. 77 , 60 S.E.2d 158 (1950); McKain v. Allen, 214 Ga. 820 , 108 S.E.2d 319 (1959); Lanier v. Lanier, 218 Ga. 137 , 126 S.E.2d 776 (1962); Gay v. Graham, 218 Ga. 745 , 130 S.E.2d 591 (1963); Dutton v. Hughes, 219 Ga. 645 , 135 S.E.2d 407 (1964); Nash v. Crowe, 222 Ga. 173 , 149 S.E.2d 88 (1966); Stokes v. Trust Co., 507 F.2d 177 (5th Cir. 1975); Seymour v. Presley, 239 Ga. 572 , 238 S.E.2d 347 (1977); Trust Co. Bank v. Heyward, 240 Ga. 557 , 242 S.E.2d 257 (1978); Dunn v. Sanders, 243 Ga. 684 , 256 S.E.2d 366 (1979); Clark v. Citizens & S. Nat'l Bank, 243 Ga. 703 , 257 S.E.2d 244 (1979); Wood v. Roberts, 244 Ga. 507 , 260 S.E.2d 890 (1979); Folsom v. First Nat'l Bank of Atlanta, 246 Ga. 320 , 271 S.E.2d 461 (1980); Hack v. Woodward, 248 Ga. 504 , 284 S.E.2d 411 (1981); Griffith v. Beavers, 259 Ga. 479 , 384 S.E.2d 650 (1989); Epstein v. First Nat'l Bank, 260 Ga. 217 , 391 S.E.2d 924 (1990); Lemmons v. Lawson, 266 Ga. 571 , 468 S.E.2d 749 (1996); Folsom v. Rowell, 281 Ga. 494 , 640 S.E.2d 5 (2007).

Rules of Law

Estate vested when present right of enjoyment exists. - Estate is vested when there is an immediate right of enjoyment or a present fixed right of future enjoyment. Lassiter v. Bank of Dawson, 191 Ga. 208 , 11 S.E.2d 910 (1940).

Estate is "vested" when there is an immediate right of enjoyment or a present fixed right of future enjoyment. It is the present capacity of taking effect in possession, if the possession were to become vacant, that distinguishes a vested from a contingent remainder. Gilmore v. Gilmore, 197 Ga. 303 , 29 S.E.2d 74 (1944).

Remainder is vested if there is no condition precedent save termination of the preceding estate. Johnson v. Wishard, 227 Ga. 355 , 180 S.E.2d 738 (1971).

Vested remainder is estate in fee, although subject to defeasance by subsequent contingencies. - If the remainder vests as of the date of the testator's death, it is an estate in fee, notwithstanding it is subject to defeasance by subsequent contingencies; the presumption is in favor of prompt vesting. However, a trust is still executory until the period contemplated for its termination expires, provided it remains uncertain whether at the end of the trust period the original legatee is to take or someone else is to take. The trust is kept open to enable the trustee to ascertain the objects of the trust. Sanders v. First Nat'l Bank, 189 Ga. 450 , 6 S.E.2d 294 (1939).

Devise of land is presumed to be vested and not contingent. There is a strong presumption in favor of early vesting rather than more remote vesting. Raney v. Smith, 242 Ga. 809 , 251 S.E.2d 554 (1979).

Titles should vest at earliest period. - Sound policy and practical convenience require that titles should be vested at the earliest period, and it has long been a settled rule of construction in the courts of England and America that estates, legal or equitable, given by will or deed should always be regarded as vesting immediately, unless the intention is clearly to the contrary. Wilbur v. McNulty, 75 Ga. 458 (1885).

Law favors the vesting of remainders at the earliest possible moment. Federal Reserve Bank v. Spearman, 176 Ga. 236 , 167 S.E. 603 (1933).

Under the provisions of state law, and under the decisions of the Supreme Court, it is well established that in Georgia the policy of the law is to favor the vesting of remainders at the earliest possible time, unless the intention of the testator is clearly manifest to the contrary. Miller v. Brown, 215 Ga. 148 , 109 S.E.2d 741 (1959).

Absent a manifest intention to the contrary, the law favors early vesting of remainders. First Presbyterian Church v. Price, 248 Ga. 38 , 280 S.E.2d 830 (1981).

Rules of Construction

Remainder will never be construed to be contingent when it can be construed as vested. Raney v. Smith, 242 Ga. 809 , 251 S.E.2d 554 (1979).

If a provision of the decedent's will could be construed both to provide a contingent remainder and a vested remainder, the vested remainder would prevail. Usry v. Farr, 274 Ga. 438 , 553 S.E.2d 789 (2001).

Law favors vested remainders, and it is an established rule that the court never construes a remainder to be contingent when it can be taken to be vested. Lumpkin v. Patterson, 170 Ga. 94 , 152 S.E. 448 (1930).

It is an established rule that the court never construes a remainder to be contingent when it can be taken to be vested. Gilmore v. Gilmore, 197 Ga. 303 , 29 S.E.2d 74 (1944).

If remainder is defeasible fee, law favors construction which makes fee absolute at earliest time consistent with the intent of the testator as expressed in the will. Sanders v. First Nat'l Bank, 189 Ga. 450 , 6 S.E.2d 294 (1939); Raney v. Smith, 242 Ga. 809 , 251 S.E.2d 554 (1979).

Divesting clauses, especially as to remainders, following grant of absolute estate should be strictly construed so as to vest the estate absolutely at the earliest possible time. Miller v. Brown, 215 Ga. 148 , 109 S.E.2d 741 (1959).

Construction construing remainder as vested preferred. - In cases of doubt as to the character of a remainder, if to construe it as contingent an intestacy would arise, and if to construe it as vested an intestacy would not arise, a construction construing it as vested would be preferable, since intestacies are not generally favored in construing wills. Gilmore v. Gilmore, 197 Ga. 303 , 29 S.E.2d 74 (1944).

If the expression relied upon to limit a fee once devised is doubtful, the doubt should be resolved in favor of the absolute estate. Montgomery v. Pierce, 212 Ga. 545 , 93 S.E.2d 758 (1956).

When an instrument is susceptible to two constructions, the one favorable to vested and unfavorable to contingent remainders should be adopted. Miller v. Brown, 215 Ga. 148 , 109 S.E.2d 741 (1959).

Presumption that testator intended that remainder vests at moment will becomes operative. - In the present case there seems to be no clear manifestation of an intent to postpone the vesting of the title in the remaindermen, and therefore it is to be presumed that the testator intended that the remainder interest should vest at the moment when the will became operative. If there is doubt on this question, it must be resolved in favor of the earlier vesting. Powell v. McKinney, 151 Ga. 803 , 108 S.E. 231 (1921); Toucher v. Hawkins, 158 Ga. 482 , 123 S.E. 618 (1924).

Devise to children as class. - In a devise to children as a class by way of a remainder, children in esse at the death of the testator take vested interests. The interest of any that might die before the period of distribution pass to their heirs. Crawley v. Kendrick, 122 Ga. 183 , 50 S.E. 41 , 2 Ann. Cas. 643 (1905); Irvin v. Porterfield, 126 Ga. 729 , 55 S.E. 946 (1906); Milner v. Gay, 145 Ga. 858 , 90 S.E. 65 (1916); Gibbons v. International Harvester Co., 146 Ga. 467 , 91 S.E. 482 (1917); Toucher v. Hawkins, 158 Ga. 482 , 123 S.E. 618 (1924).

Devise to testator's "lawful heirs". - Devise of realty for life, with remainder to a testator's "lawful heirs", vests the remainder in those answering such a description at the time of the testator's death, unless the will evidences a manifest intention to the contrary, though the life tenant is one of the class who will take the remainder. Payne v. Brown, 164 Ga. 171 , 137 S.E. 921 (1927).

Presumption gives way only if clear intent of contingency. - Presumption in favor of an early vesting will give way only if there is a clear intent to make the interest subject to a contingency. Raney v. Smith, 242 Ga. 809 , 251 S.E.2d 554 (1979).

Ambiguity not created if none exists. - When the language employed by the testator is clear and unambiguous, the Supreme Court will not, just to create a vested remainder, by construction create an ambiguity if none exists. Veach v. Veach, 205 Ga. 185 , 53 S.E.2d 98 (1949).

When clear intent to make remainder contingent, intent controls. - While the law favors the vesting of remainders, and a remainder will be construed to become indefeasibly vested at the earliest possible moment, the language of each particular instrument construed as a whole, showing the intent and purpose of the grantor or testator, must be given effect; if the instrument creating the remainder should be specific language, consistent with a clear intent of the maker as gathered from the entire instrument, make the remainder itself subject to a contingency, the intent of the maker, if lawful, will control. Britt v. Fincher, 202 Ga. 661 , 44 S.E.2d 372 (1947).

In passing on meaning of clause in will, courts should use analogies of previous cases. - While it is true that every will is a thing to itself, and when it comes to the construction of a will, precedents are of less value than is commonly true in other questions, nevertheless, courts should, in passing upon the meaning of a clause in a will, use the analogies that have occurred in previous cases. Moody v. Baxley Turpentine Corp., 195 Ga. 482 , 24 S.E.2d 652 (1943).

Words of survivorship refer to time of testator's death, unless contrary intent manifested. - When no special intent is manifested to the contrary, words of survivorship will have reference to the time of the death of the testator, and not to the time of the death of the life tenant. Speer v. Roach, 145 Ga. 852 , 90 S.E. 57 (1916); Moore v. Cook, 153 Ga. 840 , 113 S.E. 526 (1922).

Intent deducible from language. - Whether a testator manifestly intends that words of survivorship should refer to the death of another in a given case will depend upon the language of the will. In Dudley v. Porter, 16 Ga. 613 (1855), words of survivorship expressed in a deed were held to refer to the death of one other than the grantor. Roberts v. Wadley, 156 Ga. 35 , 118 S.E. 664 (1923).

Survivorship referred to future time fixed for division or distribution. - When a future time is fixed for a division or distribution, there are decisions which hold that words of survivorship will be referred to such a time, in the absence of anything to show a contrary intent. But if the instrument, whether a will or a deed, shows clearly a different intent on the part of the maker, it will control. Sterling v. Huntley, 139 Ga. 21 , 76 S.E. 375 (1912).

Illustrative Cases

Vested remainder found. - In case of a devise to two daughters for their lives, and after their respective deaths, to the child or children of the daughters, the remainder vested, at the testator's death, in the children then living, to be enjoyed at the death of the surviving daughter, but subject to open and take in the children born between the time of vesting and time of enjoyment; all took per capita. Olmstead v. Dunn, 72 Ga. 850 (1884); DeVane v. Young, 154 Ga. 832 , 115 S.E. 661 (1923).

By the rule in aid of the early vesting of estates in the case of gifts to unmarried women for life, with a remainder to the husband, the first who answers to the description is to be considered to have been intended by the testator as the recipient of the testator's bounty. Jossey v. Brown, 119 Ga. 758 , 47 S.E. 350 (1904).

When the testator created an estate for his wife during life or widowhood, and directed that, if his wife should die or marry, "a sale be made of all my property, both real and personal, and the proceeds be equally divided among my children," the children of the testator who survived him took, at his death, a vested remainder estate, and that this was not changed by the direction to sell and divide the proceeds. Crossley v. Leslie, 130 Ga. 782 , 61 S.E. 851 , 14 Ann. Cas. 703 (1908).

When the language under construction was a bequest of real and personal property to the wife of the testator, for the raising and education of the testator's children, "during her natural life; and at her death to be equally divided among all his surviving children, and the legal representatives of such as may be deceased," the words of survivorship had reference to the death of the testator, and not that of the life tenant, and that the children who were in life at the testator's death took vested remainders under the testator's will, to be enjoyed after the death of the tenant for life. Crossley v. Leslie, 130 Ga. 782 , 61 S.E. 851 , 14 Ann. Cas. 703 (1908).

Will devised to the wife of the testator certain land for and during her natural life, and then provided, "after her death to be sold, and the proceeds to be equally divided between my surviving children and the children of any of my deceased children." The words of survivorship applied to the death of the testator, and the persons designated took a vested remainder interest at the testator's death. Crossley v. Leslie, 130 Ga. 782 , 61 S.E. 851 , 14 Ann. Cas. 703 (1908); Green v. Driver, 143 Ga. 134 , 84 S.E. 552 (1915).

Following this section, as governing in cases when the intention of the grantor is not so expressed as to be free from doubt, not being able to say that the grantor in the deed under consideration did not intend to employ the word "vest" as meaning a vesting in possession, the court construes the deed which provides "to C for life and then to vest in such child as born or may be born of our marriage" as creating at the time of the deed's execution a vested remainder in such children as were then in life, subject to open up and let in a vested remainder interest to children thereafter born to them. Burney v. Arnold, 134 Ga. 141 , 67 S.E. 712 (1910).

When a testator by will bequeathed and devised a life estate in described property to the testator's wife and daughters, and the will further provided, "In case any of my daughters should die leaving no children or grandchildren surviving her, I direct that her share of my estate revert to the other legatees herein named, if all are living at the time; if not, to those living or to the children or grandchildren of such as may be dead taking per stirpes," and when one of the daughters of the testator had three children, one of whom predeceased the mother, and before the child's death mortgaged the child's interest in the estate, the grandchild of the testator took a vested remainder in the property in controversy, subject to be divested upon the mother dying without a child or grandchildren. Federal Reserve Bank v. Spearman, 176 Ga. 236 , 167 S.E. 603 (1933).

When the will gave the tract to the plaintiff's grandmother for life, with remainder at her death to their father, "his heirs and assigns," but without any limitation over to any "heirs" of the father after his death, the father therefore acquired a vested remainder; and when he died intestate after the testator died, and before the death of the life tenant, without having disposed of the remainder, the plaintiffs took nothing as devisees directly under the will of their grandfather, but only such interest as they might have acquired solely as heirs of their father, which was subject to a year's support from his estate, if that support was valid or good against them. Jones v. Federal Land Bank, 189 Ga. 419 , 6 S.E.2d 52 (1939).

When a codicil in a will provides "My house I give to my brother after the death of my wife should my wife be the longest liver," given the policy embodied in this statute that the law favors the vesting of remainders in all cases of doubt, and the fact that in construction of wills in general words of survivorship are presumed to refer to the death of the testator in order to vest remainders unless a manifest intention to the contrary shall appear, words of survivorship in this codicil, viz., "should my wife be the longest liver," refer to the death of the testator. Gilmore v. Gilmore, 197 Ga. 303 , 29 S.E.2d 74 (1944) (see O.C.G.A. § 44-6-66 ).

In an action in ejectment brought to recover land purchased by the defendant from a life tenant, where the will under which both parties claimed title disclosed that the petitioner, as a grandchild of the testator, received title in fee to the lands in question with a life interest in said property to his father, which was subject to a forfeiture "should any child or children sell or move away from said lands, then and in that event, the income from the share of any such child shall be equally divided among the remaining children until the death of such child or children, when said share shall become the property of their children in the fee simple," and the undisputed evidence showed that the life tenant sold the fee (the defendant claiming through this chain of title) and the action was filed within a seven-year period after the death of the life tenant, verdict was demanded in favor of the petitioner, and the court did not err in directing such a verdict. O'Kelley v. Jackson, 210 Ga. 539 , 81 S.E.2d 454 (1954).

When there is no language in the will which plainly manifests an intention to divest the share of a son who survived the testator, but predeceased the life tenant, leaving no child or children to be substituted devisees, the son has a vested remainder interest which will pass by inheritance. Witcher v. Witcher, 231 Ga. 49 , 200 S.E.2d 110 (1973).

Trial court properly determined that a younger brother was entitled to all of the proceeds of a trust because the other siblings had previously unequivocally waived any interest in the trust assets and the younger brother was the sole surviving child who had not waived any interest in the trust. White v. Call, 292 Ga. 565 , 738 S.E.2d 617 (2013).

Trial court erred in the court's construction of a deed because the deed was clear as written and, as such, the heir received a one-third undivided interest in the property, and the executor individually and the estate each received a one-third undivided interest as the vested remaindermen who each received an interest in the property under O.C.G.A. § 44-6-66 . Wilkes v. Fraser, 324 Ga. App. 642 , 751 S.E.2d 455 (2013).

For additional cases stating the rule favoring the vesting of certain legacies at testator's death, see Vason v. Estes, 77 Ga. 352 , 1 S.E. 163 (1887); Legwin v. McRee, 79 Ga. 430 , 4 S.E. 863 (1887); Fields v. Lewis, 118 Ga. 573 , 45 S.E. 437 (1903); Crossley v. Leslie, 130 Ga. 782 , 61 S.E. 851 , 14 Ann. Cas. 703 (1908); Mendel v. Stein, 144 Ga. 107 , 86 S.E. 220 (1915); Wilcher v. Walker, 144 Ga. 526 , 87 S.E. 671 (1916); Munford v. Peeples, 152 Ga. 31 , 108 S.E. 454 (1921).

When fireman had been retired in 1932, and was receiving a "pension" of $100.00 a month up to the time of his death in 1937, and where, during the period of such payments and at the time of his death, he had a wife, the widow, even though she had not yet drawn the "pension" at the time of the 1935 statutory provision reducing pensions, and was not entitled thereto until after the death of the husband, nevertheless had a vested right which could not be altered by later legislation. Such a right was not merely contingent, but was more analogous to a vested remainder or salable interest, subject to be divested and to go to other beneficiaries upon her dying or remarrying before receiving payments. West v. Anderson, 187 Ga. 587 , 1 S.E.2d 671 (1939).

Vested remainder not found. - It is undoubtedly the rule declared by this statute that, in construing wills, words of survivorship shall refer to the death of the testator in order to vest remainders, unless a manifest intention to the contrary appears. The trouble in this case is that a manifest intent to the contrary appears. The testator expressly provided for the devolution of the estate if a niece should die before the testator died. Phinizy v. Wallace, 136 Ga. 520 , 71 S.E. 896 (1911) (see O.C.G.A. § 44-6-66 ).

In case of the death of the grantor's daughter without leaving children or the representatives of children, the property was conveyed "to her brother or brothers, and their children surviving." It was contended that the word "surviving" meant children surviving their respective parents. The word "surviving" refers to surviving the life tenant. This construction is more in accord with the spirit of this statute. Duke v. Huffman, 138 Ga. 172 , 75 S.E. 1 (1912) (see O.C.G.A. § 44-6-66 ).

Language of the deed, considered as a whole, plainly shows that the grantor did not use the words "dying without issue" as meaning so dying before the termination of the life estate, but that those words had reference to the time of the death of the daughter. Sterling v. Huntley, 139 Ga. 21 , 76 S.E. 375 (1912).

Language "I will that in case G dies his portion to go to my other children," was intended to create a contingency, the happening of which would divest G of G's share in the already vested estate. In case of doubt the law favors the vesting remainders at the earliest time. It is true the word "survivor" is not used in this case, but the testator had in view the idea of survivorship after some one else had died. The testator had in view the death of G before the death of the life tenant - in that event G's share was to go to the "balance" of the testator's children. Almand v. Almand, 141 Ga. 372 , 81 S.E. 228 (1914).

"Should all of my daughters marry, or should all the unmarried daughters depart this life, then, on the happening of either event, the estate to be divided between our then surviving children. . . ." The word "then" was used twice, and in the second instance, that is in the clause "divided equally between our then surviving children" it was employed as an adverb of time. The estate in remainder was contingent, because it was uncertain as to the person who would take until the death of the last of the testator's unmarried daughters. "Then," at the death of the last of the testator's daughters who did not marry, the persons to take were definitely ascertainable, and there was no longer uncertainty as to the person who would take. The words of survivorship manifestly referred to the marriage of the last of the daughters to marry or to the death of the last unmarried daughter, and not to the death of the testator. Roberts v. Wadley, 156 Ga. 35 , 118 S.E. 664 (1923).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 255, 280 et seq, 303 et seq.

C.J.S. - 26A C.J.S., 251, 252, 389, 390. 31 C.J.S., Estates, §§ 1, 102. 96 C.J.S., Wills, §§ 1336, 1351, 1369.

ALR. - Gift to one "provided" or "providing" he attains a certain age as vested or contingent, 71 A.L.R. 1051 .

Devise of remainder to "husband," "wife," or "widow" as vested or contingent, 86 A.L.R. 229 .

Vested or contingent character of remainder under devise of a remainder to a certain person or persons "or" his or their heirs or other class, 128 A.L.R. 306 .

Effect of premature termination of precedent estate to accelerate remainder of which there is an alternative substitutional gift, 164 A.L.R. 1297 .

Effect of premature termination of precedent estate to accelerate a contingent remainder, 164 A.L.R. 1433 .

"Divide and pay over" rule, for purpose of determining vested or contingent character of estate, 16 A.L.R.2d 1383.

Nature of remainders created by will giving life estate to spouse of testator, with remainder to be divided equally between testator's heirs and spouse's heirs, 19 A.L.R.2d 371.

Words of survivorship in will disposing of estate in remainder as referable to death of testator or to termination of intervening estate, 20 A.L.R.2d 830.

Provision of will that children, etc., of remainderman who dies before expiration of precedent estate or time fixed for distribution to remaindermen, shall take the share to which he would have been entitled, as affecting the character of remainder as vested or contingent, 47 A.L.R.2d 900.

Delivery or distribution to life tenant, or assent by executor to his possession or to the life interest, as inuring to benefit of the remaindermen and operating to take the remainder out of the estate, absent a trust or will provision retaining it, 68 A.L.R.2d 1107.

Doctrine that gift which might be void under rule against perpetuities will be given effect where contingency actually occurs within period of rule, 20 A.L.R.3d 1094.

Time to which condition of remainderman's death refers, under gift or grant to one for life or term of years and then the remainderman, but if remainderman dies without issue, then over to another, 26 A.L.R.3d 407.

44-6-67. Effect of executor's assent to legacy to life tenant on remainderman; possession at termination of life estate.

The assent of an executor to a legacy to a life tenant inures to the benefit of the remainderman. At the termination of the life estate, the remainderman may take possession immediately unless the will provides for a sale or other act to be done for the purpose of or prior to a division, in which case the executor may recover possession for the purpose of executing the will.

(Orig. Code 1863, § 2252; Code 1868, § 2244; Code 1873, § 2270; Code 1882, § 2270; Civil Code 1895, § 3105; Civil Code 1910, § 3681; Code 1933, § 85-709.)

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Cited in McGlawn v. Lowe, 74 Ga. 34 (1884); Grant v. Rose, 32 F.2d 812 (N.D. Ga. 1929); Lewis v. Patterson, 191 Ga. 348 , 12 S.E.2d 593 (1940); Coleman v. Durden, 193 Ga. 76 , 17 S.E.2d 176 (1941); Roberts v. Wilson, 198 Ga. 428 , 31 S.E.2d 707 (1944); Keen v. Rodgers, 203 Ga. 578 , 47 S.E.2d 567 (1948); McDaniel v. Bagby, 204 Ga. 750 , 51 S.E.2d 805 (1949); Stone v. Stone, 218 Ga. 789 , 130 S.E.2d 727 (1963).

Effect of Executor's Assent

First sentence of this statute merely states the general rule. David v. David, 162 Ga. 528 , 134 S.E. 301 (1926) (see O.C.G.A. § 44-6-61 ).

Assent of executor to a legacy to life tenant inures to benefit of the remaindermen. The rule is otherwise if the executor by the will has a trust to perform, arising out of the property, after the death of the life tenant. Dixon v. Richardson, 194 Ga. 443 , 21 S.E.2d 854 (1942).

Assent of executor perfects inchoate title. - Assent of the executor to a devise of lands perfects the inchoate title of the devisee. Watkins v. Gilmore, 121 Ga. 488 , 49 S.E. 598 (1904).

Devise of the executors to a life tenant perfects the title of the remaindermen, and the executors then no longer control the land or have any interest in the land. Oliver v. Irvin, 219 Ga. 647 , 135 S.E.2d 376 (1964).

Upon assent, executor parts with power and control over land. - When an executor assents to a legacy to the tenant for life, the executor parts with all power and control over the land involved, when the will imposes no further duty upon the executor with respect to the land. Pound v. Faulkner, 193 Ga. 413 , 18 S.E.2d 749 (1942).

Assent generally irrevocable. - Assent of the executor, when once given, is, in general, irrevocable, although the assets may prove insufficient to pay the debts. Watkins v. Gilmore, 121 Ga. 488 , 49 S.E. 598 (1904).

Assent of an executor to a devise of land places title in the devisee, and assent once given is generally irrevocable. Miller v. Harris County, 186 Ga. 648 , 198 S.E. 673 (1938).

Rights and Liabilities of Remainderman

After life estate lapses, remaindermen may take possession. - When, after the lapse of the life estate, there were no debts against the estate, and the executors or trustees had previously turned it over to the life tenant to be appropriated to the purpose, thereby assenting to the legacy of both the life tenant and remainderman, the estate vested in the remainderman, and there was no impediment to the remainderman entering and taking possession. Akin v. Akin, 78 Ga. 24 , 1 S.E. 267 (1886).

When land is devised to one for life with remainder over to another, the executor's assent to the devise for life inures to the benefit of the remainderman, and at the termination of the life estate, the remainderman may take immediate possession of the property unless the will shows a different intention. Watkins v. Gilmore, 121 Ga. 488 , 49 S.E. 598 (1904).

Principle is plain and the mandate of the statute explicit that upon the death of the life tenant the remainderman is entitled to immediate possession of the remainder estate. Perkins v. First Nat'l Bank, 221 Ga. 82 , 143 S.E.2d 474 (1965).

After executor's assent, land no longer part of testator's estate. - When, under the executor's assent to a devise for life with remainder over, the remainderman, after the death of the life tenant, becomes entitled to the immediate possession of the land, such land is no longer any part of the estate of the testator. Miller v. Harris County, 186 Ga. 648 , 198 S.E. 673 (1938).

Following executor's assent, land cannot be sold by executor. - When, under the executor's assent to a devise for life with remainder over, the remainderman, after the death of the life tenant, becomes entitled to the immediate possession of the land, the land is no longer any part of the estate of the testator nor subject to be sold to pay the debts of such estate; and the ordinary (now probate judge) has no power or jurisdiction to order the land sold as part of the estate. In such case, although the ordinary (now probate judge) has granted an order of sale, the executor, having no title or right to the land, cannot recover the land from the remainderman or from a third party, whether the latter have good title or not. Watkins v. Gilmore, 121 Ga. 488 , 49 S.E. 598 (1904).

After assent to a devise by the executors, the land ceased to be a part of the estate of the testator and could not be sold by the executors to pay any debts thereof, and a court of ordinary (now probate court) has no power or jurisdiction to order the land sold as part of the estate; such order, being void, may be attacked anywhere and at any time. Biggers v. Gladin, 204 Ga. 481 , 50 S.E.2d 585 (1948).

Life tenant's administrator may not sell land after executor's assent. - When, under the terms of a will, the executor assented to a devise and delivered the property to the life tenant, the title passed out of the estate, and when, at the death of the life tenant, an administrator was appointed and sought to sell the property and distribute the proceeds, such an administration is void for lack of jurisdiction in the court; accordingly, in a suit by the remaindermen for equitable partition, the trial court erred in directing a verdict for the defendants. Pope v. Stanley, 202 Ga. 180 , 42 S.E.2d 488 (1947).

When will provides for sale and division of proceeds among remaindermen. - Administrator may recover property from the remaindermen for the purpose of a sale, even though the executrix had assented, if the will provided that a sale should be made and the proceeds divided among the remaindermen. Evans v. Paris, 148 Ga. 44 , 95 S.E. 682 (1918).

It is apparent that under the terms of the will the duty of selling for distribution, if the lands could not be divided in kind, devolved upon the executrix under this statute. Hall v. Ewing, 149 Ga. 693 , 101 S.E. 807 (1920) (see O.C.G.A. § 44-6-67 ).

Assent of an executor to the legacy of a tenant for life inures to the benefit of the remaindermen, and the remainderman may, at the termination of the life estate, take possession immediately. The executor can recover possession only if it is necessary for the executor to have it for the purpose of executing the will, when it provides for a sale or other act to be done in order to effect a division among the remaindermen. Miller v. Harris County, 186 Ga. 648 , 198 S.E. 673 (1938).

Assent of the executor inures to the benefit of the remainderman who, at the termination of the life estate, may take possession immediately, unless the will provides for a sale or other act to be done for the purpose of effecting a division among remaindermen. Biggers v. Gladin, 204 Ga. 481 , 50 S.E.2d 585 (1948).

Unpaid creditor may subject land of devisees to claim. - Executors having assented to a devise and delivered to the life tenant the land, such assent perfected the inchoate title of the devisee and became irrevocable by the executors; in such a case, however, an unpaid creditor may follow the land into the hands of the devisees and subject it at law or equity to the payment of the creditor's claim. Biggers v. Gladin, 204 Ga. 481 , 50 S.E.2d 585 (1948).

Vested remainder interest in life estate is subject to levy and sale as heir's property, though the life estate is not terminated, if the executor has assented to the legacy for life. Pound v. Faulkner, 193 Ga. 413 , 18 S.E.2d 749 (1942).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, § 269.

C.J.S. - 34 C.J.S., Executors and Administrators, § 603.

ALR. - Rights and duties of life tenant with power to anticipate or enjoy principal, 2 A.L.R. 1243 ; 27 A.L.R. 1381 ; 69 A.L.R. 825 ; 114 A.L.R. 946 .

Conveyance by life tenant and remaindermen in esse as cutting off interest of unborn persons under devise for life with remainder to a class, 25 A.L.R. 770 .

Words of survivorship in will disposing of remainder upon termination of life or other precedent or intervening estate as referable to time of testator's death or to time of termination such intervening estate, 114 A.L.R. 4 ; 20 A.L.R.2d 830.

Statute limiting period for attack on tax title as affecting remaindermen in respect of a tax sale during life tenancy, 124 A.L.R. 1145 .

Words of survivorship in will disposing of estate in remainder as referable to death of testator or to termination of intervening estate, 20 A.L.R.2d 830.

Right as between life beneficiaries and remaindermen, or successive life beneficiaries, in corporate dividends or distributions, 44 A.L.R.2d 1277.

Time of ascertaining persons to take, under deed or inter vivos trust, where designated as the "heirs," "next of kin," "children," "relations," etc., of life tenant or remainderman, 65 A.L.R.2d 1408.

Delivery or distribution to life tenant, or assent by executor to his possession or to the life interest, as inuring to benefit of the remaindermen and operating to take the remainder out of the estate, absent a trust or will provision retaining it, 68 A.L.R.2d 1107.

44-6-68. Validity of limitations over upon marriage of widow.

Limitations over upon the marriage of a widow shall be valid unless such limitations are manifestly intended to operate as a restraint upon the free action of such widow in respect to marriage and are not simply prudent provisions for the protection of the interest of children or others in such event, in which case such limitations are void.

(Orig. Code 1863, § 2254; Code 1868, § 2246; Code 1873, § 2272; Code 1882, § 2272; Civil Code 1895, § 3108; Civil Code 1910, § 3684; Code 1933, § 85-712.)

Law reviews. - For comment on Broach v. Hester, 217 Ga. 59 , 121 S.E.2d 111 (1961), see 14 Mercer L. Rev. 471 (1963).

JUDICIAL DECISIONS

Estate for widowhood recognized. - Estate for widowhood, as known to the common law, is recognized in this state and provided for by the terms of this statute. The creation of a fee defeasible by marriage is not necessarily in restraint of marriage, because the beneficiary is submitted to an election between the acceptance of the gift and remarriage, should she prefer to remarry. Logan v. Hammond, 155 Ga. 514 , 117 S.E. 428 (1923) (see O.C.G.A. § 44-6-68 ).

Gift for widowhood not void unless intention to impose penalty manifest and unequivocal. - Condition imposed by a testator upon a gift to his widow, to the effect that upon her remarriage the devise shall pass to his other heirs named, is not void as being in restraint of marriage. The intention to impose a penalty in terrorem must be manifest and unequivocal. Logan v. Hammond, 155 Ga. 514 , 117 S.E. 428 (1923).

Statute applies to contracts as well as to the provisions of a will. Holder v. Holder, 226 Ga. 254 , 174 S.E.2d 408 (1970), overruled on other grounds, Scott v. Scott, 276 Ga. 372 , 578 S.E.2d 876 (2003) (see O.C.G.A. § 44-6-68 ).

Cotenant's estate not affected when restraints against widow invalid. - When an estate was devised to X, and widow during her widowhood, even if the provisions were invalid as being in restraint of marriage, it would not affect the estate granted to X. McCarty v. Mangham, 144 Ga. 198 , 86 S.E. 555 (1915).

Estates for widowhood are subject to the same rules as life estates. Among the rules applicable to life estates are the provisions of former Civil Code 1910, § 3666 (see O.C.G.A. § 44-6-83 ). Lee & Bradshaw v. Rogers, 151 Ga. 838 , 108 S.E. 371 (1921).

Agreement to change child custody upon remarriage not void. - Agreement for the custody of the children to change to the father upon the remarriage of the mother does not manifest an intention that the agreement will operate in restraint of remarriage, and is not void as being in restraint of marriage. Holder v. Holder, 226 Ga. 254 , 174 S.E.2d 408 (1970), overruled on other grounds, Scott v. Scott, 276 Ga. 372 , 578 S.E.2d 876 (2003).

Cited in McCray v. Caves, 211 Ga. 770 , 88 S.E.2d 373 (1955).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 279, 310.

C.J.S. - 31 C.J.S., Estates, § 78. 96 C.J.S., Wills, § 1276.

ALR. - Misconduct of surviving spouse as affecting marital rights in other's estate, 139 A.L.R. 486 .

Remarriage tables, 25 A.L.R.2d 1464.

ARTICLE 5 LIFE ESTATES

Law reviews. - For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).

JUDICIAL DECISIONS

Limitations on rights of executors and life tenants to alienate estate. - Neither an executor nor a trustee has authority to enter into a contract granting an option to purchase land belonging to an estate, absent an express grant of such power. By analogy, unless express authority is granted, the life tenant with other broad authority does not have the power to will the property at the life tenant's death, nor to lease property for a time extending beyond the life tenant's own term; such leases have been described as "absolutely void" after the life tenant's death. Phillips v. Sexton, 243 Ga. 501 , 255 S.E.2d 15 (1979).

RESEARCH REFERENCES

ALR. - Lease of property as ademption or revocation of devise, 8 A.L.R. 1638 .

Requiring security from life tenant for protection of remaindermen, 14 A.L.R. 1066 ; 101 A.L.R. 271 ; 138 A.L.R. 440 .

Duty of life tenant or life beneficiary to pay taxes, 17 A.L.R. 1384 ; 94 A.L.R. 311 ; 126 A.L.R. 862 .

Right of one who furnishes support to another entitled to life support from property, as against such property or the owners of present or future estates therein, 31 A.L.R. 658 .

Absolute power of disposition in life tenant as elevating life estate to fee, 36 A.L.R. 1176 .

Right of remainderman or his privies to require disclosure or accounting by life tenant, 45 A.L.R. 519 .

Relative rights of income or life beneficiary and of corpus or remaindermen in return on bonds or other obligations for the payment of money, and in profits from a sale thereof, and corresponding duties of trustee, 48 A.L.R. 689 ; 131 A.L.R. 1426 .

Life tenant's liability for waste as affected by assignment or transfer of his interest, 71 A.L.R. 1187 .

Taking or holding by one spouse of an interest or estate terminable at death as constituting fraud on marital rights of the other spouse in the estate of the former, 79 A.L.R. 377 .

Duty of life tenant or life beneficiary to pay taxes, 94 A.L.R. 311 ; 126 A.L.R. 862 .

Life interest and remainder in corporate stock as affecting stockholder's statutory liability, 99 A.L.R. 505 .

Income tax in respect of that part of extraordinary cash dividend on stock held by trustee that is allocated to corpus as regards respective rights of life beneficiary and remaindermen, 99 A.L.R. 518 .

Construction of provisions of will or other instrument creating trust to effect that losses or depreciation of corpus shall be made good out of income, 99 A.L.R. 718 .

Relative rights of life beneficiary and remainderman as to return on bonds or other obligations for the payment of money, bought at a premium or at a discount, 101 A.L.R. 7 ; 131 A.L.R. 1426 .

Commutation of life tenant's interest in fund realized from sale of property into estimated present value, 102 A.L.R. 969 .

Rights and duties of life tenant with power to anticipate or enjoy principal, 114 A.L.R. 946 .

Rights of life tenant (legal or equitable) and remaindermen in respect of amount paid by lessee in consideration of release, 121 A.L.R. 900 .

Apportionment of income where right to income commences or ends during accrual period, 126 A.L.R. 12 .

Rights, duties, and liabilities of life tenant (legal or equitable) and remaindermen in respect of property insurance or proceeds thereof, 126 A.L.R. 336 .

Rights, powers, and duties in respect of sale or transfer of corporate stock in which one holds a legal life estate, 126 A.L.R. 1298 .

Disposition of decedent's share of income or property during interval between deaths of life beneficiaries sharing therein, where remainder was given over after death of all life beneficiaries, 140 A.L.R. 841 ; 71 A.L.R.2d 1332.

Rule in Shelley's Case as affected by failure of life estate prior to operative date of instrument, 145 A.L.R. 1227 .

Provision of will for life beneficiary as giving him a legal life estate or as creating a trust, 147 A.L.R. 605 .

Uniform Principal and Income Act as applicable to estates under administration, 166 A.L.R. 428 .

Invasion of principal in behalf of income beneficiary, absent or contrary to provision of trust instrument in that regard, 1 A.L.R.2d 1328.

Murder of life tenant by remainderman or reversioner as affecting latter's right to remainder or reversion, 24 A.L.R.2d 1120.

What acts, claims, circumstances, instruments, color of title, judgment, or thing of record will ground adverse possession in a life tenant as against remaindermen or reversioners, 58 A.L.R.2d 299.

Grant, reservation, or exception as creating separate and independent legal estate in solid minerals or as passing only incorporeal privilege or license, 66 A.L.R.2d 978.

Disposition of decedent's share of income or property during interval between deaths of life beneficiaries sharing therein, where remainder was given over after death of all life beneficiaries, 71 A.L.R.2d 1332.

Validity of life tenant's exercise of power of sale as affected by fact that conveyance is, directly or indirectly, to him, his spouse, or his relative, 89 A.L.R.2d 649.

Distribution as between life tenant and remainderman of proceeds of condemned property, 91 A.L.R.2d 963.

Duty as between life tenant and remainderman as respects payment of improvement assessments, 10 A.L.R.3d 1309.

Implication of right of life tenant to entrench upon or dispose of corpus from language contemplating possible diminution or elimination of gift over, 31 A.L.R.3d 6.

Rights as between estate of life tenant and remainderman in respect of proceeds of sale or disposition made in exercise of power given life tenant, 47 A.L.R.3d 1078.

Court's power to order sale of property subject to legal life estate, in order to relieve economic distress of life tenant, 57 A.L.R.3d 1189.

Right of life tenant with power to anticipate or consume principal to dispose of it by inter vivos gift, 83 A.L.R.3d 135.

44-6-80. Nature of life estates; estates during widowhood.

Estates which may extend during the life of a person but which must terminate at his death are deemed life estates during their existence. Estates during widowhood are life estates.

(Orig. Code 1863, § 2234; Code 1868, § 2228; Code 1873, § 2254; Code 1882, § 2254; Civil Code 1895, § 3089; Civil Code 1910, § 3665; Code 1933, § 85-603.)

Law reviews. - For comment on Eller v. Wages, 220 Ga. 58 , 136 S.E.2d 730 (1964), see 1 Ga. St. B.J. 557 (1965).

JUDICIAL DECISIONS

Life estates subject to termination under particular circumstances may be created under this statute. Mid-State Homes, Inc. v. Johnson, 218 Ga. 397 , 128 S.E.2d 197 (1962) (see O.C.G.A. § 44-6-80 ).

Effect of termination on condition earlier than death. - Fact that estate may terminate on condition earlier than death does not destroy the estate's character as a life estate. Martin v. Heard, 239 Ga. 816 , 238 S.E.2d 899 (1977).

Estate for life or widowhood found. - Will giving property to the wife "during lifetime or widowhood to give to our children" created an estate for life or during widowhood in the wife. Glore v. Scroggins, 124 Ga. 922 , 53 S.E. 690 (1906). See also Fields v. Bush, 94 Ga. 664 , 21 S.E. 827 (1894).

Deed conveyed life estate and an estate in remainder. - Deed conveyed to a widow a fee simple estate in the property upon a decedent's death because the deed conveyed to the decedent and widow a life estate in the property as tenants in common, which terminated upon the death of either of them, and the language of the deed conveyed a fee simple estate in remainder to the surviving grantee; therefore, upon the decedent's death, the life estate of the decedent and widow in the property ended and fee simple title to the property vested in the widow. Greene v. Greene, 311 Ga. App. 132 , 714 S.E.2d 650 (2011).

Trial court erred in declaring that a deed conveyed a joint tenancy to a decedent and widow because the trial court construed the deed in a manner contrary to the deed's terms, ignoring the provision granting the decedent's widow a tenancy in common for their joint lives; instead, the deed should have been construed to convey first a life estate and then an estate in remainder so as to give effect to all of the deed's provisions. Greene v. Greene, 311 Ga. App. 132 , 714 S.E.2d 650 (2011).

Burial or last-illness expenses not necessarily chargeable against life estate. - Burial expenses of a life tenant or the expenses of the tenant's last illness are not, as a matter of law, chargeable against the life estate; when the life tenancy is created by will, such expenses are not chargeable against the corpus if the will does not expressly or by clear implication so provide. Reece v. McCrary, 51 Ga. App. 746 , 181 S.E. 697 (1935).

Cited in McDonald v. Suarez, 212 Ga. 360 , 93 S.E.2d 16 (1956); Eller v. Wages, 220 Ga. 58 , 136 S.E.2d 730 (1964).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 39, 40, 59 et seq., 63, 75, 81, 82, 87, 109, 110.

C.J.S. - 26A C.J.S., Deeds, § 286 et seq. 28 C.J.S., Dower, § 180 et seq. 31 C.J.S., Estates, §§ 21 et seq., 37, 78, 163. 96 C.J.S., Wills, §§ 1278, 1286.

ALR. - Devise of life estate without complete or effective disposition of remainder as negativing right of life tenant to as heir or next of kin, 128 A.L.R. 446 .

Nontrust life estate expressly given for support and maintenance, as limited thereto, 26 A.L.R.2d 1207.

44-6-81. Length of life estate.

An estate for life may be either for the life of the tenant or for the life of some other person or persons.

(Orig. Code 1863, § 2232; Code 1868, § 2226; Code 1873, § 2252; Code 1882, § 2252; Civil Code 1895, § 3087; Civil Code 1910, § 3663; Code 1933, § 85-601.)

JUDICIAL DECISIONS

Estate to be enjoyed after preceding life estates deemed remainder. - Estate granted in a will to be enjoyed in succession, after the expiration of the two particular life estates preceding it was a remainder or limitation over. Lane v. Citizens & S. Nat'l Bank, 195 Ga. 828 , 25 S.E.2d 800 (1943).

Life tenant's possession not adverse to remainder. - When estates for life under former Civil Code 1910, § 3663 (see O.C.G.A. § 44-6-81 ) and estates in remainder under former Civil Code 1910, § 3674 (see O.C.G.A. § 44-6-60 ), were created by the same grant in the same land in favor of different persons, the possession of the life tenant was not adverse to the estate in remainder. Ayer v. Chapman, 146 Ga. 608 , 91 S.E. 548 (1917).

Devise to "Z for life for . . . home for herself and H" passes estate to Z, but does not give H a life estate. Holland v. Zeigler, 135 Ga. 512 , 69 S.E. 824 (1910).

Life estate granted to two or more persons for their "joint lives" does not terminate as to the survivor until such survivor's death, provided the deed or other instrument does not contain specific limiting language directing an earlier termination of the estate granted. Raulerson v. Smithwick, 263 Ga. 805 , 440 S.E.2d 164 (1994).

Deed conveyed life estate and an estate in remainder. - Deed conveyed to a widow a fee simple estate in the property upon a decedent's death because the deed conveyed to the decedent and widow a life estate in the property as tenants in common, which terminated upon the death of either of them, and the language of the deed conveyed a fee simple estate in remainder to the surviving grantee; therefore, upon the decedent's death, the life estate of the decedent and widow in the property ended and fee simple title to the property vested in the widow. Greene v. Greene, 311 Ga. App. 132 , 714 S.E.2d 650 (2011).

Cited in Taylor v. Trustees of Jesse Parker Williams Hosp., 190 Ga. 349 , 9 S.E.2d 165 (1940); Buchanan v. Nicholson, 192 Ga. 754 , 16 S.E.2d 743 (1941); Dodson v. Trust Co., 216 Ga. 499 , 117 S.E.2d 331 (1960); White v. Howell, 117 Ga. App. 778 , 161 S.E.2d 892 (1968); Vineville Capital Group, LLC v. McCook, 329 Ga. App. 790 , 766 S.E.2d 156 (2014).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, §§ 59 et seq., 63 et seq.

C.J.S. - 26A C.J.S., Deeds, § 248. 31 C.J.S., Estates, §§ 37, 38, 78. 96 C.J.S., Wills, § 1273 et seq.

ALR. - Conveyance by life tenant and remaindermen in esse as cutting off interest of unborn persons under devise for life with remainder to a class, 25 A.L.R. 770 .

Duration of interest given to one for life, with gift over to another upon the happening of an event which occurs during the lifetime of the first taker, 96 A.L.R. 1347 .

Commutation of life tenant's interest in fund realized from sale of property into estimated present value, 102 A.L.R. 969 .

Right of estate of named beneficiary to payments of annuity or income during period between his death and the death of third person or other event by reference to which the period of payment is limited by the terms of will or other instrument, 112 A.L.R. 581 .

44-6-82. How and in what property life estate may be created.

  1. An estate for life may be created by deed or will, by express agreement of the parties, or by operation of law.
  2. A life estate cannot be created in property which will be destroyed on being used.

    (Orig. Code 1863, § 2233; Code 1868, § 2227; Code 1873, § 2253; Code 1882, § 2253; Civil Code 1895, § 3088; Civil Code 1910, § 3664; Code 1933, § 85-602.)

JUDICIAL DECISIONS

Life estate created by deed or devise. - Life estate is created by devise, deed, or operation of law. Thus, a gift by deed or devise of a parent to a child of a lot of land during the life of such child, remainder to the child or children of such child, carves out a life estate for the child of the donor or devisor. Dickinson v. Jones, 36 Ga. 97 (1867).

When a husband by deed granted to his wife "and to her heirs and assigns forever" described property, with the understanding that at her death the land was to go to his youngest son, "to have and to hold said land to the only proper use and benefit and behoof of the wife, her heirs and assigns, in fee simple forever," such deed created a life estate in the wife, with remainder to the grantor's youngest son; on the death of the life tenant (wife), and remainderman (son), intestate, the son leaving a wife and no children, the wife of the son inherited the land as the sole heir at law of her deceased husband. Crews v. Crews, 174 Ga. 45 , 162 S.E. 107 (1931).

Life estate created by agreement. - Life estate is created where dower, or one-third of the land for life, is assigned to the widow. All estates for life, however created, are of the same duration, have the same rights, privileges, and incidents, and are subject to the same restrictions in their enjoyment. Dickinson v. Jones, 36 Ga. 97 (1867).

Effect of the family agreement relative to the life portion reserved for dower was to give the widow a life estate. Allen v. Lindsey, 139 Ga. 648 , 77 S.E. 1054 (1913).

Reservation of life estate. - When grantor alleges that agreement was to allow the grantor to use house for the rest of the grantor's life, if the allegation is deemed credible by a jury, it is sufficient to reserve a life estate in the house and curtilage. Fox v. Washburn, 264 Ga. 617 , 449 S.E.2d 513 (1994).

Life estate cannot be created in property destroyed in use. - Life estate may be created in personal property, within the limitation that the estate may not be created in such property as is destroyed in the use. First Nat'l Bank v. Geiger, 61 Ga. App. 865 , 7 S.E.2d 756 (1940).

Section not applicable to long-term depreciation. - Expression "destroyed in the use" does not refer to property of a substantial nature which depreciates from the use over a substantial period of time. First Nat'l Bank v. Geiger, 61 Ga. App. 865 , 7 S.E.2d 756 (1940).

Section alludes to things perishing with usage. - Statute prohibiting the creation of a remainder in property that is destroyed in the use, does not allude to money, but to such things as perish with the usage. Biggers v. Gladin, 204 Ga. 481 , 50 S.E.2d 585 (1948) (see O.C.G.A. § 44-6-82 ).

Life estate may be created in money and this statute does not allude to money, but to such things as perish with the usage. Chisholm v. Lee, 53 Ga. 611 (1875); Barmore v. Gilbert, 151 Ga. 260 , 106 S.E. 269 , 14 A.L.R. 1060 (1921) (see O.C.G.A. § 44-6-82 ).

Life estate and a remainder interest may be created in money. Biggers v. Gladin, 204 Ga. 481 , 50 S.E.2d 585 (1948).

Life estate may be created in livestock. - There can be no doubt but that a life estate may be created in livestock, it being property not strictly consumable in the use. Leonard v. Owen, 93 Ga. 678 , 20 S.E. 65 (1894).

Burial and last illness expenses not necessarily chargeable against life estate. - Burial expenses of a life tenant or the expenses of the tenant's last illnesses are not, as a matter of law, chargeable against the life estate; when the life tenancy is created by will, such expenses are not chargeable against the corpus when the will does not expressly or by clear implication so provide. Reece v. McCrary, 51 Ga. App. 746 , 181 S.E. 697 (1935).

Grant of permission for one to remain on land "for an indefinite period rent free" does not, as a matter of law, create a life estate, even if the grantee believes it to do so. Mitchell v. Mitchell, 159 Ga. App. 495 , 283 S.E.2d 709 (1981).

Cited in Campbell v. Barnard, 74 Ga. App. 272 , 39 S.E.2d 420 (1946); White v. Howell, 117 Ga. App. 778 , 161 S.E.2d 892 (1968).

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 5, 27. 28 Am. Jur. 2d, Estates, § 66 et seq. 51 Am. Jur. 2d, Life Tenants and Remaindermen, § 46 et seq.

C.J.S. - 26A C.J.S., Deeds, §§ 248, 272. 31 C.J.S., Estates, §§ 38, 39, 161. 96 C.J.S., Wills, §§ 1277, 1279, 1280, 1294 et seq.

ALR. - Provision of will for life beneficiary as giving him a legal life estate or as creating a trust, 147 A.L.R. 605 .

Validity of reservation of oil and gas or other mineral rights in deed of land, as against objection of repugnancy to the grant, 157 A.L.R. 485 .

Implication of right of life tenant to entrench upon or dispose of corpus from language contemplating possible diminution or elimination of gift over, 31 A.L.R.3d 6.

Validity and effect of provision in deed attempting to make reservation or exception in favor of grantor's spouse, 52 A.L.R.3d 753.

44-6-83. Rights and duties of life tenant; forfeiture of interest to remainderman.

The tenant for life shall be entitled to the full use and enjoyment of the property if in such use he exercises the ordinary care of a prudent man for its preservation and protection and commits no acts which would permanently injure the remainder or reversion interest. For the want of such care or the willful commission of such acts, the tenant for life shall forfeit his interest to the remainderman if the remainderman elects to claim immediate possession.

(Orig. Code 1863, § 2235; Code 1868, § 2229; Code 1873, § 2255; Code 1882, § 2255; Civil Code 1895, § 3090; Civil Code 1910, § 3666; Code 1933, § 85-604.)

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For comment on Graham v. Bryant, 211 Ga. 856 , 89 S.E.2d 640 (1955), see 19 Ga. B.J. 362 (1957).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Section has binding effect of statute. - This statute was included in the Code of 1863, which was regularly adopted by the Legislature, and also included in the several subsequent Codes, some of which have likewise been adopted by the Legislature, and consequently it has all the binding effect of statute. Central of Ga. Ry. v. State, 104 Ga. 831 , 31 S.E. 531 , 42 L.R.A. 518 (1898); Lee & Bradshaw v. Rogers, 151 Ga. 838 , 108 S.E. 371 (1921) (see O.C.G.A. § 44-6-83 ).

Present section is declaratory, and at the same time restrictive of the common law. Brown v. Martin, 137 Ga. 338 , 73 S.E. 495 (1912). See also Dickinson v. Jones, 36 Ga. 97 (1867); Woodward v. Gates, 38 Ga. 205 (1868); Belt v. Simkins, 113 Ga. 894 , 39 S.E. 430 (1901); Roby v. Newton, 121 Ga. 679 , 49 S.E. 694 , 68 L.R.A. 601 (1905) (see O.C.G.A. § 44-6-83 ).

Since forfeitures are not favored by the law, this statute should be strictly construed, as is criminal law. Roby v. Newton, 121 Ga. 679 , 49 S.E. 694 , 68 L.R.A. 601 (1905) (see O.C.G.A. § 44-6-83 ).

Word "willful" should not be construed to mean simply intentional, rather than malicious or wanton, for a statute which imposes a forfeiture should be strictly construed. Roby v. Newton, 121 Ga. 679 , 49 S.E. 694 , 68 L.R.A. 601 (1905).

Section applied by regarding instrument's provisions and property's nature and prior use. - In applying this statute, regard must be had for the provisions of the instrument creating the life estate and the nature of the property in which the life estate was given, and the use to which it was put at the time the will was executed and when it went into effect. Lee & Bradshaw v. Rogers, 151 Ga. 838 , 108 S.E. 371 (1921); Fort v. Fort, 223 Ga. 400 , 156 S.E.2d 23 (1967) (see O.C.G.A. § 44-6-83 ).

Code provides for forfeiture only for waste in life estate, and an estate for years. Treisch v. Doster, 171 Ga. 525 , 156 S.E. 231 (1930).

Forfeiture not applicable to landlord-tenant relation. - Common-law action of waste for forfeiture and damages, when there is no estate for life nor for years, but merely the relation of landlord and tenant, cannot be maintained. Warlick v. Great Atl. & Pac. Tea Co., 170 Ga. 538 , 153 S.E. 420 (1930).

Executor not required to give bond if life tenant possesses entire estate free from debts. - In a proceeding to require an executor to give bond under former Code 1933, § 113-1216 (see O.C.G.A. § 53-7-32 ), if it appears that under the terms of the will the entire estate was bequeathed to the widow of the deceased for her life and that she immediately became possessed of the estate (to the exclusion of the executor for the remainder of her life, if no debts), and at her death it was to go to their children, share and share alike, and since it does not appear that there were debts of the estate, there was no need for the executor to give bond. Pass v. Pass, 56 Ga. App. 59 , 192 S.E. 64 (1937).

Cited in Hicks v. Wadsworth, 57 Ga. App. 529 , 196 S.E. 251 (1938); Trust Co. v. Kenny, 188 Ga. 243 , 3 S.E.2d 553 (1939); Coleman v. Durden, 193 Ga. 76 , 17 S.E.2d 176 (1941); Roberts v. Wilson, 198 Ga. 428 , 31 S.E.2d 707 (1944); Smith v. Thomas, 199 Ga. 396 , 34 S.E.2d 278 (1945); Raines v. Shipley, 200 Ga. 180 , 36 S.E.2d 150 (1945); Dorsey v. Clements, 202 Ga. 820 , 44 S.E.2d 783 (1947); Rigdon v. Cooper, 203 Ga. 547 , 47 S.E.2d 633 (1948); Smith v. Minich, 125 Ga. 386 , 110 S.E.2d 649 (1959); Stevens v. Citizens & S. Nat'l Bank, 233 Ga. 612 , 212 S.E.2d 792 (1975); Raulerson v. Smithwick, 263 Ga. 805 , 440 S.E.2d 164 (1994).

Rights and Duties of Life Tenant
1. In General

Tenant for life is entitled to the full use and enjoyment of property. In this respect, there is no difference between realty and personalty. Thomas v. Owens, 131 Ga. 248 , 62 S.E. 218 (1908).

Life tenant who possessed farmland pursuant to a will was entitled to cut trees on the farmland, to sell the trees, and to retain the proceeds as part of the tenant's full use and enjoyment of the land, over the objection of the remainder beneficiary who wanted the proceeds placed in a trust with the principal to remain in place for the beneficiary while the interest went to the life tenant. Robinson v. Hunter, 254 Ga. App. 290 , 562 S.E.2d 189 (2002).

Trial court abused the court's discretion in holding a mother in civil and criminal contempt for protecting the mother's rights as a life tenant, pursuant to O.C.G.A. § 44-6-83 , in real property that had been part of a consent order between herself and the son, as the consent order indicated that the son could operate a salvage business on a portion of the property, but it did not allow the son to expand the business to the full area of the property; the mother should not have been sanctioned and threatened with future sanctions for filing suit to protect the mother's interests in the property against the son's interfering actions as the mother had a right to the full use and enjoyment of the property. Carden v. Carden, 276 Ga. App. 43 , 622 S.E.2d 389 (2005).

Life estate subject to remainderman's right to have property in state of security. - Tenant for life in property is entitled to the possession of the "corpus" of the property for the tenant's own use, subject to a right in the remainderman to have the property in a state of security, to be forthcoming to the remainderman, on the termination of the life estate. Crisp County Lumber Co. v. Bridges, 187 Ga. 484 , 200 S.E. 777 (1939).

Life tenant's duty to protect and preserve property. - Life tenant owes to remainderman duty of ordinary care to protect and preserve the property, and to commit no act tending to the permanent injury of the person entitled to the remainder interest. Butler Naval Stores Co. v. Glass, 187 Ga. 317 , 200 S.E. 286 (1938).

Life tenant is bound to make necessary repairs to maintain the property. Citizens & S. Nat'l Bank v. Martin, 246 Ga. 284 , 271 S.E.2d 192 (1980).

Relation of life tenant to remainderman quasi trusteeship. - Because of the duty to preserve and protect the estate in remainder, the relation of the life tenant to the remainderman has been held to be, to a certain extent, a fiduciary one, and termed an implied or quasi trusteeship. Crisp County Lumber Co. v. Bridges, 187 Ga. 484 , 200 S.E. 777 (1939).

Will construed to mean that life tenant's estate was charged with support to remainderman so long as the life tenant lived. Raines v. Shipley, 199 Ga. 316 , 34 S.E.2d 281 (1945).

Life tenant and remainderman not in privity. - While a life tenant owes to a remainderman the duty of ordinary care to protect and preserve the property, they are not in privity with each other, since they hold different estates in the same property, and the former is not a trustee for the latter. Lazenby v. Ware, 178 Ga. 463 , 173 S.E. 86 (1934).

Life tenant acts in the tenant's individual capacity and is liable for any tax on the sale of growing timber; the tenant is not liable in a fiduciary capacity under the Internal Revenue Code. West v. United States, 310 F. Supp. 1289 (N.D. Ga. 1970).

Owner of life estate may maintain ejectment against one who wrongfully holds possession of premises. Smallpiece v. Johnson, 210 Ga. 310 , 80 S.E.2d 296 (1954).

Ejectment will lie in favor of a tenant in common against a cotenant when the latter attempts to oust him or sets up an adverse possession to the realty so jointly owned. Smallpiece v. Johnson, 210 Ga. 310 , 80 S.E.2d 296 (1954).

No injunctive relief when failure to show interference with estate. - When the plaintiff had no more than a life estate in timber on the tract, and the plaintiff did not allege that in order to properly preserve and protect the property it was necessary to cut the timber, plaintiff's petition failed to show a right to cut the timber and failed to state a cause of action for injunctive relief against the defendant from interfering with the plaintiff's cutting of the timber or for damages therefore. McClure v. Chastain, 218 Ga. 510 , 128 S.E.2d 721 (1962).

Tenant may convey property when given absolute power of disposal. - When the language of a will creates a life estate, but clearly and unmistakably gives the life tenant an absolute power of disposal, the life tenant may convey the property devised by deed of sale or gift. Williams v. Bullock, 231 Ga. 179 , 200 S.E.2d 753 (1973).

2. Waste

Voluntary and permissive waste distinguished. - When a life tenant who, by the exercise of ordinary care, could keep the premises from falling into decay, and who has the ability to do so both from the rents and profits of the estate and otherwise, from some motive unfriendly to the remainderman willfully refuses to keep the premises in reasonable repair, such act is just as much voluntary and willful waste as any affirmative act which would tend to destroy the value of the improvements to the remaindermen. Of course, if the life tenant, from poverty or inability to keep the premises from falling into decay, allowed them to get in such a condition, such conduct would be merely permissive, and would not be voluntary. Grimm v. Grimm, 153 Ga. 655 , 113 S.E. 91 (1922).

In order for an action to constitute waste, it must appear that the act amounts to a willful injury to the freehold and does not come within the ordinary and legitimate use of the premises by the one holding the antecedent estate. Wright v. Conner, 200 Ga. 413 , 37 S.E.2d 353 (1946).

In determining what amounts to waste, regard must be had to the condition of the premises, and the inquiry should be, did good husbandry, considered with reference to the custom of the country, require the felling of the trees, and were the acts such as a judicious, prudent owner of the inheritance would have committed. Woodward v. Gates, 38 Ga. 205 (1868).

Tenant for life is entitled to the full use and enjoyment of the property, so that, in such use, the tenant exercises the ordinary care of a prudent man for the property's preservation and protection, and commits no acts tending to the permanent injury of the person entitled in remainder or reversion. In determining what amounts to waste, regard must be had to the condition of the premises, and the inquiry should be, did good husbandry, considered with reference to the custom of the country, require the felling of the trees, and were the acts such as a judicious, prudent owner of the inheritance would have committed. Graham v. Bryant, 211 Ga. 856 , 89 S.E.2d 640 (1955), commented on in 19 Ga. B.J. 362 (1957).

Life tenant liable for waste. - Statute does not distinctly declare that a tenant for life is liable for actual waste, or will be enjoined from committing threatened waste, but it has been held that such is the law. Dickinson v. Jones, 36 Ga. 97 (1867); Smith v. Smith, 105 Ga. 106 , 31 S.E. 135 (1898); Kollock v. Webb, 113 Ga. 762 , 39 S.E. 339 (1901); Belt v. Simkins, 113 Ga. 894 , 39 S.E. 430 (1901); Roby v. Newton, 121 Ga. 679 , 49 S.E. 694 , 68 L.R.A. 601 (1905). See also Gleaton v. Aultman, 150 Ga. 768 , 105 S.E. 445 (1920) (see O.C.G.A. § 44-6-83 ).

Tenant in dower is liable for waste committed. Brown v. Martin, 137 Ga. 338 , 73 S.E. 495 (1912).

Liability for actual damages imposed. - Liability both for permissive and voluntary waste is imposed upon the tenant for life, and all such tenants are liable to the reversioner or remainderman for actual damages resulting from waste of either character. Roby v. Newton, 121 Ga. 679 , 49 S.E. 694 , 68 L.R.A. 601 (1905).

Tenant may be restrained from committing future waste. - Tenant for life who holds the estate without impeachment for waste is not liable at law to a remainderman for waste committed, though the tenant may be restrained by a court of equity at the instance of a remainderman from committing further acts of waste in the future which are destructive of the inheritance, or are of a wanton and malicious nature. Belt v. Simkins, 113 Ga. 894 , 39 S.E. 430 (1901). See also Gleaton v. Aultman, 150 Ga. 768 , 105 S.E. 445 (1920).

Estate of life tenant is not impeachable by a destructive trespass of a stranger, which the life tenant neither licenses nor negligently suffers to be done. Kehr v. Floyd & Co., 132 Ga. 626 , 64 S.E. 673 (1909).

Clearing land was waste in England, but is not waste in Georgia, provided the land cleared still leaves the proportion of cleared land to uncleared land such as an ordinarily prudent person would maintain upon one's own property. Brogdon v. McMillan, 116 Ga. App. 34 , 156 S.E.2d 828 (1967).

Life tenant's control over growing timber is almost absolute and it is almost impossible to prove any waste by normal cutting. West v. United States, 310 F. Supp. 1289 (N.D. Ga. 1970).

Tenant empowered to cut and sell timber. - Irrespective of the powers of sale granted in the subject will, life tenants are empowered to cut and sell timber in order to preserve and protect the value of the land. Grant v. Bell, 246 Ga. 371 , 271 S.E.2d 467 (1980).

No waste from cutting timber unless willful injury. - Cutting and thinning of pine timber in accordance with good forestry practices is not waste, unless willful injury to the remainder is shown by acts not essential to the legitimate use of the life estate. Durrence v. Durrence, 239 Ga. 705 , 238 S.E.2d 377 (1977).

Waste question of fact for jury. - If a widow works land for turpentine purposes, which had not previously been so worked by the testator, it would be a question for the jury whether working the trees was such a permanent injury to the trees as was beyond the rights of the widow during the existence of her term. Lee & Bradshaw v. Rogers, 151 Ga. 838 , 108 S.E. 371 (1921).

While cutting timber and clearing land do not always constitute waste, such a question is generally for the jury. Wright v. Conner, 200 Ga. 413 , 37 S.E.2d 353 (1946).

Property can be used for same purposes as was used when life estate was created. Durrence v. Durrence, 239 Ga. 705 , 238 S.E.2d 377 (1977).

Working trees for turpentine. - Tenant holding under a devise of land "during widowhood" has the right to use the land and pine trees growing thereon, by hacking and otherwise working the trees for turpentine purposes, as against a person entitled in reversion, since prior to the testator's death the testator used the land and trees for such purposes, without being liable for waste. Lee & Bradshaw v. Rogers, 151 Ga. 838 , 108 S.E. 371 (1921).

Turpentining also authorized if only income tenant can derive. - If the defendant conveyed land to the defendant's granddaughter at a time when the land was woodland and not in cultivation, reserving to defendant a life estate, and the only income the life tenant could derive from the property was from turpentining the pines and from properly thinning the pine timber and selling that cut for pulpwood, the defendant was authorized to do so. Sutton v. Bennett, 215 Ga. 379 , 110 S.E.2d 650 (1959).

Tenant cannot sell timber to injury of freehold. - While a widow who has taken a homestead in the land of her deceased husband is entitled to a reasonable and proper use thereof and of the timber thereon for the benefit of herself and the other beneficiaries of the homestead, she cannot make a sale of the standing timber on the land, when it appears that the sale will injure the value of the freehold and is not essential to a legitimate use of the property for homestead purposes. Smith v. Smith, 105 Ga. 106 , 31 S.E. 135 (1898).

No right to sell timber when right reserved by grantor. - Clear purpose of the grantor in reserving the right to sell timber was to reserve to the grantor greater rights than those which inhere in a life tenant as to the timber on the lands from which such estate is carved, and to escape the perils of forfeiture of the grantor's life estate by a sale of the timber. Simpson v. Powell & Co., 158 Ga. 516 , 123 S.E. 741 (1924).

Life tenant may not sell all the timber on the land. As to partial cutting of timber, the fact situation must control. The question to be decided in each case is whether the value of the freehold will be injured. Brogdon v. McMillan, 116 Ga. App. 34 , 156 S.E.2d 828 (1967).

Tenant may not permit destruction by beetles. - In the context of a life tenant's duty to protect and preserve the estate for the remaindermen, permitting the destruction of timber by pine beetles could constitute waste. Aurelio v. Williams, 246 Ga. 428 , 271 S.E.2d 825 (1980).

Sale of timber permitted to preserve estates against act of God. - If timber is subject to hazards from an act of God, equity will permit and authorize a sale to protect and preserve the estates. Aurelio v. Williams, 246 Ga. 428 , 271 S.E.2d 825 (1980).

For a list of common-law wastes, see Dickinson v. Jones, 36 Ga. 97 (1867).

Insurance proceeds used to rebuild, or held for remainderman. - When a life tenant insures the property, and it is subsequently destroyed, the proceeds should be used in the rebuilding of the structure on the property, or be held for the benefit of the remainderman. Citizens & S. Nat'l Bank v. Martin, 246 Ga. 284 , 271 S.E.2d 192 (1980).

Interest on insurance proceeds held for remainderman. - When a lumber company purchases the interest of a life tenant and takes out storm insurance in the company's own name on a building on the premises, the owner of the life interest paying the premium with its individual funds, and upon the destruction of the building by storm collects the insurance, the proceeds of the insurance stand in the place of the property destroyed, and should be used in rebuilding the dwelling, or should be held by the owner of the life interest for the benefit of the remainderman upon the life tenant's death, in which case the owner of the life interest would be entitled to the interest on the fund during this period. Crisp County Lumber Co. v. Bridges, 187 Ga. 484 , 200 S.E. 777 (1939).

Continued possession after acts of waste cures defect. - Since a life tenant holds under a written muniment of title, even though the title might become subject to forfeiture on account of acts of waste, continued possession thereafter under such title for seven years would as a general rule cure any such defect in the life tenant's title, and constitutes what would be, in effect, the period of limitation. Wright v. Conner, 200 Ga. 413 , 37 S.E.2d 353 (1946).

Forfeiture not authorized. - Fact that the life tenant has sold and thus removed several million board feet of timber from the premises, and through neglect and failure to make any repairs has permitted damage to structures on the premises, and through neglect has permitted cultivated land to lay out and grow up in pine trees, so that it can no longer be cultivated, does not reasonably indicate such a wanton disregard of the rights of the remaindermen so as to authorize forfeiture of the life estate. Wright v. Conner, 200 Ga. 413 , 37 S.E.2d 353 (1946).

Failure of a life tenant to pay ad valorem taxes as required by a warranty deed and to exercise ordinary care for the preservation of the property resulted in the forfeiture of a life estate as a matter of law. McIntyre v. Scarbrough, 266 Ga. 824 , 471 S.E.2d 199 (1996).

3. Taxes and Expenses

Holder of a life estate is responsible for ad valorem taxes. Henderson v. Tax Assessors, 156 Ga. App. 590 , 275 S.E.2d 78 (1980).

Tenant is chargeable with taxes which accrued while tenant lived and was entitled to income from the property. McCook v. Harp, 81 Ga. 229 , 7 S.E. 174 (1888).

Failure to pay burdens imposed by law would tend to divest title. - Neglect to pay the burdens imposed by law upon the property during the term would be a want of such ordinary care as a prudent person should exercise for the person's protection and preservation, and would tend to divest the title to the fee by exposing it, or a portion of it, to sale, to raise the taxes levied on it. The life tenant has not the right to expect the remainderman to pay part of taxes. Austell v. Swann, 74 Ga. 278 (1884).

Tenant not liable for taxes if exempted by devisor. - While the will may create a life estate in the widow and unmarried children of the testator, the use of the words, "his wife and unmarried children be permitted to occupy the same, free of rent or other charges, during her widowhood; at the death or marriage of his wife," etc., shows that the testator intended to create a quasi tenancy at sufferance or will, and she is not liable for the taxes. Griffin v. Fleming, 72 Ga. 697 (1884).

When estate ends during tax year, owner required to pay only proportion of tax. - When a life estate, consisting of city property from which there could be no emblements, ends during the year for which an annual tax is assessed, the owner of the life estate, or the owner's personal representative, is required to pay that proportion of the tax as the part of the year elapsed up to the ending of the life estate bears to the whole of such tax year. Campbell v. Barnard, 74 Ga. App. 272 , 39 S.E.2d 420 (1946).

Burial or last-illness expenses not necessarily chargeable against estate. - Burial expenses of a life tenant or the expenses of the tenant's last illness are not, as a matter of law, chargeable against the life estate; if the life tenancy is created by will, such expenses are not chargeable against the corpus when the will does not expressly or by clear implication so provide. Reece v. McCrary, 51 Ga. App. 746 , 181 S.E. 697 (1935).

Rights and Duties of Remainderman

Remainderman can only require that "corpus" of property be kept in preservation. - In a life estate the tenant is entitled to have the possession of the property for the tenant's own enjoyment, and all that the remainderman can require is that the "corpus" of the property shall be kept in preservation, to be delivered to the remainderman on the termination of the life estate. Thomas v. Owens, 131 Ga. 248 , 62 S.E. 218 (1908); Campbell v. Barnard, 74 Ga. App. 272 , 39 S.E.2d 420 (1946).

Remaindermen have no right to recover the premises until the expiration of the life estate. McCook v. Harp, 81 Ga. 229 , 7 S.E. 174 (1888); Fleming & Co. v. Ray, 86 Ga. 533 , 12 S.E. 944 (1891).

When waste committed, remainderman can sue in tort or maintain forfeiture action. - When waste has been committed by a life tenant, the person entitled to the remainder estate has the right to elect either to sue in tort for damages, or to maintain an action to forfeit the life estate, and under this latter election the suit does not sound in tort, but partakes of the nature of an action for title to land. Wright v. Conner, 200 Ga. 413 , 37 S.E.2d 353 (1946).

Contingent remainderman cannot sue for forfeiture. - While remaindermen, whether the remainder is vested or contingent, may enjoin for waste, the holder of a contingent remainder may not sue for forfeiture of the life estate since the remainder interest of a remainderman holding a contingent interest is uncertain and it cannot be foretold whether the remaindermen will ever be entitled to take at all. Wright v. Conner, 200 Ga. 413 , 37 S.E.2d 353 (1946).

When life tenant causes permanent injury, remainderman may sue immediately for damages. - When the owner of a life tenancy in real estate commits a waste by selling the timber thereon and causing the timber to be removed, to the permanent injury of the estate, such conduct amounts to a tort for which the remainderman may sue immediately to recover damages. In such a case, the life tenant does not hold the proceeds under an implied or resulting trust in favor of the remainderman, but is liable as a tortfeasor. Lazenby v. Ware, 178 Ga. 463 , 173 S.E. 86 (1934); West v. United States, 310 F. Supp. 1289 (N.D. Ga. 1970).

No action against tenant for life without impeachment. - No matter what may be the character of the waste committed, no one interested in the property has a right to call a tenant for life without impeachment into a court of law on account of the tenant's conduct. Lee & Bradshaw v. Rogers, 151 Ga. 838 , 108 S.E. 371 (1921).

No specific period of limitation set up for forfeiture action. - Phrase "For the want of such care . . . [or] the willful commission of such acts, . . . [he shall elect] to claim immediate possession" does not operate to set up a specific period of limitation amounting to immediate action since the language has manifest reference to the right of remaindermen to claim immediate possession rather than await the expiration of the antecedent estate. Wright v. Conner, 200 Ga. 413 , 37 S.E.2d 353 (1946).

Life tenant necessary party in forfeiture suit. - In a suit by the remaindermen to forfeit the estate of the life tenant for waste, the life tenant is a necessary party. Kehr v. Floyd & Co., 132 Ga. 626 , 64 S.E. 673 (1909).

Venue lies in county in which land located. - An action by a remainderman against a life tenant to have the estate of the latter declared forfeited and the remainderman put in possession because of waste committed by the tenant is a suit "respecting titles to land," and the venue thereof is the county in which the land involved is located. Brown v. Martin, 137 Ga. 338 , 73 S.E. 495 (1912).

In forfeiture action, plaintiff must show that corpus unnecessarily wasted. - In an action for the forfeiture of a life estate, based in part on allegations of acts of voluntary waste consisting of cutting and selling timber, it is incumbent on the plaintiff to show not only that such encroachment has been made on the corpus of the estate, but also that it was not necessary to make the life tenant comfortable. Wright v. Conner, 200 Ga. 413 , 37 S.E.2d 353 (1946).

Remainderman not estopped from bringing subsequent damage action following forfeiture action. - An action by the remaindermen against the life tenant for the forfeiture of a life estate because of waste was not inconsistent with a subsequent action by the remaindermen against the life tenant for damages based on the same facts so as to estop the remaindermen from bringing a subsequent action. Conner v. Bowdoin, 80 Ga. App. 807 , 57 S.E.2d 344 (1950).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, § 113. 51 Am. Jur. 2d, Life Tenants and Remaindermen, §§ 3, 4, 28, 29, 32, 33, 157 et seq., 175 et seq.

16B Am. Jur. Pleading and Practice Forms, Life Tenants and Remaindermen, § 6.

C.J.S. - 31 C.J.S., Estates, §§ 40, 41, 44 et seq., 53 et seq., 73, 78, 80, 161, 163, 173 et seq. 96 C.J.S., Wills, § 1287 et seq.

ALR. - Rights and duties of life tenant with power to anticipate or enjoy principal, 2 A.L.R. 1243 ; 27 A.L.R. 1381 ; 69 A.L.R. 825 ; 114 A.L.R. 946 .

Conveyance by life tenant and remaindermen in esse as cutting off interest of unborn persons under devise for life with remainder to a class, 25 A.L.R. 770 .

Right of one who furnishes support to another entitled to life support from property, as against such property or the owner of present or future estates therein, 31 A.L.R. 658 .

Rights of life tenant and remainderman inter se as to oil and gas, 43 A.L.R. 811 .

Right of estate of life beneficiary to income under a trust which confides to discretion of trustee the part of the income principal to be paid to him, 61 A.L.R. 677 .

Life tenant's liability for waste as affected by assignment or transfer of his interest, 71 A.L.R. 1187 .

Sale or exchange of property which is subject to life estate and remainder, where it is unproductive, or income is insufficient to pay taxes and upkeep, 76 A.L.R. 540 .

Right as between life tenant and remainderman in respect of property, estates, or securities of a wasting, consumable, or perishable nature, 77 A.L.R. 753 ; 170 A.L.R. 133 .

Right to mechanics' lien against fee for work or material furnished under contract with, or consent of, life tenant, 97 A.L.R. 870 .

Requiring security from life tenant for protection of remainderman, 101 A.L.R. 271 ; 138 A.L.R. 440 .

Duty of life tenant in respect of repairs as affected by amount of income, 101 A.L.R. 681 .

Adverse possession as against remainderman during life estate as affected by fact that conveyance by life tenant purported to cover fee, 112 A.L.R. 1042 .

Propriety during life estate on unproductive property of authorizing mortgage binding upon remaindermen to raise fund to taxes, repairs, or other charges against property, and powers of trustees in that respect, 116 A.L.R. 1420 .

Rights of life tenant (legal or equitable) and remaindermen in respect of amount paid by lessee in consideration of release, 121 A.L.R. 900 .

Duty of life tenant or life beneficiary to pay taxes, and resulting rights and liabilities, 126 A.L.R. 862 .

Rights and duties of life tenant and remainderman (income and corpus) with respect to repairs and improvements, 128 A.L.R. 199 ; 175 A.L.R. 1434 .

Relative rights of tenant for years or life and remainderman as to return on bonds or other obligations for the payment of money bought at a premium or discount, 131 A.L.R. 1426 .

Life tenant in possession as implied or quasi trustee, 137 A.L.R. 1054 .

Right of estate of life beneficiary to income of trust for distribution, but not actually distributed, by trustee at time of life beneficiary's death, 141 A.L.R. 1466 .

Right of life tenant under a grant or reservation of a life interest in oil and gas (as distinguished from the land) in res of oil and gas developed after the commencement of his interest, 150 A.L.R. 695 .

Uniform Principal and Income Act as applicable to estates under administration, 166 A.L.R. 428 .

Invasion of principal in behalf of income beneficiary, absent or contrary to provision of trust instrument in that regard, 1 A.L.R.2d 1328.

Propriety of payment of funeral expenses of life beneficiary or life tenant out of corpus or estate under instrument providing for invasion of corpus or estate for support of such person, 18 A.L.R.2d 1236.

Right as between life beneficiaries and remaindermen, or successive life beneficiaries, in corporate dividends or distributions, 44 A.L.R.2d 1277.

Life tenant's right of action for injury or damage to property, 49 A.L.R.2d 1117.

Timber rights of life tenant, 51 A.L.R.2d 1374.

Nature of remainder created by inter vivos trust giving settlor, trustee, or life beneficiary power to exhaust trust fund or otherwise terminate trust, 61 A.L.R.2d 477.

Measure of damages in landlord's action for waste against tenant, 82 A.L.R.2d 1106.

Forfeiture of life estate for waste, 16 A.L.R.3d 1344.

Implication of right of life tenant to entrench upon or dispose of corpus from language contemplating possible diminution or elimination of gift over, 31 A.L.R.3d 6.

What constitutes reasonably necessary use of the surface of the leasehold by a mineral owner, lessee, or driller under an oil and gas lease or drilling contract, 53 A.L.R.3d 16.

Right of contingent remainderman to maintain action for damages for waste, 56 A.L.R.3d 677.

Duty as between life tenant and remainderman with respect to cost of improvements or repairs made under compulsion of governmental authority, 43 A.L.R.4th 1012.

44-6-84. Ownership of increase of property.

The natural increase of the property shall belong to the tenant for life. Any extraordinary accumulation of the corpus, such as an issue of new stock upon the share of a corporation, shall attach to the corpus and go with it to the remainderman.

(Orig. Code 1863, § 2236; Code 1868, § 2230; Code 1873, § 2256; Code 1882, § 2256; Civil Code 1895, § 3091; Civil Code 1910, § 3667; Code 1933, § 85-605.)

Law reviews. - For note, "Determining Principal and Income Allocation in Georgia Trusts," see 8 Ga. St. B.J. 564 (1972).

JUDICIAL DECISIONS

Section taken from Massachusetts rule. - When this statute was codified, in view of the older English cases and of such decisions as had then been made in America, one line of authority had to be selected as containing the correct rule. The codifiers in substance selected the Massachusetts rule. McHenry v. McHenry, 152 Ga. 105 , 108 S.E. 522 (1921) (see O.C.G.A. § 44-6-84 ).

Specific devise of lands carries with it to devisee income, profit, or increase of legacy, from the date of the testator's death. Cheshire v. Keaton, 184 Ga. 29 , 190 S.E. 579 (1937).

Extraordinary accumulation, including enhancement in value, goes to the remainderman. National Audubon Soc'y, Inc. v. Marshall, 424 F.2d 717 (5th Cir. 1970).

"Natural increase" and "extraordinary accumulation" construed. - Words "natural increase" are used in antithesis to the subsequent words "extraordinary accumulation," and the words mean the ordinary accumulation of the property; that is, in case of stock, the ordinary increase of the stock's value by larger dividends declared, whereby it may be worth much more in the income of the holder from it, goes to the life tenant, but any extraordinary increase or accumulated outside property will go to the remaindermen. Millen v. Guerrard, 67 Ga. 284 , 44 Am. St. R. 720 (1881).

Natural increase of stock includes dividends. - Dividends, whether in cash, or bonds, or certificates of indebtedness, are the natural increase of stock, and not an accumulation of the corpus, nor is this affected by the fact that no dividends are declared on the stock for some time, and when dividends are declared the amount is unusually large. Therefore, such dividends belong to the life tenant, and not to the remaindermen. Millen v. Guerrard, 67 Ga. 284 , 44 Am. St. R. 720 (1881).

As applied to corporate stock, "the natural increase" means dividends. Clearly it cannot mean the appreciation in the value of the corpus of the property. Jackson v. Maddox, 136 Ga. 31 , 70 S.E. 865 , 1912B Ann. Cas. 1216 (1911).

Extraordinary accumulation includes issue of new stock. - Words, "such as issue of new stock upon the share of an incorporated or joint stock company" are a mere illustration of extraordinary accumulations. Millen v. Guerrard, 67 Ga. 284 , 44 Am. St. R. 720 (1881).

If the issue of new stock is not an ordinary increase, it is not a natural increase. Millen v. Guerrard, 67 Ga. 284 , 44 Am. St. R. 720 (1881); Jackson v. Maddox, 136 Ga. 31 , 70 S.E. 865 , 1912B Ann. Cas. 1216 (1911).

What is meant by an extraordinary accumulation of the corpus is illustrated by the words "such as an issue of new stock upon the shares of an incorporated or joint stock company." Thus, the codifiers distinctly selected the rule that the issue of new stock upon shares of a corporation constituted an extraordinary accumulation, and stated such an issue as being a typical case to illustrate the meaning of the words, "extraordinary accumulation," as used by the codifiers. Jackson v. Maddox, 136 Ga. 31 , 70 S.E. 865 , 1912B Ann. Cas. 1216 (1911).

Stock dividends. - When this rule obtains, regardless of the time the profits out of which they are made accumulate or were earned, all stock dividends are to be considered as capital belonging to the remainderman, and all cash dividends are to be regarded as income belonging to the holder of the life term. Armstrong v. Merts, 202 Ga. 483 , 43 S.E.2d 512 (1947).

Enhancement in value of sold and reinvested property. - When a testator devised and bequeathed to one for life "the use, income, and profits" of certain real and personal property, with remainder over to others, with power in the executors to sell and reinvest in "income producing property or securities," subject to the same uses, and the property devised was sold and reinvested in property which enhanced in value, such enhancement in value became a part of the corpus of the estate and inured to the benefit of the remaindermen, and could not be collected by and for the use of the life tenant. Wood v. Davis, 168 Ga. 504 , 148 S.E. 330 (1929).

Increase of animals. - Under this statute, the natural increase of animals belonged to the life tenant, without any condition that when a life tenant takes the increase of animals of animals, there is a corresponding obligation to keep up the stock to its original number. Leonard v. Owen, 93 Ga. 678 , 20 S.E. 65 (1894) (see O.C.G.A. § 44-6-84 ).

Executor cannot take natural increase. - Executor has no right to sell the natural increase of the cattle and hogs, but they belonged absolutely to the widow, and passed, at her death, to her representatives. Leonard v. Owen, 93 Ga. 678 , 20 S.E. 65 (1894).

Cited in White v. Rose, 73 F.2d 236 (5th Cir. 1934); Citizens & Southern Nat'l Bank v. Fleming, 181 Ga. 116 , 181 S.E. 768 (1935); First Nat'l Bank v. Allen, 86 F. Supp. 918 (M.D. Ga. 1949); Hirsch v. Hirsch, 216 Ga. 379 , 116 S.E.2d 611 (1960).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Life Tenants and Remaindermen, §§ 104-120, 162-170, 201-232.

C.J.S. - 18 C.J.S, Corporations, § 242 et seq. 31 C.J.S., Estates, §§ 41 et seq., 50 et seq., 161.

ALR. - Rights and duties of life tenant with power to anticipate or enjoy principal, 2 A.L.R. 1243 ; 27 A.L.R. 1381 ; 69 A.L.R. 825 ; 114 A.L.R. 946 .

Rights of life tenant and remainderman respectively as to discount at which securities are purchased, 48 A.L.R. 684 ; 101 A.L.R. 7 ; 131 A.L.R. 1426 .

Right of estate of life beneficiary to income under a trust which confides to discretion of trustee the part of the income principal to be paid to him, 61 A.L.R. 677 .

Duty of life tenant in respect of repairs as affected by amount of income, 101 A.L.R. 681 .

Rights and duties of life tenant and remainderman (income and corpus) with respect to repairs and improvements, 128 A.L.R. 199 ; 175 A.L.R. 1434 .

Right of estate of life beneficiary to income of trust for distribution, but not actually distributed, by trustee at time of life beneficiary's death, 141 A.L.R. 1466 .

Right of life tenant under a grant or reservation of a life interest in oil and gas (as distinguished from the land) in res of oil and gas developed after the commencement of his interest, 150 A.L.R. 695 .

Nontrust life estate expressly given for support and maintenance, as limited thereto, 26 A.L.R.2d 1207.

Right as between life beneficiaries and remaindermen, or successive life beneficiaries, in corporate dividends or distributions, 44 A.L.R.2d 1277.

Rights of life tenant and remaindermen inter se respecting increase, gains, and enhanced values of the estate, 76 A.L.R.2d 162.

44-6-85. When life tenant entitled to emblements.

If a life estate is terminated by the act of someone other than the tenant for life, the tenant and his legal representative shall be entitled to emblements, which are the profits of the crop sowed by him during life, whether the plants are annual or perennial.

(Orig. Code 1863, § 2237; Code 1868, § 2231; Code 1873, § 2257; Code 1882, § 2257; Civil Code 1895, § 3092; Civil Code 1910, § 3668; Code 1933, § 85-606.)

JUDICIAL DECISIONS

Section is merely declaratory of the common law. Story v. Butt, 2 Ga. App. 119 , 58 S.E. 388 (1907), later appeal, 5 Ga. App. 540 , 63 S.E. 658 (1909) (see O.C.G.A. § 44-6-85 ).

Life tenant entitled to emblements. - Upon the principle that one that sows in peace shall reap in peace, the tenant for life is always entitled to emblements, because it was not known when the tenant sowed that the life would end before the tenant reaped. Chappell v. Boud, 56 Ga. 578 (1876).

If the life estate is terminated, not by the act of the tenant, the tenant and the tenant's legal representatives shall be entitled to emblements, which are the profits of the crop sowed by the tenant during life, whether the plants are annual or perennial. Bristol Sav. Bank v. Nixon, 169 Ga. 282 , 150 S.E. 148 (1929).

Cited in Trust Co. v. Kenny, 188 Ga. 243 , 3 S.E.2d 553 (1939); Eslinger v. Keith, 218 Ga. App. 742 , 463 S.E.2d 501 (1995).

RESEARCH REFERENCES

Am. Jur. 2d. - 21 Am. Jur. 2d, Crops, §§ 20, 22, 23, 25.

C.J.S. - 31 C.J.S., Estates, §§ 40, 48, 49.

ALR. - Duty as to chattels or harvested crops left on land by predecessor in possession, 27 A.L.R. 68 .

Rights and duties of life tenant and remainderman (income and corpus) with respect to repairs and improvements, 175 A.L.R. 1434 .

Rights in growing, unmatured annual crops as between personal representatives of decedent's estate and heirs or devisees, 92 A.L.R.2d 1373.

Rights in respect of crops as between estate of life tenant and remainderman, 47 A.L.R.3d 784.

44-6-86. Rights of lessee upon termination of life estate.

If the tenant for life rents the land by the year and the life estate is terminated during the year by his death or otherwise, the lessee, upon complying with his contract with the tenant for life, shall be entitled to the land for the balance of the year.

(Orig. Code 1863, § 2238; Code 1868, § 2232; Code 1873, § 2258; Code 1882, § 2258; Civil Code 1895, § 3093; Civil Code 1910, § 3669; Code 1933, § 85-607.)

JUDICIAL DECISIONS

Statute is adaptation of British statute. - This statute is not of common-law origin, but is manifestly an adaptation, made by the compilers of the Code, of 14 and 15 Vict., ch. 25. Story v. Butt, 2 Ga. App. 119 , 58 S.E. 388 (1907) (see O.C.G.A. § 44-6-86 ).

Life tenant may lease estate for reasonable duration. - One who by will is made the devisee of a life estate in the lands of the testator and given full power of disposition to the end that an income may be derived for the support of oneself and children may lawfully execute a lease of reasonable duration upon the lands of the estate, and such a lease will not expire upon one's death, even though it occurs before the last year of the lease. Hines v. McCombs, 2 Ga. App. 675 , 58 S.E. 1124 (1907).

Contract binding to end of year in which tenant dies. - Power is conferred upon the tenant for life to represent the whole estate to the extent of making a rent contract binding to the end of the year in which the death of such tenant for life may occur. Story v. Butt, 2 Ga. App. 119 , 58 S.E. 388 (1907).

Undertenant obligated to comply with contract. - Correlative duty of the undertenant is to comply with one's contract with the life tenant, and if the undertenant does so, the undertenant is not accountable to the remainderman for any portion of the year's rent, though the life tenant dies before the crops are sown. Story v. Butt, 2 Ga. App. 119 , 58 S.E. 388 (1907).

If undertenant pays rent to life tenant, payment is good against claim of remainderman. - If the life tenant takes a negotiable promissory note for the year's rent and transfers the note for value to a third person, this is legally equivalent to payment, so far as the rights between the undertenant and the remainderman are concerned. Story v. Butt, 2 Ga. App. 119 , 58 S.E. 388 (1907).

Transferee of undertenant's negotiable promissory note may collect full amount of rent. - When a life tenant rents land for the year, taking for the rent a negotiable promissory note, and transfers the note for value to a third person, and dies during the year, and none of the rent has accrued to the life tenant and none has been collected by the life tenant, the transferee of the rent note would ordinarily have the right to collect the full amount of the rent note from the undertenant. Mitchell v. Rutherford, 9 Ga. App. 722 , 72 S.E. 302 (1911).

If life tenant dies without collecting rent, undertenant accountable to remainderman for rent. - If the life tenant rents out the land for the year and dies without collecting the rent, and without doing anything to which the law would give the effect of a collection of the rent, the undertenant is entitled to possess the premises to the end of the year, but the undertenant is accountable to the remainderman for such a proportion of the rent agreed to be paid as the period between the death of the life tenant and the end of the year bears to the whole year. Butt v. Story, 5 Ga. App. 540 , 63 S.E. 658 (1909).

Nonnegotiable note not equivalent to collection of rent. - Taking of a nonnegotiable note by the life tenant, though it is assigned, is not equivalent to a collection of the rent. Butt v. Story, 5 Ga. App. 540 , 63 S.E. 658 (1909).

Cited in Bristol Sav. Bank v. Nixon, 169 Ga. 282 , 150 S.E. 148 (1929); Trust Co. v. Kenny, 188 Ga. 243 , 3 S.E.2d 553 (1939).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Life Tenants and Remaindermen, §§ 65, 109 et seq.

C.J.S. - 31 C.J.S., Estates, §§ 48 et seq., 67. 51C C.J.S., Landlord and Tenant, §§ 93, 253.

ALR. - Death of life tenant as affecting rights under lease executed by him, 6 A.L.R. 1506 ; 171 A.L.R. 489 .

Life tenant's death as affecting rights under lease given by him, 14 A.L.R.4th 1054.

44-6-87. Effect of purported sale of estate by life tenant.

No forfeiture shall result when a tenant for life purports to sell the entire estate in lands. In such a case, the purchaser shall acquire only the interest of the life tenant.

(Orig. Code 1863, § 2242; Code 1868, § 2234; Code 1873, § 2260; Code 1882, § 2260; Civil Code 1895, § 3095; Civil Code 1910, § 3671; Code 1933, § 85-609.)

Law reviews. - For comment on Eller v. Wages, 220 Ga. 58 , 136 S.E.2d 730 (1964), see 1 Ga. St. B.J. 557 (1965).

JUDICIAL DECISIONS

Statute is but a legislative declaration of what was already the law. It is true that at common law a life tenant might, by feoffment, fine, or common recovery, forfeit the life tenant's estate to the tenant in remainder, but a conveyance by lease and release, or bargain and sale, the principal mode of conveyance in America, does not work a forfeiture. Doe v. Roe, 36 Ga. 199 (1867).

Trustee for life tenant cannot sell greater interest than life estate. - Trustee for a life tenant named in the will could not, even under a court order, sell and convey any greater interest in the property which passed under such a devise than the estate of the life tenant therein. Fleming v. Hughes, 99 Ga. 444 , 27 S.E. 791 (1896).

If the life tenant conveys greater estate than that possessed, it would not work a forfeiture as at common law. Sanford v. Sanford, 55 Ga. 527 (1875).

An attempt to convey a greater estate than that possessed does not work a forfeiture of the life estate as there can be no entry and ouster against grantee until death of life tenant. Howard v. Henderson, 142 Ga. 1 , 82 S.E. 292 (1914).

Superior title not passed to purchaser. - When an original owner executed a voluntary deed to a life tenant and remainderman, and the life tenant executed a deed in fee simple to a bona fide purchaser without notice, this statute would not pass a superior title or create a superior equity in favor of such a purchaser from the life tenant. Mathis v. Solomon, 188 Ga. 311 , 4 S.E.2d 24 (1939) (see O.C.G.A. § 44-6-87 ).

Purchaser acquires only life estate. - Deed of L, which purports to convey a fee simple estate to the petitioner, passes only the title which L had under the terms of the will. A purchaser of the entire estate from the life tenant acquires only the interest of the life tenant. Satterfield v. Tate, 132 Ga. 256 , 64 S.E. 60 (1909).

If the agreement between the grantor and a first grantee is treated as creating or leaving in the grantor a life estate, the grantor's second deed might have conveyed that only, although it may have purported to be a conveyance of the fee. Burtchael v. Byrd, 143 Ga. 31 , 84 S.E. 55 (1915).

Should the holder of a life estate undertake to convey the entire estate in lands, no forfeiture would result; one would simply convey one's estate for life. McDaniel v. Bagby, 204 Ga. 750 , 51 S.E.2d 805 (1949).

Life estate passes upon general tax execution. - When property is sold for taxes as the property of a tenant for life, no more than the interest of the tenant for life passes, unless the sale is for the taxes on that specific property only. This is so when the sale is by virtue alone of the tax execution. Clower v. Fleming, 81 Ga. 247 , 7 S.E. 278 (1888).

When a general tax execution against a life tenant is levied upon land in which the tenant has a life estate, the life estate only, and not the fee, is the property under the levy. Dooley v. Bohannon, 191 Ga. 7 , 11 S.E.2d 188 (1940).

Remaindermen cannot enter until life tenant's death. - Tenant for life did not forfeit the tenant's estate in the land by selling and conveying the whole fee. The remainders were not affected, and the remaindermen could not enter upon the purchaser until the death of the tenant for life. Sanford v. Sanford, 55 Ga. 527 (1875).

Remainderman has no right of possession until life tenant's death. - Heirs having consented to and acquiesced in the entry and occupation by the widow, raising no question as to the mode of legality of the assigning and laying off her dower, had no right to possession until after her death, inasmuch as, under this statute, no forfeiture resulted by reason of her conveying the fee to another. Wells v. Dillard, 93 Ga. 682 , 20 S.E. 263 (1894) (see O.C.G.A. § 44-6-87 ).

No right of action accrues to remainderman. - Sale by the trustee and consent by the life tenant was not such an act by the tenant for life as, at common law, amounted to a forfeiture, and it was error in the court to hold that, on the making of such a deed, a right of action, based on the forfeiture, accrued to the remainderman, and that the statute of limitations commenced to run. Bazemore v. Davis, 48 Ga. 339 (1873).

Remainderman had no cause of action against any purchaser until the remainderman acquired a right of entry and possession by the death of the life tenant. Biggers v. Gladin, 204 Ga. 481 , 50 S.E.2d 585 (1948).

Remainderman cannot interfere with sheriff's sale. - When the sheriff, in attempting to sell the life estate of M under execution, is selling the fee, the remainderman cannot interfere, because the life tenant makes no forfeiture under this statute, and the purchaser buys no more than a life estate. Stone v. Franklin, 89 Ga. 195 , 15 S.E. 47 (1892) (see O.C.G.A. § 44-6-87 ).

Cited in Latham v. Fowler, 192 Ga. 686 , 16 S.E.2d 591 (1941); Mid-State Homes, Inc. v. Johnson, 218 Ga. 397 , 128 S.E.2d 197 (1962).

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, § 111. 51 Am. Jur. 2d, Life Tenants and Remainderman, § 84.

C.J.S. - 26A C.J.S., Deeds, § 257. 31 C.J.S., Estates, §§ 64 et seq., 164.

44-6-88. Demand for bond by purchaser of life estate in personalty; effect of failure to give bond.

Upon the demand of anyone interested in the remainder or his agent or attorney, which demand shall be accompanied by a statement under oath of his interest, it shall be the duty of the officer making the sale of a life estate in personalty under process of law to require the purchaser to give bond in double the value of the property, with good security, for the delivery of the property to the remainderman. The bond shall be filed in the office of the clerk of the superior court of the county in which the sale is made and shall be subject to an action on the bond by any person who is interested in the remainder. On the failure of the purchaser to give such bond, the property shall be resold at his risk, provided that notice of the demand for such bond was given before he made the purchase.

(Laws 1830, Cobb's 1851 Digest, p. 513; Code 1863, § 2244; Code 1868, § 2236; Code 1873, § 2262; Code 1882, § 2262; Civil Code 1895, § 3097; Civil Code 1910, § 3673; Code 1933, § 85-1709; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

For a history of this Code section, see George v. Clary, 180 Ga. 279 , 178 S.E. 920 (1935).

RESEARCH REFERENCES

Am. Jur. 2d. - 12 Am. Jur. 2d, Bonds, § 6.

C.J.S. - 11 C.J.S., Bonds, § 53. 31 C.J.S., Estates, § 63 et seq.

44-6-89. Removal of personalty beyond state by life tenant; forfeiture; restraint.

The tenant for life in personalty shall not remove such personalty outside this state without the consent of the remainderman. If the tenant for life fraudulently attempts to remove the personalty, he shall forfeit his interest therein; if he attempts to do so without fraud, the remainderman or reversioner shall be entitled to the writ of ne exeat to restrain him.

(Laws 1830, Cobb's 1851 Digest, p. 527; Code 1863, § 2243; Code 1868, § 2235; Code 1873, § 2261; Code 1882, § 2261; Civil Code 1895, § 3096; Civil Code 1910, § 3672; Code 1933, § 85-1708.)

JUDICIAL DECISIONS

Section strictly construed. - This statute is for the protection of the rights of remaindermen and reversioners in personal property and should be strictly construed, and the statute's provisions fully complied with. Wallace v. Duncan, 13 Ga. 41 (1853) (see O.C.G.A. § 44-6-89 ).

Bond lies for delivery of property when removed from state. - When a life tenant and the tenant's purchaser removed slaves from the state, a bill will lie to make them give bond for the delivery of the property with increase to the remaindermen. Riddle v. Kellum, 8 Ga. 374 (1850).

Ne exeat will be dissolved when there is other relief more appropriate to the case. Hawthorn v. Kelly, 30 Ga. 965 (1860).

RESEARCH REFERENCES

Am. Jur. 2d. - 57 Am. Jur. 2d, Ne Exeat, §§ 6, 7.

C.J.S. - 31 C.J.S., Estates, § 73.

ALR. - Relative rights of life beneficiary and remainderman as to return on bonds or other obligations for the payment of money, bought at a premium or at a discount, 101 A.L.R. 7 ; 131 A.L.R. 1426 .

Right of life tenant under a grant or reservation of a life interest in oil and gas (as distinguished from the land) in res of oil and gas developed after the commencement of his interest, 150 A.L.R. 695 .

Rights and duties of life tenant and remainderman (income and corpus) with respect to repairs and improvements, 175 A.L.R. 1434 .

44-6-90. Jurisdiction of judge of superior court as to life estates and contingent remainders.

  1. The judge of the superior court shall have jurisdiction to hear any case that:
    1. Involves a tenant for life in real property or the proceeds of real property;
    2. Involves a contingent remainder interest of a class subject to open through the subsequent event of a birth or an adoption; and
    3. Does not involve the creation of a perpetuity.
  2. In such cases, the judge may receive evidence on the likelihood of the expansion of the class of such remaindermen through the subsequent event of the birth or the adoption of another member of such class. The judge shall be authorized to make such findings of fact and law as to declare such class to be closed. Upon such findings, the judge shall require the life tenant to give bond in an amount sufficient to protect against any actual subsequent expansion of such class by the life tenant through birth or adoption. An order of the judge in such case shall contain a determination of the free marketability of any concerned property.
  3. An action on the bond provided for in subsection (b) of this Code section shall be the sole recourse of any person who is interested in the remainder. (Code 1981, § 44-6-90 , enacted by Ga. L. 1984, p. 792, § 1.)

ARTICLE 6 ESTATES FOR YEARS

Law reviews. - For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).

JUDICIAL DECISIONS

Cited in City of Jefferson v. Trustees of Martin Inst., 199 Ga. 71 , 33 S.E.2d 354 (1945); Warehouses, Inc. v. Wetherbee, 203 Ga. 483 , 46 S.E.2d 894 (1948); Southland Inv. Corp. v. McIntosh, 137 Ga. App. 216 , 223 S.E.2d 257 (1976).

OPINIONS OF THE ATTORNEY GENERAL

Department of Human Resources may not lease state property to private citizen. - Department of Human Resources has, at present, no general authority or power to lease (grant an estate for years) to a private citizen for one's private purposes real property owned by the state and within the custody and management of the department. 1974 Op. Att'y Gen. No. 74-40.

RESEARCH REFERENCES

ALR. - Validity of oil or gas lease as affected by surrender clause, 3 A.L.R. 378 .

Commission of waste as ground for forfeiture of lease, 3 A.L.R. 672 .

Lease of property as ademption or revocation of devise, 8 A.L.R. 1638 .

Construction of provision for free gas in oil and gas lease, 9 A.L.R. 89 .

Time for drilling additional wells in productive territory under oil and gas lease, 14 A.L.R. 967 .

What amounts to an option to renew or extend a lease, 26 A.L.R. 1413 .

Commencement of development within fixed term as extending term of oil and gas lease, 67 A.L.R. 526 .

Rights in respect of rents or royalties earned under an oil and gas lease or other grant of mineral rights in which owners of different tracts join as lessors, 116 A.L.R. 1267 .

Easements or privileges of tenant of part of building as to other parts not included in lease, 24 A.L.R.2d 123.

Sublessee's obligation to sublessor to perform latter's covenants in original lease, 24 A.L.R.2d 707.

Lease of realty for term of years as subject of chattel mortgage, 33 A.L.R.2d 1277.

Duty of lessee or assignee of oil or gas lease as regards marketing or delivery for marketing of oil and gas discovered, 71 A.L.R.2d 1219.

Liability of lessee who assigns lease for rent accruing subsequently to extension or renewal of term, 10 A.L.R.3d 818.

Landlord's duty, on tenant's failure to occupy, or abandonment of, premises, to mitigate damages by accepting or procuring another tenant, 21 A.L.R.3d 534.

Implied covenant or obligation to provide lessees with actual possession, 96 A.L.R.3d 1155.

Implied duty of oil and gas lessee to protect against drainage, 18 A.L.R.4th 14.

Remedy for breach of implied duty of oil and gas lessee to protect against drainage, 18 A.L.R.4th 147.

44-6-100. "Estate for years" defined; estate for years in lands passes as realty.

  1. An estate for years is one which is limited in its duration to a period which is fixed or which may be made fixed and certain. Such an estate may be for any number of years, provided the limitation is within the rule against perpetuities.
  2. An estate for years in lands passes as realty.

    (Orig. Code 1863, § 2255; Code 1868, § 2247; Code 1873, § 2273; Code 1882, § 2273; Civil Code 1895, § 3109; Civil Code 1910, § 3685; Code 1933, § 85-801.)

Law reviews. - For article analyzing legal aspects of time shared (multiple, revolving) ownership of property, see 12 Ga. St. B.J. 75 (1975). For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For article discussing ad valorem taxation and interest in real property in Georgia, prior to the enactment of provisions in the public revenue statute, T. 48, see 31 Mercer L. Rev. 293 (1979). For article, "The Rule Against Perpetuities as Applied to Georgia Wills and Trusts," see 16 Ga. L. Rev. 235 (1982). For article, "Usufructs and Estates for Years Distinguished," see 18 Ga. St. B.J. 116 (1982). For note discussing assignment and subletting, see 2 Mercer L. Rev. 412 (1951). For comment regarding distinction between estate for years and landlord-tenant relationship, in light of State v. Davison, 198 Ga. 27 , 31 S.E.2d 255 (1944), see 7 Ga. B.J. 233 (1944).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Cited in Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937); Aven v. Steiner Cancer Hosp., 189 Ga. 126 , 5 S.E.2d 356 (1939); Murphy v. Johnston, 190 Ga. 23 , 8 S.E.2d 23 (1940); Boykin v. Bradley, 192 Ga. 212 , 14 S.E.2d 734 (1941); Gilbert Hotel, Inc., No. 4 v. Jones, 157 F.2d 717 (5th Cir. 1946); Evans Theatre Corp. v. De Give Inv. Co., 79 Ga. App. 62 , 52 S.E.2d 655 (1949); Superior Pine Prods. Co. v. Williams, 214 Ga. 485 , 106 S.E.2d 6 (1958); Union Camp Corp. v. Dyal, 460 F.2d 678 (5th Cir. 1972); Smith v. Top Dollar Stores, Inc., 129 Ga. App. 60 , 198 S.E.2d 690 (1973); Tenstate Distribution Co. v. Averett, 397 F. Supp. 1227 (N.D. Ga. 1975); LeBlanc v. Easterwood, 242 Ga. 99 , 249 S.E.2d 567 (1978); Killingsworth v. French & Whitten Realtors, 148 Ga. App. 29 , 251 S.E.2d 40 (1978); Clayton County Bd. of Tax Assessors v. City of Atlanta, 164 Ga. App. 864 , 298 S.E.2d 544 (1982); Eastern Air Lines v. Joint City-County Bd. of Tax Assessors, 253 Ga. 18 , 315 S.E.2d 890 (1984).

Creation

Presumption that five-year lease conveys estate for years. - All leases for five years do not necessarily create an estate for years, but there is a presumption that a lease for five years does convey an estate for years. Ginsberg v. Wade, 95 Ga. App. 475 , 97 S.E.2d 915 (1957).

Agreement must be searched for parties' intention. - When the grant is for a period of over five years, the presumption arises that an estate for years is intended to be created. In each instance, the agreement involved must be carefully searched for the intention of the parties. Henderson v. Tax Assessors, 156 Ga. App. 590 , 275 S.E.2d 78 (1980).

Lease for a period of five years or more is an estate for years under the provisions of this statute. Ward v. McGuire, 213 Ga. 563 , 100 S.E.2d 276 (1957) (see O.C.G.A. § 44-6-100 ).

Characteristics

Estate for years in land passes as realty. Wright v. Central of Ga. Ry., 146 Ga. 406 , 91 S.E. 471 (1917), rev'd on other grounds, 248 U.S. 525, 39 S. Ct. 181 , 63 L. Ed. 401 ; 250 U.S. 519, 40 S. Ct. 1 , 63 L. Ed. 1123 (1919).

Plaintiff had a written lease from the owner of the premises in question for a term of five years. This created an estate in realty in the lessee as an estate for years which, if it be in lands, passed as realty in this state. Anderson v. Kokomo Rubber Co., 161 Ga. 842 , 132 S.E. 76 (1926).

Lease of lands for five years or more creates an estate for years and passes as realty in this state. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667 , 171 S.E. 171 (1933).

Estate for years may be bought and sold as any other estate. Clark v. Herring & Mock, 43 Ga. 226 (1871); James G. Wilson Mfg. Co. v. Chamberlin-Johnson-DuBose Co., 140 Ga. 593 , 79 S.E. 465 (1913).

Lease of land for five years or more which creates an estate for years may be bought and sold as any other estate, subject to the terms and conditions of the lease. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667 , 171 S.E. 171 (1933).

An estate for years may be the subject matter of a sale. Murrah v. First Nat'l Bank, 225 Ga. 613 , 170 S.E.2d 399 (1969).

Ordinarily, words "sale of property" signify that sale of fee simple title is contemplated, and not the sale of a limited estate in the property. Murrah v. First Nat'l Bank, 225 Ga. 613 , 170 S.E.2d 399 (1969).

Lease of estate for years same as sale of estate. - Sale of lands by a guardian for reinvestment may be made at public or private sale under the direction of the judge of the superior court, and the lease of an estate for years of lands is in effect the sale of an estate for years therein. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667 , 171 S.E. 171 (1933).

Holder of estate may maintain damage action against tenant wrongfully holding over. - When the owner of land conveys the land for such a term of years as to convey an estate for years in the land, the holder of the estate may, if entitled to possession under the conveyance, maintain an action for damages against a tenant for wrongful holding over and beyond the tenant's term. Baxley v. Davenport, 75 Ga. App. 659 , 44 S.E.2d 388 (1947).

Usufruct Distinguished

When lease term less than five years, presumption that usufruct created. - When the term of the lease is less than five years, a rebuttable presumption arises that only a usufruct is created by the instrument, but when the term of the lease is for more than five years, there is a presumption that an estate for years is created by the agreement of the parties. Camp v. Delta Air Lines, 232 Ga. 37 , 205 S.E.2d 194 (1974).

Contract not reduced to usufruct as result of certain limitations upon use. - Contract which ordinarily would be construed to create an estate for years is not reduced to a mere usufruct because certain limitations are put upon its use. The interest so passing may be encumbered or somewhat limited without necessarily changing the character of the estate. Camp v. Delta Air Lines, 232 Ga. 37 , 205 S.E.2d 194 (1974).

Usufruct not taxable estate. - Estate for years is a taxable estate, while a mere usufruct, sometimes referred to as a license to use, is not a taxable estate. Camp v. Delta Air Lines, 232 Ga. 37 , 205 S.E.2d 194 (1974).

Lessees given usufruct look to owner to place them lawfully in possession. - When the owner of lands does not convey the title or an estate therein but gives the lessees only the usufruct, the lessees may not maintain an action for damages or one to recover possession from a tenant of the owner who is alleged to be holding over and beyond the term for which one rented the premises, but the lessees must look to the owner to place them in possession of the premises, and may maintain an action for damages against one for a refusal or failure to do so. Baxley v. Davenport, 75 Ga. App. 659 , 44 S.E.2d 388 (1947).

Illustrative Cases

Estate for years in standing timber is realty. Newton v. Allen, 220 Ga. 681 , 141 S.E.2d 417 (1965).

Lease of lands for five years or more creates estate for years and passes as realty in this state. Such an estate may be bought and sold as any other estate, subject to the terms and conditions of the lease. Paces Partnership v. Grant, 212 Ga. App. 621 , 442 S.E.2d 826 (1994).

Estate for years held created. - Conveyance of a room for a stipulated sum to be kept as a first-class bar room is an estate for years in the property - a purchase of an interest in the estate for a limited period. Under this statute, it passes an estate as realty. Clark v. Herring & Mock, 43 Ga. 226 (1871) (see O.C.G.A. § 44-6-100 ).

When husband and wife rent a hotel together for a term of five years or more, an estate in realty is acquired, and the relation of tenants in common exists. Schofield v. Jones, 85 Ga. 816 , 11 S.E. 1032 (1890).

Contract in which the Board of Regents of the University System of Georgia leased a tract of land to a fraternity for a term of 99 years, for a rent of $1.00 per year, and which allowed the fraternity to erect a building on the premises, transfer, sell, or convey the property to another fraternity, and following which the fraternity executed a mortgage to secure a loan made by the mortgagee-regents and which was recorded, despite certain restrictions and covenants preventing the lessee from exercising absolute control over the property, granted the fraternity an estate for years, and not a mere leasehold; such an interest could be levied upon for the failure to pay taxes. State v. Davison, 198 Ga. 27 , 31 S.E.2d 225 (1944), commented on in 7 Ga. B.J. 233 (1944).

Lease which ran for 25 years and had a renewal provision for two additional ten year periods created an estate for more than 20 years made under seal. Brackett v. Cartwright, 231 Ga. App. 536 , 499 S.E.2d 905 (1998).

When most sections of a lease either granted rights to or imposed obligations upon the lessee consistent with the conveyance of an estate for years, or set forth restrictions designed to preserve a hotel on the property as a historic structure and protect the lessor's reversionary interest, and the remaining restrictions did not quantitatively or qualitatively outweigh the incidents of ownership vested in the lessee to convert the interest conveyed from the intended leasehold estate to a usufruct, it was proper to require the lessee to pay ad valorem taxes on its interest in the hotel. Jekyll Dev. Assocs., L.P. v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 273 , 523 S.E.2d 370 (1999).

Contract action between two non-debtor parties over rights pertaining to leasehold, an estate of years which passed as real property under O.C.G.A. § 44-6-100 and of which debtor was an interest holder, was not related to the debtor's bankruptcy so as to establish jurisdiction under 28 U.S.C. § 1334 because the lease was deemed rejected by the trustee under operation of law pursuant to 11 U.S.C. § 365 and was thus not a part of the bankruptcy estate under 11 U.S.C. § 541. Southeast LandCo, LLC v. 150 Beachview Holdings, LLC, F. Supp. 2d (S.D. Ga. Sept. 20, 2006).

Effect of performance on parol contract for rent of land. - When a tenant, after making a parol contract for the rent of land for three years, had sufficiently performed, the tenancy, though ordinarily void under the statute of frauds, could not be treated as a tenancy at will. Petty v. Kennon, 49 Ga. 468 (1873).

Estate for years not created. - No estate for years and no interest in land were created by agreement between property owner and oil company when the latter had no right to use the land and no interest was conveyed by simply promising to sell oil company's products and by allowing the company to make improvements on the land. Copelan v. Acree Oil Co., 249 Ga. 276 , 290 S.E.2d 94 (1982).

Carrying weapons on property leased by city. - If the city, a public entity, was the holder of a present estate under the lease, the leased premises was not private property within the meaning of O.C.G.A. § 16-11-127(c) , thus, the garden would have no right to exclude the carrying of firearms on the leased premises because the garden was not in legal control of private property through a lease; however, since the lease was not in the record on appeal the garden was not entitled to summary judgment. GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 306 Ga. 829 , 834 S.E.2d 27 (2019).

OPINIONS OF THE ATTORNEY GENERAL

Five-year lease presumed to convey estate for years. - Lease of land for five years or longer which does not by the lease's own terms purport an intention to convey a lesser interest will be presumed to convey an estate for years and as such passes as realty. 1969 Op. Att'y Gen. No. 69-352.

RESEARCH REFERENCES

Am. Jur. 2d. - 28 Am. Jur. 2d, Estates, § 146. 49 Am. Jur. 2d, Landlord and Tenant, §§ 60, 62. 61 Am. Jur. 2d, Perpetuities and Restraints on Alienation, § 37.

C.J.S. - 31 C.J.S., Estates, §§ 13, 67, 160. 51C C.J.S., Landlord and Tenant, §§ 2, 26 et seq., 202. 96 C.J.S., Wills, § 1298.

ALR. - Merger of estate for years in fee or lesser estate, 143 A.L.R. 93 .

Liability of lessee who assigns lease for rent accruing subsequently to extension or renewal of term, 10 A.L.R.3d 818.

44-6-101. Estate for years distinguished from contract of hiring and from landlord and tenant relationship.

As applied to personalty, an estate for years differs from a contract of hiring, which is a bailment conveying no interest in the property to the bailee but merely the right of use. As applied to realty, an estate for years does not involve the relationship of landlord and tenant, in which relationship the tenant has no estate but merely has a right of use which is very similar to the right of a hirer of personalty.

(Orig. Code 1863, § 2256; Code 1868, § 2248; Code 1873, § 2274; Code 1882, § 2274; Civil Code 1895, § 3110; Civil Code 1910, § 3686; Code 1933, § 85-802.)

Cross references. - Creation of landlord and tenant relationship generally, § 44-7-1 .

Law reviews. - For article analyzing legal aspects of time shared (multiple, revolving) ownership of property, see 12 Ga. St. B.J. 75 (1975). For comment regarding distinction between estate for years and landlord-tenant relationship, in light of State v. Davison, 198 Ga. 27 , 31 S.E.2d 225 (1944), see 7 Ga. B.J. 233 (1944). For comment discussing the legal effect of concurrent leases under both common law and statutory law in Georgia, see 6 Ga. St. B.J. 320 (1970).

JUDICIAL DECISIONS

"Lease" and "bailment" distinguished. - Both "lease" and "bailment" are indicative of a contractual relationship, and the terms are not necessarily mutually exclusive. A lease may refer to a contract involving realty or personalty, or both, whereas a bailment involves the custody of personalty. Buena Vista Loan & Sav. Bank v. Bickerstaff, 121 Ga. App. 470 , 174 S.E.2d 219 (1970).

Estate for years, when applied to realty, differs from the relation of landlord and tenant, in that in the latter the tenant has no estate, but a mere right of use very similar to the right of a hirer of personalty. Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723 , 49 S.E.2d 779 (1948).

Creation of estate for years not conclusively shown by five-year lease. - Although there may be a presumption that a lease for five years or more conveys an estate for years, this fact alone does not conclusively show that an estate for years was created in the lessee, and that the relation of landlord and tenant did not exist between the parties. Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723 , 49 S.E.2d 779 (1948).

Usufruct is lesser interest in real estate than is an estate for years, which does not involve the landlord-tenant relationship. Richmond County Bd. of Tax Assessors v. Richmond Bonded Whse. Corp., 173 Ga. App. 278 , 325 S.E.2d 891 (1985); Searcy v. Peach County Bd. of Tax Assessors, 180 Ga. App. 531 , 349 S.E.2d 515 (1986).

Holder of estate may maintain damage action against tenant wrongfully holding over. - When the owner of land conveys the land for such a term of years as to convey an estate for years, the holder of the estate may, if entitled to possession under the conveyance, maintain an action for damages against a tenant for wrongful holding over and beyond the tenant's term. Baxley v. Davenport, 75 Ga. App. 659 , 44 S.E.2d 388 (1947).

In landlord-tenant relationship, duty of making repairs and improvements upon landlord. - When the lease requires the conclusion that the relation between the parties thereto was that of landlord and tenant, the duty of making the structural changes and improvements in the leased premises, whether they be regarded as "repairs" or as "substantial improvements," is upon the landlord and not upon the tenant. Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723 , 49 S.E.2d 779 (1948).

Lessees look to owner to place the lessees lawfully in possession. - When the owner of lands does not convey the title or an estate therein but gives the lessees only the usufruct, the lessees may not maintain an action for damages or one to recover possession from a tenant of the owner who is alleged to be holding over and beyond the term for which the tenant rented the premises, but the lessees must look to the owner to place the lessees in possession of the premises, and may maintain an action for damages against the owner for a refusal or failure to do so. Baxley v. Davenport, 75 Ga. App. 659 , 44 S.E.2d 388 (1947).

Estate for years found created. - Contract in which the Board of Regents of the University System of Georgia leased a tract of land to a fraternity for a term of 99 years, for a rent of $1.00 per year, and which allowed the fraternity to erect a building on the premises, transfer, sell, or convey the property to another fraternity, and following which the fraternity executed a mortgage to secure a loan made by the mortgagee-regents and which was recorded, despite certain restrictions and covenants preventing the lessee from exercising absolute control over the property, granted the fraternity an estate for years, and not a mere leasehold; such an interest could be levied upon for the failure to pay taxes. State v. Davison, 198 Ga. 27 , 31 S.E.2d 225 (1944), commented on in 7 Ga. B.J. 233 (1944).

When most sections of a lease either granted rights to or imposed obligations upon the lessee consistent with the conveyance of an estate for years, or set forth restrictions designed to preserve a hotel on the property as a historic structure and protect the lessor's reversionary interest, and the remaining restrictions did not quantitatively or qualitatively outweigh the incidents of ownership vested in the lessee to convert the interest conveyed from the intended leasehold estate to a usufruct, it was proper to require the lessee to pay ad valorem taxes on its interest in the hotel. Jekyll Dev. Assocs., L.P. v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 273 , 523 S.E.2d 370 (1999).

Agreement held to create usufruct. - Agreement created a usufruct, rather than an estate for years, despite provision that "it is the intent of the parties to create a leasehold estate ... and not a mere usufruct" when the initial term was for seven months, but provided for automatic renewals for ten consecutive one-year periods, provided the program was funded by the General Assembly, and the lessor was responsible for all insurance, taxes, and upkeep of the premises, including maintenance and repairs. Huntingdon II, Ltd. v. Chatham County Bd. of Tax Assessors, 207 Ga. App. 466 , 428 S.E.2d 605 (1993).

Easement by necessity not created by usufruct granted to tenant. - Because the evidence presented at trial made it clear that a lessor conveyed no ownership interest to a tenant, leaving that tenant with only a right to possess and use the leased property, and more specifically, a usufruct, the tenant did not own an interest in the property, and thus could not pursue an easement by necessity under O.C.G.A. § 44-9-40 ; hence, summary judgment in the lessor's favor as to this issue was upheld on appeal. Read v. Ga. Power Co., 283 Ga. App. 451 , 641 S.E.2d 680 (2007).

Cited in Eastern Air Lines v. Joint City-County Bd. of Tax Assessors, 253 Ga. 18 , 315 S.E.2d 890 (1984); Thompson v. Crownover, 259 Ga. 126 , 381 S.E.2d 283 (1989).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 7, 8, 60 et seq.

C.J.S. - 8 C.J.S., Bailments, § 7. 51C C.J.S., Landlord and Tenant, §§ 2, 26.

ALR. - Assignment of lease as breach of covenant against subletting, 7 A.L.R. 249 ; 79 A.L.R. 1379 .

Duty to disclose to sublessee ownership of property, 37 A.L.R. 1455 .

Right of lessee to equitable relief against forfeiture for breach of conditions as affected by lessor's giving a lease to entering into other contractual obligations with a third person, 166 A.L.R. 807 .

Implied covenant or obligation to provide lessee with actual possession, 96 A.L.R.3d 1155.

44-6-102. "Lease" defined; extent of interest; when mining interest passes.

The grant by one person to another of an estate for years out of his own estate, with reversion to himself, is usually termed a lease. Such a lease may be confined to a particular interest in lands, such as the right to mine or farm the same, in which case no other interest shall pass. If no subject of the lease is stated, the right to mine the land in question shall not pass unless the circumstances justify the implication that the parties intended the mining interest to pass.

(Orig. Code 1863, § 2260; Code 1868, § 2252; Code 1873, § 2278; Code 1882, § 2278; Civil Code 1895, § 3114; Civil Code 1910, § 3690; Code 1933, § 85-806.)

Cross references. - Provision that owner of property owns upward and downward indefinitely, §§ 44-1-2 , 51-9-9 .

Obtaining of title to mineral rights through adverse possession, § 44-5-168 .

Landlord and tenant relationship generally, Ch. 7 of this title.

Law reviews. - For article analyzing legal aspects of time shared (multiple, revolving) ownership of property, see 12 Ga. St. B.J. 75 (1975). For comment discussing the legal effect of concurrent leases under both common law and statutory law in Georgia, see 6 Ga. St. B.J. 320 (1970).

JUDICIAL DECISIONS

"Lease" defined. - Under a "lease" one grants to another an estate for years out of one's own estate, reversion to oneself. Hooper, Hough & Force v. Dwinnell, 48 Ga. 442 (1873).

Lease proper is an estate for years. Harms v. Entelman, 21 Ga. App. 295 , 94 S.E. 276 (1917).

"Lessee" defined. - Technically, the word "lessee" denotes the holder of a contract for the possession and profits of lands and tenements for a fixed term, for life, or at will. Lang v. Hitt, 149 Ga. 667 , 101 S.E. 795 (1920).

"Subletting" is a leasing by lessee of a whole or a part of the premises during a portion of the unexpired balance of the lessee's term. Georgia Power Co. v. Fletcher, 113 Ga. App. 559 , 148 S.E.2d 915 (1966).

"Lease" and "bailment" compared. - Both lease and bailment indicate contractual relationship, and the terms are not necessarily mutually exclusive. A lease may refer to a contract involving realty or personalty, or both, whereas a bailment involves the custody of personalty. Buena Vista Loan & Sav. Bank v. Bickerstaff, 121 Ga. App. 470 , 174 S.E.2d 219 (1970).

Leasing conveys to lessee right to possess and enjoy estate. - Leasing, even for less than a year, conveys to the lessee the right to possess and enjoy the real estate, though it passes no estate out of the lessor. It gives to the lessee the usufruct for the specified term. Georgia Power Co. v. Fletcher, 113 Ga. App. 559 , 148 S.E.2d 915 (1966).

Extension of lease not waiver of right to damages for lessor's breach of contract. - When the lessor of timber rights breaches the agreement by allowing a third party to enter and cut timber, and thereafter acknowledges the breach and enters into negotiations with the lessee for the purpose of reaching a settlement as to the amount of damages sustained, an extension of the lease agreement thereafter made, not as a satisfaction of the damages, but as a matter of mutual agreement to allow additional time in which a settlement can be reached, does not constitute a waiver of the rights of the lessee thereafter to insist upon damages resulting from the breach of contract. Gamble v. Hogan, 88 Ga. App. 430 , 76 S.E.2d 658 (1953).

Lease of lands for five years or more creates an estate for years and passes as realty in this state. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667 , 171 S.E. 171 (1933).

Estate for years may be bought and sold. - Lease of land for five years or more which creates an estate for years may be bought and sold as any other estate, subject to the terms and conditions of the lease. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667 , 171 S.E. 171 (1933); Paces Partnership v. Grant, 212 Ga. App. 621 , 442 S.E.2d 826 (1994).

Lease of estate for years is in effect the sale of estate for years therein. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667 , 171 S.E. 171 (1933).

Contract granting party right to take clay from land for definite term constitutes lease. - Contract which grants to one of the parties thereto the use and occupation of the premises for a definite term with the right to take brick clay from certain land of the other party and manufacture the same into merchantable brick, for a valuable consideration moving from the other party thereto, during a specified term of years, is a lease. Palmer Brick Co. v. Woodward, 138 Ga. 289 , 75 S.E. 480 (1912).

Conveyance of room for stipulated sum is estate for years. - Conveyance of a room for a stipulated sum to be kept as a first-class bar room can hardly be called a lease, since it wants one of the marked ingredients of a lease, the agreement to pay rent. Clark v. Herring & Mock, 43 Ga. 226 (1871).

Under the crop adjustment program, the federal government acquires no right to possession, no usufruct. The government simply acquires the right to say to the farmer that the farmer shall use the farmer's lands in a fashion determined to promote soil building and soil conservation. The government neither "reaps nor sows." It does nothing in the way of taking over, or of taking possession. Whatever is done or to be done to the land must be done by the farmer personally. The farmer retains full possession. The farmer has the usufruct, but must use it for the betterment of the soil. Georgia Power Co. v. Fletcher, 113 Ga. App. 559 , 148 S.E.2d 915 (1966).

Minerals in place part of real estate. - While this statute refers to the grant of a mining interest in land as a "lease," the authorities uniformly hold that minerals in place are a part of the real estate with all the attributes and incidents peculiar to the ownership of land. Rockefeller v. First Nat'l Bank, 213 Ga. 493 , 100 S.E.2d 279 (1957) (see O.C.G.A. § 44-6-102 ).

Carrying weapons on property leased by city. - If the city, a public entity, was the holder of a present estate under the lease, the leased premises were not private property within the meaning of O.C.G.A. § 16-11-127(c) , thus, the garden would have no right to exclude the carrying of firearms on the leased premises because the garden was not in legal control of private property through a lease; however, since the lease was not in the record on appeal the garden was not entitled to summary judgment. GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 306 Ga. 829 , 834 S.E.2d 27 (2019).

Cited in Hutcheson v. Hodnett, 115 Ga. 990 , 42 S.E. 422 (1902); Consolidated Whse. Co. v. Smith, 55 Ga. App. 216 , 189 S.E. 724 (1937); Warehouses, Inc. v. Wetherbee, 203 Ga. 483 , 46 S.E.2d 894 (1948); Superior Pine Prods. Co. v. Williams, 214 Ga. 485 , 106 S.E.2d 6 (1958); Henson v. Airways Serv., Inc., 220 Ga. 44 , 136 S.E.2d 747 (1964); Stone Mt. Game Ranch, Inc. v. Hunt, 746 F.2d 761 (11th Cir. 1984).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 1, 2, 5, 7, 8, 24.

C.J.S. - 31 C.J.S., Estates, § 67. 51C C.J.S., Landlord and Tenant, § 202.

ALR. - Construction of provision for free gas in oil and gas lease, 9 A.L.R. 89 .

What amounts to an option to renew or extend a lease, 26 A.L.R. 1413 .

Right to partition as affected by severance of estate in mineral from estate in surface by one or more of cotenants, 39 A.L.R. 741 .

Oil or gas or other mineral rights in land as affected by language in conveyance specifying purpose for which the property is to be used, 39 A.L.R. 1340 .

Duty of lessee or purchaser of mineral rights other than oil or gas as to development and operation, 60 A.L.R. 901 ; 76 A.L.R.2d 721.

Duty of lessee under oil or gas lease to drill "protection" wells, 60 A.L.R. 950 .

Rights and remedies of parties where landlord fails to exercise option to renew lease at end of term or pay lessee for improvements, 63 A.L.R. 1158 .

Special assessments as within provisions of a lease requiring lessee to pay "taxes," "taxes and assessments," as variations, 63 A.L.R. 1391 .

Right to incidental gas or oil under mining lease, 64 A.L.R. 734 .

Contract for the sale of gas or oil produced from wells on leased premises as creating an interest or equity affecting a subsequent assignee or lessee, 64 A.L.R. 1244 .

Covenant in mining lease to develop property as affected by provisions for delay rental, 67 A.L.R. 221 .

Commencement of development within fixed term as extending term of oil and gas lease, 67 A.L.R. 526 .

Effect of acquisition by assignee or sublessee of lessee in mining lease of rights inconsistent with those reserved by less, 69 A.L.R. 936 .

Construction and effect of provisions of lease as to rights or remedies in event of tenant's failure to vacate, 71 A.L.R. 1448 .

Sublease as breach of covenant against assignment, 74 A.L.R. 1018 .

Provision in oil, gas, or mining lease fixing a minimum obligation on lessee as the maximum measure of his right, 76 A.L.R. 836 .

Acceptance of rents or royalties under oil and gas lease as waiver of forfeiture for breach of covenant or condition regard drilling of wells, 80 A.L.R. 461 .

Construction and effect of condition of provision of lease for option of renewal, that lease shall have been satisfactory, 81 A.L.R. 1058 .

Development of land and payment of royalties under oil and gas lease as affected by assignment of lease or sublease as to portion of the land, 82 A.L.R. 1273 .

Rights under gas or oil lease or grant, or operating agreement, in respect of wet or casing-head gas or gasoline recovered therefrom, 82 A.L.R. 1304 .

Right to maintain action for damages as for breach of contract upon lease defectively executed, 82 A.L.R. 1318 .

What are "minerals" within deed, lease, or license, 86 A.L.R. 983 .

Liability of lessee's assignee to lessor for rent accruing after assignment by him, in the absence of assumption of covenant of lease, 89 A.L.R. 433 ; 148 A.L.R. 196 .

Rule of estoppel of tenant to deny landlord's title as applicable where landlord affirmatively asserts a title or interest beyond that essential to his right to create the tenancy, 89 A.L.R. 1295 .

Agreement by lessee with third person permitting use of the property as violation of covenant in lease against assigning or subletting, 89 A.L.R. 1325 .

Breach of covenant in lease for payment of taxes as ground for cancelation, rescission, or termination of lease, 93 A.L.R. 1243 .

Transfer by lessee of part of demised premises for remainder of term of lease as an assignment pro tanto of the original lea or as a sublease, 99 A.L.R. 220 .

Consideration for assumption of obligation of lease by assignee thereof, 100 A.L.R. 1232 .

Provision of lease authorizing its termination by lessor in event of insolvency, bankruptcy, or receivership of lessee, 115 A.L.R. 1189 ; 168 A.L.R. 504 .

Leasehold interest as within statutes relating to community real estate, 122 A.L.R. 652 .

Validity and effect of covenant by lessee, as regards his activities after expiration of lease, 122 A.L.R. 1031 .

Part performance to take oral contract of lease out of statute of frauds predicated upon acts or conduct of one in possession of the property under another contract or right, 125 A.L.R. 1468 .

Validity of lease or other contract which contemplates or provides for acts by a party that at the time of the contract w be contrary to zoning regulations, 128 A.L.R. 87 .

Validity and effect of acceleration clause in lease or bailment, 128 A.L.R. 750 .

Storage contract as a bailment of chattels, or lease of place where chattels are stored, 138 A.L.R. 1137 .

Deed or mortgage of real estate as affecting right to oil and gas or royalty interest under existing lease, 140 A.L.R. 1280 .

Water as within term "minerals" in deed, lease, or license, 148 A.L.R. 780 .

Construction of deed of undivided interest in land, as to fractional interest in oil, gas, or other minerals, or in royal reserved or excepted, 163 A.L.R. 1132 .

Construction and application of provision in lease under which landlord is to receive percentage of lessee's profits or receipts, 170 A.L.R. 1113 ; 38 A.L.R.2d 1113.

Conveyance or reservation of minerals as including minerals recoverable only by open pit mining, 1 A.L.R.2d 787.

What constitutes oil or gas "royalty," or "royalties," within language of conveyance, exception, reservation, devise, or assignment, 4 A.L.R.2d 492.

Joining in instrument as ratification of or estoppel as to prior ineffective instrument affecting real property, 7 A.L.R.2d 294.

Abandonment of oil or gas lease by parol declaration, 13 A.L.R.2d 951.

What constitutes a "sale" of real property within purview of clause in lease making renewal clause inoperative in event of such contingency, 15 A.L.R.2d 1040.

Law governing validity and construction of, and rights and obligations arising under, a lease of real property, 15 A.L.R.2d 1199.

Rights of tenant for life or for years and remaindermen inter se in royalties or rents under oil, gas, coal, or other mineral lease, 18 A.L.R.2d 98.

Right of mineral lessee to deposit topsoil, waste materials, and the like upon lessor's additional land not being mined, 26 A.L.R.2d 1453.

Construction and effect of provision in mineral lease excusing payment of minimum rent or royalty, 28 A.L.R.2d 1013.

Liability of mine operator for damage to surface structure by removal of support, 32 A.L.R.2d 1309.

Breach of covenant for quiet enjoyment in lease, 41 A.L.R.2d 1414.

Subletting or renting part of premises as violation of lease provision as to subletting, 56 A.L.R.2d 1002.

Expenses and taxes deductible by lessee in computing lessor's oil and gas royalty or other return, 73 A.L.R.2d 1056.

Implied obligation of purchaser or lessee to conduct search for, or to develop or work premises for, minerals other than oil and gas, 76 A.L.R.2d 721.

Duty of lessee or assignee of mineral lease other than lease for oil and gas, as regards marketing or delivery for marketing of mineral products, 77 A.L.R.2d 1058.

Measure of damages for lessor's breach of contract to lease or to put lessee in possession, 88 A.L.R.2d 1024.

Clay, sand, or gravel as "minerals" within deed, lease, or license, 95 A.L.R.2d 843.

What amounts to development or operation for oil or gas within terms of habendum clause extending primary term while the premises are being "developed or operated,", 96 A.L.R.2d 322.

"Shut-in royalty" payment provisions in oil and gas leases, 96 A.L.R.2d 345.

Liability of lessee who assigns lease for rent accruing subsequently to extension or renewal of term, 10 A.L.R.3d 818.

Construction of oil and gas lease as to the lessee's right and duty of geophysical or seismograph exploration or survey, 28 A.L.R.3d 1426.

Statements in promotional or explanatory literature issued by lessor to lessee as ground for relief from lease contract, 43 A.L.R.3d 1386.

Validity, construction, and application of entirety clause in oil or gas lease, 48 A.L.R.3d 706.

Grant, lease, exception, or reservation of "oil, gas, and other minerals," or the like, as including coal or metallic ores, 59 A.L.R.3d 1146.

Grant, lease, exception, or reservation of oil and/or gas rights as including oil shale, 61 A.L.R.3d 1109.

Liability of lessee who refuses to take possession under executed lease or executory agreement to lease, 85 A.L.R.3d 514.

Liability for interference with lease, 96 A.L.R.3d 862.

Validity and construction of statutes providing for reversion of mineral estates for abandonment or nonuse, 16 A.L.R.4th 1029.

Implied duty of oil and gas lessee to protect against drainage, 18 A.L.R.4th 14.

Remedy for breach of implied duty of oil and gas lessee to protect against drainage, 18 A.L.R.4th 147.

44-6-103. Tenant's rights and duties; grounds of forfeiture.

An estate for years carries with it the right to use the property in as absolute a manner as may be done with a greater estate, provided that the property or the person who is entitled to the remainder or reversion interest is not injured by such use. The acts of omission and commission prescribed as grounds of forfeiture of an estate for life shall operate to the same effect as against a tenant for years.

(Orig. Code 1863, § 2257; Code 1868, § 2249; Code 1873, § 2275; Code 1882, § 2275; Civil Code 1895, § 3111; Civil Code 1910, § 3687; Code 1933, § 85-803.)

Cross references. - Landlord and tenant relationship generally, Ch. 7 of this title.

Law reviews. - For article, "Usufructs and Estates for Years Distinguished," see 18 Ga. St. B.J. 116 (1982). For article, "The Rule Against Perpetuities as Applied to Georgia Wills and Trusts," see 16 Ga. L. Rev. 235 (1982). For comment discussing the legal effect of concurrent leases under both common law and statutory law in Georgia, see 6 Ga. St. B.J. 320 (1970).

JUDICIAL DECISIONS

Owner has as absolute a right to use property as if owner had greater estate, not injuring the revenue. Clark v. Herring & Mock, 43 Ga. 226 (1871).

Restriction on right to possession inconsistent with estate. - Restriction on the right to the possession of a site solely for the purpose of performing one's obligations under a contract, i.e., to finance improvements to be constructed thereon, is antithetical to the nature of an estate for years. United States v. DeKalb County, 729 F.2d 738 (11th Cir. 1984).

Pervasive restrictions inconsistent with estate. - Certain restrictions imposed upon the use of the premises under a lease can be so pervasive as to be fundamentally inconsistent with the concept of an estate for years. Allright Parking of Ga., Inc. v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378 , 260 S.E.2d 315 (1979).

Estate for years is subject to levy and sale as any other estate. Harms v. Entelman, 21 Ga. App. 295 , 94 S.E. 276 (1917).

Estate for years is subject to ad valorem taxation. Richmond County Bd. of Tax Assessors v. Richmond Bonded Whse. Corp., 173 Ga. App. 278 , 325 S.E.2d 891 (1985).

Estate not necessarily reduced to usufruct by limitations on use. - Although this statute grants the holder of an estate for years the right to use in an absolute a manner as a greater estate, placing certain limitations on the use of the estate does not reduce it to a mere usufruct, since the interest may be encumbered or somewhat limited without necessarily changing the character of the estate. State v. Davison, 198 Ga. 27 , 31 S.E.2d 225 (1944) (see O.C.G.A. § 44-6-103 ).

Valid lease, the term of which is to begin in the future, may be made. Southern Airways Co. v. De Kalb County, 216 Ga. 358 , 116 S.E.2d 602 (1960).

Code only provides for forfeiture for waste in two instances: in life estate and an estate for years. Treisch v. Doster, 171 Ga. 525 , 156 S.E. 231 (1930).

Forfeiture not maintainable in landlord-tenant relation. - Common-law action of waste for forfeiture and damages, when there is no estate for life nor for years, but merely the relation of landlord and tenant, cannot be maintained. Warlick v. Great Atl. & Pac. Tea Co., 170 Ga. 538 , 153 S.E. 420 (1930).

Only remedy of seller of estate for years for unpaid purchase money is common-law action, and not distress and, in that event, the relation of landlord and tenant could not exist. In re O'Dowd, 18 F. Cas. 593 (S.D. Ga. 1873) (No. 10,439).

Carrying weapons on property leased by city. - If the city, a public entity, was the holder of a present estate under the lease, the leased premises were not private property within the meaning of O.C.G.A. § 16-11-127(c) , thus, the garden would have no right to exclude the carrying of firearms on the leased premises because the garden was not in legal control of private property through a lease; however, since the lease was not in the record on appeal the garden was not entitled to summary judgment. GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 306 Ga. 829 , 834 S.E.2d 27 (2019).

Estate for years found created. - Contract in which the Board of Regents of the University System of Georgia leased a tract of land to a fraternity for a term of 99 years, for a rent of $1.00 per year, and which allowed the fraternity to erect a building on the premises, transfer, sell, or convey the property to another fraternity, and following which the fraternity executed a mortgage to secure a loan made by the mortgagee-regents, which was recorded, despite certain restrictions and covenants preventing the lessee from exercising absolute control over the property, granted the fraternity an estate for years, and not a mere leasehold; such an interest could be levied upon for failure to pay taxes. State v. Davison, 198 Ga. 27 , 31 S.E.2d 225 (1944).

When most sections of a lease either granted rights to or imposed obligations upon the lessee consistent with the conveyance of an estate for years, or set forth restrictions designed to preserve a hotel on the property as a historic structure and protect the lessor's reversionary interest, and the remaining restrictions did not quantitatively or qualitatively outweigh the incidents of ownership vested in the lessee to convert the interest conveyed from the intended leasehold estate to a usufruct, it was proper to require the lessee to pay ad valorem taxes on its interest in the hotel. Jekyll Dev. Assocs., L.P. v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 273 , 523 S.E.2d 370 (1999).

Estate for years found not created. - When trees are conveyed for a period of four years, "for using said timber for turpentine purposes," the contract is a mere license and does not convey an estate for years. A breach of the contract will not authorize the forfeiture of the lease contract; however, further breach of contract may be enjoined by a court. Treisch v. Doster, 171 Ga. 525 , 156 S.E. 231 (1930).

Intent of the parties was that the airline simply contracted with the county to manage and operate the county's airport, as its agent, for public and governmental purposes, and whether the contract between the parties be called a lease, a license, a franchise, or a contract of agency or management, it was the intention of the parties that the airline would not obtain any interest in the real estate described in the contract, but only a circumscribed and limited use of the airport facilities. The reserved rights of the lessor as to the control, improvement, inspection, and supervision of the premises, with the right of others to use the facilities, negate any contention that the lessee would have the exclusive possession and control of the premises. Southern Airways Co. v. De Kalb County, 216 Ga. 358 , 116 S.E.2d 602 (1960).

No estate for years and no interest in land were created by agreement between property owner and oil company since the latter had no right to use the land, and no interest was conveyed by simply promising to sell the oil company's products and by allowing the company to make improvements on the land. Copelan v. Acree Oil Co., 249 Ga. 276 , 290 S.E.2d 94 (1982).

Agreement created a usufruct, rather than an estate for years, despite provision that "it is the intent of the parties to create a leasehold estate ... and not a mere usufruct" when the initial term was for seven months, but provided for automatic renewals for ten consecutive one-year periods, provided the program was funded by the General Assembly, and the lessor was responsible for all insurance, taxes, and upkeep of the premises, including maintenance and repairs. Huntingdon II, Ltd. v. Chatham County Bd. of Tax Assessors, 207 Ga. App. 466 , 428 S.E.2d 605 (1993).

Cited in Dorsey v. Clements, 202 Ga. 820 , 44 S.E.2d 783 (1947); Camp v. Delta Air Lines, 232 Ga. 37 , 205 S.E.2d 194 (1974); Eastern Air Lines v. Joint City-County Bd. of Tax Assessors, 253 Ga. 18 , 315 S.E.2d 890 (1984); Macon-Bibb County Bd. of Tax Assessors v. Atlantic S.E. Airlines, 262 Ga. 119 , 414 S.E.2d 635 (1992); Diversified Golf, LLC v. Hart County Bd. of Tax Assessors, 267 Ga. App. 8 , 598 S.E.2d 791 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Tenant, as incident to clearing land for cultivation, can sell timber derived from the clearing, although a tenant cannot cut timber merely to sell or dispose of the timber for profit. 1958-59 Op. Att'y Gen. p. 279.

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 60 et seq., 202, 214 et seq., 773, 776 et seq., 862 et seq.

24B Am. Jur. Pleading and Practice Forms, Waste, § 16.

C.J.S. - 31 C.J.S., Estates, § 67. 51C C.J.S., Landlord and Tenant, §§ 26, 31, 342, 345. 96 C.J.S., Wills, §§ 1298, 1299.

ALR. - Commission of waste as ground for forfeiture of lease, 3 A.L.R. 672 .

Construction and effect of statutory provision for double or treble damages against tenant committing waste, 45 A.L.R. 771 .

Commencement of development within fixed term as extending term of oil and gas lease, 67 A.L.R. 526 .

Provision in oil, gas, or mining lease fixing a minimum obligation on lessee as the maximum measure of his right, 76 A.L.R. 836 .

Relative rights of tenant for years or life and remainderman as to return on bonds or other obligations for the payment of money brought at a premium or discount, 131 A.L.R. 1426 .

Right of lessee to equitable relief against forfeiture for breach of conditions as affected by lessor's giving a lease to entering into other contractual obligations with a third person, 166 A.L.R. 807 .

Rights of tenant for life or for years and remaindermen inter se in royalties or rents under oil, gas, coal, or other mineral lease, 18 A.L.R.2d 98.

Right of lessor arbitrarily to refuse or withhold consent to subletting or assignment which is barred without such consent, 31 A.L.R.2d 831; 54 A.L.R.3d 679; 21 A.L.R.4th 188.

Rights of lessee to minerals extracted during the lease but remaining on the premises after its termination, 51 A.L.R.2d 1121.

Maintainability, by lessee, of action to quiet title to leasehold, 51 A.L.R.2d 1227.

Subletting or renting part of premises as violation of lease provision as to subletting, 56 A.L.R.2d 1002.

What constitutes reasonably necessary use of the surface of the leasehold by a mineral owner, lessee, or driller under an oil and gas lease or drilling contract, 53 A.L.R.3d 16.

Right of contingent remainderman to maintain action for damages for waste, 56 A.L.R.3d 677.

Union security arrangements in state public employment, 95 A.L.R.3d 1102.

44-6-104. Right of tenant for years to emblements.

A tenant for years is not entitled to emblements unless, before the end of the period which had been fixed for the termination of the estate for years, the happening of some contingency as provided in the creation of the estate terminates the estate without fault on the part of the tenant.

(Orig. Code 1863, § 2258; Code 1868, § 2250; Code 1873, § 2276; Code 1882, § 2276; Civil Code 1895, § 3112; Civil Code 1910, § 3688; Code 1933, § 85-804; Ga. L. 1982, p. 3, § 44.)

Cross references. - Landlord and tenant relationship generally, Ch. 7 of this title.

Law reviews. - For article, "Usufructs and Estates for Years Distinguished," see 18 Ga. St. B.J. 116 (1982).

JUDICIAL DECISIONS

General custom cannot deprive contracting party of right secured by law. - General custom governing a trade or business cannot be proved for the purpose of depriving one of the contracting parties of an absolute right explicitly secured to that party by the law of the state. Fleming & Bowles v. King, 100 Ga. 449 , 28 S.E. 239 (1897).

Custom does not give tenant right to emblements. - If the provisions of this statute have reference to landlords and tenants when the term of the tenancy extends for less than five years and the estate is created, then, under the rule just stated, no proof or mere custom would operate to give to the tenant the right to emblements thus specifically denied. Carter v. Booth, 25 Ga. App. 796 , 104 S.E. 910 (1920) (see O.C.G.A. § 44-6-104 ).

Cited in Bristol Sav. Bank v. Nixon, 169 Ga. 282 , 150 S.E. 148 (1929).

RESEARCH REFERENCES

Am. Jur. 2d. - 21A Am. Jur. 2d, Crops, §§ 20, 22, 23. 49 Am. Jur. 2d, Landlord and Tenant, § 65.

C.J.S. - 51C C.J.S., Landlord and Tenant, §§ 342, 349.

ALR. - Rights of lessee to minerals extracted during the lease but remaining on the premises after its termination, 51 A.L.R.2d 1121.

44-6-105. Liability of tenant for years for repairs and expenses.

A tenant for years is liable for all repairs or other expenses which are necessary for the preservation and protection of the property.

(Orig. Code 1863, § 2259; Code 1868, § 2251; Code 1873, § 2277; Code 1882, § 2277; Civil Code 1895, § 3113; Civil Code 1910, § 3689; Code 1933, § 85-805.)

Cross references. - Landlord and tenant relationship generally, Ch. 7 of this title.

Law reviews. - For article, "Usufructs and Estates for Years Distinguished," see 18 Ga. St. B.J. 116 (1982).

JUDICIAL DECISIONS

Tenant bound for all repairs and necessary expenses. - When an estate for years is created, this statute, following the common law, makes the tenant bound for all repairs or other expenses necessary for the preservation and protection of the property. Mayer & Crine v. Morehead, 106 Ga. 434 , 32 S.E. 349 (1899) (see O.C.G.A. § 44-6-105 ).

Contract provisions determine intent of parties. - Unless there is express provision in lease contract, statute's general principle of law is applicable as between the parties. However, the lease contract in its entirety and in view of the facts and circumstances concerning the situation will be looked to in determining the intention of the parties to the contract. Shippen v. Georgia Better Foods, Inc., 79 Ga. App. 813 , 54 S.E.2d 704 (1949) (see O.C.G.A. § 44-6-105 ).

Section applies when contract insufficient. - Section sets presumptive standard when agreement fails to spell out respective obligations of the parties. Sadler v. Winn-Dixie Stores, Inc., 152 Ga. App. 763 , 264 S.E.2d 291 (1979) (see O.C.G.A. § 44-6-105 ).

Section does not obligate the lessee beyond ordinary wear and tear, and does not require the holder of an estate for years to restore premises injured by fire or extraordinary catastrophes or calamities. Alwood v. Commercial Union Assurance Co., 107 Ga. App. 797 , 131 S.E.2d 594 (1963).

Improvements and repairs necessary to preserve buildings and prevent destruction should be made. - In an estate for years, when the owner of the estate is to all intents and purposes the owner with unqualified possession, such improvements and repairs necessary to preserve the buildings on the premises comprising the estate and prevent their decadence, as well as to prevent their condemnation and destruction as fire hazards and unsafe buildings, and as a nuisance, should be made by the lessee or the owner of the estate for years. Evans Theatre Corp. v. De Give Inv. Co., 79 Ga. App. 62 , 52 S.E.2d 655 (1949).

Whole rent recoverable notwithstanding total destruction of house on premises. - When farming lands were rented for a term of years and the tenants agreed "to keep up all repairs at their own expense, fire and providential causes excepted," the whole rent could be recovered, notwithstanding the total destruction by accidental fire of a house situated on the rented premises. Mayer & Crine v. Morehead, 106 Ga. 434 , 32 S.E. 349 (1899).

Cited in Kanes v. Koutras, 203 Ga. 570 , 47 S.E.2d 558 (1948); Ginsberg v. Wade, 95 Ga. App. 475 , 97 S.E.2d 915 (1957); Buoy v. Chatham County Bd. of Tax Assessors, 142 Ga. App. 172 , 235 S.E.2d 556 (1977); International Indus., Inc. v. Dantone, 147 Ga. App. 247 , 248 S.E.2d 530 (1978).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 772, 793 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 366 et seq.

44-6-106. Dependent and independent covenants or conditions.

In light of the entire instrument, the dependence or independence of covenants or conditions must be determined from the intention of the parties. If the conditions are dependent, the failure of the person first required to act shall be an excuse to the other party for failing to comply; if the conditions are independent, no such excuse shall avail. The law favors conditions to be independent.

(Orig. Code 1863, § 2279; Code 1868, § 2272; Code 1873, § 2298; Code 1882, § 2298; Civil Code 1895, § 3140; Civil Code 1910, § 3720; Code 1933, § 85-905.)

JUDICIAL DECISIONS

Whether covenants dependent determined by consideration and parties' intent. - Promises which are mutual to the extent that each affords the sole consideration to the other will not be construed as independent, but will, in the absence of clear indications to the contrary, be taken as dependent one upon the other and, while ordinarily dependent covenants are such as mutually afford to the other the whole consideration, the stipulations and circumstances of the contract may be such as to render covenants mutual and dependent even though one of them affords to the other only a part of its consideration. In such a case, the question as to whether covenants shall be taken as mutually dependent is to be determined by reference to the rational meaning and intent of the parties as disclosed by the entire instrument, read in the light of the surrounding circumstances and the purposes for which the contract as a whole was made. Schmidt v. Mitchell, 117 Ga. 6 , 43 S.E. 371 (1903); Brenard Mfg. Co. v. Kingston Supply Co., 22 Ga. App. 280 , 95 S.E. 1028 (1918).

Covenants construed as independent. - Landlord leased certain stores to tenants at a stipulated price, payable monthly. The landlord agreed to keep the building in good repair and to pay the tenants any damage the tenants might sustain by the landlord's neglect to do so. The covenant to pay rent and that to repair were independent covenants, and a failure to repair did not work a forfeiture of the rent, but gave a right of action or of recoupment to the tenant. Lewis & Co. v. Chisolm, 68 Ga. 40 (1881).

Covenants in a contract whereby A agreed to convey to B all the timber on certain lands for turpentine purposes, and whereby B agreed to convey to A all the timber on certain other lands for sawmill purposes, were independent covenants. Howell & Rawls v. James Lumber Co., 102 Ga. 595 , 27 S.E. 699 (1897).

Cited in McRae v. Sewell, 47 Ga. App. 290 , 170 S.E. 315 (1933); Fulford v. Fulford, 225 Ga. 9 , 165 S.E.2d 848 (1969).

RESEARCH REFERENCES

Am. Jur. 2d. - 20 Am. Jur. 2d, Covenants, Conditions, and Restrictions, § 10 et seq. 28 Am. Jur. 2d, Estates, § 144 et seq.

C.J.S. - 26A C.J.S., Deeds, §§ 273, 304 et seq., 315, 316, 319, 322, 326, 345 et seq. 31 C.J.S., Estates, § 21 et seq. 96 C.J.S., Wills, § 1408 et seq.

ALR. - Restraint upon voluntary alienation of legal life estate, 160 A.L.R. 639 .

ARTICLE 7 TENANCY IN COMMON

Cross references. - Right of tenant in common to bring action separately for his own interest, and effect of judgment in such action, § 9-2-23 .

Law reviews. - For article discussing provisions pertaining to the regulation of time shared interests in property ownership, see 12 Ga. St. B.J. 75 (1975).

PART 1 I N GENERAL

Law reviews. - For article analyzing legal aspects of time shared (multiple, revolving) ownership of property, see 12 Ga. St. B.J. 75 (1975). For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).

JUDICIAL DECISIONS

Tenant in common cannot bring complaint to oust cotenant. - Complaint having for the complaint's object the ousting of a tenant in common from that tenant's interest in property is not maintainable by a cotenant. Ison v. Geiger, 179 Ga. 798 , 177 S.E. 596 (1934).

RESEARCH REFERENCES

ALR. - Adjustment on partition of improvements made by tenant in common, 1 A.L.R. 1189 ; 122 A.L.R. 234 .

Right of judgment creditor of cotenant to maintain partition, 25 A.L.R. 105 .

Rights of cotenants inter se as to oil and gas, 40 A.L.R. 1400 ; 91 A.L.R. 205 .

Gift or trust by deposit of funds belonging to the depositor in a bank account in the name of himself and another, 48 A.L.R. 189 ; 127 A.L.R. 602 ; 169 A.L.R. 207 .

Contribution or allowance as between cotenants in remainder as affected by fact that one or more of them owns, or did own, the life estate or an interest therein, 98 A.L.R. 859 .

Validity of provision in deed or other instrument creating a cotenancy that neither tenant shall encumber or dispose of his interest without consent of the other, 124 A.L.R. 222 .

Character of conveyance or conveyances necessary to create an estate by entirety, 132 A.L.R. 630 ; 173 A.L.R. 1216 ; 44 A.L.R.2d 595.

Married Women's Act as abolishing estates by entireties, 141 A.L.R. 179 .

Right of spouse of cotenant to acquire and hold title adversely to other cotenants, 153 A.L.R. 678 .

Contract to sell land not signed by all of co-owners as operative to cover interests of the signers, 154 A.L.R. 767 .

Mental incompetency of one spouse as affecting transfer or encumbrance of community property, homestead property, or estate by the entireties, 155 A.L.R. 306 .

Right of survivor of parties to bank account in their joint names as affected by provision excluding his right of withdrawal during the lifetime of the other party, 155 A.L.R. 1084 .

Purchase of cotenant's interest at judicial sale as making purchaser cotenant, 159 A.L.R. 395 .

Estate created by conveyance to husband and wife as affected by language used in deed, 161 A.L.R. 457 .

Interest of spouse in estate by entireties as subject to satisfaction of his or her individual debt, 166 A.L.R. 969 ; 75 A.L.R.2d 1172.

Privity between cotenants for purposes of doctrine of res judicata, 169 A.L.R. 179 .

Basis of computation of cotenant's accountability for minerals and timber removed from the property, 5 A.L.R.2d 1368.

Rights of one entitled to contribution to recover interest, 27 A.L.R.2d 1268.

Rights and incidents where title to real property purchased with wife's funds is taken in spouses' joint names, 43 A.L.R.2d 917.

Contribution, subrogation, and similar rights, as between cotenants, where one pays the other's share of sum owing on mortgage or other lien, 48 A.L.R.2d 1305.

Enforcement of, or waiver of, or estoppel to assert, forfeiture clause of lease made or held by cotenants as lessors, 50 A.L.R.2d 1365.

What acts by one or more of joint tenants will sever or terminate the tenancy, 64 A.L.R.2d 918; 39 A.L.R.4th 1068.

Real estate mortgage executed by one of joint tenants as enforceable after his death, 67 A.L.R.2d 999.

Right of surviving spouse to contribution, exoneration, or other reimbursement out of decedent's estate respecting liens on estate by entirety or joint tenancy, 76 A.L.R.2d 1004.

Grant of part of cotenancy land, taken from less than all cotenants, as subject of protection through partition, 77 A.L.R.2d 1376.

Rights in proceeds of insurance on property held jointly with right of survivorship, where one of joint owners dies pending payment of proceeds, 4 A.L.R.3d 427.

Valuation of wearing apparel or household goods kept by owner for personal use, in action for loss or conversion of, or injury to, such property, 34 A.L.R.3d 816.

Guardian's position as joint tenant of or successor to property in ward's estate as raising conflict of interest, 69 A.L.R.3d 1198.

Contract of sale or granting of option to purchase, to third party, by both or all of joint tenants or tenants by entirety as severing or terminating tenancy, 39 A.L.R.4th 1068.

44-6-120. "Tenancy in common" defined; presumption of equality of shares; effect of inequality of shares on right of possession.

Unless otherwise specifically provided by statute and unless the document or instrument provides otherwise, a tenancy in common is created wherever from any cause two or more persons are entitled to the simultaneous possession of any property. Tenants in common may have unequal shares, but they will be held to be equal unless the contrary appears. The fact of inequality shall not give the person holding the greater interest any privileges as to possession which are superior to those of the person owning a lesser interest so long as the tenancy continues.

(Orig. Code 1863, § 2282; Code 1868, § 2275; Code 1873, § 2301; Code 1882, § 2301; Civil Code 1895, § 3143; Civil Code 1910, § 3723; Code 1933, § 85-1001; Ga. L. 1976, p. 1388, § 9; Ga. L. 1976, p. 1438, § 1; Ga. L. 1980, p. 753, § 1.)

Cross references. - Creation of tenancy in common upon termination of condominium, § 44-3-98 .

Law reviews. - For article discussing joint ownership of assets and severance of such ownership, see 14 Ga. St. B.J. 14 (1977). For annual survey article on real property law, see 52 Mercer L. Rev. 383 (2000). For comment on Eppes v. Locklin, 222 Ga. 86 , 149 S.E.2d 148 (1966), appearing below, see 1 Ga. L. Rev. 331 (1967).

JUDICIAL DECISIONS

Title of tenants in common is technically several rather than joint. Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967).

In the event of a foreclosure on the deed to secure debt the defendant and his wife would become tenants in common of the house and property. As tenants in common, the interest of the defendant and his wife is several and not joint. The interest of a husband may be separated from that of his wife, and he holds that interest in his own name and in his own right. Straughair v. Palmieri, 31 Bankr. 111 (Bankr. N.D. Ga. 1983).

Confidential relationship between tenants. - Under Georgia law, tenants in common are in a confidential relationship with each other as to the common estate. However, no Georgia case extends this relationship to encompass the circumstance of one tenant purchasing another cotenant's interest. McLendon v. Georgia Kaolin Co., 782 F. Supp. 1548 (M.D. Ga. 1992).

Tenancy in common in personalty permissible. - While the technical expression, "tenants in common," applies to owners of realty, still when several own personalty in common, the character of the ownership is the same; and while there is unity of possession they hold under distinct and several titles. Deal v. State, 14 Ga. App. 121 , 80 S.E. 537 (1914).

Tenancy in common may be created in a bank check. English v. Poole, 31 Ga. App. 581 , 121 S.E. 589 (1924).

Tenancy in common is a type of ownership which may exist in personal as well as real property. Morden v. Mullins, 115 Ga. App. 92 , 153 S.E.2d 629 (1967).

Equality of shares. - When deed conveyed the premises in dispute to the plaintiff and the defendant jointly, they were tenants in common and, nothing else appearing, held equal shares in the property. Mills v. Williams, 208 Ga. 425 , 67 S.E.2d 212 (1951). See Shiels v. Stark, 14 Ga. 429 (1854); Baker v. Shepherd, 37 Ga. 12 (1867).

Unequal shares must be shown by clear and convincing evidence. - Because of the presumption that tenants in common hold equal shares in property jointly held between them, in order for plaintiff to show that plaintiff and plaintiff's co-tenant held unequal shares in the property, plaintiff was required to bring forth proof of such that was clear and convincing. Burt v. Skrzyniarz, 272 Ga. 35 , 526 S.E.2d 848 (2000).

Creation of tenancy in common. - Tenancy in common is created wherever two or more persons, from any cause, are entitled to the possession simultaneously of any property in this state. Although it is true that tenants in common may have unequal shares of the property, yet each one must have a share thereof. Anderson v. Lucky, 18 Ga. App. 479 , 89 S.E. 631 (1916).

"And/or" in a deed passes a tenancy in common. Straughair v. Palmieri, 31 Bankr. 111 (Bankr. N.D. Ga. 1983).

An undivided interest in real property may be created into as many fractional shares of the whole property as the grantor desires, because it is a fractional ownership interest in the whole and not a division of the land into discrete parts. Glover v. Ware, 236 Ga. App. 40 , 510 S.E.2d 895 (1999).

An undivided interest in a tenancy in common was just such ownership interest as would result from sale of the defendant's interest in property bought prior to divorce because any purchaser would acquire only defendant's undivided one-half interest in a tenancy in common and would stand in defendant's shoes. Glover v. Ware, 236 Ga. App. 40 , 510 S.E.2d 895 (1999).

Devisees take as tenants in common. - When a deed conveyed an immediate estate, with present enjoyment, to a woman and her children, the title vested in the woman and such children as she had in life, as tenants in common, and children thereafter born to her took no interest under such deed. Plant v. Plant, 122 Ga. 763 , 50 S.E. 961 (1905); Powell v. James, 141 Ga. 793 , 82 S.E. 232 (1914).

Will giving property to testator's daughter and to her children to the exclusion of all other persons whatever vested title in her and such children as were living at the death of the testator as tenants in common. Whitfield v. Means, 140 Ga. 430 , 78 S.E. 1067 (1913).

Deed conveyed the property to the wife and her children as tenants in common for her life with remainder to children. Hammock v. Martin, 147 Ga. 828 , 95 S.E. 679 (1918).

Tenancy created in livestock. - When a landlord furnishes livestock to a cropper, the increase of which is to be raised by the latter on shares and to be divided equally between the parties, their relation with reference thereto is that of owners or tenants in common, and not that of landlord and cropper. Ellis, McKinnon & Brown v. Hopps, 30 Ga. App. 453 , 118 S.E. 583 (1923).

Trustee and cestui que trust as tenants in common. - If a trustee acquires title to specific realty for the trustee's individual use and also for the use of the trustee's cestui que trust, the entire estate will be an estate in common, and the trustee and the cestui que trust will be tenants in common. Carmichael v. Citizens & S. Bank, 162 Ga. 735 , 134 S.E. 771 (1926).

Possession of land as notice of right and title. - Former Code 1933, § 85-1001 (see O.C.G.A. § 44-6-120 ) must be construed in connection with former Code 1933, § 85-408 (see O.C.G.A. § 44-5-169 ), relating to possession of land as notice of right and title. Wren v. Wren, 199 Ga. 851 , 36 S.E.2d 77 (1945).

Because the parties were co-tenants under O.C.G.A. § 44-6-120 , and one of the co-tenants was on notice as to the other co-tenant's heirs' adverse possession under O.C.G.A. § 44-6-123 , which included conveying the timber on the land to a company, but failed to assert rights to the property in the prescribed time, the heirs established prescriptive title in the land. Williams v. Screven Wood Co., 279 Ga. 609 , 619 S.E.2d 641 (2005).

Compensation for fire loss. - In action to recover on insurance policy for fire loss on house, if insured as a tenant in common with his ex-wife had right to full use and possession of the entire property, his ex-wife's surrender of her similar right to full use and possession did not give him any greater right to use and possession than he already had; therefore, insured was not entitled to any compensation for his ex-wife's right to use and possession. Allstate Ins. Co. v. Ammons, 163 Ga. App. 385 , 294 S.E.2d 610 (1982).

Tenant in common free to convey interest in property. - Mortgage company's security interest in certain property extended at least to a one-half undivided interest in the property because an ex-husband acquired the property as tenants in common under a warranty deed transferring the property to him and his ex-wife as grantees; therefore, the security deed under which the ex-wife purported to convey legal title to the entire property to the company, at a minimum, effectively vested the company with a security interest in the one-half undivided interest in the property the ex-wife indisputably held and was free to convey. Brock v. Yale Mortg. Corp., 287 Ga. 849 , 700 S.E.2d 583 (2010).

Cited in Deal v. State, 14 Ga. App. 121 , 80 S.E. 537 (1914); Pullen v. Johnson, 173 Ga. 581 , 160 S.E. 785 (1931); Wallis v. Watson, 184 Ga. 38 , 190 S.E. 360 (1937); Lee v. State, 62 Ga. App. 556 , 8 S.E.2d 706 (1940); Zeagler v. Zeagler, 190 Ga. 220 , 9 S.E.2d 263 (1940); Lewis v. Patterson, 191 Ga. 348 , 12 S.E.2d 593 (1940); Lee v. State, 64 Ga. App. 290 , 13 S.E.2d 79 (1941); Fountain v. Davis, 71 Ga. App. 1 , 29 S.E.2d 798 (1944); Locklin v. Locklin, 207 Ga. 134 , 60 S.E.2d 362 (1950); Varellas v. Varellas, 221 Ga. 474 , 145 S.E.2d 514 (1965); Eppes v. Locklin, 222 Ga. 86 , 149 S.E.2d 148 (1966); United States v. Lowe, 268 F. Supp. 190 (N.D. Ga. 1966); White v. Howell, 117 Ga. App. 778 , 161 S.E.2d 892 (1968); Savannah Bank & Trust Co. v. Keane, 126 Ga. App. 53 , 189 S.E.2d 702 (1972); Ray v. Ray, 73 Bankr. 544 (Bankr. M.D. Ga. 1987); Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga. App. 521 , 629 S.E.2d 501 (2006).

OPINIONS OF THE ATTORNEY GENERAL

"And/or" in deed passes tenancy in common. - Clause "and/or her daughter" in a deed would be interpreted to pass a free title to the taxpayer and the taxpayer's daughter as equal tenants in common. 1965-66 Op. Att'y Gen. No. 66-148.

RESEARCH REFERENCES

Am. Jur. 2d. - 20 Am. Jur. 2d, Cotenancy and Joint Ownership, § 1 et seq. 28 Am. Jur. 2d, Estates, § 2.

C.J.S. - 26A C.J.S., Deeds, §§ 262, 267, 277. 41 C.J.S., Husband and Wife, § 39, 40. 48A C.J.S., Joint Tenancy, §§ 2 et seq., 39. 86 C.J.S., Tenancy in Common, §§ 1 et seq., 22, 51.

ALR. - Effect on joint estate, community estate, or estate by entireties, of death of both tenants in same disaster, 18 A.L.R. 105 .

Lease to two or more as creating a tenancy in common or a joint tenancy, 113 A.L.R. 573 .

Presumption and proof as to shares of respective grantees or transferees in conveyance or transfer to two or more persons as tenants in common, silent in that regard, 156 A.L.R. 515 .

Rights and remedies as between cotenants of cemetery lots respecting burials therein, 10 A.L.R.2d 219.

Maintenance of replevin or similar possessory remedy by cotenant, or security transaction creditor thereof, against other cotenants, 93 A.L.R.2d 358.

Larceny: cotenant taking cotenancy property, 17 A.L.R.3d 1394.

44-6-121. Rights and liabilities of cotenants; accounting.

  1. Every tenant in common shall have the right to possess the joint property. As long as a tenant in common occupies no greater portion of the joint property than his own share would be on partition and does not withdraw from the joint property any of its essential value, such as mineral deposits, he shall not be liable to account for rent to his cotenant.
  2. A tenant in common shall be liable to account to his cotenant if he:
    1. Receives any rent or other profit from the joint property;
    2. Commits any waste;
    3. Deprives his cotenant of the use of his fair proportion of the joint property;
    4. Appropriates the joint property to his exclusive use; or
    5. Uses the joint property in a manner which must necessarily be exclusive.

      (Orig. Code 1863, § 2283; Code 1868, § 2276; Code 1873, § 2302; Code 1882, § 2302; Civil Code 1895, § 3144; Civil Code 1910, § 3724; Code 1933, § 85-1003.)

JUDICIAL DECISIONS

Right to possess joint property. - Every tenant in common has the right to possess joint property; if each tenant does not receive more than that tenant's share of the rents and profits thereof, that tenant is not liable to the other's cotenant. Pugh v. Moore, 207 Ga. 453 , 62 S.E.2d 153 (1950).

By affidavit, heirs showed that a cotenant did not meet the requirements of O.C.G.A. § 44-6-123 by averring that the cotenant took no action to oust the heirs from the property in question, to demand and retain exclusive possession, or to give actual notice of adverse possession; the burden shifted to the cotenant to point to a conflict on this issue, but in an affidavit, the cotenant only showed that the cotenant paid the property taxes and that the heirs did not use the property or question the cotenant's right to be on the property, which did not establish an ouster or to satisfy an "express notice" or a "hostile claim" criterion, and summary judgment in favor of the heirs was proper in their claim for, inter alia, an accounting relating to the property. Ward v. Morgan, 280 Ga. 569 , 629 S.E.2d 230 (2006).

Possession of more than proportionate share not ouster. - That one cotenant may occupy more than one's proportionate share of the property, or even that one may be in possession of all of the property, does not necessarily imply an ouster, the presumption being that one's possession is not adverse, but is in common with the others, or for the common benefit, unless and until the contrary appears. Hardin v. Council, 200 Ga. 822 , 38 S.E.2d 549 (1946).

Rent payment may be required. - Occupancy by one cotenant of the joint property, by the consent of the other, does not necessarily relieve that cotenant from the payment of the rent. Shiels v. Stark, 14 Ga. 429 (1854).

When a tenant in common appropriates all of the premises to the tenant's exclusive use, the tenant would be liable to the cotenant for rent. Jackson v. Lipham, 158 Ga. 557 , 123 S.E. 887 (1924).

Remedy for possession of more than proportionate share. - When there has been no actual ouster of the plaintiffs, no exclusive possession by the defendant after demand, and no express notice by defendant of a claim of adverse possession, no action can be brought by the tenant in common to recover possession from one of their number. The remedy given to them, if defendant is in possession of more than defendant's share of the premises, or if defendant has received more than defendant's share of the income and profits, is an application for an accounting, or for partition. Daniel v. Daniel, 102 Ga. 181 , 28 S.E. 167 (1897).

Right of spouse to rents during and after divorce. - When spouses retained tenancies in common in the marital abode through and after their divorce, the wife was entitled to receive from her former husband her share of the rents from and after the time the condominium was leased to third parties, she was not entitled to rents from her former husband during his occupancy of the premises and she was not liable for contribution toward the expenses of maintaining the condominium for the period during which the husband was not liable for rent. White v. Lee, 250 Ga. 688 , 300 S.E.2d 517 (1983).

Tenants in common may sue severally to recover their interest, but their recovery is limited to their share. Dozier v. Wallace, 169 Ga. App. 126 , 311 S.E.2d 839 (1983).

Tenant cannot bind nonconsenting cotenants in disposition of property. - General rule is that one tenant in common cannot bind one's nonconsenting cotenants in any disposition of their undivided interest in the common property. Booth v. Watson, 153 Ga. App. 672 , 266 S.E.2d 326 (1980).

Right to share in profits. - Cotenants have the right to share in the profits of the common property, according to their respective interests. Slade v. Rudman Resources, Inc., 237 Ga. 848 , 230 S.E.2d 284 (1976).

Limitation on damages recoverable. - When, in an action by one of two owners in common of personalty against the other to recover one half of the rents and profits of the common property, there was no evidence of actual ouster, exclusive possession by the latter after demand by the former, or of express notice by the latter to the former of adverse possession, there was no error in the charge of the court which limited the plaintiff's recovery to one half of whatever rents the defendant actually received. Smith v. Smith, 141 Ga. 629 , 81 S.E. 895 (1914); Hunt v. Harris, 149 Ga. 225 , 99 S.E. 884 (1919); Houseworth v. Crews, 29 Ga. App. 579 , 116 S.E. 217 (1923).

In an action brought former Code 1933, §§ 85-1003 and 85-1004 (see O.C.G.A. §§ 44-6-121 and 44-6-122 ) by tenants in common to recover the tenants' share of the rents and profits from the defendants who were in possession of the land owned in common, a recovery therefor can be had only up to the time the suit was commenced, and a former action between the same parties for the rents and profits on the same property, which was still pending, did not abate so much of the present suit as seeks recovery of the plaintiffs' share of the rents and profits accruing since the filing of the former action. Lankford v. Dockery, 85 Ga. App. 86 , 67 S.E.2d 800 (1951).

In an action by a tenant in common for that tenant's share of rents, the tenant may recover damages only up to the time of bringing the suit, the reason being that the failure to share rents may or may not be continued after the suit is commenced, and if continued, a new cause of action arises therefor. Lankford v. Dockery, 85 Ga. App. 86 , 67 S.E.2d 800 (1951).

Right to extract minerals. - This statute, by negative implication, appears to recognize the right of a cotenant to extract minerals from the common estate so long as an accounting is given. Slade v. Rudman Resources, Inc., 237 Ga. 848 , 230 S.E.2d 284 (1976) (see O.C.G.A. § 44-6-121 ).

Without consent of cotenants. - Cotenant has the right to go on the land and mine the minerals the cotenant finds without the consent of all cotenants. Slade v. Rudman Resources, Inc., 237 Ga. 848 , 230 S.E.2d 284 (1976).

Right to minerals may be conveyed. - Because a cotenant has the right to enter and mine the common property without the consent of one's cotenants, but subject to one's accounting to the other cotenants for their respective shares, this right is conveyed, by necessary implication, when such a cotenant conveys one's undivided interest in the minerals on or under the common property. Slade v. Rudman Resources, Inc., 237 Ga. 848 , 230 S.E.2d 284 (1976).

Cultivation of portion of property. - Tenant in common may cultivate a portion of the property without payment of rent, unless such occupied portion constitutes a greater part of the premises than the tenant would have been entitled to on a proper division of the property. Thompson v. Thompson, 31 Ga. App. 340 , 121 S.E. 586 (1923).

Action in trover. - While as a general rule one joint tenant cannot maintain trover against a cotenant, for the reason that the possession of one is the possession of both, yet the tenant may do so when the tenant in possession sets up an adverse claim to the whole property to the exclusion of the cotenant. Yeager v. Weeks, 74 Ga. App. 84 , 39 S.E.2d 84 (1946).

One cotenant may sue another cotenant in trover when the property has been destroyed or sold, and may maintain it against a stranger when one cotenant sells the whole to the stranger. Mar-Vel, Inc. v. Counts, 127 Ga. App. 634 , 194 S.E.2d 503 (1972).

Liability of cotenant for improvements. - If a tenant in common improves the property while in possession and claiming to be sole owner, and with no permission or request from the cotenant, the latter is not chargeable with the value of such improvements, beyond the cotenant's share of the rents chargeable to the former. Bazemore v. Davis, 55 Ga. 504 (1875).

Possession of land as notice of right and title. - Former Code 1933, § 85-1003 (see O.C.G.A. § 44-6-121 ) must be construed in connection with former Code 1933, § 85-408 (see O.C.G.A. § 44-5-169 ), relating to possession of land as notice of right and title. Wren v. Wren, 199 Ga. 851 , 36 S.E.2d 77 (1945).

Cited in Thompson v. Sanders, 113 Ga. 1024 , 39 S.E. 419 (1901); Daniel v. Daniel, 22 Ga. App. 95 , 95 S.E. 323 (1918); Cook v. McArthur, 31 Ga. App. 248 , 120 S.E. 551 (1923); Horn v. Towson, 163 Ga. 37 , 135 S.E. 487 (1926); Wallis v. Watson, 184 Ga. 38 , 190 S.E. 360 (1937); Zeagler v. Zeagler, 190 Ga. 220 , 9 S.E.2d 263 (1940); Lewis v. Patterson, 191 Ga. 348 , 12 S.E.2d 593 (1940); Harris v. Rowe, 200 Ga. 265 , 36 S.E.2d 787 (1946); Erwin v. Miller, 203 Ga. 58 , 45 S.E.2d 192 (1947); Ballenger v. Houston, 207 Ga. 438 , 62 S.E.2d 189 (1950); Mills v. Williams, 208 Ga. 425 , 67 S.E.2d 212 (1951); Lankford v. Dockery, 87 Ga. App. 813 , 75 S.E.2d 340 (1953); Brown v. Granite Holding Corp., 221 Ga. 560 , 146 S.E.2d 289 (1965); White v. Howell, 117 Ga. App. 778 , 161 S.E.2d 892 (1968); Baker v. Daniels, 244 Ga. 105 , 259 S.E.2d 54 (1979); Brewer v. Brewer, 156 Ga. App. 268 , 274 S.E.2d 671 (1980).

RESEARCH REFERENCES

Am. Jur. 2d. - 20 Am. Jur. 2d, Cotenancy and Joint Ownership, § 33 et seq.

24B Am. Jur. Pleading and Practice Forms, Waste, § 16.

C.J.S. - 41 C.J.S., Husband and Wife, §§ 39, 40. 86 C.J.S., Tenancy in Common, §§ 8 et seq., 21 et seq., 51 et seq., 76 et seq., 115 et seq.

ALR. - Rights of cotenants inter se as to timber, 2 A.L.R. 993 ; 41 A.L.R. 582 .

Rights of cotenants inter se as to oil and gas, 40 A.L.R. 1400 ; 91 A.L.R. 205 .

Construction and effect of statutory provision for double or treble damages against tenant committing waste, 45 A.L.R. 771 .

Rights and remedies of tenant in common who pays his cotenant's share of taxes or assessments, 48 A.L.R. 586 .

Lump-sum assessment for taxes or public improvement against property owned by cotenants in undivided shares, 80 A.L.R. 862 .

Right of cotenant to acquire and assert adverse title or interest as against other cotenant, 85 A.L.R. 1535 .

Contribution or allowance as between cotenants in remainder as affected by fact that one or more of them owns, or did own, life estate or an interest therein, 98 A.L.R. 859 .

Cotenant's right to contribution in respect of taxes, improvements, or repairs as subject to reduction on account of rents and profits for which he is not otherwise responsible, 136 A.L.R. 1022 .

Provision in fire insurance policy against other insurance as applied to property owned jointly or by cotenants, 143 A.L.R. 425 .

Right of colessor in community oil or gas lease to lessen production and royalties thereunder by operations on land released from or not covered by the lease, 167 A.L.R. 1225 .

Cotenancy as factor in determining representation of property owners in petition for or remonstrance against public improvement, 3 A.L.R.2d 127.

Basis of computation of cotenant's accountability for minerals and timber removed from the property, 5 A.L.R.2d 1368.

Capacity of cotenant to maintain suit to set aside conveyance of interest of another cotenant because of fraud, undue influence, or incompetency, 7 A.L.R.2d 1317.

Rights and remedies as between cotenants of cemetery lots respecting burials therein, 10 A.L.R.2d 219.

Survivor's rights to contents of safe-deposit box leased or used jointly with another, 14 A.L.R.2d 948.

Effect of lease given by part only of cotenants, 49 A.L.R.2d 797.

Accountability of cotenants for rents and profits or use and occupation, 51 A.L.R.2d 388.

Grant of part of cotenancy land, taken from less than all cotenants, as subject of protection through partition, 77 A.L.R.2d 1376.

Effect of cotenant's attempt to devise or bequeath specific portion of property held in common, 97 A.L.R.2d 739.

Larceny: cotenant taking cotenancy property, 17 A.L.R.3d 1394.

Felonious killing of one cotenant or tenant by the entireties by the other as affecting the latter's right in the property, 42 A.L.R.3d 1116.

44-6-122. Accounting between cotenants for unequal share of rents or profits; priority of claim over certain liens.

If one tenant in common receives more than his share of the rents and profits, he shall be liable therefor as the agent or bailee of the other cotenant. The claim for such indebtedness shall be superior to liens held by third persons which have been placed on the interest of the cotenant by the tenant in possession who received the unequal share of the rents and profits.

(Civil Code 1895, § 3147; Civil Code 1910, § 3727; Code 1933, § 85-1004.)

History of section. - This Code section is derived from the decisions in Shiels v. Stark, 14 Ga. 429 (1853); Huff v. McDonald, 22 Ga. 131 (1856) and Hill v. Reeves, 57 Ga. 32 (1876).

Law reviews. - For article discussing several aspects of joint tenancy with right of survivorship, see 16 Ga. St. B.J. 54 (1979).

JUDICIAL DECISIONS

Claim against cotenant takes precedence over mortgage executed by mortgagee and over materialman's lien. - Claim against a cotenant for rents and profits arising from the exclusive use of the estate will take precedence of a mortgage executed by the mortgagee. Foreclosure of a mortgage creates a lien. Foreclosure of a materialman's lien does nothing more. Thus, the claim of the cotenant takes precedence over the materialman's lien foreclosure. New Winder Lumber Co. v. Guest, 182 Ga. 859 , 187 S.E. 63 (1936).

Title of grantee without notice of claim superior to claim by cotenant. - Claim of one against a cotenant on account of the cotenant having received more than the cotenant's share of the rents and profits does not take precedence over the title of a grantee of such cotenant who took without notice of such claim. Sawyer v. Powell, 230 Ga. 309 , 196 S.E.2d 882 (1973).

Claim by cotenant not superior to security deed. - Statute does not make the claim for indebtedness superior to a security deed made by the tenant in common individually, purporting to convey that tenant's undivided interest in the realty to a third person as security for that tenant's personal obligation. Carmichael v. Citizens & S. Bank, 162 Ga. 735 , 134 S.E. 771 (1926) (see O.C.G.A. § 44-6-122 ).

Lien recognized by this statute is superior to a materialman's lien, and to a mortgage; but it is inferior to a security deed. Bank of Tupelo v. Collier, 191 Ga. 852 , 14 S.E.2d 59 (1941) (see O.C.G.A. § 44-6-122 ).

Section protects tenant who pays taxes for joint property. - Provisions of this statute are applicable in favor of a tenant in common who has expended money for the protection of the joint property by the payment of taxes. Collier v. Bank of Tupelo, 190 Ga. 598 , 10 S.E.2d 62 (1940); Bank of Tupelo v. Collier, 191 Ga. 852 , 14 S.E.2d 59 (1941) (see O.C.G.A. § 44-6-122 ).

How "tenant in possession" may place lien. - A "tenant in possession," as those words are used in this statute, may place a lien by any deliberate act which renders the joint property subject to seizure, such as a purchase of materials for improvements without the knowledge and consent of a cotenant. If one held out that one owned the entire interest in the property to be improved, the tenant in possession was the cause which placed the lien on the property. New Winder Lumber Co. v. Guest, 182 Ga. 859 , 187 S.E. 63 (1936) (see O.C.G.A. § 44-6-122 ).

Jurisdiction in equity. - When a tenant in common is receiving more than the tenant's share of the rents and profits, equity will take jurisdiction of the matter and adjust the accounts between the tenants. Tate v. Goff, 89 Ga. 184 , 15 S.E. 30 (1892); Daniel v. Daniel, 102 Ga. 181 , 28 S.E. 167 (1897); Thompson v. Sanders, 113 Ga. 1024 , 39 S.E. 419 (1901).

Claims may be set up in equity. Mills v. Williams, 208 Ga. 425 , 67 S.E.2d 212 (1951).

Having properly assumed jurisdiction for the partition of property of cotenants by its sale and distribution of the proceeds, a court of equity has jurisdiction to adjust the accounts or claims of the cotenants. Taylor v. Sharpe, 221 Ga. 282 , 144 S.E.2d 390 (1965), overruled on other grounds O'Connor v. Bielski, 288 Ga. 81 , 701 S.E.2d 856 (2010).

Suit against executor of deceased cotenant. - Cotenants may maintain a suit to recover their share of the common property from the executor of a deceased cotenant, who asserts an adverse claim to the whole. Coppedge v. Coppedge, 144 Ga. 466 , 87 S.E. 392 (1915).

Statute of limitations. - If one tenant in common receives more than one's share of the profits, the statute of limitations does not commence to run in one's favor so as to bar an action of account by one's cotenant until such tenant begins to hold such surplus adversely to the cotenant, and knowledge of that fact comes to the cotenant. Ballenger v. Houston, 207 Ga. 438 , 62 S.E.2d 189 (1950); Chambers v. Schall, 209 Ga. 18 , 70 S.E.2d 463 (1952).

Between cotenants, no bar is shown by mere lapse of time. Chambers v. Schall, 209 Ga. 18 , 70 S.E.2d 463 (1952).

Limitation on damages recoverable. - In an action brought under former Code 1933, §§ 85-1003 and 85-1004 (see O.C.G.A. §§ 44-6-121 and 44-6-122 ) by tenants in common to recover the tenants' share of the rents and profits from the defendants who were in possession of the land owned in common, a recovery therefor can be had only up to the time the suit was commenced, and a former action between the same parties for the rents and profits on the same property, which was still pending, did not abate so much of the present suit as seeks recovery of the plaintiffs' share of the rents and profits accruing since the filing of the former action. Lankford v. Dockery, 85 Ga. App. 86 , 67 S.E.2d 800 (1951).

An action by a tenant in common for one's share of rents may recover damages only up to the time of bringing the suit, the reason being that the failure to share rents may or may not be continued after the suit is commenced and, if continued, a new cause of action arises therefor. Lankford v. Dockery, 85 Ga. App. 86 , 67 S.E.2d 800 (1951).

No liability if tenant receives permissible share. - Every tenant in common has the right to possess the joint property; if one does not receive more than one's share of the rents and profits thereof, one is not liable to a cotenant. Pugh v. Moore, 207 Ga. 453 , 62 S.E.2d 153 (1950).

Admissibility of tax receipts. - In an action for accounting and other relief between joint owners of property, tax receipts tending to show that one of the owners had paid the tax on the joint property for certain years are admissible. Head v. Lee, 203 Ga. 191 , 45 S.E.2d 666 (1947).

Subsequent recording of lien not authorized. - Statute does not authorize the subsequent recording of a lien upon the title register for rents accruing prior to the registration of title. Lankford v. Milhollin, 204 Ga. 193 , 48 S.E.2d 729 (1948) (see O.C.G.A. § 44-6-122 ).

Claim for excess loan and tax payments made. - In an estate's claim for partition of property, a co-tenant's counterclaim for contribution and set-off for sums the co-tenant had paid in loan and tax payments was not barred by the four-year statute of limitations, O.C.G.A. § 9-3-25 , because under O.C.G.A. §§ 44-6-122 and 44-6-141 , the statute did not begin to run until the estate filed its complaint. Khimani v. Ruppenthal, 344 Ga. App. 658 , 811 S.E.2d 448 (2018), cert. denied, No. S18C0916, 2018 Ga. LEXIS 571 (Ga. 2018).

Cited in McArthur v. Jordan, 139 Ga. 304 , 77 S.E. 150 (1913); Bank of Eton v. Owens, 146 Ga. 464 , 91 S.E. 476 (1917); Wallis v. Watson, 184 Ga. 38 , 190 S.E. 360 (1937); Zeagler v. Zeagler, 190 Ga. 220 , 9 S.E.2d 263 (1940); Veal v. Veal, 192 Ga. 503 , 15 S.E.2d 725 (1941); Lankford v. Dockery, 87 Ga. App. 813 , 75 S.E.2d 340 (1953); Brown v. Granite Holding Corp., 221 Ga. 560 , 146 S.E.2d 289 (1965); Evans v. Little, 246 Ga. 219 , 271 S.E.2d 138 (1980); Brewer v. Brewer, 156 Ga. App. 268 , 274 S.E.2d 671 (1980); Jones v. Alexander, 163 Ga. App. 278 , 293 S.E.2d 537 (1982); Therrell v. Georgia Marble Holdings Corp., 960 F.2d 1555 (11th Cir. 1992).

RESEARCH REFERENCES

Am. Jur. 2d. - 20 Am. Jur. 2d, Cotenancy and Joint Ownership, §§ 40 et seq., 49 et seq., 76 et seq.

C.J.S. - 86 C.J.S., Tenancy in Common, §§ 22, 55 et seq., 83 et seq.

ALR. - Rights and remedies of tenant in common who pays his cotenant's share of taxes or assessments, 48 A.L.R. 586 .

Contribution or allowance as between cotenants in remainder as affected by fact that one or more of them owns, or did own, life estate or an interest therein, 98 A.L.R. 859 .

Basis of computation of cotenant's accountability for minerals and timber removed from the property, 5 A.L.R.2d 1368.

44-6-123. Adverse possession against cotenant; action to recover possession.

There may be no adverse possession against a cotenant until the adverse possessor effects an actual ouster, retains exclusive possession after demand, or gives his cotenant express notice of adverse possession. In such event, the cotenant may bring an action to recover possession.

(Orig. Code 1863, § 2284; Code 1868, § 2277; Code 1873, § 2303; Code 1882, § 2303; Civil Code 1895, § 3145; Civil Code 1910, § 3725; Code 1933, § 85-1005.)

Cross references. - Adverse possession generally, § 44-5-160 et seq.

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Possession of land as notice of right and title. - Former Code 1933, § 85-1005 (see O.C.G.A. § 44-6-123 ) must be construed in connection with former Code 1933, § 85-408 (see O.C.G.A. § 44-5-169 ), relating to possession of land as notice of right and title. Wren v. Wren, 199 Ga. 851 , 36 S.E.2d 77 (1945).

Adverse possession found. - Trial court properly granted summary judgment to the grantor's grandchildren as the grandchildren held the disputed parcel of property under color of title, via a deed to the grantor's child, albeit the fact that it was not effective as a deed conveying a present interest, for the prescription period of seven years, and the grantor's heirs at law did not contest it until suit was filed. Matthews v. Crowder, 281 Ga. 842 , 642 S.E.2d 852 (2007).

Applicability when alleged cotenant claims as sole grantee. - Section inapplicable when alleged cotenant in possession never expressly or impliedly recognized such a relation, but claimed title and held possession under a deed made to that cotenant as the sole grantee. Stephens v. Walker, 193 Ga. 330 , 18 S.E.2d 537 (1942); Stallings v. Britt, 204 Ga. 250 , 49 S.E.2d 517 (1948) (see O.C.G.A. § 44-6-123 ).

When a person claiming prescriptive title does not enter possession as a cotenant but as owner of the entire estate under color of title, such possession is adverse to those who might be otherwise treated as cotenants, and the party in possession is not subject to the conditions of O.C.G.A. § 44-6-123 . Mattison v. Barbano, 249 Ga. 271 , 290 S.E.2d 41 (1982).

When the copossessors were never cotenants, O.C.G.A. § 44-6-123 has no application. Carter v. Becton, 250 Ga. 617 , 300 S.E.2d 152 (1983).

Mineral owner and landowners are not tenants in common in the usual sense since the landowners own the fee subject to the rights of the mineral owner in one-half of the mineral interests. Hayes v. Howell, 251 Ga. 580 , 308 S.E.2d 170 (1983).

Tenants in common occupy a fiduciary relationship to each other, with respect to their interest in the common property and the common title under which the tenants hold, that it would be inequitable to permit one of the tenants, without the consent of the others, to buy an outstanding adversary's claim to the common estate and assert it for one's exclusive benefit, to the injury or prejudice of one's cotenants; and if one cotenant does actually acquire such a claim, the cotenant is, unless the contrary appears, to be regarded as holding it in trust for the benefit of the cotenants in proportion to their respective interests. Hardin v. Council, 200 Ga. 822 , 38 S.E.2d 549 (1946); Fuller v. McBurrows, 229 Ga. 422 , 192 S.E.2d 144 (1972).

Elements of adverse possession against cotenant. - In order for one cotenant to prescribe against another, O.C.G.A. § 44-6-123 requires actual ouster, exclusive possession after demand, or express notice of adverse possession, in addition to the usual elements of adverse possession. Carter v. Becton, 250 Ga. 617 , 300 S.E.2d 152 (1983).

Party who asserts a claim of title by adverse possession against a cotenant has the burden of proving not only the usual elements of prescription, but also at least one of the elements of O.C.G.A. § 44-6-123 . Wright v. Wright, 270 Ga. 530 , 512 S.E.2d 618 (1999).

Seven years possession required to get title. - Purchaser must maintain actual adverse possession for seven years under color of title to get title. Doe v. Roe, 46 Ga. 9 (1872); Morgan v. Mitchell, 104 Ga. 596 , 30 S.E. 792 (1898).

Exclusive possession by a cotenant alone will be presumed not an adverse holding, but simply one in support of the common title. Hardin v. Council, 200 Ga. 822 , 38 S.E.2d 549 (1946); Erwin v. Miller, 203 Ga. 58 , 45 S.E.2d 192 (1947); Lankford v. Dockery, 85 Ga. App. 86 , 67 S.E.2d 800 (1951).

Silent and peaceable possession of one tenant, with no act which can amount to an ouster of one's cotenants, is not adverse. Hardin v. Council, 200 Ga. 822 , 38 S.E.2d 549 (1946); Erwin v. Miller, 203 Ga. 58 , 45 S.E.2d 192 (1947); Fuller v. McBurrows, 229 Ga. 422 , 192 S.E.2d 144 (1972).

Demand required. - Plaintiffs could not contend that the defendant was "in exclusive possession after demand," because the evidence showed no demand by the plaintiff upon the defendant for the possession of their interest in the land. Bowman v. Owens, 133 Ga. 49 , 65 S.E. 156 (1909).

Exclusive possession after demand required. - Correct statement of the law is that the cotenant must show exclusive possession after demand, and not that the cotenant demanded such exclusive right. Tietjen v. Meldrim, 169 Ga. 678 , 151 S.E. 349 (1930).

Notice of ouster held insufficient. - Sale of one tenant's interest at judicial sale, without actual possession being taken, is insufficient notice of ouster to the cotenant as to start statute to running. Harriss v. Howard, 126 Ga. 325 , 55 S.E. 59 (1906).

Party who alleges title by prescription has burden of proving title, and when it is contended that a former tenant in common acquired prescriptive title as against one's former cotenants, the party asserting such contention has the burden of proving not only the usual elements of prescription but also at least one of the conditions stated in this statute as to cotenants. Harris v. Mandeville, 195 Ga. 251 , 24 S.E.2d 23 (1943); Hardin v. Council, 200 Ga. 822 , 38 S.E.2d 549 (1946); Erwin v. Miller, 203 Ga. 58 , 45 S.E.2d 192 (1947); Fuller v. McBurrows, 229 Ga. 422 , 192 S.E.2d 144 (1972); Jordan v. Robinson, 229 Ga. 761 , 194 S.E.2d 452 (1972); Barfield v. Hilton, 235 Ga. 407 , 219 S.E.2d 719 (1975) (see O.C.G.A. § 44-6-123 ).

Person claiming prescriptive title against cotenant has burden of showing not only the usual elements of prescription under O.C.G.A. § 44-5-161 but in addition thereto at least one of the conditions stated in O.C.G.A. § 44-6-123 . Lindsey v. Lindsey, 249 Ga. 832 , 294 S.E.2d 512 (1982).

Knowledge of adverse claim is question for jury. Gann v. Runyan, 134 Ga. 49 , 67 S.E. 435 (1910).

Substitution of "actual notice" for "express notice" in jury charge is not error. David v. Tucker, 140 Ga. 240 , 78 S.E. 909 (1913).

Exception to statute inapplicable. - When the mother and children obtained possession of the decedent's property by falsely informing the probate court that they were the only heirs at law when the son was also an heir at law, the trial court improperly applied the exception to O.C.G.A. § 44-6-123 , as questions of fact remained as to whether the wife and children took possession of the subject property with implied knowledge that there was a tenancy in common with the son as a joint heir. Ponder v. Ponder, 275 Ga. 616 , 571 S.E.2d 343 (2002).

Cited in Coppedge v. Coppedge, 144 Ga. 466 , 87 S.E. 392 (1915); Cowart v. Strickland, 170 Ga. 530 , 153 S.E. 415 (1930); Pullen v. Johnson, 173 Ga. 581 , 160 S.E. 785 (1931); Bagley v. Forrester, 53 F.2d 831 (5th Cir. 1931); McIntosh v. Williams, 45 Ga. App. 801 , 165 S.E. 854 (1932); Veal v. Veal, 192 Ga. 503 , 15 S.E.2d 725 (1941); Nixon v. Nixon, 192 Ga. 629 , 15 S.E.2d 883 (1941); Yeager v. Weeks, 74 Ga. App. 84 , 39 S.E.2d 84 (1946); King v. King, 203 Ga. 811 , 48 S.E.2d 465 (1948); Ballenger v. Houston, 207 Ga. 438 , 62 S.E.2d 189 (1950); Andrews v. Walden, 208 Ga. 340 , 66 S.E.2d 801 (1951); Lankford v. Dockery, 85 Ga. App. 86 , 67 S.E.2d 800 (1951); Brown v. Brown, 209 Ga. 620 , 75 S.E.2d 13 (1953); Lankford v. Dockery, 87 Ga. App. 813 , 75 S.E.2d 340 (1953); Varellas v. Varellas, 218 Ga. 125 , 126 S.E.2d 680 (1962); Crosby v. Crosby, 224 Ga. 109 , 160 S.E.2d 362 (1968); United States v. Williams, 441 F.2d 637 (5th Cir. 1971); Thomas v. Hooks, 231 Ga. 409 , 202 S.E.2d 92 (1973); Lovin v. Poss, 240 Ga. 848 , 242 S.E.2d 609 (1978); Bailey v. Johnson, 245 Ga. 823 , 268 S.E.2d 147 (1980); Love v. Love, 259 Ga. 423 , 383 S.E.2d 329 (1989).

What Constitutes Ouster

To constitute disseizin of a tenant in common by one's cotenants, there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information and give notice to the cotenants that an adverse possession and an actual disseizin are intended to be asserted against them. Nor will the making of ordinary improvements by a tenant in possession constitute an ouster of other cotenants. Hardin v. Council, 200 Ga. 822 , 38 S.E.2d 549 (1946).

Void deed will operate as color of title. Davis v. Harnesberger, 211 Ga. 625 , 87 S.E.2d 841 (1955).

Identification of premises necessary for color of title. - Color of title cannot arise or serve to give right of possession when it is not possible to identify the premises. Newsome v. Moore, 166 Ga. 301 , 143 S.E. 400 (1928).

Deed pursuant to court order. - When a deed specifically stated that the property was "conveyed pursuant to the order" granting the year's support, grantee was only conveyed such interest as was set aside to the widow under the year's support order, which was an undivided interest equal to that of each of the widow's minor children; therefore, grantee could prescribe against the grantee's cotenants (the children) only by showing ouster, exclusive possession after demand, or express notice of adverse possession. Mattison v. Barbano, 249 Ga. 271 , 290 S.E.2d 41 (1982).

Possession of more than proportionate share. - That one cotenant may occupy more than one's proportionate share of the property, or even that one may be in possession of all of the property, does not necessarily imply an ouster, the presumption being that one's possession is not adverse, but is in common with the others, or for the common benefit, unless and until the contrary appears. Chambers v. Schall, 209 Ga. 18 , 70 S.E.2d 463 (1952).

Party who asserts a claim of title by adverse possession against a cotenant has the burden of proving not only the usual elements of prescription, O.C.G.A. § 44-5-161 , but also at least one of the elements of O.C.G.A. § 44-6-123 . But, when a person claiming prescriptive title does not enter possession as a cotenant but as the owner of the entire estate under color of title, such possession is adverse to those who might be otherwise treated as cotenants, and the party in possession is not subject to the conditions of O.C.G.A. § 44-6-123 . Gigger v. White, 277 Ga. 68 , 586 S.E.2d 242 (2003).

Conveyance to third party is ouster. - Statute means that when two persons hold as cotenants, one cannot prescribe against the other, except under those circumstances. But if one cotenant makes a deed to the whole property and the grantee takes possession and holds adversely, not as a cotenant, but as sole owner, this is such an ouster as that prescription will run. See Doe v. Roe, 46 Ga. 9 (1872); Doe v. Roe, 46 Ga. 593 (1872); Cain v. Furlow, 47 Ga. 674 (1873); Norris v. Dunn, 70 Ga. 796 (1883); McDowell v. Sutlive, 78 Ga. 142 , 2 S.E. 937 (1886); Street v. Collier, 118 Ga. 470 , 45 S.E. 294 (1903) (see O.C.G.A. § 44-6-123 ).

If the administrator of a deceased cotenant sells and makes to the purchaser a deed to the entire property, and one claiming under such purchaser holds possession thereof under a duly recorded deed conveying the entire property, not as a cotenant but as sole owner of the entire property, there is an actual ouster of the other cotenants, and the latter have the right to sue for the possession of their interest. Bowman v. Owens, 133 Ga. 49 , 65 S.E. 156 (1909).

When a tenant in common conveys the whole lot to a third person, and the grantee takes possession, claiming the entire lot as the grantee's own, this action constitutes a disseizin and ouster of the other tenants in common, and they are barred from asserting their right to such property after the expiration of seven years. Broadwater v. Parker, 209 Ga. 801 , 76 S.E.2d 402 (1953); Davis v. Harnesberger, 211 Ga. 625 , 87 S.E.2d 841 (1955).

When the evidence shows that there was an actual ouster or express knowledge of adverse possession, a deed executed by a cotenant to the whole of the property is good as color of title as against the other cotenants. Jordan v. Robinson, 229 Ga. 761 , 194 S.E.2d 452 (1972).

Because the parties were cotenants under O.C.G.A. § 44-6-120 , and one of the cotenants was on notice as to the other cotenant's heirs' adverse possession under O.C.G.A. § 44-6-123 , which included conveying the timber on the land to a company, but failed to assert rights to the property in the prescribed time, the heirs established prescriptive title in the land. Williams v. Screven Wood Co., 279 Ga. 609 , 619 S.E.2d 641 (2005).

Erecting fence to divide common property. - Entering into possession of a portion of a cemetery lot, which is enclosed by a fence, by one claiming to be the owner of such portion, and erecting a substantial iron fence so as to divide the part so claimed from the remaining part of the lot, is, as to that peculiar character of property, an act showing adverse possession of a public nature, totally irreconcilable with cotenancy, and amounts to an actual ouster of others claiming to be tenants in common with the possessor. Roumillot v. Gardner, 113 Ga. 60 , 38 S.E. 362 , 53 L.R.A. 729 (1901).

Possession under order of year's support for widow. - When a landowner's estate was set apart as a year's support for his widow and three children by her, without mentioning two children of the decedent by a former marriage, and the persons to whom the year's support was so set apart took exclusive possession of the property under claim of title, this constituted a severance from the other children, and a prescriptive title began to run. Norris v. Dunn, 70 Ga. 796 (1883).

Merely recording deed from one tenant in common to a third person does not constitute actual ouster of other cotenants. Lindsey v. Lindsey, 249 Ga. 832 , 294 S.E.2d 512 (1982).

Possession of property by party who stands in position of tenant of cotenant does not constitute actual ouster of other tenants in common. Lindsey v. Lindsey, 249 Ga. 832 , 294 S.E.2d 512 (1982).

Possession under conveyance from third person. - There is a material difference between the effect of a deed or transfer by a tenant or tenants in common purporting to convey the whole estate to a stranger, and a transaction in which such a deed or transfer is made by an outsider to a tenant in common. In the former case, possession by the grantee may amount to an ouster or disseizin, while in the latter case a different rule applies. Hardin v. Council, 200 Ga. 822 , 38 S.E.2d 549 (1946).

Requirement of ouster. - Trial court properly granted summary judgment to defendant pursuant to O.C.G.A. § 9-11-56 on plaintiff's claim for adverse possession of land; O.C.G.A. § 44-6-123 required an adverse-possessor cotenant to effect an actual ouster against the other cotenant, and in this case, it was undisputed that plaintiff took no action to effect an actual ouster of defendant. Vaughn v. Stoenner, 276 Ga. 660 , 581 S.E.2d 543 (2003).

Evidence insufficient to support ouster. - Only evidence of an adverse holding is the bare fact that the vendors of the defendant were in the exclusive possession by their tenants or agents, and that what rents were collected from the land were paid to them, their agent testifying that he knew of no other owner or claimant of the premises. This is not sufficient to make out a case of adverse holding by one cotenant against another. Morgan v. Mitchell, 104 Ga. 596 , 30 S.E. 792 (1898).

When land was owned by two persons as tenants in common, and one of them took a deed from a third person purporting to convey to himself the whole of the common property, and had such deed recorded, and when the conveyance amounted to nothing more as between the cotenants than the removal of an encumbrance for which they were both liable, possession of the land by the grantee, under such deed, would not (assuming good faith) constitute such an ouster of the other cotenant as would lay a foundation for the commencement of adverse possession against him, unless it was accompanied by a hostile claim of which he had actual notice. Hardin v. Council, 200 Ga. 822 , 38 S.E.2d 549 (1946).

Possession of heir of deceased grantee in certain deeds was that of the other heirs standing in the same relationship as cotenants, and in the absence of actual ouster, exclusive possession after demand or express notice of the adverse possession, the devisee did not acquire prescriptive title as against cotenants by such possession. Erwin v. Miller, 203 Ga. 58 , 45 S.E.2d 192 (1947).

By affidavit, heirs showed that a cotenant did not meet the requirements of O.C.G.A. § 44-6-123 by averring that the cotenant took no action to oust the heirs from the property in question, to demand and retain exclusive possession, or to give actual notice of adverse possession; the burden shifted to the cotenant to point to a conflict on this issue, but in an affidavit, the cotenant only showed that the cotenant paid the property taxes and that the heirs did not use the property or question the cotenant's right to be on the property, which did not establish an ouster or to satisfy an "express notice" or a "hostile claim" criterion, and summary judgment in favor of the heirs was proper. Ward v. Morgan, 280 Ga. 569 , 629 S.E.2d 230 (2006).

Evidence sufficient to support ouster. - Evidence was sufficient to enable the jury to conclude that a property owner met the burden of showing ouster because the owner and an uncle did more than simply make improvements and pay property taxes; the owner and uncle took unequivocal steps, including renting a part of the premises to different people and cutting and selling timber, which were inconsistent with, and exclusive of, the rights of the cotenants not in possession, and those acts were open and public. DeFoor v. DeFoor, 290 Ga. 540 , 722 S.E.2d 697 (2012).

RESEARCH REFERENCES

Am. Jur. 2d. - 3 Am. Jur. 2d, Adverse Possession, §§ 145, 212 et seq.

C.J.S. - 86 C.J.S., Tenancy in Common, §§ 15, 19, 20, 30 et seq.

ALR. - Right of cotenant to acquire and assert adverse title or interest as against other cotenants, 54 A.L.R. 874 ; 85 A.L.R. 1535 .

Possession by stranger claiming under conveyance by cotenant as adverse to other cotenants, 32 A.L.R.2d 1214.

Adverse possession between cotenants, 82 A.L.R.2d 5.

PART 2 P ARTITION

Law reviews. - For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).

JUDICIAL DECISIONS

When remedy at law is required for partition. - Unless, due to reasons stated in former Code 1933, § 85-1501 (see O.C.G.A. § 44-6-140 ) equitable jurisdiction was applied, the parties seeking a partition of lands were required to resort to the remedy at law. Werner v. Werner, 196 Ga. 1 , 25 S.E.2d 676 (1943).

Petition for partition and accounting presents case in equity. - Petition which not only embraces a statutory application for partition but also prays for an accounting from cotenants for rents and profits presents a case in equity. Werner v. Werner, 196 Ga. 1 , 25 S.E.2d 676 (1943).

Writ of mandamus cannot compel commissioner appointed by the court to partition lands to discharge duty. The duties of a commissioner appointed by the court to partition lands are purely administrative, and to issue a mandamus to require one of the commissioners to act would be the equivalent of the court ordering itself to act. Failure to act might be grounds for contempt proceedings but not mandamus. Lankford v. Kirkland, 207 Ga. 504 , 62 S.E.2d 836 (1950).

Attorney's fees in partition proceeding. - When there is only a statutory proceeding for partition of lands, attorney's fee for the moving party cannot be deducted from the proceeds of sale by the partitioners as a part of the expense contemplated by that statute. Werner v. Werner, 196 Ga. 1 , 25 S.E.2d 676 (1943).

When petition for partition constitutes election to sell interest. - When a written agreement between tenants in common provides that either party may sell that party's interest in the property, the filing of a petition for partition by one of the tenants in common constitutes an election to sell one's interest in the property. Bowers v. Bowers, 208 Ga. 85 , 65 S.E.2d 153 (1951).

Cited in McIntosh v. Williams, 45 Ga. App. 801 , 165 S.E. 854 (1932); Nixon v. Nixon, 197 Ga. 426 , 29 S.E.2d 613 (1944); Johnson v. Flanders, 92 Ga. App. 697 , 89 S.E.2d 829 (1955); Lowe v. Loftus, 314 F. Supp. 620 (S.D. Ga. 1970).

RESEARCH REFERENCES

ALR. - Partition: division of building, 28 A.L.R. 727 .

Right to partition as affected by severance of estate in mineral from estate in surface by one or more of cotenants, 39 A.L.R. 741 .

Interference by court with decision of commissioners in partition suit, 46 A.L.R. 348 .

Respective rights of owners of different parcels into which land subject to an oil and gas lease has been subdivided, 46 A.L.R. 634 ; 106 A.L.R. 906 .

Right of executor or administrator to bring proceedings for partition of real property, 57 A.L.R. 573 .

Power to decree pecuniary sum as equality in order to equalize shares of parties in partition, 65 A.L.R. 352 .

Testamentary provisions operating to prohibit or postpone partition, 85 A.L.R. 1321 .

Partition as affecting pre-existing mortgage or other lien on undivided interest, 93 A.L.R. 1267 .

Power of court in partition proceedings to direct sale of property without aid of or contrary to recommendation of commissioner or referee, 95 A.L.R. 1330 .

Partition suit or partition deed as affecting character of estate as ancestral estate or estate of purchase for purposes of statute of descent and distribution, 103 A.L.R. 231 .

Parol partition or division of real property as between undivided interests held by same person in different capacities, 116 A.L.R. 626 .

Cotenant's right to allowance in partition in respect of amount paid to discharge mortgage or other lien upon premises as affected by statute of limitations or laches, 117 A.L.R. 1442 .

Right of party to voluntary partition, or of his successor, as against other parties thereto, or their successors, where title fails as to parcel, or part of parcel, conveyed to him, 123 A.L.R. 489 .

Holder of mortgage or other lien upon an undivided interest in real property as a necessary or proper party to a suit for partition, 126 A.L.R. 414 .

Parol partition and the statute of frauds, 133 A.L.R. 476 .

Right to, and effect of, partition of undivided interests held respectively in fee and in life estate with remainder, 134 A.L.R. 661 .

Homestead right of cotenant as affecting partition, 140 A.L.R. 1170 .

Right to partition in kind of mineral or oil and gas land, 143 A.L.R. 1092 .

Dower and homestead rights as affecting partition proceedings, 159 A.L.R. 1129 .

Partition: construction and application of provision for assignment, to one of co-owners, of real estate not readily divisible, 169 A.L.R. 862 .

Partition of undivided interests in minerals in place, 173 A.L.R. 854 .

Burden of proof in partition suit as regards alleged prior voluntary partition of property, 1 A.L.R.2d 473.

Timber rights as subject to partition, 21 A.L.R.2d 618.

Applicability of rules of accretion and reliction so as to confer upon owner of island or bar in navigable stream title to additions, 54 A.L.R.2d 643.

Maintainability of partition action where United States or state owns an undivided interest in property, 59 A.L.R.2d 937.

Contractual provisions as affecting right to judicial partition, 37 A.L.R.3d 962.

Right to partition of overriding royalty interest in oil and gas leasehold, 58 A.L.R.3d 1052.

Lack of final settlement of intestate's estate as affecting heir's right to partition of realty, 92 A.L.R.3d 473.

What constitutes unity of title or ownership sufficient for creation of an easement by implication or way of necessity, 94 A.L.R.3d 502.

Subpart 1 Equitable Partition

44-6-140. When equitable partition authorized.

Equity has jurisdiction in cases of partition whenever the remedy at law is insufficient or peculiar circumstances render the proceeding in equity more suitable and just.

(Orig. Code 1863, § 3115; Code 1868, § 3127; Code 1873, § 3183; Code 1882, § 3183; Civil Code 1895, § 4783; Civil Code 1910, § 5355; Code 1933, § 85-1501.)

Law reviews. - For annual survey on real property law, see 70 Mercer L. Rev. 209 (2018).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Enjoining partition. - It is error to enjoin tenants in common from filing proceedings for partition. Ellis v. Jenkins, 250 Ga. 29 , 295 S.E.2d 736 (1982).

Cited in Mayer v. Hover, 81 Ga. 308 , 7 S.E. 562 (1888); Wallis v. Watson, 184 Ga. 38 , 190 S.E. 360 (1937); Joel v. Joel, 201 Ga. 520 , 40 S.E.2d 541 (1946); Johnson v. Wilson, 212 Ga. 264 , 91 S.E.2d 758 (1956); McCreary v. Wright, 132 Ga. App. 500 , 208 S.E.2d 373 (1974); Sikes v. Sikes, 233 Ga. 97 , 209 S.E.2d 641 (1974); Givens v. Dunn Labs., Inc., 138 Ga. App. 26 , 225 S.E.2d 480 (1976).

Distinction Between Equity and Law

Distinction between equitable and statutory partitions has not been eliminated. Burnham v. Lynn, 235 Ga. 207 , 219 S.E.2d 111 (1975).

Former Civil Code 1910, § 5355 (see O.C.G.A. § 44-6-140 ) was an alternative to the statutory method of petition provided in former Civil Code 1910, § 5358 (see O.C.G.A. § 44-6-160 ). Cock v. Callaway, 141 Ga. 774 , 82 S.E. 286 (1914).

Tenant in common or co-owner of land is entitled to either statutory or equitable partition. Billings v. Billings, 242 Ga. 632 , 250 S.E.2d 480 (1978).

Equity may adjust complicated and unascertainable interests. - When the title to land is in tenants in common, and their several interests have become complicated and cannot be definitely ascertained and set apart at law, equity will entertain jurisdiction to adjust by one decree the rights of all. Fountain v. Davis, 71 Ga. App. 1 , 29 S.E.2d 798 (1944); Waycross Military Ass'n v. Hiers, 209 Ga. 812 , 76 S.E.2d 486 (1953).

Plaintiff must prove necessity for equitable relief. - Unless equitable jurisdiction is applied, parties seeking partition are required to resort to legal remedy. Werner v. Werner, 196 Ga. 1 , 25 S.E.2d 676 (1943).

While a petition will not be dismissed if the petition states a claim for either legal or equitable partition, the plaintiff must prove the necessity for equitable relief in order to justify the equitable decree. Burnham v. Lynn, 235 Ga. 207 , 219 S.E.2d 111 (1975).

Plaintiff in an action for equitable partition must show that there is a necessity for equitable relief or that circumstances make equitable relief more just and suitable. Larimer v. Larimer, 249 Ga. 500 , 292 S.E.2d 71 (1982).

Need for obstacle to legal remedy, or peculiar circumstances. - Section is inapplicable unless there is obstacle rendering legal remedy less ample and adequate. Greer v. Henderson, 37 Ga. 1 (1867); Rosenberg v. Phelps, 159 Ga. 607 , 126 S.E. 788 (1925) (see O.C.G.A. § 44-6-140 ).

When no peculiar circumstances are shown, equity will not take cognizance of a partition action. Saffold v. Anderson, 162 Ga. 408 , 134 S.E. 81 (1926).

An application to partition lands between tenants in common may be instituted at law, or it may be brought in equity whenever the remedy at law was insufficient or peculiar circumstances render the proceeding in equity more suitable and just. Unless for some special reason equitable jurisdiction was applicable, a party seeking the writ of partition was required to resort to the remedy afforded by former Code 1933, § 85-1504 (see O.C.G.A. § 44-6-160 ). Gifford v. Courson, 224 Ga. 840 , 165 S.E.2d 133 (1968).

Petition not made equitable merely by allegations of uncertainty of interests and difficulty of partitioning. - Allegations in a petition that there was some uncertainty about all parties having an interest in the land and praying for the appointment of a guardian ad litem for unnamed parties at interest, and alleging that the property could not be partitioned by metes and bounds, do not make the petition an equitable one for partition. Brinson v. Thornton, 220 Ga. 234 , 138 S.E.2d 268 (1964).

Equitable partition considered separately from petition at law. - When a tenant in common alleges grounds for an equitable partition, the petition constitutes a separate case from the petition at law and must be treated accordingly. Frierson v. Dye, 150 Ga. 206 , 103 S.E. 162 (1920).

Action properly treated as one in equity for partitioning when defendant claimed title by prescription. - When the title and interests to realty of the parties in dispute over construction of the will had become more complicated by defendant's claim of title by prescription, the trial court did not err in treating the action as one in equity for partitioning. Bailey v. Johnson, 247 Ga. 657 , 278 S.E.2d 384 (1981).

Any form of partition would not end dispute. - In a dispute over ownership of an access driveway, the trial court properly granted the defendants summary judgment on the petition to partition since the access driveway had no value other than the driveway's service to the lots to which it was connected since all owners maintained easement rights to use the access driveway regardless of the fee ownership; thus, partition of the access driveway so as to consolidate fee ownership would not put an end to the dispute. Saik v. Brown, Ga. App. , S.E.2d (June 25, 2020).

Statutory partition more appropriate. - Trial court erred by ordering the equitable partition sale of 3.503 acres of real property because the co-owner failed to show that the remedy at law of a statutory partition, pursuant to O.C.G.A. § 44-6-160 et seq., was insufficient or that peculiar circumstances rendered the equitable proceeding more suitable and just; and, in a statutory partition, a court may order the sale of property that cannot be fairly divided by metes and bounds. Pack v. Mahan, 294 Ga. 496 , 755 S.E.2d 126 (2014).

Circumstances Supporting Partition
1. General

Petition not defeated because opposing party owns life estate in other undivided interests. - One who holds title to an undivided interest in land may not, in an action to partition the land, be defeated merely because the party against whom the partition is sought may own a life estate in other undivided interests. Johnson v. Wilson, 212 Ga. 264 , 91 S.E.2d 758 (1956).

2. Specific

Tenants excluded from possession may maintain action. - When one cotenant is in exclusive possession and denies the title of the others, the tenants so excluded may maintain an action for partition. Hatton v. Johnson, 150 Ga. 218 , 103 S.E. 233 (1920).

When there is an agreement between the tenants in common to divide severable property, in pursuance of which the portion of one cotenant is allotted to that cotenant, that cotenant may, upon demand and refusal to deliver the property, maintain an action for the conversion thereof against the former cotenant, having the property in that tenant's possession, although this portion was never in fact separated from the residue. Hemphill v. Hemphill, 62 Ga. App. 358 , 7 S.E.2d 762 (1940).

Section applicable where matters of account involved. - When matters of an account against a cotenant are involved and a sale is necessary to partition, this statute applies. Lowe v. Burke, 79 Ga. 164 , 3 S.E. 449 (1887) (see O.C.G.A. § 44-6-140 ).

When matter of account against an insolvent cotenant for past profits of the land is involved, and where partition of the premises cannot be made without a sale, equity has jurisdiction to decree a partition and account. The element of account and insolvency will give equity jurisdiction. Ballenger v. Houston, 207 Ga. 438 , 62 S.E.2d 189 (1950).

While equity jurisdiction ceases when the legislature gives a specific remedy at law, a specific legal remedy for partition is provided, and equity will not ordinarily take cognizance of a partition proceeding unless the remedy at law is insufficient, or peculiar circumstances render the proceeding in equity more suitable and just, an accounting between tenants in common will alone and of itself give a court of equity jurisdiction of a partition proceeding, whether or not there be other peculiar circumstances which render the proceeding in equity more suitable and just. Mills v. Williams, 208 Ga. 425 , 67 S.E.2d 212 (1951).

Property which is owned jointly may be partitioned in a divorce action by the court as in an equitable proceeding. Hargrett v. Hargrett, 242 Ga. 725 , 251 S.E.2d 235 (1978), overruled on other grounds, Stokes v. Stokes, 246 Ga. 765 , 273 S.E.2d 169 (1980).

In divorce cases heard without a jury, as equitable proceedings, a trial judge may divide property as equity demands, regardless of which party receives an award. Reaves v. Reaves, 244 Ga. 102 , 259 S.E.2d 52 (1979).

Partition unavailable for unmarried parties' property. - When the appellant sought a petition for equitable partition of the unmarried parties' property in which the parties were joint tenants with the right of survivorship, the trial judge properly found that statutory partition was available only to tenants in common, and was not available to the appellant; and that equitable partition was also unavailable because the appellant could seek a partition of the subject property only after the joint tenancy was severed as the parties were not married parties who were seeking the equitable division of marital property in a divorce proceeding. Vargo v. Adams, 302 Ga. 637 , 805 S.E.2d 817 (2017).

Procedure

Superior court which has general equitable powers has jurisdiction to partition property. Gorman v. Gorman, 239 Ga. 312 , 236 S.E.2d 652 (1977).

Court may entertain partition proceeding without first trying, or in connection therewith, accounting action concerning the same property held in cotenancy. Lankford v. Milhollin, 200 Ga. 512 , 37 S.E.2d 197 (1946).

Owner of water easement as necessary party. - While all parties having an interest in the property sought to be partitioned must be named defendants, since the United States government had an easement or grant of two-thirds of the water flow to the spring located on the land to which all the interests of all the tenants in common were subject, and only the property was sought to be partitioned, it was not necessary for the United States government to be named as a party defendant, even if such might be done with or without its permission and consent. City of Warm Springs v. Bulloch, 213 Ga. 164 , 97 S.E.2d 582 (1957).

Effect of agreement on partition action. - Generally, party will not be decreed partition if it would be contrary to the party's agreement. Bowers v. Bowers, 208 Ga. 85 , 65 S.E.2d 153 (1951).

Objections to return of appointed commissioners not timely filed. - Since equity has jurisdiction in cases of partition, it is too late to file objections to the return of the appointed commissioners when the return has been entered up as the judgment of the court with the knowledge of both parties to the proceeding. Drew v. Drew, 151 Ga. 11 , 105 S.E. 469 (1921).

Appeal in partition action to enforce separation agreement. - Although it had its roots in the parties' divorce action, an action for an equitable partition to enforce the separation agreement which was part of the divorce decree is a new action and not merely a continuation of the divorce action. For this reason, O.C.G.A. § 5-6-35 does not apply to this situation, and husband's direct appeal from the partition order is proper. Larimer v. Larimer, 249 Ga. 500 , 292 S.E.2d 71 (1982).

Relief Granted

Court has power to determine all various matters in dispute. - When a tenant in common applies to the superior court to have certain land so held partitioned, and to have an accounting between the tenants in common, such a proceeding is in the nature of a proceeding in equity, in which the court has all the power and jurisdiction for hearing and determining the various matters in dispute between the parties, including their respective titles to the land, to have an accounting for rents and profits, awarding partition, etc. Borum v. Deese, 196 Ga. 292 , 26 S.E.2d 538 (1943).

Court decree transfers title. - Whether the division of a estate was entered into under the provisions as to the distribution of estates in kind, or was made under the provisions as to the partition of estates by agreement of the parties, the division award of the commissioners, which was approved and made the decree of the court, was sufficient to transfer title out of the estate and the heirs to the persons to whom the particular portions of the estate were awarded. Bell v. Cone, 208 Ga. 467 , 67 S.E.2d 558 (1951).

Partitionship may be accomplished through receivership. - There is no reason why partitionment in equity may not be fully and effectually accomplished through and by receivership. Waycross Military Ass'n v. Hiers, 209 Ga. 812 , 76 S.E.2d 486 (1953).

Court may adjust cotenants' accounts. - Having properly assumed jurisdiction for the partition of the property of the cotenants by its sale and distribution of the proceeds, a court of equity has jurisdiction to adjust the accounts or claims of the cotenants. Taylor v. Sharpe, 221 Ga. 282 , 144 S.E.2d 390 (1965), overruled on other grounds O'Connor v. Bielski, 288 Ga. 81 , 701 S.E.2d 856 (2010).

Court may make necessary and equitable adjustments for improvements and expenditures made and paid for by the respective parties. Borum v. Deese, 196 Ga. 292 , 26 S.E.2d 538 (1943).

Compensation allowed for counsel in proper case. - In an equitable partition proceeding, the judge of the superior court before whom the proceeding is pending has the power under general equitable doctrine, in a proper case and where the circumstances justify it, to allow compensation for the plaintiff's counsel as a charge against the fund arising from the sale of the land partitioned. Especially is this true when other equities are involved, such as the settlement of involved accounts between the parties, when deeds are canceled, and when a receiver is appointed to manage and sell properties. Werner v. Werner, 196 Ga. 1 , 25 S.E.2d 676 (1943).

In a proceeding at law to partition land, the applicants are not entitled to have fees awarded to their counsel from the common fund, thus requiring their cotenants to contribute to the payment of such fees but, in an equitable proceeding for partitionment and for other relief, an allowance for attorney's fees may be made by the court from the common fund. Cashin v. Markwalter, 208 Ga. 444 , 67 S.E.2d 226 (1951), overruled on other grounds, Sikes v. Sikes, 233 Ga. 97 , 209 S.E.2d 641 (1974).

Illustrative Cases

Equitable partition found authorized. - When two railway companies erected a station on the land of one of the companies, at the joint and equal expense of both companies, under a contract whereby each of the companies became owners of one-half interest in the building, and when, after the station had been used by both companies jointly and individually for several years, the company that did not own the land became insolvent, and all the company's property, including the company's interest in the station, was duly sold under foreclosure proceedings and purchased by private individuals, and since the railroad of this company was dismantled and its business as a common carrier was abandoned, so that there was no longer any necessity for that company or the purchasers to use the station for railroad purposes, the purchasers are entitled to have the station partitioned in equity, the court having power to protect the interest of all parties by appropriate decree. Henry Talmadge & Co. v. Seaboard Air Line Ry., 170 Ga. 225 , 152 S.E. 243 (1930).

When a divorce decree made no provision for alimony, and when the petition of the wife alleges that the defendant is disposing and threatening to dispose of property owned in common, and that he is insolvent, and the wife prays for a money judgment and an injunction, the petition is sufficient to allege reasons for an equitable partition and an accounting, rather than by a partition at law. Wallack v. Wallack, 211 Ga. 745 , 88 S.E.2d 154 (1955).

In a partition action in which the parties disputed the extent of one party's interest in the property, and one party counterclaimed for an equitable division, accounting, and contribution, claiming to have paid all taxes and maintenance costs for over 20 years, the need for an accounting between the tenants in common, alone, gave the trial court equity jurisdiction to decide the matter. Ransom v. Holman, 279 Ga. 63 , 608 S.E.2d 600 (2005).

Minority owner's claim of error in the partitioning of a parcel of property was rejected as, while a pending contract with a prospective buyer was taken into consideration, the property was partitioned in the way desired by the minority owner and the surveyor; the minority owner received tracts that were worth more than the owner would have been received if the property had remained intact and had been sold to the buyer and the owner received tracts valued at more than the interest owned before the partitioning. Talmadge v. Elson Props., 279 Ga. 268 , 612 S.E.2d 780 (2005).

Agreement to occupy home not partnership. - Agreement between the cotenants of a city lot, on which is located a residence, to occupy the residence jointly as a home, does not constitute a partnership as defined by law, and the fact that such an agreement embraced an additional provision that the co-owners would share not only in the upkeep and maintenance of the property, but also in their personal living expenses in the home, would not have the effect of enlarging their relation of cotenancy into a partnership such as contemplated by law, so as to bar certain of the co-owners from proceeding by equitable partition against other co-owners of the land involved. Borum v. Deese, 196 Ga. 292 , 26 S.E.2d 538 (1943).

Equitable accounting found authorized. - When the petitioner in a partitioning proceeding prays for an accounting for water sold from a spring on property to be partitioned by one of the tenants in common, and alleges that a lease agreement, whereby the petitioner's interest in the water rights had been granted to the city, had been declared void by a court decision and that one has not received compensation for vast quantities of water used from the spring, the only accounting available to the petitioner is one in equity, there being no adequate remedy at law for an accounting for the use of the water by another tenant in common. City of Warm Springs v. Bulloch, 213 Ga. 164 , 97 S.E.2d 582 (1957).

Distribution of sales proceeds upheld in real estate transaction. - In a dispute over real property and specific performance of a Redemption Agreement, the trial court did not abuse the court's discretion in making an equitable award because O.C.G.A. §§ 44-6-140 and 44-6-141 granted the court the authority to adjust the accounts and claims of the parties as required by the circumstances and, more specifically, authorized the trial court to consider all of the circumstances, including any circumstances that occurred after the making of the contract. Bagwell v. Trammel, 297 Ga. 873 , 778 S.E.2d 173 (2015).

RESEARCH REFERENCES

Am. Jur. 2d. - 27A Am. Jur. 2d, Equity, § 4.

C.J.S. - 68 C.J.S., Partition, § 72 et seq.

ALR. - Right of judgment creditor of cotenant to maintain partition, 25 A.L.R. 105 .

Divorce as affecting estate by entireties, 52 A.L.R. 890 ; 59 A.L.R. 718 .

Right of executor or administrator to bring proceedings for partition of real property, 57 A.L.R. 573 .

Partition of partnership real property, 77 A.L.R. 300 .

Acquisition by one party pending partition suit of all outstanding joint or common interests as affecting power of court to determine questions of controverted title, remove clouds on title, etc., 162 A.L.R. 227 .

Contractual provisions as affecting right to judicial partition, 37 A.L.R.3d 962.

Necessary or proper parties to suit or proceeding to establish private boundary line, 73 A.L.R.3d 948.

Homestead right of cotenant as affecting partition, 83 A.L.R.6th 605.

44-6-141. Molding of decree; discretion of court.

In every case, the court will mold its decree to meet the general justice and equity of each cotenant and in its discretion may postpone or deny either a partition or a sale if it appears that the present or prospective interest of any cotenant may not be protected thereby.

(Orig. Code 1863, § 3117; Code 1868, § 3129; Code 1873, § 3185; Code 1882, § 3185; Civil Code 1895, § 4785; Civil Code 1910, § 5357; Code 1933, § 85-1502.)

JUDICIAL DECISIONS

Decree should conform to the verdict. Groover v. King, 55 Ga. 243 (1875).

When parties collaterally interested are brought in as defendants, decree should settle the parties' rights. Gaines v. Little, 56 Ga. 649 (1876).

Claim against a cotenant for profits will take precedence over a mortgage made by the cotenant. Hines v. Munnerlyn, 57 Ga. 32 (1876).

Court may adjust cotenants' accounts. - Having properly assumed jurisdiction for the partition of the property of the cotenants by its sale and distribution of the proceeds, a court of equity has jurisdiction to adjust the accounts or claims of the cotenants. Taylor v. Sharpe, 221 Ga. 282 , 144 S.E.2d 390 (1965), overruled on other grounds O'Connor v. Bielski, 288 Ga. 81 , 701 S.E.2d 856 (2010).

Court empowered to mold decree to protect absent interested person presumed dead. - When an absentee minor has been missing for several years, the next of kin claiming as heirs at law of the absentee may, by an action in equity instituted against the guardian after a presumption of death arises, compel the administration and distribution of the estate. In such a case, the court of equity has full power to mold the court's decree as to protect the absentee or any person claiming under the absentee, should it afterwards appear that the absentee was not in fact dead, or that the absentee did not die until after the absentee attained majority. Payne v. Home Sav. Bank, 193 Ga. 406 , 18 S.E.2d 770 (1942).

Equitable partition found authorized. - When two railway companies erected a station on the land of one of the companies, at the joint and equal expense of both companies, under a contract whereby each of the companies became owners of one-half interest in the building, and when, after the station had been used by both companies jointly and individually for several years, the company that did not own the land became insolvent, and all the company's property, including the company's interest in the station, was duly sold under foreclosure proceedings brought in a court of competent jurisdiction and purchased by private individuals, and since the railroad of the company was dismantled and the company's business as a common carrier was abandoned, so that there was no longer any necessity for that company or the purchasers to use the station for railroad purposes, the purchasers are entitled to have the station partitioned in equity, the court having power to protect the interest of all parties by appropriate decree. Henry Talmadge & Co. v. Seaboard Air Line Ry., 170 Ga. 225 , 152 S.E. 243 (1930).

In a dispute over real property and specific performance of a Redemption Agreement, the trial court did not abuse the court's discretion in making an equitable award because O.C.G.A. §§ 44-6-140 and 44-6-141 granted it the authority to adjust the accounts and claims of the parties as required by the circumstances and, more specifically, authorized the trial court to consider all of the circumstances, including any circumstances that occurred after the making of the contract. Bagwell v. Trammel, 297 Ga. 873 , 778 S.E.2d 173 (2015).

Limitations period. - In an estate's claim for partition of property, a co-tenant's counterclaim for contribution and set-off for sums the co-tenant paid in loan and tax payments was not barred by the four-year statute of limitations, O.C.G.A. § 9-3-25 , because under O.C.G.A. §§ 44-6-122 and 44-6-141 , the statute did not begin to run until the estate filed its complaint. Khimani v. Ruppenthal, 344 Ga. App. 658 , 811 S.E.2d 448 (2018), cert. denied, No. S18C0916, 2018 Ga. LEXIS 571 (Ga. 2018).

Cited in Greer v. Henderson, 37 Ga. 1 (1867); Brown v. Mooney, 108 Ga. 331 , 33 S.E. 942 (1899); Smith v. Smith, 133 Ga. 170 , 65 S.E. 414 (1909); Clements v. Seaboard Air-Line Ry., 158 Ga. 764 , 124 S.E. 516 (1924); Rosenberg v. Phelps, 159 Ga. 607 , 126 S.E. 788 (1925); Joel v. Joel, 201 Ga. 520 , 40 S.E.2d 541 (1946); Bell v. Cone, 208 Ga. 467 , 67 S.E.2d 558 (1951); McCreary v. Wright, 132 Ga. App. 500 , 208 S.E.2d 373 (1974); McClain v. McClain, 241 Ga. 162 , 243 S.E.2d 879 (1978); Brannon v. Simpson, 244 Ga. 58 , 257 S.E.2d 541 (1979).

RESEARCH REFERENCES

Am. Jur. 2d. - 27A Am. Jur. 2d, Equity, § 1.

C.J.S. - 68 C.J.S., Partition, § 72.

ALR. - Power to decree pecuniary sum as equality in order to equalize shares of parties in partition, 65 A.L.R. 352 .

Power of guardian to agree to, or of court to approve, voluntary partition between infant or incompetent and cotenant, 157 A.L.R. 755 .

Acquisition by one party pending partition suit of all outstanding joint or common interests as affecting power of court to determine questions of controverted title, remove clouds on title, etc., 162 A.L.R. 227 .

Allowance and apportionment of counsel fee in partition action or suit, 94 A.L.R.2d 575.

44-6-142. Effect of decree on title.

The decree on a proceeding for equitable partition shall pass the title without the execution of any conveyances by the parties.

(Orig. Code 1863, § 3116; Code 1868, § 3128; Code 1873, § 3184; Code 1882, § 3184; Civil Code 1895, § 4784; Civil Code 1910, § 5356; Code 1933, § 85-1503.)

JUDICIAL DECISIONS

If a partitioning is in equity, a decree of the court will pass the title, whether or not conveyances are executed by the parties. Barron v. Lovett, 207 Ga. 131 , 60 S.E.2d 458 (1950).

Whether a division of the estate was entered into under the provisions as to distribution of estates in kind, or was made under the provisions as to the partition of estates by agreement of the parties, the division award, which was approved and made the decree of the court, was sufficient to transfer title out of the estate and the heirs to the persons to whom particular portions of the estate were awarded. Bell v. Cone, 208 Ga. 467 , 67 S.E.2d 558 (1951).

Consent order, unless set aside, cannot be reopened to relitigate cotenants' rights. - Consent order entered in a partitioning case, decreeing certain persons to be cotenants and appointing partitioners to partition the property in question, cannot be subsequently reopened to relitigate the rights of the parties as cotenants, unless the order is reversed or set aside. Johnson v. James, 246 Ga. 680 , 272 S.E.2d 692 (1980).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, § 115.

C.J.S. - 68 C.J.S., Partition, § 131.

Subpart 2 Statutory Partition

44-6-160. Grounds for partition; jurisdiction; contents of petition.

When two or more persons are common owners of lands and tenements, whether by descent, purchase, or otherwise, and no provision is made, by will or otherwise, as to how such lands and tenements shall be divided, any one of such common owners may apply by petition to the superior court of the county in which such lands and tenements are located for a writ of partition which shall set forth plainly and distinctly the facts and circumstances of the case, shall describe the premises to be partitioned, and shall define the share and interest of each of the parties therein. When the lands in question constitute a single tract situated in more than one county, the application may be made to the superior court of any of such counties.

(Laws 1767, Cobb's 1851 Digest, p. 581; Code 1863, § 3896; Code 1868, § 3920; Code 1873, § 3996; Code 1882, § 3996; Civil Code 1895, § 4786; Ga. L. 1900, p. 56, § 1; Civil Code 1910, § 5358; Ga. L. 1920, p. 85, § 1; Code 1933, § 85-1504.)

Law reviews. - For annual survey on domestic relations, see 61 Mercer L. Rev. 117 (2009). For article, "A Primer on Heirs Property and Georgia's New Uniform Partition of Heirs Property Act: Protecting Owners of Heirs Property," see 19 G. St. B.J. 16 (Oct. 2013).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Constitutionality. - See Southall v. Carter, 229 Ga. 240 , 190 S.E.2d 517 (1972).

Enjoining partition. - It is error to enjoin tenants in common from filing proceedings for partition. Ellis v. Jenkins, 250 Ga. 29 , 295 S.E.2d 736 (1982).

Not applicable to joint-tenants with a right of survivorship. - O.C.G.A. § 44-6-160 has long been construed to apply only to tenants in common, not to joint-tenants with a right of survivorship. Wallace v. Wallace, 260 Ga. 400 , 396 S.E.2d 208 (1990).

Exclusive possession by one spouse defeats partitioning by other. - Whether the property is held by husband and wife as tenants in common or as joint-tenants, if it is subject to the exclusive possession of one of them, it is not subject to partitioning by the other. Wallace v. Wallace, 260 Ga. 400 , 396 S.E.2d 208 (1990).

Right to partition. - When a non-possessing tenant in common has not agreed to give up the right to partition, that right is not extinguished by a judgment imposed upon the tenant. To the extent Blalock v. Blalock, 250 Ga. 862 (1983), and White v. White, 253 Ga. 388 (1984), can be read as finding a relinquishment of the right to partition in a judicial decree not supported by an agreement, those cases are disapproved. Harvey v. Sessoms, 284 Ga. 75 , 663 S.E.2d 210 (2008).

Cited in Wilkinson v. Tuggle, 61 Ga. 381 (1878); Lochrane v. Equitable Loan & Sec. Co., 122 Ga. 433 , 50 S.E. 372 (1905); Mize v. Bank of Whigham, 138 Ga. 499 , 75 S.E. 629 (1912); Knowles v. Knowles, 146 Ga. 507 , 91 S.E. 776 (1917); English v. Poole, 31 Ga. App. 581 , 121 S.E. 589 (1917); Clements v. Seaboard Air-Line Ry., 158 Ga. 764 , 124 S.E.2d 516 (1924); Jennings v. Jennings, 173 Ga. 428 , 160 S.E. 405 (1931); Walden v. Walden, 191 Ga. 182 , 12 S.E.2d 345 (1940); Wren v. Wren, 199 Ga. 851 , 36 S.E.2d 77 (1945); Joel v. Joel, 201 Ga. 520 , 40 S.E.2d 541 (1946); Armstrong v. Merts, 76 Ga. App. 465 , 46 S.E.2d 529 (1948); Mixon v. Sumner, 205 Ga. 579 , 54 S.E.2d 411 (1949); Leggitt v. Allen, 85 Ga. App. 280 , 69 S.E.2d 106 (1952); Bufford v. Bufford, 221 Ga. 13 , 142 S.E.2d 796 (1965); Goodman v. Georgia R.R. Bank & Trust Co., 221 Ga. 396 , 144 S.E.2d 764 (1965); White v. Howell, 224 Ga. 135 , 160 S.E.2d 374 (1968); Bodrey v. Bodrey, 122 Ga. App. 23 , 176 S.E.2d 234 (1970); Wilkerson v. Wilkerson, 126 Ga. App. 172 , 190 S.E.2d 140 (1972); McCreary v. Wright, 132 Ga. App. 500 , 208 S.E.2d 373 (1974); Sikes v. Sikes, 233 Ga. 97 , 209 S.E.2d 641 (1974); Burnham v. Lynn, 235 Ga. 207 , 219 S.E.2d 111 (1975); Seymour v. Presley, 239 Ga. 572 , 238 S.E.2d 347 (1977); Crooke v. Gilden, 262 Ga. 122 , 414 S.E.2d 645 (1992).

Distinction Between Law and Equity

Tenant in common or co-owner entitled to petition for either statutory or equitable partition. Billings v. Billings, 242 Ga. 632 , 250 S.E.2d 480 (1978).

Application to partition certain land is a purely statutory proceeding. Nash v. Williamson, 212 Ga. 804 , 96 S.E.2d 251 (1957).

Statutory proceedings partake of the nature of proceedings in equity. Waycross Military Ass'n v. Hiers, 209 Ga. 812 , 76 S.E.2d 486 (1953).

Application for partition and accounting is in nature of proceeding in equity. Poole v. Poole, 220 Ga. 3 , 136 S.E.2d 745 (1964).

Statutory partition more appropriate. - Trial court erred by ordering the equitable partition sale of 3.503 acres of real property because the co-owner failed to show that the remedy at law of a statutory partition, pursuant to O.C.G.A. § 44-6-160 et seq., was insufficient or that peculiar circumstances rendered the equitable proceeding more suitable and just; and, in a statutory partition, a court may order the sale of property that cannot be fairly divided by metes and bounds. Pack v. Mahan, 294 Ga. 496 , 755 S.E.2d 126 (2014).

Equitable jurisdiction applicable only when peculiar circumstances or insufficient legal remedy. - Application to partition lands between tenants in common may be instituted at law, or an application may be brought in equity whenever the remedy at law is insufficient or peculiar circumstances render the proceeding in equity more suitable and just. But, unless for some special reason equitable jurisdiction is applicable, a party seeking the writ of partition is required to resort to the remedy afforded by this statute. Gifford v. Courson, 224 Ga. 840 , 165 S.E.2d 133 (1968) (see O.C.G.A. § 44-6-160 ).

Accounting alone gives court of equity jurisdiction of partition proceeding. - While equity jurisdiction ceases when the legislature gives a specific remedy at law, and while a specific legal remedy for partition is provided, and while equity will not ordinarily take cognizance of a partition proceeding unless the remedy at law is insufficient, or peculiar circumstances render the proceeding in equity more suitable and just, an accounting between tenants in common will alone and of itself give a court of equity jurisdiction of a partition proceeding, whether or not there are other peculiar circumstances which render the proceeding in equity more suitable and just. Mills v. Williams, 208 Ga. 425 , 67 S.E.2d 212 (1951).

Error for court to dismiss equitable proceeding after amended petition sets cause of action. - After an amendment of the petition set out a cause of action for equitable partition, it was error for the court to dismiss the action on the ground that by amendment it had been changed from an equitable to a statutory proceeding for partition, or that it did not set forth a cause of action. Gibson v. Gibson, 180 Ga. 457 , 179 S.E. 354 (1935).

Circumstances Supporting Partition

No right of partitioning unless property held in common. - Under the plain wording of this statute, the right to have a partitioning does not exist unless the property sought to be partitioned is held under a joint tenancy or a tenancy in common. Paris v. Clay, 223 Ga. 738 , 158 S.E.2d 377 (1967) (see O.C.G.A. § 44-6-160 ).

Any co-owner may apply for partition writ. - Statute relating to partition of realty expressly provides that, in all cases where two or more persons are common owners of land by descent, any one of such owners may apply for a writ of partition. Evans v. Little, 246 Ga. 219 , 271 S.E.2d 138 (1980) (see O.C.G.A. § 44-6-160 ).

Division under will had without interference from executors. - When a will provides for a division, the remaindermen become tenants in common and the division may be had without any interference from the executors. Watkins v. Gilmore, 121 Ga. 488 , 49 S.E. 598 (1904).

Division may be had without an interference from the executors. Miller v. Harris County, 186 Ga. 648 , 198 S.E. 673 (1938).

Partition proper despite coexecutors lack of assent. - Son and coexecutor of mother's will, under which he and his brother, also his coexecutor, each received an undivided one half interest in property, had standing to bring a partition action in spite of his brother's refusal to assent, and partition was proper although the estate was still in probate. Clay v. Clay, 268 Ga. 40 , 485 S.E.2d 205 (1997).

Heirs are not compelled to get the consent of the administrators before a partition. Hunnicutt v. Rogers, 135 Ga. 595 , 69 S.E. 913 (1911).

Existence or nonexistence of administration of estate does not preclude bringing partition action by a tenant in common. Evans v. Little, 246 Ga. 219 , 271 S.E.2d 138 (1980).

Executors can join with the surviving cotenant for the partition of land owned jointly by their testatrix and the surviving cotenant since the testatrix makes devises of the land, and since the partition of the land between the estate and the surviving cotenant is necessary for its due administration by the executors. Peck v. Watson, 165 Ga. 853 , 142 S.E. 450 , 57 A.L.R. 560 (1928).

Voluntary partition by tenants not binding on remaindermen. - When the tenant in fee of a half undivided interest, by voluntary agreement to which the remaindermen were not parties, partitioned land, the partition is binding upon the tenants in fee alone so long as the limited estate of the life tenant continues, even though the remainderman assented to the partition. Teasley v. Hulme, 150 Ga. 495 , 104 S.E. 151 , 12 A.L.R. 641 (1920).

Defeasible fee under will providing how tenants' interest can be sold cannot be partitioned. - Tenants in common having a defeasible fee in land devised under a will, which provides how their interest can be sold during their joint lives, cannot have the devised property partitioned, either by statutory or equitable proceedings. Trimble v. Fairbanks, 209 Ga. 741 , 76 S.E.2d 16 (1953).

Procedure

Superior courts alone have jurisdiction. An application for partition to a city court is a nullity and not amendable. Roberson v. Bennett, 20 Ga. App. 590 , 93 S.E. 297 (1917).

Petitioners abandoning statutory proceedings and instituting probate proceedings bound by probate court's judgment. - When parties holding as heirs an undivided interest in lands have abandoned, without formally dismissing, a proceeding instituted in the superior court for partition, and agreed among themselves to institute such a proceeding in the court of ordinary (now probate court) to bring about a partition of the same lands, and this is done by an appropriate proceeding in that court, resulting in a judgment confirming the assignment of the various parcels by the appraisers, no objection being filed or appeal taken, the parties are bound by the judgment. The parties will not subsequently be permitted to disregard such judgment, and seek, by amendment to the original petition in the superior court, another partitioning of the lands. Zeagler v. Zeagler, 192 Ga. 453 , 15 S.E.2d 478 (1941).

Sufficiency of application for partition. - Application for partition need only set forth the circumstances of the case, describe the premises to be partitioned, and define the share and interest of each of the parties as provided in statute. Anderson v. Anderson, 27 Ga. App. 513 , 108 S.E. 907 , cert. denied, 27 Ga. App. 835 (1921) (see O.C.G.A. § 44-6-160 ).

Under the statutes governing statutory partitioning, the notice of intention to seek partitioning was the only process necessary in order to bring a defendant into court to meet the application for partitioning, and a sale of the property was provided for when a fair and equitable division of the property was not able to have been made by means of metes and bounds; ordering the sale of the property was within the trial court's authority without the need for securing personal jurisdiction over the defendant. Shields v. Gish, 280 Ga. 556 , 629 S.E.2d 244 (2006).

It is immaterial whether petition prays for partition by sale or by metes and bounds, since in an application in either form the issues are the same. Anderson v. Anderson, 27 Ga. App. 513 , 108 S.E. 907 , cert. denied, 27 Ga. App. 835 (1921).

Sale can be ordered in a statutory partition for property that cannot be divided fairly by metes and bounds. - In a statutory partition, a court may order the sale of property that cannot be fairly divided by metes and bounds. Pack v. Mahan, 294 Ga. 496 , 755 S.E.2d 126 (2014).

Premises must be described and the interest of each party defined. Childs v. Hayman, 72 Ga. 791 (1884).

Process or prayer for process attached thereto is not required. Griffin v. Griffin, 153 Ga. 547 , 113 S.E. 161 (1922).

Applicant must show title in applicant and name each person who may own interest. - In order for a partition proceeding to be maintainable, the applicant must not only show title in the applicant to a specified interest in the property sought to be sold or divided, but must name as a defendant each of the other persons who may own an interest therein, and set forth their respective interests. Hill v. McCandless, 198 Ga. 737 , 32 S.E.2d 774 (1945).

Defendant may controvert complainant's title or deny cotenancy. - In a bill for partition, it is not necessary that the complainant's title to the property should be fully set out. However, the defendant may, by plea or answer, controvert the complainant's title to the whole or any part of the property, or deny the cotenancy, in which event, a preliminary trial should be had to settle these issues. Dollar v. Dollar, 214 Ga. 499 , 105 S.E.2d 736 (1958).

Respondent in partition proceeding can only set up matters germane to the case as made by the applicant's petition, and cannot recover a personal judgment against the applicant on a separate and independent matter. Starling v. Starling, 214 Ga. 786 , 107 S.E.2d 651 (1959).

Not error to allow petitioners' transferee to be made party plaintiff. - When, pending an application for partition of realty, the original petitioners sold their interest to another person, the proceedings were not thereby vacated, and it was not error to allow the other person to be made a party plaintiff in the application, it not appearing that the original petitioners were dismissed. Hamby Mt. Gold Mines v. Calhoun Land & Mining Co., 83 Ga. 311 , 9 S.E. 831 (1889).

Venue of statutory proceeding for partition of land is the county where the land lies. Douglas v. Johnson, 130 Ga. 472 , 60 S.E. 1041 (1908).

Statutory partition action under this statute, which can bestow title on both parties and divest both parties of title, is a case "respecting title to land" and must be brought in the county where the land lies. Schuehler v. Pait, 239 Ga. 520 , 238 S.E.2d 65 (1977) (see O.C.G.A. § 44-6-160 ).

Judgment, until set aside, binding upon all parties with notice. - Judgment rendered in partition proceedings under this statute, until reversed or set aside, is binding upon all who were parties to the proceedings with due notice thereof, whatever may be its effects as to another co-owner, to whom no such notice was given. Chattahoochee Lumber Co. v. Yeates, 137 Ga. 64 , 72 S.E. 504 (1911) (see O.C.G.A. § 44-6-160 ).

Service on the parties, actual or constructive, is necessary to render the judgment conclusive. Childs v. Hayman, 72 Ga. 791 (1884).

Judgment admissible in later suit to establish plaintiff's title. - Judgment is admissible in a suit for an injunction and damages committed upon the property set apart to the plaintiff to establish the plaintiff's title to such a portion. Chattahoochee Lumber Co. v. Yeates, 137 Ga. 64 , 72 S.E. 504 (1911).

Appellate jurisdiction over cases involving statutory partition is in the Supreme Court of Georgia. However, when the sole issue in an appeal is the recusal of the trial court such an issue in no way deals with an area where exclusive jurisdiction rests in the Supreme Court. It is the Court of Appeals which has jurisdiction to entertain the appeal since it is not what is in the complaint before the trial court that determines the Supreme Court's jurisdiction, but the issues on appeal. Stevens v. Myers, 190 Ga. App. 61 , 378 S.E.2d 334 (1989).

Jurisdiction of appeal from judgment in action involving statutory partitioning proceedings is in Supreme Court, as partition action is one "respecting title to land." Wiley v. Wiley, 233 Ga. 824 , 213 S.E.2d 682 (1975).

Appeal not timely until judge appoints commissioners and orders sale. - In a case when a partition is sought by bringing the lands involved to sale, the objecting party may only bring the case to the Supreme Court by a proper bill of exceptions after the judge has appointed commissioners and ordered the commissioners to sell the land. Lanier v. Gay, 195 Ga. 859 , 25 S.E.2d 642 (1943).

Motion to set aside filed more than three years after entry of partition judgment. - Trial court did not err when the court denied a mother's motion to set aside a judgment of partition because the motion to set aside was filed more than three years after the entry of the judgment of partition, and that judgment was made by a court with jurisdiction; the trial court had subject-matter jurisdiction to enter the partitioning judgment since the land sought to be partitioned was partially located in the county of the trial court, and that court had personal jurisdiction of the mother since, under the partitioning statutes, the notice of intent to seek partitioning was the only process necessary to bring a defendant into court to meet the application for partitioning. Cabrel v. Lum, 289 Ga. 233 , 710 S.E.2d 810 (2011).

Relief Granted

Court empowered to determine all various matters in dispute. - Proceedings under this statute are in the nature of proceedings in equity. The court has all the power and jurisdiction for hearing and determining the various matters in dispute between the parties, in respect to their respective titles, as fully and completely as if it were a bill in chancery for that purpose. Griffin v. Griffin, 33 Ga. 107 (1861); Hamby Mt. Gold Mines v. Calhoun Land & Mining Co., 83 Ga. 311 , 9 S.E. 831 (1889) (see O.C.G.A. § 44-6-160 ).

When a tenant in common applies to the superior court to have certain land partitioned, and to have an accounting between the tenants in common, a proceeding is in the nature of a proceeding in equity, in which the court has all the power and jurisdiction for hearing and determining the various matters in dispute between the parties, including their respective titles to the land, to have an accounting for rents and profits, awarding partition, etc. Gibson v. Gibson, 180 Ga. 457 , 179 S.E. 354 (1935); Borum v. Deese, 196 Ga. 292 , 26 S.E.2d 538 (1943); Liddell v. Johnson, 213 Ga. 752 , 101 S.E.2d 755 (1958).

Partition in kind is the rule and should be generally followed, unless it cannot be conveniently made, or the interest of the parties will be promoted by a sale. Anderson v. Anderson, 27 Ga. App. 513 , 108 S.E. 907 , cert. denied, 27 Ga. App. 835 (1921).

Error to appoint receiver when no necessity proved and defendant solvent. - When, on the trial of an equitable petition for the partition of real estate, accounting, the settlement of accounts between the tenants in common, the settlement of an estate, and the appointment of a receiver, the evidence shows that the defendant against whom the charges of waste, mismanagement, etc., were made is solvent, and no necessity for a receivership is proved, it is error to appoint receivers to take possession of and to hold and manage the property in question pending final disposition of the case. Liddell v. Johnson, 213 Ga. 752 , 101 S.E.2d 755 (1958).

Proper to hold funds pending trial of accounting suit. - In the case of a partition by sale, it is proper for the decree to direct that the funds be held in court pending the trial of the action for accounting. Liddell v. Johnson, 213 Ga. 752 , 101 S.E.2d 755 (1958).

Court's power extends to an accounting between the tenants in common. Griffin v. Griffin, 153 Ga. 547 , 113 S.E. 161 (1922).

In an equitable partitioning proceeding, the court has adequate authority to have the property of the tenants in common partitioned to require any of the tenants in common to account for rents and profits received by any of them from the jointly owned property, and it can adjust the accounts. Liddell v. Johnson, 213 Ga. 752 , 101 S.E.2d 755 (1958).

Court may make adjustments for improvements and expenditures. - When, in pursuance of an agreement between several tenants in common, two of them enter upon the land and make expenditures of money in improvements thereon in excess of the amount received in rents, they are entitled, upon a partition of the land, to an accounting from their cotenants, and to be reimbursed the amount properly found to be due them. Turnbull v. Foster, 116 Ga. 765 , 43 S.E. 42 (1902).

When the court has jurisdiction, it may, in decreeing partition, make necessary and equitable adjustments for improvements and expenditures made and paid for by the respective parties. Borum v. Deese, 196 Ga. 292 , 26 S.E.2d 538 (1943).

Court can question the mesne profits. Hall v. Collier, 146 Ga. 815 , 92 S.E. 536 (1917).

Proceedings limited to partitioning. - Proceedings under this statute cannot be had for the purpose of partitioning a large tract of land with certain alleged tenants in common with the applicant, and at the same time of recovering parts of the land held adversely not under the alleged tenants in common, and also of having an accounting for rent. Cock v. Callaway, 141 Ga. 774 , 82 S.E. 286 (1914) (see O.C.G.A. § 44-6-160 ).

Applicants not entitled to have fees awarded to counsel. - In a proceeding at law to partition land, the applicants are not entitled to have fees awarded to their counsel from the common fund, thus requiring their cotenants to contribute to the payment of such fees. Cashin v. Markwalter, 208 Ga. 444 , 67 S.E.2d 226 (1951).

Plaintiff who brought an action to quiet title and for partitioning of property was not entitled to an award of attorney fees and expenses since the statutes providing for such actions do not provide for attorney fees and expenses and such an award was not authorized if the case was considered one at law. Walker v. Walker, 266 Ga. 414 , 467 S.E.2d 583 (1996).

Illustrative Cases

Allegation of petition was sufficient to set out an equitable cause of action for partition of land. Byrd v. Byrd, 180 Ga. 548 , 179 S.E. 818 (1935).

Equitable partition found authorized. - When two railway companies erected a station on the land of one of the companies, at the joint and equal expense of both companies, under a contract whereby each of the companies became owners of one-half interest in the building, and when, after the station had been used by both companies jointly and individually for several years, the company that did not own the land because insolvent, and all the company's property, including the company's interest in the station, was duly sold under foreclosure proceedings brought in a court of competent jurisdiction and purchased by private individuals, and since the railroad of this company was dismantled and the company's business as a common carrier was abandoned, so that there was no longer any necessity for that company or the purchasers to use the station for railroad purposes, the purchasers are entitled to have the station partitioned in equity, the court having power to protect the interest of all parties by appropriate decree. Henry Talmadge & Co. v. Seaboard Air Line Ry., 170 Ga. 225 , 152 S.E. 243 (1930).

Minority owner's claim of error in the partitioning of a parcel of property was rejected as, while a pending contract with a prospective buyer was taken into consideration, the property was partitioned in the way desired by the minority owner and the minority owner's surveyor; the minority owner received tracts that were worth more than would have been received if the property had remained intact and had been sold to the buyer and the minority owner received tracts valued at more than the interest that was owned before the partitioning. Talmadge v. Elson Props., 279 Ga. 268 , 612 S.E.2d 780 (2005).

Superior court erred in granting the defendant's motion to dismiss the plaintiff's petition for an equitable partition of real property and an accounting because the property was not held by the parties as joint tenants with the right of survivorship at the time of the petition as the plaintiff's 2007 quitclaim deed to another individual was a transfer in the plaintiff's lifetime of all of the plaintiff's interest in the property, although the plaintiff quickly received the property back again from the other individual, because, when the other individual received a grant of the plaintiff's interest in the property by virtue of the quitclaim deed, it was the other individual's property to do with as the other individual wished. Reed v. McConathy, 299 Ga. 471 , 788 S.E.2d 769 (2016).

Agreement between cotenants not a partnership. - An agreement between the cotenants of a city lot, on which is located a residence, to occupy the residence jointly as a home, does not constitute a partnership as defined by law, and the fact that such an agreement embraced an additional provision that the coowners would share not only in the upkeep and maintenance of the property, but also in their personal living expenses in the home, would not have the effect of enlarging their relation of cotenancy into a partnership such as contemplated by law, so as to bar certain of the co-owners from proceeding by equitable partition against other co-owners of the land involved. Borum v. Deese, 196 Ga. 292 , 26 S.E.2d 538 (1943).

Right to partition not barred by divorce decree. - In an action for partition brought by a former husband as a tenant in common with the former wife, it was error to grant summary judgment to the former wife on the ground that the divorce decree placed the property in the exclusive possession of the wife. To be barred from seeking partition, the husband had to have contractually relinquished his right to partition. Harvey v. Sessoms, 284 Ga. 75 , 663 S.E.2d 210 (2008).

Partition not available for property held as joint tenants with right of survivorship. - When the appellant sought a petition for equitable partition of the unmarried parties' property in which the parties were joint tenants with the right of survivorship, the trial judge properly found that statutory partition was available only to tenants in common, and was not available to the appellant; and that equitable partition was also unavailable because the appellant could seek a partition of the subject property only after the joint tenancy was severed as the parties were not married parties who were seeking the equitable division of marital property in a divorce proceeding. Vargo v. Adams, 302 Ga. 637 , 805 S.E.2d 817 (2017).

Any form of partition would not end dispute. - In a dispute over ownership of an access driveway, the trial court properly granted the defendants summary judgment on the petition to partition since the access driveway had no value other than the driveway's service to the lots to which the driveway was connected since all owners maintained easement rights to use the access driveway regardless of the fee ownership; thus, partition of the access driveway so as to consolidate fee ownership would not put an end to the dispute. Saik v. Brown, Ga. App. , S.E.2d (June 25, 2020).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, §§ 1, 71 et seq.

C.J.S. - 68 C.J.S., Partition, § 72 et seq.

ALR. - Divorce as affecting estate by entireties, 52 A.L.R. 890 ; 59 A.L.R. 718 .

Right to partition of different tracts of land in same proceeding, 65 A.L.R. 893 .

Venue of suit for partition of land, 128 A.L.R. 1232 .

Suit for partition as involving freehold or title to real estate within constitutional or statutory provisions relating to jurisdiction, 135 A.L.R. 1066 .

Probate of will as condition precedent to suit for partition by devisees, 141 A.L.R. 1311 .

Right to partition in kind of mineral or oil and gas land, 143 A.L.R. 1092 .

Power of guardian to agree to, or of court to approve, voluntary partition between infant or incompetent and cotenant, 157 A.L.R. 755 .

Necessity and sufficiency of pleading in partition action to authorize incidental relief, 11 A.L.R.2d 1449.

Timber rights as subject to partition, 21 A.L.R.2d 618.

Spouse of living co-owner of interest in property as necessary or proper party to partition action, 57 A.L.R.2d 1166.

Contractual provisions as affecting right to judicial partition, 37 A.L.R.3d 962.

Severance or termination of joint tenancy by conveyance of divided interest directly to self, 7 A.L.R.4th 1268.

Homestead right of cotenant as affecting partition, 83 A.L.R.6th 605.

May easement or right of way be appurtenant where servient tenement is not adjacent to dominant, 15 A.L.R.7th 1.

44-6-161. Who may apply for partition.

If the party desiring the writ of partition is of full age and free from disability, he or she may make the application either in person or by his or her agent or attorney in fact or at law. An application may be made for the benefit of a minor, a mentally ill or intellectually disabled person, or the beneficiary of a trust by the guardian of such minor, the guardian of such mentally ill or intellectually disabled person, or the trustee of such beneficiary, as the case may be.

(Orig. Code 1863, § 3897; Code 1868, § 3921; Code 1873, § 3997; Code 1882, § 3997; Civil Code 1895, § 4787; Civil Code 1910, § 5359; Code 1933, § 85-1505; Ga. L. 2015, p. 385, § 4-10/HB 252.)

The 2015 amendment, effective July 1, 2015, in the first sentence, inserted "or she" and inserted "or her"; and substituted "intellectually disabled" for "retarded" twice in the second sentence.

Editor's notes. - Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

JUDICIAL DECISIONS

No provision for partition when infant has no guardian. - Provision is made to have a partition for an infant when represented by a guardian, but there seems to be none if the infant has no guardian and is represented by the infant's next friend. Lowe v. Burke, 79 Ga. 164 , 3 S.E. 449 (1887).

Cited in Perdue v. McKenzie, 194 Ga. 356 , 21 S.E.2d 705 (1942); Leggitt v. Allen, 85 Ga. App. 280 , 69 S.E.2d 106 (1952).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, § 90 et seq.

C.J.S. - 68 C.J.S., Partition, § 61 et seq.

ALR. - Right of trustee holding legal title to maintain partition suit, 103 A.L.R. 455 .

Right of cestui que trust (or one claiming through or under him) to maintain suit for partition, 126 A.L.R. 1009 .

Power of guardian to agree to, or of court to approve, voluntary partition between infant or incompetent and cotenant, 157 A.L.R. 755 .

44-6-162. Notice of intention to apply for writ of partition.

The party applying for the writ of partition shall give the other parties concerned at least 20 days' notice of his or her intention to make the application. If any of the other parties is a minor, a mentally ill or intellectually disabled person, or a beneficiary of a trust, the 20 days' notice shall be served on the guardian of such minor, the guardian of such mentally ill or intellectually disabled person, or the trustee of such beneficiary. If any of the parties reside outside of this state, the court may order service by publication as in its judgment is right in each case.

(Laws 1767, Cobb's 1851 Digest, p. 582; Code 1863, § 3898; Code 1868, § 3922; Code 1873, § 3998; Code 1882, § 3998; Civil Code 1895, § 4788; Civil Code 1910, § 5360; Code 1933, § 85-1506; Ga. L. 1991, p. 94, § 44; Ga. L. 2015, p. 385, § 4-11/HB 252.)

The 2015 amendment, effective July 1, 2015, inserted "or her" in the first sentence and substituted "intellectually disabled" for "retarded" twice in the second sentence.

Editor's notes. - Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

Law reviews. - For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969).

JUDICIAL DECISIONS

Section inapplicable when petition prays for sale of lands. - When the petition stated an equitable cause of action for partition and accounting under § 44-6-167 , the provisions of former Code 1933, § 85-1506 (see O.C.G.A. § 44-6-162 ) did not apply. Mills v. Williams, 208 Ga. 425 , 67 S.E.2d 212 (1951).

No process is required except the notice under this statute. Anderson v. Anderson, 27 Ga. App. 513 , 108 S.E. 907 , cert. denied, 27 Ga. App. 835 (1921) (see O.C.G.A. § 44-6-162 ).

As this is a special statutory proceeding, the notice of intention is the only process necessary in order to bring the defendant into court to meet the application for partition. Bodrey v. Bodrey, 122 Ga. App. 23 , 176 S.E.2d 234 (1970).

Petition does not require any process or prayer for process attached to the petition. Griffin v. Griffin, 153 Ga. 547 , 113 S.E. 161 (1922).

Notice of application for partition is equivalent of process in the statutory proceeding for partition, which is not in rem. Leggitt v. Allen, 85 Ga. App. 280 , 69 S.E.2d 106 (1952).

Applicant must show title in applicant and name each person who may own interest. - In order for a statutory partition proceeding to be maintainable, the applicant must not only show title in the applicant to a specified interest in the property sought to be sold or divided, but must name as defendant each of the other persons who may own an interest therein, and set forth their respective interests. Hill v. McCandless, 198 Ga. 737 , 32 S.E.2d 774 (1945).

Notice to grantee in recorded deed to secure debt required. - When the petition showed that a recorded deed to secure a debt was outstanding against the property sought to be partitioned, and it not appearing that the grantee in the deed had been properly notified of the application for the partition, so as to bring the grantee into the proceeding, the petition should have been dismissed. Leggitt v. Allen, 85 Ga. App. 280 , 69 S.E.2d 106 (1952).

Trustee empowered to sell and reinvest premises proper, but not necessary, party. - Trustee who, by the deed of trust, has a power of sale and reinvestment, is a proper, though not a necessary, party in a proceeding to partition the premises amongst the beneficiaries. Welch v. Agar, 84 Ga. 583 , 11 S.E. 149 , 20 Am. St. R. 380 (1890).

Service upon minor will not enforce appearance of minor after minor has arrived at age. Welch v. Agar, 84 Ga. 583 , 11 S.E. 149 , 20 Am. St. R. 380 (1890).

Part of former Civil Code 1895, § 4788 (see O.C.G.A. § 44-6-162 ) relating to service by publication was not repealed by general provisions on the same subject in former Civil Code 1895, §§ 4976 and 4977 (see O.C.G.A. § 9-10-71 ). Lochrane v. Equitable Loan & Sec. Co., 122 Ga. 433 , 50 S.E. 372 (1905).

When no application has been filed, judge has no jurisdiction to order service by publication. Lochrane v. Equitable Loan & Sec. Co., 122 Ga. 433 , 50 S.E. 372 (1905).

Defendant failing to appear after receiving notice cannot have partition order revoked. - When the defendant, after receiving the notice provided by this statute, failed to appear, defendant could not thereafter have the order for partition revoked and set aside on the ground that the court did not have jurisdiction to entertain the equitable petition at the time. Gammon v. Holloway-Smith Co., 150 Ga. 253 , 103 S.E. 154 (1920).

Cited in Childs v. Hayman, 72 Ga. 791 (1884); Miller v. A.M. Watson & Co., 135 Ga. 408 , 69 S.E. 555 (1910); English v. Poole, 31 Ga. App. 581 , 121 S.E. 589 (1924); Cates v. Duncan, 178 Ga. 748 , 174 S.E. 380 (1934); Armstrong v. Merts, 76 Ga. App. 465 , 46 S.E.2d 529 (1948); Starling v. Starling, 214 Ga. 786 , 107 S.E.2d 651 (1959); Brinson v. Thornton, 220 Ga. 234 , 138 S.E.2d 268 (1964); Evans v. Little, 246 Ga. 219 , 271 S.E.2d 138 (1980); Iteld v. Siverboard, 247 Ga. 158 , 275 S.E.2d 645 (1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, § 98.

C.J.S. - 68 C.J.S., Partition, § 126 et seq.

44-6-163. Issuance of writ of partition; appointment of partitioners.

When the application for partition is made and when due proof is made that the notice required by Code Section 44-6-162 has been given, the court shall examine the petitioner's title and share of the premises to be partitioned and shall thereupon pass an order directing the clerk of the superior court to issue a writ of partition which shall be framed according to the nature of the case and directed to five freeholders of the county in which the lands are located who shall serve as partitioners; and the court shall execute and return the writ as provided in Code Section 44-6-164.

(Laws 1767, Cobb's 1851 Digest, p. 582; Laws 1827, Cobb's 1851 Digest, p. 583; Code 1863, § 3899; Code 1868, § 3923; Code 1873, § 3999; Code 1882, § 3999; Civil Code 1895, § 4789; Civil Code 1910, § 5361; Code 1933, § 85-1507.)

JUDICIAL DECISIONS

Judge required to see that apparent interest in applicant exists. - Statute does not require that the judge shall have a trial of the application at once upon its presentation, but that the judge should personally see that some apparent interest in the applicant exists. Cock v. Callaway, 141 Ga. 774 , 82 S.E. 286 (1914) (see O.C.G.A. § 44-6-163 ).

Writ of error will not lie to interlocutory judgment provided for in this statute; the rule is the opposite if it is the judgment of confirmation that is questioned. Berryman v. Haden, 112 Ga. 752 , 38 S.E. 53 (1901); Lochrane v. Equitable Loan & Sec. Co., 122 Ga. 433 , 50 S.E. 372 (1905) (see O.C.G.A. § 44-6-163 ).

Cited in Gamble v. Brooks, 170 Ga. 662 , 153 S.E. 759 (1930); Cates v. Duncan, 178 Ga. 748 , 174 S.E. 380 (1934); Wood v. W.P. Brown & Sons Lumber Co., 199 Ga. 167 , 33 S.E.2d 435 (1945); Leggitt v. Allen, 85 Ga. App. 280 , 69 S.E.2d 106 (1952); Clay v. Clay, 269 Ga. 902 , 506 S.E.2d 866 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, § 90 et seq.

C.J.S. - 68 C.J.S., Partition, §§ 101, 103.

ALR. - Probate of will as condition precedent to suit for partition by devisees, 141 A.L.R. 1311 .

Partition: construction and application of provision for assignment, to one of co-owners, of real estate not readily divisible, 169 A.L.R. 862 .

44-6-164. Appointment of surveyor; notice of time of execution of writ; oath of partitioners; principles governing partition; partitioner's return.

The partitioners shall have the power to select a surveyor to aid them in the discharge of their duties. After giving all the parties, if possible, at least eight days' notice of the time of executing the writ and after being sworn to execute the writ duly and impartially before an officer authorized by law to administer such oath, the partitioners or a majority of them shall proceed to make a just and equal partition and division of all the lands and tenements, either in entire tracts or in parcels, as they shall judge, according to the best of their skill, ability, and knowledge, to be in proportion to the shares claimed and to be most beneficial to the several common owners of the lands and tenements. They shall return the writ, with their actings and doings thereon and under their hands and seals, to the superior court within three months after its issuance, which return shall be filed and kept by the clerk until the next term of the court.

(Laws 1767, Cobb's 1851 Digest, p. 582; Laws 1827, Cobb's 1851 Digest, p. 583; Code 1863, § 3900; Code 1868, § 3924; Code 1873, § 4000; Code 1882, § 4000; Civil Code 1895, § 4790; Civil Code 1910, § 5362; Code 1933, § 85-1508.)

JUDICIAL DECISIONS

Court authorized to pay surveyor. - Employment of a surveyor contemplates payment, and the court, in the exercise of the court's powers in these equitable proceedings, would be authorized to provide for such. Liddell v. Johnson, 214 Ga. 861 , 108 S.E.2d 878 (1959).

Notice required by this statute need not be in writing. Ralph v. Ward, 109 Ga. 363 , 34 S.E. 610 (1899) (see O.C.G.A. § 44-6-164 ).

No provision is made for the return or entry of such notice. English v. Poole, 31 Ga. App. 581 , 121 S.E. 589 (1924).

Provision of O.C.G.A. § 44-6-164 requiring partitioners to make their return within three months after issuance of writ is directory rather than mandatory, and a delay will not require dismissal of the return unless it was caused by the applicant or it appears that a substantial right of the respondents has been prejudiced. Williams v. Williams, 159 Ga. App. 351 , 283 S.E.2d 344 (1981).

Effect of taking oath after return filed. - When the return of the partitioners appointed to partition land had been made and filed, and an objection was made thereto by the defendant on the ground that the partitioners had not taken the oath required of the partitioners by this statute, and the partitioners were ordered by the court to make and file a new return after having taken the oath required, and when the petitioners made and filed a new return, the latter return was not void and illegal upon the ground that the partitioners had no authority in law to make the return, or were disqualified, and the proceedings were not subject to dismissal upon the ground that, with the making of the petitioners first return, the writ of partition became functus officio. McIntosh v. Williams, 45 Ga. App. 801 , 165 S.E. 854 (1932).

Authority to hire timber cruise. - In a statutory partitioning of land, the trial court did not err in granting the partitioners authority to hire a timber cruise to assess the value of timber. Hart v. Hart, 245 Ga. App. 734 , 538 S.E.2d 814 (2000).

Division to agreed groups. - Although O.C.G.A. § 44-6-164 provided that a division of property should be in proportion to the shares claimed, the trial court's division of the two tracts of land involved in a partition action to different groups of siblings was not precluded as the record showed that the aggrieved siblings agreed to that grouping at the beginning of the partition proceeding; thus, the siblings could not be heard to complain about a grouping to which the siblings agreed. Williams v. Conerly, 276 Ga. 651 , 582 S.E.2d 1 (2003).

Cited in Leggitt v. Allen, 85 Ga. App. 280 , 69 S.E.2d 106 (1952); Clay v. Clay, 269 Ga. 902 , 506 S.E.2d 866 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, §§ 58, 62, 63.

C.J.S. - 68 C.J.S., Partition, § 126 et seq.

ALR. - Judicial partition of land by lot or chance, 32 A.L.R.4th 909.

44-6-165. Objections and defenses to right of applicant, writ, or return; jury trial.

At the term of the court when the application is made or at the next term after the partitioners have made their return, any of the persons against whose right or title a judgment is sought may file objections to the right of the applicant and the writ of partition or to the return of the partitioners, as the case may be, and may, by way of defense, show any good and probable matter in bar of the partition asked for or show that the petitioner does not have title to as much as is allowed and awarded to him by the partitioners or to any part of the land; in such event, the issue shall be tried by a jury as in cases of appeals to the superior court.

(Laws 1767, Cobb's 1851 Digest, p. 582; Code 1863, § 3901; Code 1868, § 3925; Code 1873, § 4001; Code 1882, § 4001; Civil Code 1895, § 4791; Civil Code 1910, § 5363; Code 1933, § 85-1509.)

JUDICIAL DECISIONS

Former Civil Code 1910, § 5363 (see O.C.G.A. § 44-6-165 ) had no application to the equitable partition provided for by former Civil Code 1910, § 5355 (see O.C.G.A. § 44-6-140 ). Drew v. Drew, 151 Ga. 11 , 105 S.E. 469 (1921).

This statute provides that in a partition proceeding (at law) when title to the land is at issue, the issue shall be tried by a jury as in appeal cases. It is not applicable to an equitable partition. Gifford v. Courson, 224 Ga. 840 , 165 S.E.2d 133 (1968) (see O.C.G.A. § 44-6-165 ).

Interested party must be given "reasonable time" to file objections. - One at interest must be given a "reasonable time" after the filing of the application for partition in which to file objections. Bodrey v. Bodrey, 122 Ga. App. 23 , 176 S.E.2d 234 (1970).

Objections cannot be filed later than next court term. - Objections to an application for a partition or to the return of the partitioners may not be filed later than the term next after the partitioners have made their return. Cates v. Duncan, 181 Ga. 686 , 183 S.E. 797 (1936).

Objections need not be under oath. Webb v. Till, 134 Ga. 388 , 67 S.E. 1034 (1910).

Want of affidavit no cause for rejection. - When an amended answer would have set up a valid defense, a want of an affidavit would be no cause for rejecting the answer. Mize v. Bank of Whigham, 138 Ga. 499 , 75 S.E. 629 (1912).

Defendant may deny applicant's title. - When an alleged tenant in common denies that the applicant is a cotenant, it is error for the court to order partition without joining issue. Douglas v. Johnson, 130 Ga. 472 , 60 S.E. 1041 (1908).

Defendant may show that another person, not named and served, has interest in property. - Even though an applicant may correctly set forth the applicant's own interest in the property which the applicant seeks to have sold for the purpose of partition, and even though the applicant names as a defendant another person, and correctly sets forth the interest in the property belonging to the applicant, the defendant may appear for the purpose of showing that another and different person, not named as a defendant, and not served, has an interest in the property, and that therefore the applicant is proceeding illegally. Hill v. McCandless, 198 Ga. 737 , 32 S.E.2d 774 (1945).

Defense may show that equitable division can be made without sale. - Defendant may caveat the return of the partitioners, and introduce evidence to show that a fair and equitable division of the land can be made by metes and bounds without ordering a sale. McCann v. Brown, 43 Ga. 386 (1871).

Objections on grounds previously adjudicated not authorized. - This statute must be construed in harmony with the rule as to the conclusiveness of judgments, and will not authorize parties to file objections to the return of the partitioners on grounds which were adjudicated upon the hearing of the application for their appointment. Cates v. Duncan, 181 Ga. 686 , 183 S.E. 797 (1936) (see O.C.G.A. § 44-6-165 ).

Judge may pass upon application without jury when sufficient matter in bar not set up. Brown v. Mooney, 108 Ga. 331 , 33 S.E. 942 (1899).

Time for trial discretionary. - If the defendant has time, in the judgment of the court, to prepare and file defendant's objections, the trial should be at the term in which application is made; otherwise it should be tried at the next term thereafter. Lochrane v. Equitable Loan & Sec. Co., 122 Ga. 433 , 50 S.E. 372 (1905).

When no objections were raised to hearing at time, judgment will not be reversed. Cock v. Callaway, 141 Ga. 774 , 82 S.E. 286 (1914).

Evidence showing nondelivery of deeds admissible without special pleading. - Upon the trial of an issue as to title, evidence tending to show nondelivery of certain deeds is admissible without special pleading. Lowry v. Lowry, 150 Ga. 324 , 103 S.E. 813 (1920).

Cited in Rodgers v. Price, 105 Ga. 67 , 31 S.E. 126 (1898); Brown v. Tomberlin, 137 Ga. 596 , 73 S.E. 947 (1912); Culver v. Pierce, 148 Ga. 300 , 96 S.E. 497 (1918); Cates v. Duncan, 180 Ga. 289 , 179 S.E. 121 (1935); Wren v. Wren, 199 Ga. 851 , 36 S.E.2d 77 (1945); Armstrong v. Merts, 76 Ga. App. 465 , 46 S.E.2d 529 (1948); Leggitt v. Allen, 85 Ga. App. 280 , 69 S.E.2d 106 (1952); Goodman v. Georgia R.R. Bank & Trust Co., 221 Ga. 396 , 144 S.E.2d 764 (1965); Shaw v. Davis, 119 Ga. App. 801 , 168 S.E.2d 853 (1969); Lowe v. Lowe, 123 Ga. App. 525 , 181 S.E.2d 715 (1971); Williams v. Williams, 159 Ga. App. 351 , 283 S.E.2d 344 (1981); Clay v. Clay, 269 Ga. 902 , 506 S.E.2d 866 (1998); Cheeves v. Lacksen, 273 Ga. 549 , 544 S.E.2d 425 (2001).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, §§ 57 et seq., 114.

C.J.S. - 68 C.J.S., Partition, § 259.

44-6-166. Return of partitioners as judgment of court; conclusiveness; when second partition ordered; effect.

If no objection to the return of the partitioners is filed by any of the parties or if, being filed, the jury on the trial finds a verdict against the party setting up such objections, the return of the partitioners shall be made the judgment of the court and shall be final and conclusive as to all the parties concerned who were notified of the application for partition and of the time of executing the writ as required by Code Sections 44-6-162 and 44-6-164, and a writ of possession shall issue accordingly. If objections to the return are filed and are sustained by the jury trying the case or if it appears to the court that there is injustice or inequality in the division made by the partitioners, the court shall award a new partition to be made in the presence of the parties concerned if they will appear, which second partition, when returned, shall be firm, good, and conclusive forever against all parties notified as provided in Code Sections 44-6-162 and 44-6-164.

(Laws 1767, Cobb's 1851 Digest, pp. 582, 583; Code 1863, § 3902; Code 1868, § 3926; Code 1873, § 4002; Code 1882, § 4002; Civil Code 1895, § 4792; Civil Code 1910, § 5364; Code 1933, § 85-1510; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Statute is applicable only to a partition by metes and bounds. Childs v. Hayman, 72 Ga. 791 (1884) (see O.C.G.A. § 44-6-166 ).

Party entitled to except to second return. - When a return of the partitioners is set aside by the verdict of a jury on objections filed thereto, and a new partition is awarded by order of the court, either party has the right to except to the second return before it is made the judgment of the court, and to have that party's objection passed upon by a jury. Lancaster v. Morgan, 54 Ga. 76 (1875). See also McCann v. Brown, 43 Ga. 386 (1871).

Just and equal recommendation accepted by court. - Trial court did not err in approving the recommendation of the practitioners about partition of the tracts of land at issue and making that recommendation its judgment as the aggrieved siblings did not show that the recommendation was unjust and unequal. Williams v. Conerly, 276 Ga. 651 , 582 S.E.2d 1 (2003).

Judgment final and conclusive. - If the partitioning is statutory, the judgment of the court is final and conclusive as to all parties who were notified of the application for partition. Barron v. Lovett, 207 Ga. 131 , 60 S.E.2d 458 (1950).

Cited in Leggitt v. Allen, 85 Ga. App. 280 , 69 S.E.2d 106 (1952).

RESEARCH REFERENCES

C.J.S. - 68 C.J.S., Partition, § 259.

ALR. - Adjustment on partition of improvements made by tenant in common, 122 A.L.R. 234 .

Judgment in partition as res judicata, 144 A.L.R. 9

44-6-166.1. Partition when physical division of property is inequitable.

  1. As used in this Code section, the term:
    1. "Party in interest" means any person, other than a petitioner, having an interest in property.
    2. "Petitioner" means any person petitioning for partition of property.
    3. "Property" means lands and tenements sought to be partitioned pursuant to this subpart.
  2. Whenever an application is made for the partition of property and any of the parties in interest convinces the court that a fair and equitable division of the property cannot be made by means of metes and bounds because of improvements made thereon, because the premises are valuable for mining purposes or for the erection of mills or other machinery, or because the value of the entire property will be depreciated by the partition applied for, the court shall proceed pursuant to this Code section.
  3. The court shall appoint three qualified persons to make appraisals of the property. The average of the three appraisals shall constitute the appraised price of the property for purposes of this Code section. Notice of the amount of the appraised price shall be served on the petitioners and all parties in interest within five days after the appraised price is established.
  4. Within 15 days after the appraised price is established, upon request to the court and grant thereof, any petitioner may withdraw as petitioner in the partition action and become a party in interest and any party in interest may become a petitioner in the action. Any petitioner remaining as such after the fifteenth day may be paid, pursuant to this Code section, his respective share of the appraised price corresponding to his respective share of the property. This payment shall constitute complete satisfaction of all of that petitioner's claims to and interest in that property. If no petitioner remains in the partition action after that fifteenth day, the proceeding shall be dismissed, and the petitioners who have withdrawn shall be liable for the costs of the action, including but not limited to the appraisal costs.
    1. No sooner than 16 days and no later than 90 days after the appraised price is established, the parties in interest shall tender to the court sufficient sums to pay to petitioners their shares of the appraised price, as determined by their respective shares in the property, or the property shall be subject to public sale pursuant to Code Section 44-6-167. If the property is subject to such public sale, the petitioner and the parties in interest shall be liable for appraisal costs under this Code section in proportion to their respective interests in the property.
    2. Each party in interest may pay toward the amount required to purchase any petitioners' shares of the appraised price an amount in proportion to that party's share of the total shares of property of all parties in interest, unless one party in interest authorizes another party in interest to pay some or all of his proportionate share of the shares available for sale. The share of each party in interest in the property shall be increased by the share that party pays toward the purchase of petitioners' shares in the property.
  6. Within 95 days after the appraised price is established, unless the property becomes subject to public sale pursuant to paragraph (1) of subsection (e) of this Code section, the petitioners shall execute title to the parties in interest for the property in return for payment to the petitioners, from sums tendered to court under subsection (e) of this Code section, of their respective shares of the appraised price. Petitioners and parties in interest shall be liable for costs of the sale and proceedings relating thereto under this Code section in proportion to their respective shares in the property prior to that sale. (Code 1981, § 44-6-166.1 , enacted by Ga. L. 1983, p. 1182, § 1; Ga. L. 1985, p. 149, § 44.)

Law reviews. - For annual survey of real property law, see 41 Mercer L. Rev. 317 (1989).

JUDICIAL DECISIONS

Conditions necessary before statute applicable. - Partition in kind is the rule and this statute constitutes the exceptions. Two concurring conditions are necessary before it will be applied: (1) the partition in kind cannot be made; and (2) the interest of the parties owning the land will be promoted. Anderson v. Anderson, 27 Ga. App. 513 , 108 S.E. 907 , cert. denied, 27 Ga. App. 835 (1921) (see O.C.G.A. § 44-6-166.1 )

Provisions mandatory. - First tenant in common was not entitled to bypass the provisions of O.C.G.A. § 44-6-166.1 , which provided the method for partitioning property that could not be physically divided such as the first tenant in common and the second tenant in common's sign, as the provisions of that statute were mandatory and had to be followed. Caudell v. Toccoa Inn, Inc., 261 Ga. App. 209 , 582 S.E.2d 180 (2003).

"Court," meaning the judge, shall determine whether partition may be had by metes and bounds. Rodgers v. Price, 105 Ga. 67 , 31 S.E. 126 (1898).

When the only question before the court is whether or not a fair and equitable division of the land can be made by metes and bounds, the judge has the legal right to determine this question without the intervention of a jury. Jennings v. Jennings, 173 Ga. 428 , 160 S.E. 405 (1931).

Requisite that court must look to interest of parties means interest of all parties; the fact that one of the parties to the application might be benefited would not justify the partition. Tucker v. Parks, 70 Ga. 414 (1883).

Petition for partition by metes and bounds sufficient. - Partition of the proceeds of the sale of the lands and tenements is in all essential particulars a partition of the lands and tenements, and it is immaterial whether the applicant prays for a partition by sale or a partition by metes and bounds. In an application in either form and with either prayer, the issues are the same. Anderson v. Anderson, 27 Ga. App. 513 , 108 S.E. 907 , cert. denied, 27 Ga. App. 835 (1921).

Timberland with varying percentage interests. - Court properly found that a fair and equitable division of the property could not be made by means of metes and bounds since the property consisted of 53 acres of timberland with no road frontage, the parties owned varying percentage interests of the land, the land was most suitable for timberland, and it was not feasible for a timber company to buy the smaller tracts for timber. Cheeves v. Lacksen, 273 Ga. 549 , 544 S.E.2d 425 (2001).

Burden of proof is upon party asserting that equitable division of land cannot be made to affirmatively show this fact. When no evidence was introduced on the issue, and the judgment sustained the application for partition of the land in kind, the judgment will not be reversed on the ground that there was no evidence to show that the land was incapable of subdivision. Jennings v. Jennings, 173 Ga. 428 , 160 S.E. 405 (1931).

Court order as to payment for property appealable. - An order of the trial court providing that a party may tender the appropriate portion of the appraised price of the property to the court by a date certain or the property will be subject to public sale is a final judgment which may be appealed directly to the Supreme Court. Lassiter Properties, Inc. v. Gresham, 258 Ga. 500 , 371 S.E.2d 650 (1988).

Availability of remedy of public sale. - Even if a party in interest does not pursue the remedy under O.C.G.A. § 44-6-166.1 , the petitioner may still seek a public sale under O.C.G.A. § 44-6-167 by convincing the court that a fair and equitable division of the property cannot be made by means of metes and bounds because of improvements on the property, because the premises are valuable for mining purposes or for the erection of mills or other machinery, or because the value of the entire property will be depreciated by the partition applied for. Stone v. Benton, 258 Ga. 539 , 371 S.E.2d 864 (1988).

Withdrawal of petition for public sale. - Under O.C.G.A. § 44-6-166.1 , a public sale of property could only be ordered by the court if the party in interest failed to tender to the court an amount necessary to "buy out" the petitioner before 90 days after the appraised price had been established, but that provision did not apply when the partitioning action was dismissed for lack of a petitioner and, thus, the first tenant in common was not entitled to a public sale of the sign the first tenant in common owned with the second tenant in common as the first tenant in common had withdrawn the first tenant in common's petition for a public sale and dismissed the partitioning action. Caudell v. Toccoa Inn, Inc., 261 Ga. App. 209 , 582 S.E.2d 180 (2003).

Costs of upkeep, improvements, and repair of the property were not considered "contributions" when dividing the proceeds of the sale of the property pursuant to a written agreement between the parties which stated that the property would be divided "to the extent of each party's contribution." Maree v. Phillips, 272 Ga. 52 , 525 S.E.2d 94 (2000).

Partition prevented by parties' agreement. - Partition of a property was improper as the parties' agreement constituted an implied waiver of the right of partition, and a right of first refusal alone would not have satisfied the contractual obligations of the corporation seeking partition. The corporation could not seek partition because such an action was in direct contravention of the corporation's contractual obligations to put forth aggressive and professional marketing efforts to protect the investor status of a partnership, and to refrain from "transferring ... or otherwise encumbering" the property. Mansour Props., L.L.C. v. I-85/Ga. 20 Ventures, Inc., 277 Ga. 632 , 592 S.E.2d 836 (2004).

Sale can be ordered in a statutory partition for property that cannot be divided fairly by metes and bounds. - In a statutory partition, a court may order the sale of property that cannot be fairly divided by metes and bounds. Pack v. Mahan, 294 Ga. 496 , 755 S.E.2d 126 (2014).

Ordering sale was within court's authority. - Under the statutes governing statutory partitioning, the notice of intention to seek partitioning was the only process necessary in order to bring a defendant into court to meet the application for partitioning, and a sale of the property was provided for when a fair and equitable division of the property was not able to have been made by means of metes and bounds; ordering the sale of the property was within the trial court's authority without the need for securing personal jurisdiction over defendant. Shields v. Gish, 280 Ga. 556 , 629 S.E.2d 244 (2006).

Statutory partition more appropriate. - Trial court erred by ordering the equitable partition sale of 3.503 acres of real property because the co-owner failed to show that the remedy at law of a statutory partition, pursuant to O.C.G.A. § 44-6-160 et seq., was insufficient or that peculiar circumstances rendered the equitable proceeding more suitable and just; and, in a statutory partition, a court may order the sale of property that cannot be fairly divided by metes and bounds. Pack v. Mahan, 294 Ga. 496 , 755 S.E.2d 126 (2014).

Cited in Williams v. Conerly, 276 Ga. 651 , 582 S.E.2d 1 (2003); Saik v. Brown, Ga. App. , S.E.2d (June 25, 2020).

44-6-167. When sale of lands ordered; procedure; place of sale; notice.

In the event lands and tenements sought to be partitioned are not sold pursuant to Code Section 44-6-166.1, the court shall order a public sale of such lands and tenements. The court shall appoint three discreet persons as commissioners to conduct such sale under such regulations and upon such just and equitable terms as it may prescribe. The sale shall take place on the first Tuesday in the month, shall be at the place of public sales in the county in which the land is located, and shall be advertised in some public newspaper once a week for four weeks. This Code section shall not be construed to change the place of sale in those counties where by law sheriffs' sales are required to take place at the courthouse.

(Laws 1837, Cobb's 1851 Digest, p. 584; Code 1863, § 3903; Code 1868, § 3927; Code 1873, § 4003; Code 1882, § 4003; Ga. L. 1887, p. 29, § 1; Civil Code 1895, § 4793; Ga. L. 1903, p. 40, § 1; Civil Code 1910, § 5365; Code 1933, § 85-1511; Ga. L. 1983, p. 1182, § 2.)

Editor's notes. - Provisions which, prior to the 1983 amendment of this section, appeared in the first sentence of this Code section now appear in § 44-6-166.1 . Applicable case notes have been transferred to § 44-6-166.1 .

Law reviews. - For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981).

JUDICIAL DECISIONS

Availability of remedy. - Even if a party in interest does not pursue the remedy under O.C.G.A. § 44-6-166.1 , the petitioner may still seek a public sale under O.C.G.A. § 44-6-167 by convincing the court that a fair and equitable division of the property cannot be made by means of metes and bounds because of improvements on the property because the premises are valuable for mining purposes or for the erection of mills or other machinery, or because the value of the entire property will be depreciated by the partition applied for. Stone v. Benton, 258 Ga. 539 , 371 S.E.2d 864 (1988).

When petitioner may pursue remedy of public sale. - First tenant in common was only entitled to pursue the remedy of a public sale under O.C.G.A. § 44-6-167 if the first tenant in common filed a direct action under that statute and argued that a fair and equitable division of the property, the first tenant in common and the second tenant in common's sign, could not be made under O.C.G.A. § 44-6-166.1 , but since the first tenant in common did not do that and merely refiled the first tenant in common's action under O.C.G.A. § 44-6-166.1 and asserted the same claims that had been previously rejected, the trial court was entitled to award attorney fees to the second tenant in common. Caudell v. Toccoa Inn, Inc., 261 Ga. App. 209 , 582 S.E.2d 180 (2003).

Application to partition certain land is a purely statutory proceeding. Nash v. Williamson, 212 Ga. 804 , 96 S.E.2d 251 (1957).

Statutory partition more appropriate. - Trial court erred by ordering the equitable partition sale of 3.503 acres of real property because the co-owner failed to show that the remedy at law of a statutory partition, pursuant to O.C.G.A. § 44-6-160 et seq., was insufficient or that peculiar circumstances rendered the equitable proceeding more suitable and just; and, in a statutory partition, a court may order the sale of property that cannot be fairly divided by metes and bounds. Pack v. Mahan, 294 Ga. 496 , 755 S.E.2d 126 (2014).

Petition not made equitable merely by allegations of uncertainty of interests and difficulty of partitioning. - Allegations in a petition that there was some uncertainty about all parties having an interest in the land and praying for the appointment of a guardian ad litem for unnamed parties at interest, and alleging that the property could not be partitioned by metes and bounds, do not make the petition an equitable one for partition. Brinson v. Thornton, 220 Ga. 234 , 138 S.E.2d 268 (1964).

Prayer for accounting insufficient to render action equitable. - Equity does not have jurisdiction of a purely statutory partition case merely because the application prays for an accounting as to grantors when there was no filing of a suit and summons and process. Bodrey v. Bodrey, 225 Ga. 822 , 171 S.E.2d 614 (1969), overruled on other grounds, Wiley v. Wiley, 233 Ga. 824 , 213 S.E.2d 682 (1975).

Notice of petition provisions inapplicable when petition prays for sale of lands. - When the petition stated an equitable cause of action for partition and accounting under former Code 1933, § 85-1511 (see O.C.G.A. § 44-6-167 ), the notice provisions of former Code 1933, § 85-1506 (see O.C.G.A. § 44-6-162 ) did not apply. Mills v. Williams, 208 Ga. 425 , 67 S.E.2d 212 (1951).

Sale notice provision complied with by inserting advertising in each of four preceding calendar weeks. - Term "once a week for four weeks" is complied with by the insertion of the advertisement in each of the four calendar weeks preceding that in which the sale is had, although 28 days do not elapse between the date of the first insertion and the date of the sale. Heist v. Dunlap & Co., 193 Ga. 462 , 18 S.E.2d 837 (1942).

Sale terms and conditions left to commissioners, subject to court review. - Statute clearly does not require the trial court to prescribe the regulations and terms governing the sale, but is directory only. Discretion as to the terms and conditions of the sale is left to the commissioners, whose actions are subject to review by the trial court in the confirmation proceedings. Wiley v. Wiley, 233 Ga. 824 , 213 S.E.2d 682 (1975) (see O.C.G.A. § 44-6-167 ).

Discretion as to the terms and conditions of the sale is left to the commissioners, whose actions are subject to review by the trial court in the confirmation proceedings. Bernstein v. Bernstein, 235 Ga. 220 , 219 S.E.2d 100 (1975).

Sale order failing to prescribe terms not invalid if nobody deceived. - Order of sale is not invalid if the order only failed to prescribe the terms and conditions of the sale; i.e., whether for cash or on terms, as long as nobody was misled or deceived by the manner in which the sale was conducted. Bernstein v. Bernstein, 235 Ga. 220 , 219 S.E.2d 100 (1975).

Changes occurring after sale cannot mandate partition in kind. - Changes in conditions occurring after an order of sale which facilitate partition by metes and bounds do not mandate such a division. McClain v. McClain, 241 Ga. 162 , 243 S.E.2d 879 (1978).

Costs of upkeep, improvements, and repair of the property were not considered "contributions" when dividing the proceeds of the sale of the property pursuant to a written agreement between the parties which stated that the property would be divided "to the extent of each party's contribution." Maree v. Phillips, 272 Ga. 52 , 525 S.E.2d 94 (2000).

Parties entitled to have accounts adjusted after sale. - In a suit for equitable partition, sale of the property, and satisfaction of all liens, each party is entitled to have each party's accounts and claims adjusted by the court after the sale and before the distribution of the proceeds. In so doing, the court should consider expenditures of either party for improvements to the property, taxes or other expenses, and income received by either party from the rental of the property. Baker v. Baker, 242 Ga. 525 , 250 S.E.2d 436 (1978).

Attorney's fees not authorized. - Former Civil Code 1910, §§ 5365 and 5366 (see O.C.G.A. §§ 44-6-167 and 44-6-168 ) did not authorize the award from the fund of fees for the attorneys representing the applicants for partition. Neal v. Neal, 140 Ga. 734 , 79 S.E. 849 (1913).

Sale is subject to confirmation by the court. Oswald v. Johnson, 140 Ga. 62 , 78 S.E. 333 , 1914 Am. Ann. Cas. 1 (1913).

Because all parties received proper notice of the partition action and, in fact, agreed to the entry of a final consent judgment of partition which gave rise to the trial court's authority to order the public sale, the trial court properly confirmed the sale of the property and directed the parties and parties in interest to execute the deeds. Jacobs v. Young, 291 Ga. 778 , 732 S.E.2d 69 (2012).

Any party in interest may file objections to the confirmation at the term of the court to which the commissioners conducting the sale make their report, if done before the confirmation. Oswald v. Johnson, 140 Ga. 62 , 78 S.E. 333 , 1914 Am. Ann. Cas. 1 (1913).

Jurisdiction of appeal from judgment in action involving statutory partitioning proceedings is in Supreme Court. Wiley v. Wiley, 233 Ga. 824 , 213 S.E.2d 682 (1975).

Appeal not timely until judge appoints commissioners and orders sale. - In a case where a partition is sought by bringing the lands involved to sale, the objecting party may only bring the case to the Supreme Court by a proper bill of exceptions after the judge has appointed commissioners and ordered the commissioners to sell the land. Lanier v. Gay, 195 Ga. 859 , 25 S.E.2d 642 (1943).

Cited in Lankford v. Milhollin, 197 Ga. 227 , 28 S.E.2d 752 (1944); Wood v. W.P. Brown & Sons Lumber Co., 199 Ga. 167 , 33 S.E.2d 435 (1945); Leggitt v. Allen, 85 Ga. App. 280 , 69 S.E.2d 106 (1952); Liddell v. Johnson, 213 Ga. 752 , 101 S.E.2d 755 (1958); Bufford v. Bufford, 221 Ga. 13 , 142 S.E.2d 796 (1965); Goodman v. Georgia R.R. Bank & Trust Co., 221 Ga. 396 , 144 S.E.2d 764 (1965); White v. Howell, 224 Ga. 135 , 160 S.E.2d 374 (1968); Shaw v. Davis, 119 Ga. App. 801 , 168 S.E.2d 853 (1969); Hames v. Shaver, 229 Ga. 412 , 191 S.E.2d 861 (1972); Gray v. Hall, 233 Ga. 244 , 210 S.E.2d 766 (1974); Brannon v. Simpson, 244 Ga. 58 , 257 S.E.2d 541 (1979); Iteld v. Silverboard, 247 Ga. 158 , 275 S.E.2d 645 (1981); Silverboard v. Iteld, 248 Ga. 589 , 285 S.E.2d 182 (1981); Saik v. Brown, Ga. App. , S.E.2d (June 25, 2020).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, §§ 99, 100, 131 et seq.

C.J.S. - 68 C.J.S., Partition, §§ 230 et seq, 293, 303.

ALR. - Timber rights as subject to partition, 21 A.L.R.2d 618.

Contractual provisions as affecting right to judicial partition, 37 A.L.R.3d 962.

44-6-168. Commissioners' return; distribution of proceeds; liability of commissioners for moneys received; contempt.

After the sale of any lands and tenements provided for in Code Section 44-6-167, the commissioners conducting the sale shall return their proceeds to the same term of the court ordering such sale if such term is still being held, and, if not, to the next term thereof, at which term the court shall order the proceeds of the sale to be divided among the several claimants in proportion to their respective interests after deducting the expenses of the proceedings. The commissioners shall be liable to rule by the superior court as sheriffs are liable for all moneys which they have or may receive for the lands sold by them and which they are required by law to return to the court for distribution; and, in case they shall fail to pay the money into court in obedience to a rule against them, they shall be immediately attached as for a contempt and imprisoned without bail until such payment is made.

(Laws 1837, Cobb's 1851 Digest, p. 584; Code 1863, § 3904; Code 1868, § 3928; Code 1873, § 4004; Code 1882, § 4004; Ga. L. 1884-85, p. 54, § 1; Civil Code 1895, § 4794; Civil Code 1910, § 5366; Code 1933, § 85-1512.)

JUDICIAL DECISIONS

Allowance for attorney's fees may be made in equitable proceeding. - In a proceeding at law to partition land, the applicants are not entitled to have fees awarded to their counsel from the common fund, thus requiring their cotenants to contribute to the payment of the fees, but in an equitable proceeding for partitionment and for other relief, an allowance for attorney's fees may be made by the court from the common fund. Cashin v. Markwalter, 208 Ga. 444 , 67 S.E.2d 226 (1951).

No attorney's fees if proceeding instituted for sole benefit of plaintiff. - While the judge of the superior court in an equitable partition proceeding may, in the exercise of sound discretion, and if the circumstances justify it (as when the proceeding is prosecuted for the common benefit of all of the tenants in common), allow compensation for the plaintiff's counsel as a charge against the fund arising from the sale of the land partitioned, nevertheless, when the proceeding is instituted and prosecuted for the sole benefit of the plaintiff, no such attorney fees should be allowed. Mills v. Williams, 208 Ga. 425 , 67 S.E.2d 212 (1951).

Cited in Lankford v. Milhollin, 197 Ga. 227 , 28 S.E.2d 752 (1943); Leggitt v. Allen, 85 Ga. App. 280 , 69 S.E.2d 106 (1952); Shaw v. Davis, 119 Ga. App. 801 , 168 S.E.2d 853 (1969); Billings v. Billings, 242 Ga. 632 , 250 S.E.2d 480 (1978); Silverboard v. Iteld, 248 Ga. 589 , 285 S.E.2d 182 (1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, §§ 118 et seq., 148, 149, 173.

C.J.S. - 68 C.J.S., Partition, §§ 277 et seq., 293, 303.

ALR. - Allowance and apportionment of counsel fees in suit for partition, 73 A.L.R. 16 ; 94 A.L.R.2d 575.

44-6-169. Title to property sold; execution of deed of conveyance by commissioners.

Upon the sale of lands and tenements as provided for in Code Section 44-6-167, the parties in interest shall execute a title to the purchaser; and, if any of them shall fail or refuse to do so, the commissioners or any two of them shall execute a deed of conveyance to such lands and tenements to the purchaser at such sale, which deed shall be as valid and binding as if made by the parties themselves.

(Laws 1837, Cobb's 1851 Digest, p. 584; Code 1863, § 3905; Code 1868, § 3929; Code 1873, § 4005; Code 1882, § 4005; Civil Code 1895, § 4795; Civil Code 1910, § 5367; Code 1933, § 85-1513.)

JUDICIAL DECISIONS

Rights of cotenants protected by right to object to sale's confirmation. - If for any reason property sold under this statute does not bring the property's fair market value, the rights of the cotenants are protected by the right to object to the confirmation of the sale. If the sale is unfair or inequitable to the parties, the court will refuse to confirm the sale and will order a resale. Lankford v. Milhollin, 200 Ga. 512 , 37 S.E.2d 197 (1946) (see O.C.G.A. § 44-6-169 ).

Cited in Childs v. Hayman, 72 Ga. 791 (1884); Leggitt v. Allen, 85 Ga. App. 280 , 69 S.E.2d 106 (1952); Saik v. Brown, Ga. App. , S.E.2d (June 25, 2020).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, § 130.

C.J.S. - 68 C.J.S., Partition, §§ 14, 276.

44-6-170. Treatment of extraordinary cases; denial of sale or partition.

In any extraordinary case not covered by Code Sections 44-6-160 through 44-6-169, the court may frame its proceeding and order so as to meet the exigency of the case without forcing the parties into equity; and the court may deny a sale or partition altogether if it is manifest that the interest of each party will not be fully protected.

(Orig. Code 1863, § 3906; Code 1868, § 3930; Code 1873, § 4006; Code 1882, § 4006; Civil Code 1895, § 4796; Civil Code 1910, § 5368; Code 1933, § 85-1514.)

JUDICIAL DECISIONS

It is improper to force party into equity to obtain dissolution of copartnership in property before applying a writ of partition. Jackson v. Deese, 35 Ga. 84 (1866).

That applicant holds deed as security only is patent reason for denying applicant's petition, unless special reason can be shown for the applicant's not using the applicant's appropriate statutory remedy. Welch v. Agar, 84 Ga. 583 , 11 S.E. 149 , 20 Am. St. R. 380 (1890).

Cashier's check partitionable. - Novelty of the procedure in partitioning a cashier's check payable to the plaintiff and the defendant jointly, and the probable existence of other remedies to determine the title or rights of the parties in the fund, would not defeat the remedy sought, which is given by this statute and others. English v. Poole, 31 Ga. App. 581 , 121 S.E. 589 (1924) (see O.C.G.A. § 44-6-170 ).

Changes occurring after sale cannot mandate partition in kind. - Changes in conditions occurring after an order of sale which facilitate partition by metes and bounds do not mandate such a division. McClain v. McClain, 241 Ga. 162 , 243 S.E.2d 879 (1978).

Authority to hire timber cruise. - In a statutory partitioning of land, the trial court did not err in granting the partitioners authority to hire a timber cruise to assess the value of timber. Hart v. Hart, 245 Ga. App. 734 , 538 S.E.2d 814 (2000).

Statutory partition more appropriate. - Trial court erred by ordering the equitable partition sale of 3.503 acres of real property because the co-owner failed to show that the remedy at law of a statutory partition, pursuant to O.C.G.A. § 44-6-160 et seq., was insufficient or that peculiar circumstances rendered the equitable proceeding more suitable and just; and, in a statutory partition, a court may order the sale of property that cannot be fairly divided by metes and bounds. Pack v. Mahan, 294 Ga. 496 , 755 S.E.2d 126 (2014).

Any form of partition would not end dispute. - In a dispute over ownership of an access driveway, the trial court properly granted the defendants summary judgment on the petition to partition since the access driveway had no value other than the driveway's service to the lots to which the driveway was connected since all owners maintained easement rights to use the access driveway regardless of the fee ownership; thus, partition of the access driveway so as to consolidate fee ownership would not put an end to the dispute. Saik v. Brown, Ga. App. , S.E.2d (June 25, 2020).

Cited in Tucker v. Parks, 70 Ga. 414 (1883); Brown v. Mooney, 108 Ga. 331 , 33 S.E. 942 (1899); Smith v. Smith, 133 Ga. 170 , 65 S.E. 414 (1909); Leggitt v. Allen, 85 Ga. App. 280 , 69 S.E.2d 106 (1952); White v. Howell, 117 Ga. App. 778 , 161 S.E.2d 892 (1968); Sanders v. Darnell, 238 Ga. 362 , 233 S.E.2d 180 (1977).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, §§ 64, 65.

C.J.S. - 68 C.J.S., Partition, § 24.

ALR. - Right of judgment creditor of cotenant to maintain partition, 25 A.L.R. 105 .

Probate of will as condition precedent to suit for partition by devises, 141 A.L.R. 1311 .

Power of guardian to agree to, or of court to approve, voluntary partition between infant or incompetent and cotenant, 157 A.L.R. 755 .

44-6-171. Setting aside judgment by parties under disability, absent, or not notified; time limitations; conclusiveness of judgment; effect of proceedings on bona fide purchaser.

When proceedings have been instituted and judgment of the partition has been rendered according to the regulations prescribed in this part and if any one of the parties in interest is a minor or a mentally ill or intellectually disabled person who has no guardian, or is absent from the state during such proceeding, or has not been notified thereof, such minor or mentally ill or intellectually disabled person may, within 12 months after coming of age, after restoration of mind, or after having a guardian appointed, as the case may be, and such absent or unnotified party may, at any time within 12 months after rendition of the judgment, move the court to set aside the judgment on any of the grounds upon which a party notified and free from disabilities might have resisted the judgment upon the hearing as authorized by Code Section 44-6-165. The issue shall be tried and the subsequent proceedings shall be the same as is provided for in cases of objections filed to the return of the partitioners before judgment. If such motion to set aside the judgment is not made within the time specified in this Code section, such judgment shall be as binding and conclusive upon such minor, mentally ill or intellectually disabled person, or absent or unnotified party as if he or she had been notified, present, or free from disability. In no event shall such subsequent proceedings affect the title of a bona fide purchaser under a sale ordered by the court.

(Laws 1767, Cobb's 1851 Digest, p. 582; Code 1863, § 3907; Code 1868, § 3931; Code 1873, § 4007; Code 1882, § 4007; Civil Code 1895, § 4797; Civil Code 1910, § 5369; Code 1933, § 85-1515; Ga. L. 2015, p. 385, § 4-12/HB 252.)

The 2015 amendment, effective July 1, 2015, substituted "intellectually disabled" for "retarded" three times in this Code section and inserted "or she" in the next to the last sentence.

Editor's notes. - Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

JUDICIAL DECISIONS

Section provides for case of one who is resident, but is temporarily absent from state. Childs v. Hayman, 72 Ga. 791 (1884) (see O.C.G.A. § 44-6-171 ).

Applicability to cotenant absent from state. - This statute is not dependent on the absence of service, but the statutory provisions will apply when a party at interest is either absent from the state or has not been notified. Thus, even though a cotenant may be served, yet if the cotenant is absent from the state, the cotenants rights will be presumed so materially affected that a judgment may be set aside at any time within 12 months. Lankford v. Milhollin, 197 Ga. 227 , 28 S.E.2d 752 (1944) (see O.C.G.A. § 44-6-171 ).

Counsel's presence equivalent of party's presence. - Presence of counsel who has full authority to represent a party, and who litigates the issues then for trial, is the equivalent of the party's presence. Lankford v. Milhollin, 201 Ga. 594 , 40 S.E.2d 376 (1946).

Unnotified, absent, or disabled parties have 12 months to move to set aside judgment. - When proceedings have been instituted and judgment of partition had thereon, and any one of the parties in interest is absent from the state during the proceeding, or has not been notified, such absent or unnotified party may at any time within 12 months move to set aside the judgment, on any ground on which the party might have resisted the same on the hearing, and the issue shall be tried and the subsequent proceedings shall be the same as pointed out in cases of objections filed to the return of the partitioners before judgment. Lankford v. Milhollin, 197 Ga. 227 , 28 S.E.2d 752 (1944).

Parties not notified, or absent from the state, or laboring under any disability recognized by law, have 12 months in which to move to set aside the judgment upon any ground which might have been urged by such parties upon the hearing for partition. Barron v. Lovett, 207 Ga. 131 , 60 S.E.2d 458 (1950).

Cited in Leggitt v. Allen, 85 Ga. App. 280 , 69 S.E.2d 106 (1952); Faison v. Faison, 344 Ga. App. 600 , 811 S.E.2d 431 (2018).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, §§ 128, 141 et seq.

C.J.S. - 68 C.J.S., Partition, §§ 24, 130.

ALR. - Right to partition as against infants, 96 A.L.R. 1278 .

Power of guardian to agree to, or of court to approve, voluntary partition between infant or incompetent and cotenant, 157 A.L.R. 755 .

44-6-172. Partition of realty by life tenants - Effect on other parties; conditions.

In all cases where an undivided interest in real estate has been or may be granted or devised to a person for his lifetime with remainder or reversion to others, such life tenant may compel a partition pursuant to the partition laws of this state which may, upon a proper judgment of the superior court based upon an application therefor, bind all parties interested whether in possession, reversion, or remainder and whether or not those entitled to take are in being, provided the property is capable of fair and equitable partition and such fact is adjudicated by the court in such proceeding. No sale of the property may be made or had under such application for partition, and the terms of the grant or devise shall otherwise remain in full force and effect.

(Ga. L. 1959, p. 189, § 1; Ga. L. 1961, p. 228, § 1.)

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979).

JUDICIAL DECISIONS

Statute relates only to owner of undivided interest in life estate in real property and not to the sole owner of a life estate. Williams v. Colleran, 230 Ga. 56 , 195 S.E.2d 413 (1973) (see O.C.G.A. § 44-6-172 ).

Prior right to sell land unaffected by statute. - If a life tenant had a right to sell the land upon petition prior to the enactment of this statute, it was not taken away by this statute. Williams v. Colleran, 230 Ga. 56 , 195 S.E.2d 413 (1973) (see O.C.G.A. § 44-6-172 ).

Life tenant may not acquire portion in fee. - Although a life tenant, in the proper circumstances, may seek partition, it may not be accomplished by the life tenant acquiring a portion of the land in fee simple. McGhee v. Brown, 244 Ga. 478 , 260 S.E.2d 873 (1979).

Cited in Sanders v. Darnell, 238 Ga. 362 , 233 S.E.2d 180 (1977); Billings v. Billings, 242 Ga. 632 , 250 S.E.2d 480 (1978).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, § 32.

C.J.S. - 68 C.J.S., Partition, § 74.

ALR. - Right to, and effect of, partition of undivided interests held respectively in fee and in life estate, with remainder, 12 A.L.R. 644 ; 134 A.L.R. 661 .

Right to partition of different tracts of land in same proceeding, 65 A.L.R. 893 .

Contractual provisions as affecting right to judicial partition, 37 A.L.R.3d 962.

44-6-173. Partition of realty by life tenants - Appointment of guardians ad litem; service of notice of application; time for answer.

  1. Under the partition proceeding provided in Code Section 44-6-172, the court shall appoint a guardian ad litem to act for and represent all unborn remaindermen or reversioners on such terms as may be ordered by the court. When interested minors are not represented by a guardian, the court shall also appoint a guardian ad litem to act for and represent such minors.
  2. The guardian ad litem shall be served with a notice of the application for partition. After the application has been filed in the superior court, all other parties shall also be served with notice of the application for partition. The guardian ad litem and all other parties who have been served with the notice shall answer and plead to the application for partition within 20 days after the service of the notice; provided, however, that the court may authorize the guardian ad litem to acknowledge service and waive the 20 days' notice.

    (Ga. L. 1961, p. 228, § 2.)

JUDICIAL DECISIONS

Statute relates only to owner of undivided interest in life estate in real property and not to the sole owner of a life estate. Williams v. Colleran, 230 Ga. 56 , 195 S.E.2d 413 (1973) (see O.C.G.A. § 44-6-173 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 59A Am. Jur. 2d, Partition, § 98.

C.J.S. - 68 C.J.S., Partition, §§ 74, 165.

ALR. - Right to partition as against infants, 96 A.L.R. 1278 .

44-6-174. Partition of realty by life tenants - Cumulative effect.

The right of partition provided by Code Sections 44-6-172 and 44-6-173 shall be cumulative to existing laws.

(Ga. L. 1961, p. 228, § 3.)

JUDICIAL DECISIONS

Statute relates only to owner of undivided interest in life estate in real property and not to the sole owner of a life estate. Williams v. Colleran, 230 Ga. 56 , 195 S.E.2d 413 (1973) (see O.C.G.A. § 44-6-174 ).

Prior right to sell land unaffected by statute. - If a life tenant had a right to sell the land upon petition prior to the enactment of this statute, it was not taken away by this statute. Williams v. Colleran, 230 Ga. 56 , 195 S.E.2d 413 (1973) (see O.C.G.A. § 44-6-174 ).

Subpart 3 Uniform Partition of Heirs Property

Effective date. - This subpart became effective January 1, 2013.

Editor's notes. - Ga. L. 2012, p. 97, § 1/HB 744, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Uniform Partition of Heirs Property Act.'"

44-6-180. Definitions.

As used in this subpart, the term:

  1. "Ascendant" means an individual who precedes another individual in lineage in a direct line of ascent from the other individual.
  2. "Broker" means any individual or entity issued a broker's real estate license by the Georgia Real Estate Commission pursuant to Chapter 40 of Title 43. Such term shall include the broker's affiliated licensees.
  3. "Collateral" means an individual who is related to another individual under the law of intestate succession of this state but who is not the other individual's ascendant or descendant.
  4. "Descendant" means an individual who follows another individual in lineage in a direct line of descent from the other individual.
  5. "Heirs property" means real property held in tenancy in common which satisfies all of the following requirements on the date of the filing of a partition action:
    1. There is no agreement in a record binding all the cotenants which governs the partition of the property;
    2. One or more of the cotenants acquired title from a relative, whether living or deceased; and
    3. Any of the following applies:
      1. Twenty percent or more of the interests are held by cotenants who are relatives;
      2. Twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; or
      3. Twenty percent or more of the cotenants are relatives.
  6. "Partition by sale" means a court ordered sale of the entire heirs property, whether by public sale, sealed bids, or open-market sale conducted under Code Section 44-6-187.
  7. "Partition in kind" means the division of heirs property into physically distinct and separately titled parcels.
  8. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  9. "Relative" means an ascendant, descendant, or collateral or an individual otherwise related to another individual by blood, marriage, adoption, or law of this state other than this subpart. (Code 1981, § 44-6-180 , enacted by Ga. L. 2012, p. 97, § 2/HB 744.)

Law reviews. - For article, "A Primer on Heirs Property and Georgia's New Uniform Partition of Heirs Property Act: Protecting Owners of Heirs Property," see 19 G. St. B.J. 16 (Oct. 2013).

JUDICIAL DECISIONS

Mandatory procedure must be followed. - Denial of the appellant's motion for a new trial was reversed because in light of the mandatory language in the Uniform Partition of Heirs Property Act (UPHPA), specifically O.C.G.A. § 44-6-181(b) , the trial court erred in not making an initial determination, prior to ordering the parties to mediation, whether the property was heirs property and, if so, it was required to partition the property pursuant to the UPHPA unless all of the cotenants, not just all of the non-defaulting cotenants, otherwise agreed. Faison v. Faison, 344 Ga. App. 600 , 811 S.E.2d 431 (2018).

44-6-181. Application; determination of heirs property.

  1. This subpart shall apply to partition actions filed on or after January 1, 2013.
  2. In an action to partition real property under Subpart 1 or 2 of this part, the court shall determine whether the property is heirs property. If the court determines that the property is heirs property, the property shall be partitioned pursuant to this subpart unless all of the cotenants otherwise agree in a record. (Code 1981, § 44-6-181 , enacted by Ga. L. 2012, p. 97, § 2/HB 744; Ga. L. 2013, p. 141, § 44/HB 79.)

The 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, revised capitalization in the first sentence of subsection (b).

JUDICIAL DECISIONS

Mandatory procedure must be followed. - Denial of the appellant's motion for a new trial was reversed because in light of the mandatory language in the Uniform Partition of Heirs Property Act (UPHPA), specifically O.C.G.A. § 44-6-181(b) , the trial court erred in not making an initial determination, prior to ordering the parties to mediation, whether the property was heirs property and, if so, it was required to partition the property pursuant to the UPHPA unless all of the cotenants, not just all of the non-defaulting cotenants, otherwise agreed. Faison v. Faison, 344 Ga. App. 600 , 811 S.E.2d 431 (2018).

44-6-182. Posting notice sign on property.

If an order for service by publication of the summons for a writ of partition is granted and the court determines that the property may be heirs property, the plaintiff, not later than ten days after the court's determination that the property may be heirs property, shall post a sign in the right of way adjacent to the property which is the subject of the writ of partition, and the plaintiff shall maintain such sign while the action is pending. The sign shall state that a writ of partition has commenced, the name and address of the court in which the action is pending, and the common designation by which the property is known. The court may require the plaintiff to publish the name of the plaintiff and names of the known defendants on the sign.

(Code 1981, § 44-6-182 , enacted by Ga. L. 2012, p. 97, § 2/HB 744.)

44-6-183. Qualifications of partitioners.

If the court appoints partitioners as described in Code Section 44-6-163, each partitioner shall be a discreet person, disinterested, impartial, and not a party to or a participant in the writ of partition.

(Code 1981, § 44-6-183 , enacted by Ga. L. 2012, p. 97, § 2/HB 744.)

44-6-184. Appraisal of heirs property; other method to determine value; notice of value; required hearing.

  1. Except as otherwise provided in subsections (b) and (c) of this Code section, if the court determines that the property that is the subject of a partition action is heirs property, the court shall determine the fair market value of the property by ordering an appraisal pursuant to subsection (d) of this Code section.
  2. If all cotenants have agreed to the value of the property or to another method of valuation, the court shall adopt that value or the value produced by the agreed method of valuation.
  3. If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value of the property and send notice to the parties of the value.
  4. If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser licensed in this state to determine the fair market value of the property assuming sole ownership of the fee simple estate. Upon completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court.
  5. If an appraisal is conducted pursuant to subsection (d) of this Code section, not later than ten days after the appraisal is filed, the court shall send notice to each party with a known address, stating:
    1. The appraised fair market value of the property;
    2. That the appraisal is available at the clerk's office; and
    3. That a party may file with the court an objection to the appraisal not later than 30 days after the notice is sent, stating the grounds for the objection.
  6. If an appraisal is filed with the court pursuant to subsection (d) of this Code section, the court shall conduct a hearing to determine the fair market value of the property not sooner than 30 days after a copy of the notice of the appraisal is sent to each party under subsection (e) of this Code section, whether or not an objection to the appraisal is filed under paragraph (3) of subsection (e) of this Code section. In addition to the court ordered appraisal, the court may consider any other evidence of value offered by a party.
  7. After a hearing under subsection (f) of this Code section, but before considering the merits of the partition action, the court shall determine the fair market value of the property and send notice to the parties of the value. (Code 1981, § 44-6-184 , enacted by Ga. L. 2012, p. 97, § 2/HB 744.)

Law reviews. - For annual survey on real property law, see 70 Mercer L. Rev. 209 (2018).

JUDICIAL DECISIONS

Mandatory procedure must be followed. - Denial of the appellant's motion for a new trial was reversed because in light of the mandatory language in the Uniform Partition of Heirs Property Act (UPHPA), specifically, O.C.G.A. § 44-6-181(b) , the trial court erred in not making an initial determination, prior to ordering the parties to mediation, whether the property was heirs property and, if so, it was required to partition the property pursuant to the UPHPA unless all of the cotenants, not just all of the non-defaulting cotenants, otherwise agreed. Faison v. Faison, 344 Ga. App. 600 , 811 S.E.2d 431 (2018).

44-6-185. Partition by sale; purchase by party; buyouts; sale to others; notice and hearing.

  1. If any cotenant requests partition by sale, after the court determines the fair market value of the heirs property under Code Section 44-6-184 or accepts the evaluation of the property agreed to by all cotenants, the court shall send notice to the parties that any cotenant except a cotenant that requested partition by sale may buy all the interests of the cotenants that requested partition by sale.
  2. Not later than 45 days after the notice is sent under subsection (a) of this Code section, any cotenant except a cotenant that requested partition by sale may give notice to the court that it elects to buy all the interests of the cotenants that requested partition by sale.
  3. The purchase price for each of the interests of a cotenant that requested partition by sale shall be the value of the entire parcel determined pursuant to Code Section 44-6-184 multiplied by the cotenant's fractional ownership of the entire parcel.
  4. After expiration of the period in subsection (b) of this Code section:
    1. If only one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall notify all the parties of that fact;
    2. If more than one cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall allocate the right to buy those interests among the electing cotenants based on each electing cotenant's existing fractional ownership of the entire parcel divided by the total existing fractional ownership of all cotenants electing to buy and send notice to all the parties of that fact and of the price to be paid by each electing cotenant; or
    3. If no cotenant elects to buy all the interests of the cotenants that requested partition by sale, the court shall send notice to all the parties of that fact and resolve the partition action under subsections (a) and (b) of Code Section 44-6-186.
  5. If the court sends notice to the parties under paragraph (1) or (2) of subsection (d) of this Code section, the court shall set a date, not sooner than 60 days after the date the notice was sent, by which electing cotenants shall pay their apportioned price into the court. After this date:
    1. If all electing cotenants timely pay their apportioned price into court, the court shall issue an order reallocating all the interests of the cotenants and disburse the amounts held by the court to the persons entitled to them;
    2. If no electing cotenant timely pays its apportioned price, the court shall resolve the partition action under subsections (a) and (b) of Code Section 44-6-186 as if the interests of the cotenants that requested partition by sale were not purchased; or
    3. If one or more but not all of the electing cotenants fail to pay their apportioned price on time, the court shall give notice to the electing cotenants that paid their apportioned price of the interest remaining and the price for all that interest.
  6. Not later than 20 days after the court gives notice pursuant to paragraph (3) of subsection (e) of this Code section, any cotenant that paid their apportioned price of the interest may elect to purchase all of the remaining interest by paying the entire price into the court. After the 20 day period:
    1. If only one cotenant pays the entire price for the remaining interest, the court shall issue an order reallocating the remaining interest to that cotenant. The court shall issue promptly an order reallocating the interests of all of the cotenants and disburse the amounts held by it to the persons entitled to them;
    2. If no cotenant pays the entire price for the remaining interest, the court shall resolve the partition action under subsections (a) and (b) of Code Section 44-6-186 as if the interests of the cotenants that requested partition by sale were not purchased; or
    3. If more than one cotenant pays the entire price for the remaining interest, the court shall reapportion the remaining interest among those paying cotenants, based on each paying cotenant's original fractional ownership of the entire parcel divided by the total original fractional ownership of all cotenants that paid the entire price for the remaining interest. The court shall issue promptly an order reallocating all of the cotenants' interests, disburse the amounts held by it to the persons entitled to them, and promptly refund any excess payment held by the court.
  7. Not later than 45 days after the court sends notice to the parties pursuant to subsection (a) of this Code section, any cotenant entitled to buy an interest under this Code section may request the court to authorize the sale as part of the pending action of the interests of cotenants named as defendants and served with the writ or application for partition but that did not appear in the action.
  8. If the court receives a timely request under subsection (g) of this Code section, the court, after hearing, may deny the request or authorize the requested additional sale on such terms as the court determines are fair and reasonable, subject to the following limitations:
    1. A sale authorized under this subsection may occur only after the purchase prices for all interests subject to sale under subsections (a) through (f) of this Code section have been paid into court and those interests have been reallocated among the cotenants as provided in those subsections; and
    2. The purchase price for the interest of a nonappearing cotenant shall be based on the court's determination of the fair market value of the heirs property under Code Section 44-6-184 or the evaluation of the property agreed to by all cotenants. (Code 1981, § 44-6-185 , enacted by Ga. L. 2012, p. 97, § 2/HB 744; Ga. L. 2019, p. 1056, § 44/SB 52.)

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, substituted "paragraph (1) or (2)" for "paragraphs (1) or (2)" in the introductory language of subsection (e).

44-6-186. Partitions in kind.

    1. If all the interests of all cotenants that requested partition by sale are not purchased by other cotenants pursuant to Code Section 44-6-185, or if after conclusion of the buyout under Code Section 44-6-185, a cotenant remains that has requested partition in kind, the court shall order partition in kind unless the court, after consideration of the factors listed in Code Section 44-6-187, finds that partition in kind will result in manifest prejudice to the cotenants as a group. In considering whether to order partition in kind, the court shall approve a request by two or more parties to have their individual interests aggregated.
      1. In determining under paragraph (1) of this subsection whether partition in kind would result in manifest prejudice to the cotenants as a group, the court shall consider the following:
        1. Whether the heirs property practicably can be divided among the cotenants;
        2. Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which a court ordered sale likely would occur;
        3. Evidence of the collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of the cotenant or each other;
        4. A cotenant's sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the cotenant;
        5. The lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property;
        6. The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property; and
        7. Any other relevant factor.
      2. The court shall not consider any one factor listed in subparagraph (A) of this paragraph to be dispositive without weighing the totality of all relevant factors and circumstances.
  2. If the court does not order partition in kind under subsection (a) of this Code section, the court shall order partition by sale pursuant to Code Section 44-6-187 or, if no cotenant requested partition by sale, the court shall dismiss the action.
  3. If the court orders partition in kind pursuant to subsection (a) of this Code section, the court may require that one or more cotenants pay one or more other cotenants amounts so that the payments, taken together with the value of the in-kind distributions to the cotenants, will make the partition in kind just and proportionate in value to the fractional interests held.
  4. If the court orders partition in kind, the court shall allocate to the cotenants that are unknown, unlocatable, or the subject of a default judgment, if their interests were not bought out pursuant to Code Section 44-6-185 , a part of the property representing the combined interests of these cotenants as determined by the court, and this portion of the property shall remain undivided. (Code 1981, § 44-6-186 , enacted by Ga. L. 2012, p. 97, § 2/HB 744.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, a second division (a)(2)(A)(iv), as enacted, was redesignated as division (a)(2)(A)(vi).

44-6-187. Open market sales; brokers and commissions; sealed bids or public sale.

  1. If the court orders an open-market sale of heirs property, the sale shall be an open-market sale unless the court finds that a sale by sealed bids or a public sale would be more economically advantageous and in the best interest of the cotenants as a group.
  2. If the court orders an open-market sale and the parties, not later than ten days after the entry of the order, agree on a broker to offer the property for sale, the court shall appoint the broker and establish a reasonable commission. If the parties cannot agree on a broker, the court shall appoint a disinterested broker to offer the property for sale and shall establish a reasonable commission. The broker shall offer the property for sale in a commercially reasonable manner at a price no lower than the fair market value determined by the court under Code Section 44-6-184 or the valuation of the property agreed upon by the cotenants and on the terms and conditions established by the court.
  3. If the broker appointed under subsection (b) of this Code section obtains within a reasonable time an offer to purchase the property for at least the fair market value determined by the court under Code Section 44-6-184 or the valuation of the property agreed upon by the cotenants:
    1. The broker shall comply with the reporting requirements in Code Section 44-6-188; and
    2. The sale may be completed in accordance with state law other than this subpart.
  4. If the broker appointed under subsection (b) of this Code section cannot obtain within a reasonable time an offer to purchase the property for at least the fair market value determined by the court under Code Section 44-6-184 or the valuation of the property agreed upon by the cotenants, the court, after hearing, shall:
    1. Approve the highest outstanding offer, if any;
    2. Redetermine the value of the property and order that the property continue to be offered for an additional time; or
    3. Order that the property be sold by sealed bids or at a public sale.
  5. If the court orders a sale by sealed bids or a public sale, the court shall set terms and conditions of the sale. If the court orders a public sale, the public sale shall be conducted as a public sale in accordance with Code section 44-6-167.
  6. If a purchaser is entitled to a share of the proceeds of the sale, the purchaser shall be entitled to a credit against the price in an amount equal to the purchaser's share of the proceeds. (Code 1981, § 44-6-187 , enacted by Ga. L. 2012, p. 97, § 2/HB 744.)

44-6-188. Obligation of brokers to court; reporting requirements.

  1. A broker appointed under subsection (b) of Code Section 44-6-187 to offer heirs property for open-market sale shall file a report with the court not later than seven days after receiving an offer to purchase the property for at least the value determined under Code Section 44-6-184 or 44-6-187.
  2. The report required by subsection (a) of this Code section shall contain the following information:
    1. A description of the property to be sold to each buyer;
    2. The name of each buyer;
    3. The proposed purchase price;
    4. The terms and conditions of the proposed sale, including the terms of any owner financing;
    5. The amounts to be paid to lienholders;
    6. A statement of contractual or other arrangements or conditions of the broker's commission; and
    7. Other material facts relevant to the sale. (Code 1981, § 44-6-188 , enacted by Ga. L. 2012, p. 97, § 2/HB 744.)

44-6-189. Uniformity among states.

In applying and construing this subpart, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact the "Uniform Partition of Heirs Property Act."

(Code 1981, § 44-6-189 , enacted by Ga. L. 2012, p. 97, § 2/HB 744.)

44-6-189.1. Construction with federal Electronic Signatures in Global and National Commerce Act.

This subpart modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

(Code 1981, § 44-6-189.1 , enacted by Ga. L. 2012, p. 97, § 2/HB 744.)

ARTICLE 8 JOINT TENANCY WITH SURVIVORSHIP

44-6-190. Creating joint tenancy with survivorship; severance; effect of Code section on other laws.

    1. Deeds and other instruments of title, including any instrument in which one person conveys to himself or herself and one or more other persons, any instrument in which two or more persons convey to themselves or to themselves and another or others, and wills, taking effect after January 1, 1977, may create a joint interest with survivorship in two or more persons.
    2. Any instrument of title in favor of two or more persons shall be construed to create interests in common without survivorship between or among the owners unless the instrument expressly refers to the takers as "joint tenants," "joint tenants and not as tenants in common," or "joint tenants with survivorship" or as taking "jointly with survivorship."
    3. Any instrument of title using one of the forms of expression referred to in paragraph (2) of this subsection or language essentially the same as one of these forms of expression shall create a joint tenancy estate or interest that may be severed as to the interest of any owner by the recording of an instrument which results in his or her lifetime transfer of all or a part of his or her interest; provided, however, that, if all persons owning joint tenant interests in a property join in the same recorded lifetime transfer, no severance shall occur.
    4. Unless the joint tenancy with the right of survivorship is otherwise disposed of in a final order of divorce or annulment, if either party to an instrument of title creating a joint tenancy with the right of survivorship files an affidavit in the real property records maintained by the clerk of superior court of the county in which the real property is located averring that the parties have been lawfully divorced or their marriage has been annulled that the party intends to terminate the joint tenancy, identifies the book and page of recordation of the deed creating the joint tenancy and attaches a copy of the final order of divorce or annulment and a legal description of the property, the party's interests shall be converted into tenants in common.
  2. Neither this Code section nor Code Section 44-6-120 shall:
    1. Be construed to repeal, modify, or limit in any way:
      1. Code Section 14-5-8; or
      2. Article 8 of Chapter 1 of Title 7 or any other law relative to multiple-party accounts in financial institutions; or
    2. Apply to any document, transaction, or right to which Code Section 14-5-8 applies or to multiple-party deposit accounts in any financial institution.

      (Laws 1828, Cobb's 1851 Digest, p. 545; Ga. L. 1853-54, p. 70, § 1; Code 1863, § 2281; Code 1868, § 2274; Code 1873, § 2300; Code 1882, § 2300; Civil Code 1895, § 3142; Civil Code 1910, § 3722; Code 1933, § 85-1002; Ga. L. 1976, p. 1388, § 10; Ga. L. 1976, p. 1438, § 2; Ga. L. 1980, p. 753, § 2; Ga. L. 1984, p. 1335, § 2; Ga. L. 1985, p. 149, § 44; Ga. L. 2015, p. 827, § 1/HB 99.)

The 2015 amendment, effective July 1, 2015, rewrote this Code section.

Cross references. - Presumption of existence of joint tenancy with right of survivorship when share certificates or other securities are issued or transferred to two or more persons in joint tenancy on books or records of corporation, § 14-5-8 .

Law reviews. - For article arguing for reestablishment of the true joint tenancy with survivorship in Georgia prior to the 1976 amendment to this Code section, see 3 Ga. St. B.J. 29 (1966). For article discussing joint tenancy arrangements as a means of avoiding probate, see 6 Ga. L. Rev. 74 (1971). For article discussing joint ownership of assets and severance of such ownership, see 14 Ga. St. B.J. 14 (1977). For article discussing several aspects of joint tenancy with right of survivorship, see 16 Ga. St. B.J. 54 (1979). For article, "Joint Bank Accounts: A Different Form of Joint Tenancy," see 17 Ga. St. B.J. 184 (1981). For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For annual survey on real property, see 64 Mercer L. Rev. 255 (2012). For note discussing the treatment of joint bank accounts in Georgia, with regard to survivorship and testamentary effect, prior to the enactment of the Financial Institutions Code of Georgia, see 7 Ga. St. B.J. 370 (1971). For comment on Eppes v. Locklin, 222 Ga. 86 , 149 S.E.2d 148 (1966), see 1 Ga. L. Rev. 331 (1967).

JUDICIAL DECISIONS

Common law doctrine abolished by Constitution of 1777. - Common law doctrine of survivorship among joint tenants was abolished by the Constitution of 1777. Lowe v. Brooks, 23 Ga. 325 (1857); Carswell v. Schley, 56 Ga. 101 (1876). See also Bryan v. Averett, 21 Ga. 401 , 68 Am. Dec. 464 (1857); Harrison v. Harrison, 105 Ga. 517 , 31 S.E. 455 , 70 Am. St. R. 60 (1898); Equitable Loan & Sec. Co. v. Waring, 117 Ga. 599 , 44 S.E. 320 , 97 Am. St. R. 177 , 62 L.R.A. 93 (1903).

Purpose of Act of 1828. - When the legislature in 1828 interfered with the doctrine of the common law as to survivorship, the language used by the legislature shows that the legislature did so, not as believing the doctrine to be in force, but out of abundant caution lest it might be in force. Lowe v. Brooks, 23 Ga. 325 (1857).

Purpose of Act of 1853-54. - Act of 1828 confined itself to estates in "lands." In 1854, the legislature extended the Act "to personal estate held in joint tenancy." Lowe v. Brooks, 23 Ga. 325 (1857).

Judicial recognition of joint estates. - Although a joint tenancy with right of survivorship was abolished by statute, the Georgia courts continued to recognize such joint estates if expressly created. In 1976, the General Assembly superseded former Code 1933, § 85-1002 with Ga. L. 1976, p. 1388 (see O.C.G.A. § 44-6-190 ), which recognizes this fact. Barnes v. Mance, 246 Ga. 314 , 271 S.E.2d 359 (1980).

Creation of right of survivorship prior to 1976. - Prior to 1976, although joint tenancy as it existed at common law was abolished, one could clearly intend by the language in one's will to create a right of survivorship, which could not be destroyed by severance. The transferees would hold vested life estates with cross contingent remainders. Williams v. Studstill, 251 Ga. 466 , 306 S.E.2d 633 (1983).

Joint survivorship may be created by deed to oneself and another. Barnes v. Mance, 246 Ga. 314 , 271 S.E.2d 359 (1980).

Deed entitled "Warranty Deed with right of survivorship" expressly created such an estate in father and his son, and therefore the land became the son's at father's death, and was not part of father's estate. Barnes v. Mance, 246 Ga. 314 , 271 S.E.2d 359 (1980).

Enforcement of right of survivorship. - When created by contract, the right of survivorship will be enforced. Commercial Banking Co. v. Spurlock, 238 Ga. 123 , 231 S.E.2d 748 (1977).

Joint tenancy not terminated by tenant's incapacity. - Joint tenancies in bank and stock investment accounts and in real property did not terminate as a matter of law when one of the joint tenants was declared incapacitated and a guardian was appointed for that tenant's person and property. A guardian, unlike a trustee, has no beneficial title in the ward's estate, but is merely a custodian or manager. Moore v. Self, 222 Ga. App. 71 , 473 S.E.2d 507 (1996).

Will transfer does not qualify as lifetime transfer to sever joint tenancy. - A will transfers property interests only when the will has been probated after the testator's death, so a will cannot qualify as an instrument making a lifetime transfer capable of severing a joint tenancy for purposes of O.C.G.A. § 44-6-190(a) . Harbin v. Harbin, 261 Ga. App. 244 , 582 S.E.2d 131 (2003).

Defendant widow was properly granted summary judgment on plaintiff son's claim to reform certain deeds to two tracts of real property when the son wanted the deeds to reflect the intention of the decedent that the son receive part of the property pursuant to an attempted devise in the decedent's will. The deeds created a joint tenancy with a right of survivorship in the decedent and the widow in compliance with O.C.G.A. § 44-6-190(a) , and, since the will did not qualify as a lifetime transfer of the property so as to sever the joint tenancy and there was no proof of mutual mistake or unilateral mistake combined with fraud or inequitable conduct to justify reforming the deed in equity, the widow became the sole owner of the property when the decedent died, and the property never became part of the decedent's estate upon the decedent's death; the widow's consent to probate the will did not constitute an admission that the devise was valid. Harbin v. Harbin, 261 Ga. App. 244 , 582 S.E.2d 131 (2003).

Joint tenancy not severed by execution of deed to secure debt. - Execution of a deed to secure debt by a joint tenant in real property is not such a transfer of all or a part of the grantor's interest in the property as would sever the joint tenancy with right of survivorship. Biggers v. Crook, 283 Ga. 50 , 656 S.E.2d 835 (2008).

Deed to secure debt executed by a joint tenant with right of survivorship under O.C.G.A. § 44-6-190 did not sever the joint tenancy. Thus, when a decedent executed a deed to secure debt on property the decedent held jointly with a surviving sibling, and the security agreement encumbered the decedent's interest only, the decedent's death made the sibling the sole owner of the property, and the deed to secure debt was void. Biggers v. Crook, 283 Ga. 50 , 656 S.E.2d 835 (2008).

Quitclaim deed qualifies as lifetime transfer to sever joint tenancy. - Superior court erred in granting the defendant's motion to dismiss the plaintiff's petition for an equitable partition of real property and an accounting because the property was not held by the parties as joint tenants with the right of survivorship at the time of the petition as the plaintiff's 2007 quitclaim deed to another individual was a transfer in the plaintiff's lifetime of all of the plaintiff's interest in the property, although the plaintiff quickly received the property back again from the other individual, because, when the other individual received a grant of the plaintiff's interest in the property by virtue of the quitclaim deed, it was the other individual's property to do with as the other individual wished. Reed v. McConathy, 299 Ga. 471 , 788 S.E.2d 769 (2016).

Severance of joint tenacy to allow partition of property. - When the appellant sought a petition for equitable partition of the unmarried parties' property in which the parties were joint tenants with the right of survivorship, the trial judge properly found that statutory partition was available only to tenants in common, and was not available to the appellant; and that equitable partition was also unavailable because the appellant could seek a partition of the subject property only after the joint tenancy was severed as the parties were not married parties who were seeking the equitable division of marital property in a divorce proceeding. Vargo v. Adams, 302 Ga. 637 , 805 S.E.2d 817 (2017).

Statute inapplicable when deed not conveying interest to two or more persons. - Deed conveyed a life estate to a widow and a decedent as tenants in common in compliance with O.C.G.A. § 44-6-190 , but the deed conveyed the estate in remainder to only one person, either the widow or the decedent, whoever survived the other, and because the deed did not convey that interest in the property to two or more persons, § 44-6-190 did not apply. Greene v. Greene, 311 Ga. App. 132 , 714 S.E.2d 650 (2011).

Cited in Lee v. State, 62 Ga. App. 556 , 8 S.E.2d 706 (1940); Lewis v. Patterson, 191 Ga. 348 , 12 S.E.2d 593 (1940); Lee v. State, 64 Ga. App. 290 , 13 S.E.2d 79 (1941), commented on in 1 Ga. L. Rev. 331 (1967); Eppes v. Locklin, 222 Ga. 86 , 149 S.E.2d 148 (1966); Sams v. McDonald, 117 Ga. App. 336 , 160 S.E.2d 594 (1968); Brown v. Five Points Parking Ctr., 121 Ga. App. 819 , 175 S.E.2d 901 (1970); Savannah Bank & Trust Co. v. Keane, 126 Ga. App. 53 , 189 S.E.2d 702 (1972); Tri-City Fed. Sav. & Loan Ass'n v. Evans, 132 Ga. App. 735 , 209 S.E.2d 20 (1974); Eppes v. Wood, 243 Ga. 835 , 257 S.E.2d 259 (1979); State v. Jackson, 197 Ga. App. 619 , 399 S.E.2d 88 (1990); Wallace v. Meehan, 162 Bankr. 367 (Bankr. S.D. Ga. 1993); Mathis v. Hammond, 268 Ga. 158 , 486 S.E.2d 356 (1997).

RESEARCH REFERENCES

Am. Jur. 2d. - 20 Am. Jur. 2d, Cotenancy and Joint Ownership, § 1 et seq.

C.J.S. - 26A C.J.S., Deeds, §§ 262, 267, 277. 41 C.J.S., Husband and Wife, §§ 39, 40. 86 C.J.S., Tenancy in Common, § 6 et seq.

ALR. - Effect on joint estate, community estate, or estate by entireties, of death of both tenants in same disaster, 18 A.L.R. 105 .

Character of interests of husband and wife in purchase-money mortgage on sale of estate by entireties, 30 A.L.R. 905 .

Divorce as affecting estate by entireties, 52 A.L.R. 890 ; 59 A.L.R. 718 .

Right of survivorship in respect of bank deposit as affected by statutes abolishing joint tenancy and survivorship, 85 A.L.R. 282 .

Rights and remedies of judgment creditor or of purchaser under execution, in respect of estate in real property held in joint tenancy, 111 A.L.R. 171 .

Lease to two or more as creating a tenancy in common or a joint tenancy, 113 A.L.R. 573 .

Right of creditors of one spouse, either before or after death of other spouse, to attack conveyance or encumbrance of estate by entireties by both spouses as in fraud of creditors, 121 A.L.R. 1028 .

Statutory lien on interest of joint tenant as severing joint tenancy, 134 A.L.R. 957 .

Statute relating to joint tenancy in personal property as applicable to choses in action, 144 A.L.R. 1465 .

Mental incompetency of one spouse as affecting transfer or encumbrance of community property, homestead property, or estate by the entireties, 155 A.L.R. 306 .

Right of survivor of parties to bank account in their joint names as affected by provision excluding his right of withdrawal during the lifetime of the other party, 155 A.L.R. 1084 .

Use of word "joint" or "jointly" in provision of deed other than the granting or habendum clause as indicating intent to create a joint tenancy rather than one in common between the grantees, 157 A.L.R. 566 .

Interest of spouse in estate by entireties as subject to satisfaction of his or her individual debt, 166 A.L.R. 969 ; 75 A.L.R.2d 1172.

Gift over to surviving members of a group of share of deceased member as creating absolute interest in last survivor, 166 A.L.R. 1277 .

Creation of right of survivorship by instrument ineffective to create estate by entireties or joint tenancy, 1 A.L.R.2d 247.

Survivor's rights to contents of safe-deposit box leased or used jointly with another, 14 A.L.R.2d 948.

Transmutation of community funds or property into property held by spouses in joint tenancy, 30 A.L.R.2d 1241.

Character of tenancy created by owner's conveyance to himself and another, or to another alone, of an undivided interest, 44 A.L.R.2d 595.

What constitutes a devise or bequest in joint tenancy notwithstanding statute raising a presumption against joint tenancy, 46 A.L.R.2d 523.

Estates by entirety in personal property, 64 A.L.R.2d 8; 22 A.L.R.4th 459.

What acts by one or more of joint tenants will sever or terminate the tenancy, 64 A.L.R.2d 918; 39 A.L.R.4th 1068.

Construction of devise to persons as joint tenants and expressly to the survivor of them, or to them "with the right of survivorship,", 69 A.L.R.2d 1058.

Estate by entireties as affected by statute declaring nature of tenancy under grant or devise to two or more persons, 32 A.L.R.3d 570.

Proceeds or derivatives of real property held by entirety as themselves held by entirety, 22 A.L.R.4th 459.

Contract of sale or granting of option to purchase, to third party, by both or all of joint tenants or tenants by entirety as severing or terminating tenancy, 39 A.L.R.4th 1068.

Judgment lien or levy of execution on one joint tenant's share or interest as severing joint tenancy, 51 A.L.R.4th 906.

ARTICLE 9 UNIFORM STATUTORY RULE AGAINST PERPETUITIES

Law reviews. - For article, "Georgia's Proposed Dynasty Trust: Giving the Dead Too Much Control," see 35 Ga. L. Rev. 1 (2000).

44-6-200. Short title.

This article shall be known and may be cited as the "Uniform Statutory Rule Against Perpetuities."

(Code 1981, § 44-6-200 , enacted by Ga. L. 1990, p. 1837, § 2.)

Law reviews. - For article pointing out potential problems with the rule against perpetuities in drafting wills containing conditions based on probate, see 3 Ga. St. B.J. 407 (1967). For article discussing options to purchase realty in Georgia, with respect to the rule against perpetuities, see 8 Ga. St. B.J. 229 (1971). For article surveying legislative and judicial developments in Georgia's will, trusts, and estate laws, see 31 Mercer L. Rev. 281 (1979). For article, "The Rule Against Perpetuities as Applied to Georgia Wills and Trusts," see 16 Ga. L. Rev. 235 (1982). For article, "Private Trusts for the Provision of Private Goods," see 37 Emory L.J. 295 (1988). For article, "Birth After Death: Perpetuities and the New Reproductive Technology," see 38 Ga. L. Rev. 575 (2004). For note on options appendant exemptions in the Rule of Perpetuities, see 33 Mercer L. Rev. 443 (1981). For note on 1990 enactment of this article, see 7 Ga. St. U.L. Rev. 343 (1990). For comment on Regents of Univ. Sys. v. Trust Co., 186 Ga. 498 , 198 S.E. 345 (1938), see 1 Ga. B.J. 52 (1939). For comment criticizing Williams v. S.M. High Co., 200 Ga. 230 , 36 S.E.2d 667 (1946), holding perpetual right of renewal in lease granted to corporation did not violate rule against perpetuities, see 8 Ga. B.J. 420 (1946). For comment on Southern Airways Co. v. DeKalb County, 216 Ga. 358 , 116 S.E.2d 602 (1961), see 24 Ga. B.J. 142 (1961). For comment on Lanier v. Lanier, 218 Ga. 137 , 126 S.E.2d 776 (1962), executory interests and the rule against perpetuities, see 14 Mercer L. Rev. 275 (1962). For comment on Lanier v. Lanier, 218 Ga. 137 , 126 S.E.2d 776 (1962), see 25 Ga. B.J. 422 (1963). For comment on Burton v. Hicks, 220 Ga. 29 , 136 S.E.2d 759 (1964), see 1 Ga. St. B.J. 361 (1965). For comment, "Proposed Legislation for Property's Twilight Zone: Time Sharing in Georgia," see 34 Mercer L. Rev. 403 (1982).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Editor's notes. - In light of the similarity of the provisions, decisions under former Orig. Code 1863, § 2249, Code 1873, § 2267, Civil Code 1895, § 3102, Civil Code 1910, § 3678, Code 1933, § 85-707, and § 44-6-1 [repealed], are included in the annotations for this Code section.

Legislative intent. - Intention of the legislature was to prevent testators and others from rendering estates unalienable within the limits prescribed by the section. Hollifield v. Stell, 17 Ga. 280 (1855) (decided under former Orig. Code 1863, § 2249).

Rule against perpetuities is an expression of public policy as determined by the Georgia General Assembly. Thomas v. Murrow, 245 Ga. 38 , 262 S.E.2d 802 (1980) (decided under former Code 1933, § 85-707).

Section is statement of common law. - Rule against perpetuities, as codified in Georgia, is recognized as a statement of the common-law rule. Burt v. Commercial Bank & Trust Co., 244 Ga. 253 , 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

Rule against perpetuities not mere rule of construction. - Rule against perpetuities is not a rule of construction but a positive mandate of law to be obeyed irrespective of the question of intention, and is to be applied even if the accomplishment of the expressed intent of the testator is made impossible. Thomas v. Citizens & S. Nat'l Bank, 224 Ga. 572 , 163 S.E.2d 823 (1968) (decided under former Code 1933, § 85-707).

Rule against perpetuities is a positive mandate of law and is not a mere rule of construction. Lufburrow v. Williams, 152 Ga. App. 674 , 263 S.E.2d 535 (1979) (decided under former Code 1933, § 85-707).

Rule against perpetuities is a rule against remoteness of vesting of interests. Walker v. Bogle, 244 Ga. 439 , 260 S.E.2d 338 (1979) (decided under former Code 1933, § 85-707).

Rule is for the purpose of preventing the creation of remote future interests in estates. Parker v. Churchill, 104 Ga. 122 , 30 S.E. 642 (1898) (decided under former Civil Code 1895, § 3102).

Rule concerns remoteness of vesting. - Rule against perpetuities deals with the vesting of an estate rather than with the postponement of possession, though it may sometimes have been applied to delay possession. Wright v. Hill, 140 Ga. 554 , 79 S.E. 546 (1913) (decided under former Civil Code 1910, § 3678).

Rule against perpetuities is a rule against remoteness of vesting, not a rule for invalidating interests which last too long. Burt v. Commercial Bank & Trust Co., 244 Ga. 253 , 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

Effect of rule against perpetuities. - Rule against perpetuities places time limits on the vesting of future interests; the rule also seeks to protect the free alienability of property, although the restraint may be more indirect than a pure restraint on alienation which is against public policy even if confined in time. Shiver v. Benton, 251 Ga. 284 , 304 S.E.2d 903 (1983) (decided under former § 44-6-1 ).

Rule against perpetuities prevents the tying up of property for an indefinite period and thus destroying the property's salability. An interest vested in a class that is subject to open so as to let in persons born during the existence of the preceding estate, because the estate cannot be sold so as to bar the interests of the unborn members of the class, just as effectively ties up property and prevents the property's being freely sold as if the interests created were contingent. Landrum v. National City Bank, 210 Ga. 316 , 80 S.E.2d 300 (1954) (decided under former Code 1933, § 85-707).

Thrust of the rule is to encourage the right of free dealings in real estate interests. St. Regis Paper Co. v. Brown, 247 Ga. 361 , 276 S.E.2d 24 (1981) (decided under former Code 1933, § 85-707).

No encumbrance of title. - Rule against perpetuities is one of the most beneficent provisions of the law relative to estates. Nothing could interfere more with commerce in lands than for the title to be encumbered with an indefinite succession. Thomas v. Citizens & S. Nat'l Bank, 224 Ga. 572 , 163 S.E.2d 823 (1968) (decided under former Code 1933, § 85-707).

Application of section. - This section should always be applied in construing a will to determine whether it is inconsistent with the law. Sheats v. Johnson, 229 Ga. 150 , 189 S.E.2d 856 (1972) (decided under former Code 1933, § 85-707).

Time for application of section. - Devise, bequest, or grant is to be first construed, and then the rule applied. Parker v. Churchill, 104 Ga. 122 , 30 S.E. 642 (1898) (decided under former Civil Code 1895, § 3102).

"Wait and see" alternative rejected. - Goals of certainty and early vesting would not be served by adopting the "wait and see" approach, an alternative to the rule against perpetuities which permits a court to consider the actual sequence of events occurring after the creation of the interest. Pound v. Shorter, 259 Ga. 148 , 377 S.E.2d 854 (1989) (decided under former § 44-6-1 ).

Term "his lifetime" in deed construed. - When a deed conveyed land to D, "heirs and assigns, his lifetime, and then to the lawful heirs of his body, then to their heirs and assigns," to have and to hold the same to "said party of the second part, his heirs, executors, administrators, and assigns, in fee simple;" in view of the words "his lifetime," the deed conveyed only a life estate to D, with the remainder in fee simple to D's children. English v. Davis, 195 Ga. 89 , 23 S.E.2d 394 (1942) (decided under former Code 1933, § 85-707).

Cited in Robinson v. McDonald, 2 Ga. 116 (1847); Carlton v. Price, 10 Ga. 495 (1851); Dudley v. Porter, 16 Ga. 613 (1855); Gibson v. Hardaway, 68 Ga. 370 (1882); Wright v. Hill, 140 Ga. 554 , 79 S.E. 546 (1913); Patterson v. Patterson, 147 Ga. 44 , 92 S.E. 882 (1917); Nottingham v. McKelvey, 149 Ga. 463 , 100 S.E. 371 (1919); Curles v. Wade & Brimberry, 151 Ga. 142 , 106 S.E. 1 (1921); Roberts v. Wadley, 156 Ga. 35 , 118 S.E. 664 (1923); Bramblett v. Trust Co., 182 Ga. 87 , 185 S.E. 72 (1936); Citizens & S. Nat'l Bank v. Howell, 186 Ga. 47 , 196 S.E. 741 (1938); Boykin v. Bradley, 192 Ga. 212 , 14 S.E.2d 734 (1941); Folds v. Hartry, 201 Ga. 783 , 41 S.E.2d 142 (1947); Bussey v. Bussey, 208 Ga. 760 , 69 S.E.2d 569 (1952); Cummings v. Cummings, 89 Ga. App. 529 , 80 S.E.2d 204 (1954); Southern Airways Co. v. DeKalb County, 101 Ga. App. 689 , 115 S.E.2d 207 (1960); Burton v. Hicks, 220 Ga. 29 , 136 S.E.2d 759 (1964); Brown v. McInvale, 118 Ga. App. 375 , 163 S.E.2d 854 (1968); Trammell v. Elliott, 230 Ga. 841 , 199 S.E.2d 194 (1973); National Bank v. First Nat'l Bank, 234 Ga. 734 , 218 S.E.2d 23 (1975); Capers v. Camp, 244 Ga. 7 , 257 S.E.2d 517 (1979); Stephens v. Trust for Pub. Land, 475 F. Supp. 2d 1299 (N.D. Ga. 2007); Cartersville Ranch, LLC v. Dellinger, 295 Ga. 195 , 758 S.E.2d 781 (2014).

Period of Rule

All interests must vest within period of rule. - Requirement of the rule against perpetuities is not that all interests be vested at the death of the testatrix, but that all interests become vested within the period of the rule. Burt v. Commercial Bank & Trust Co., 244 Ga. 253 , 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

Contingent estate, too remote, is void. - When there is a possibility that the limitations contained in the will of the deceased would extend through lives not in being when the limitations commenced, or for a longer time than is permitted by the rule against perpetuities, those limitations that are too remote are illegal and void, and the last legal takers will become entitled to the trust estate in fee simple. Landrum v. National City Bank, 210 Ga. 316 , 80 S.E.2d 300 (1954) (decided under former Code 1933, § 85-707).

When a will seeks to set up a trust for the benefit of a number of persons as well as institutions, but the duration of the life of anyone in being constitutes no part of the specified duration of the trust, and it is provided therein that it shall not endure for more than 25 years, it is a clear violation of the rule against perpetuities, and the trust is absolutely void. Fuller v. Fuller, 217 Ga. 316 , 122 S.E.2d 234 (1961) (decided under former Code 1933, § 85-707).

When a future estate is contingent and the event upon which the contingency is based may occur beyond the rule against perpetuities, the estate is void for remoteness. Thomas v. Citizens & S. Nat'l Bank, 224 Ga. 572 , 163 S.E.2d 823 (1968) (decided under former Code 1933, § 85-707).

When a will establishing a trust provides that the remainder interest vests in those grandchildren in life at the time the youngest has completed his or her education, the provision is inconsistent with subsection (a) of this section. Sheats v. Johnson, 229 Ga. 150 , 189 S.E.2d 856 (1972) (decided under former Code 1933, § 85-707).

Common law rule is life in being plus 21 years. - In order to constitute a good and valid executory bequest or devise, the limitation over must be confined to a stated period, to wit, to a life or lives in being, and 21 years afterwards, to which may be added a few months more to reach the case of a posthumous child. Carlton v. Price, 10 Ga. 495 (1851) (decided under prior law).

Common law rule is that no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. Burt v. Commercial Bank & Trust Co., 244 Ga. 253 , 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

With no life in being, limit is 21 years. - When the vesting of a gift is not limited upon the life of any person, the term cannot be longer than 21 years. Perkins v. Citizens & S. Nat'l Bank, 190 Ga. 29 , 8 S.E.2d 28 (1940) (decided under former Code 1933, § 85-707).

When no life in being forms any part of the period of suspension or postponement of the time when the estate or interest is to become vested, the limit of time under the rule against perpetuities is 21 years. Murphy v. Johnston, 190 Ga. 23 , 8 S.E.2d 23 (1940); St. Regis Paper Co. v. Brown, 155 Ga. App. 679 , 272 S.E.2d 544 (1980), rev'd on other grounds, 247 Ga. 361 , 276 S.E.2d 24 (1981) (decided under former Code 1933, § 85-707).

When the future estate created is not tied to any life in being, the interest must become vested within 21 years. St. Regis Paper Co. v. Brown, 247 Ga. 361 , 276 S.E.2d 24 (1981) (decided under former Code 1933, § 85-707).

Trust may last beyond period of rule. - Trust does not violate the rule against perpetuities when the interests of the beneficiaries vest within the period of the rule even though the trust remains in effect beyond the period of the rule. Burt v. Commercial Bank & Trust Co., 244 Ga. 253 , 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

Some time limit for the enforcement of a first refusal right is desirable. Shiver v. Benton, 251 Ga. 284 , 304 S.E.2d 903 (1983) (decided under former § 44-6-1 ).

Application of Rule
1. In General

Rule inapplicable to restrictive covenants. - Rule against perpetuities deals with estates in land and the vesting of estates, and does not relate to restrictive covenants. Reeves v. Comfort, 172 Ga. 331 , 157 S.E. 629 (1931); McKinnon v. Neugent, 225 Ga. 215 , 167 S.E.2d 593 (1969) (decided under former Civil Code 1910, § 3678 and Code 1933, § 85-707).

Rule inapplicable to vested remainders or reversions. - As vested remainders are not subject to the rule against perpetuities, it follows that the rule against perpetuities does not apply to reversions. A grantor or a testator may create a vested estate for any number of years, and such estate will not be destroyed by the rule against perpetuities. Erskine v. Klein, 218 Ga. 112 , 126 S.E.2d 755 (1962) (decided under former Code 1933, § 85-707).

Since the rule against perpetuities involves remoteness of vesting, it is not applicable to a vested remainder or to a reversion. Smith v. Francis, 221 Ga. 260 , 144 S.E.2d 439 (1965) (decided under former Code 1933, § 85-707).

Rule applies to vesting of remainders. - Remainders are not invalidated by the rule against perpetuities unless the remainders fail to vest within the term provided. Burt v. Commercial Bank & Trust Co., 244 Ga. 253 , 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

Immediate gift with age restriction is vesting of remainder. - Words of immediate gift after which an age restriction is attached have long been construed as vesting the remainder but postponing enjoyment to a later date. Walker v. Bogle, 244 Ga. 439 , 260 S.E.2d 338 (1979) (decided under former Code 1933, § 85-707).

Receipt of income with final distribution postponed. - Right to receive income from property with final distribution postponed indicates a vested interest in the property. Walker v. Bogle, 244 Ga. 439 , 260 S.E.2d 338 (1979) (decided under former Code 1933, § 85-707).

Stock option agreement. - Following Shewmake v. Robinson, 148 Ga. 287 , 96 S.E. 564 (1918), it was assumed that the rule against perpetuities applied to a stock option agreement. Smith v. Stuckey, 233 Ga. App. 79 , 503 S.E.2d 284 (1998) (decided under former § 44-6-1 ).

Rule against perpetuities did not bar a stock option agreement providing that the option was to be exercised "at any time" after a certain date. Smith v. Stuckey, 233 Ga. App. 79 , 503 S.E.2d 284 (1998) (decided under former § 44-6-1 ).

Bequest to class. - Bequest to a class, some of whose members are in being at the time the bequest is to take effect, does not include others subsequently born. Parker v. Churchill, 104 Ga. 122 , 30 S.E. 642 (1898) (decided under former Code 1895, § 3102).

Will creating a testamentary trust, with income to be paid in stated installments to three sisters, and at their death the income to be paid to testator's nieces in equal parts with trust to be kept intact as long as any one of them was living plus 21 years, constitutes a gift to a class, the class composed of the nieces of the testator. The nieces of the testator living at the time of the testator's death take a vested interest, subject to open and let in any additional nieces born during the existence of the preceding trust, with the result that, as to the nieces, the limitation was for a longer time than is permitted by the rule against perpetuities. Landrum v. National City Bank, 210 Ga. 316 , 80 S.E.2d 300 (1954) (decided under former Code 1933, § 85-707).

Unborn children. - Bequest by a testator, to such child or children as his granddaughter may have at her decease, no such children being then in life; and a provision that "in case any such child or children should die during the life of its mother, leaving issue of their body, such issue shall, in such case, represent the parent" is not a limitation over upon the death of an unborn child, and thus void under this section; rather it is a gift to the children and grandchildren of testator's granddaughter, living upon the termination of a life in being, viz: that of the granddaughter. Robert v. West, 15 Ga. 122 (1854) (decided under prior law).

Limitations over in favor of the brothers and sisters of a niece, should she have a child and it should survive her and die without issue, deals with a child not in being when the will took effect by the death of the testator, and which might never be born or, if born might not die within 21 years, so that the limitation over to the brothers and sisters might not be determinable within the time limited by the rule. Phinizy v. Wallace, 136 Ga. 520 , 71 S.E. 896 (1911) (decided under former Civil Code 1910, § 3678).

Limitation of an estate to plaintiff for life, and at plaintiff's death to plaintiff's children born and to be born, does not create a perpetuity. Palmer v. Neely, 162 Ga. 767 , 135 S.E. 90 (1926) (decided under former Code 1910, § 3678).

Construction of limitation over to future husband of unmarried woman is valid. - Devise was in trust for L for life, with remainder to her children, if any; and if none, or if those born died before reaching maturity, then over to any man with whom L might intermarry. Any interest conveyed to him necessarily had to vest in possession within 21 years after the death of L. The devise over was therefore not void as an attempt to create a perpetuity. Jossey v. Brown, 119 Ga. 758 , 47 S.E. 350 (1904) (decided under former Code 1895, § 3102).

Limitation over to future wife of married man is too remote. - Limitation over on the death of E, J's wife, to J in trust for any future wife which he may have, which estate was to determine at her death, was a violation of this section, for no man could say, at the time the deed was executed, that J necessarily would marry within 22 years after the death of his wife E, or that the person whom he would marry was in life. Overby v. Scarborough, 145 Ga. 875 , 90 S.E. 67 (1916) (decided under former Code 1910, § 3678).

Contingency depending upon future wife void. - It was early held that when property is devised to A for life, remainder to his widow for life, remainder over on the death of the widow, the ultimate remainder on the death of the widow, if contingent until that event, is bad, because A may marry a woman who was not born at the testator's death; and the result is not affected by the fact that A is very old at the testator's death. Overby v. Scarborough, 145 Ga. 875 , 90 S.E. 67 (1916) (decided under former Code 1910, § 3678).

Trust giving income for life is equivalent of life estate. - Insofar as the vesting requirement of the rule against perpetuities is concerned, there is no difference between having a life estate in Blackacre and a trust giving the beneficiary the right to receive the income from Blackacre for life. Burt v. Commercial Bank & Trust Co., 244 Ga. 253 , 260 S.E.2d 306 (1979) (decided under former Code 1933, § 85-707).

Property vested to prevent violation of rule by contingency with uncertain date. - When it is clear that it was the testator's intent to make a valid will, even if the language of the will may have been read to delay the vesting of the estate in the remainder beneficiaries until certain debts were paid at a future unspecified time, the devise to the remainder beneficiaries did not violate the rule against perpetuities because the remaindermen became vested at the death of the life beneficiary in keeping with the Georgia tradition of vesting property at the earliest possible time. First Nat'l Bank v. Jenkins, 256 Ga. 223 , 345 S.E.2d 829 (1986) (decided under former § 44-6-1 ).

Right of first refusal. - When a first refusal right is not tied to a fixed price method or some method of pricing which may not reflect true market value, but is conditioned upon meeting a sale price which the seller is willing to accept, such an agreement encourages the development of the property to its fullest potential and is not void as a violation of the rule against perpetuities or as a restraint on alienation. Shiver v. Benton, 251 Ga. 284 , 304 S.E.2d 903 (1983) (decided under former § 44-6-1 ).

When the language of a sales contract and warranty deed supported the court's finding that a right of first refusal was personal to the grantee, and did not extend to the grantee's "successors or assigns," the duration of this right was within the lifetime of the grantee and the rule against perpetuities was not violated. In re Wauka, Inc., 39 Bankr. 734 (Bankr. N.D. Ga. 1984) (decided under former § 44-6-1 ).

Right of first refusal is compatible with the policies of commerce and utilization of land, and thus not void as a violation of the rule against perpetuities since, even though the preemptive right may be unlimited in duration, it requires merely matching the offer of a third party. Hinson v. Roberts, 256 Ga. 396 , 349 S.E.2d 454 (1986) (decided under former § 44-6-1 ).

No intent to violate section if alternative vesting method provided. - Testator did not have overriding intention to violate this section when according to the testator's own clear words the testator expressed a desire not to violate the rule and when the testator set forth a valid alternative method for final vesting and distribution within rule in form of a saving clause. Norton v. Georgia R.R. Bank & Trust, 253 Ga. 596 , 322 S.E.2d 870 (1984) (decided under former § 44-6-1 ).

In terrorem clause in will did not show intent to violate this section since testator left four likely challengers who had little to lose by challenging the will. Norton v. Georgia R.R. Bank & Trust, 253 Ga. 596 , 322 S.E.2d 870 (1984) (decided under former § 44-6-1 ).

Rule was violated in the following case. - Seal v. First Bank & Trust Co., 163 Ga. App. 620 , 295 S.E.2d 367 (1982) (provision for acceptance of subdivision lots by City of Marietta) (decided under former Code 1933, § 85-707).

Rule not violated. - This section is not violated when owner of family business, parent of ten children aged between 37 and 60 and grandparent of twelve grandchildren aged between 5 and 34, wished to provide life estates for those children the owner selected, and their children and their grandchildren. Norton v. Georgia R.R. Bank & Trust, 253 Ga. 596 , 322 S.E.2d 870 (1984) (decided under former § 44-6-1 ).

2. Test Used

Test under subsection (a) of this section is whether the trust attempted to be created might continue for a period beyond lives in being plus 21 years and the gestation period. Sheats v. Johnson, 229 Ga. 150 , 189 S.E.2d 856 (1972) (decided under former Code 1933, § 85-707).

Determination is whether contingency may occur beyond time limitation. - Whether a limitation over is to be regarded as a perpetuity or not depends upon the time within which such limitation must take effect. It is not enough that a contingent event may happen, or even that it will probably happen, within the limits of the rule against perpetuities; if it can possibly happen beyond those limits, an interest conditioned on it is too remote. O'Byrne v. Feeley, 61 Ga. 77 (1878); Overby v. Scarborough, 145 Ga. 875 , 90 S.E. 67 (1916) (decided under former Code 1873, § 2267 and Civil Code 1910, § 3678).

Determination is made at death of testator. - Whether an instrument violates the rule against perpetuities is to be determined at the death of the testator when the limitations begin because the crucial determination is not whether the rule is in fact violated but rather whether the rule may be violated. Rogers v. Rooth, 237 Ga. 713 , 229 S.E.2d 445 (1976) (decided under former Code 1933, § 85-707).

Choice of measuring life or lives. - First step in determining whether or not the rule is violated is choosing the measuring life or lives. That person or those persons must be lives in being at the creation of the interest, which in the case of a will is the testator's death. Rogers v. Rooth, 237 Ga. 713 , 229 S.E.2d 445 (1976) (decided under former Code 1933, § 85-707).

When a divesting condition is too remote, it is void under the rule against perpetuities, but the remainder interest is given effect. Walker v. Bogle, 244 Ga. 439 , 260 S.E.2d 338 (1979) (decided under former Code 1933, § 85-707).

Remoteness of condition. - If there is any possibility that a contingent event might happen beyond the limits set out by this section, then the limitation is too remote. Lanier v. Lanier, 218 Ga. 137 , 126 S.E.2d 776 (1962) (decided under former Code 1933, § 85-707).

3. Subsequent Construction of Document

Independent provisions of will may be violative of rule without invalidating entire will. - When the various provisions of a will are independent and not for the carrying out of a common or general purpose, those which are contrary to the rule may be rejected and the valid provisions upheld. The test is whether the invalid parts are so interwoven with those which are valid that the former may not be eliminated without interfering with or changing in any essential the main testamentary scheme. Thomas v. Citizens & S. Nat'l Bank, 224 Ga. 572 , 163 S.E.2d 823 (1968) (decided under former Code 1933, § 85-707).

Failure of a testamentary trust for violating this section does not render invalid other provisions of the will which are not affected by the trust. Sheats v. Johnson, 229 Ga. 150 , 189 S.E.2d 856 (1972) (decided under former Code 1933, § 85-707).

When a remote divesting condition and the executory interests which follow it are invalidated, the remaining provisions of the testamentary trust would not be invalidated under the doctrine of "infectious invalidity." Walker v. Bogle, 244 Ga. 439 , 260 S.E.2d 338 (1979) (decided under former Code 1933, § 85-707).

If invalid limitation is essential part of general scheme, whole gift is void. - When only a part of a gift is invalid by reason of the rule against perpetuities and the invalid limitation is an essential part of the general scheme of the will or gift, the several parts of the devise or the grant are treated as inseparable and the whole is adjudged void. Thomas v. Citizens & S. Nat'l Bank, 224 Ga. 572 , 163 S.E.2d 823 (1968) (decided under former Code 1933, § 85-707).

If invalid portion cannot be separated from valid portion entire gift void. - When the income from a trust was to be paid to both charitable and noncharitable purposes, the charitable purpose for which the trust was established is not subject to the operation of the rule of this section, but the noncharitable purposes are void if they come within the rule. When there is no method by which the charitable and noncharitable portions of the trust can be separated and the charitable portion preserved, the entire trust has to fail under the rule. Green v. Austin, 222 Ga. 409 , 150 S.E.2d 346 (1966) (decided under former Code 1933, § 85-707).

Charities

Rule against perpetuities does not apply to charities. Taylor v. Trustees of Jesse Parker Williams Hosp., 190 Ga. 349 , 9 S.E.2d 165 (1940); Pace v. Dukes, 205 Ga. 835 , 55 S.E.2d 367 (1949) (decided under former Code 1933, § 85-707).

This section, inhibiting perpetuities, does not apply to charities. Hardage v. Hardage, 211 Ga. 80 , 84 S.E.2d 54 (1954) (decided under former Code 1933, § 85-707).

When interest vests within time permitted. - Rule against perpetuities does not apply to charities when the gift is made in such a way that the interest vests in the charity immediately or within the time permitted for the vesting of future interests, and in such cases a public or charitable trust may be perpetual in its duration, and the property may be left to trustees who may be self-perpetuating. Murphy v. Johnston, 190 Ga. 23 , 8 S.E.2d 23 (1940) (decided under former Code 1933, § 85-707).

When a gift to charity unconditionally vests for that purpose, either immediately or within the period permitted by the rule against perpetuities, it is not void as violating the rule. Perkins v. Citizens & S. Nat'l Bank, 190 Ga. 29 , 8 S.E.2d 28 (1940); Pace v. Dukes, 205 Ga. 835 , 55 S.E.2d 367 (1949) (decided under former Code 1933, § 85-707).

Rule applies if vesting postponed beyond permitted time. - If by the terms of a gift for charitable uses its vesting is postponed beyond the period of perpetuity rule, this rule will be applied just as in cases of the creation of other future interests. Murphy v. Johnston, 190 Ga. 23 , 8 S.E.2d 23 (1940) (decided under former Code 1933, § 85-707).

A grant or devise for a charitable use, which is conditioned upon its vesting only after the termination of a trust for accumulation, is void for remoteness, if the period of accumulation may possibly exceed that prescribed by the rule. Murphy v. Johnston, 190 Ga. 23 , 8 S.E.2d 23 (1940) (decided under former Code 1933, § 85-707).

When a gift is to vest in charity upon a condition precedent which may or may not happen within the period, it is void as violating the rule. It is not sufficient that the estate may by some possibility become vested within the permissible period, or even that it will probably do so; for, if the condition fixed by the donor is such that the gift may by any possibility fail to vest in charity within the lawful time, or if there is any room for uncertainty or doubt upon the question, the gift is void. Perkins v. Citizens & S. Nat'l Bank, 190 Ga. 29 , 8 S.E.2d 28 (1940) (decided under former Code 1933, § 85-707).

When devise over is to another charity. - This rule does not have application where a devise to one charity is limited over after a devise to another charity. Murphy v. Johnston, 190 Ga. 23 , 8 S.E.2d 23 (1940) (decided under former Code 1933, § 85-707).

To be charity, hospital must perform some gratuitous service. - While the character of a hospital as a charitable institution would not be destroyed by the hospital's receipt of compensation from some patients able to make payment, so as to thus enlarge the hospital's primary object and purpose for the gratuitous relief of human suffering, a legacy for the establishment of a hospital, to be governed and managed under the uncontrolled discretion of trustees, without any requirement that any part of the hospital's work be gratuitously done, violates the rule against perpetuities. This would be especially true if the only provision which could be taken as relating to compensation or gratuitous service is merely a "special request that all charges at said hospital be reasonable." Trust Co. v. Williams, 184 Ga. 706 , 192 S.E. 913 (1937) (decided under former Code 1933, § 85-707).

Trust to pay medical and educational expenses of testator's relatives not charity. - Devise for the purpose of defraying medical expenses of blood relatives of a testator, and for educational loans to deserving persons who were dependents of the testator's blood relatives, is not a devise for public charity; and the intended trust is void under this section. Hardage v. Hardage, 211 Ga. 80 , 84 S.E.2d 54 (1954) (decided under former Code 1933, § 85-707).

To establish a permanent charity for one family, and thus permit the perpetual holding together of property, which this section was designed to prohibit, is not justified by the slight prospective public good that might come from educating or keeping off of the public charity rolls the poor of one family. Hardage v. Hardage, 211 Ga. 80 , 84 S.E.2d 54 (1954) (decided under former Code 1933, § 85-707).

Trust to benefit university system valid. - Devise in trust to the trustees of the University of Georgia for the use and benefit of the Georgia School of Technology is not invalid as a perpetuity. Regents of Univ. Sys. v. Trust Co., 186 Ga. 498 , 198 S.E. 345 (1938) (decided under former Code 1933, § 85-707).

Leases and Purchase Options

Perpetual lease, or perpetual right to renew a lease, is not violative of the rule against perpetuities. Smith v. Aggregate Supply Co., 214 Ga. 20 , 102 S.E.2d 539 (1958); St. Regis Paper Co. v. Brown, 247 Ga. 361 , 276 S.E.2d 24 (1981); Rose v. Chandler, 247 Ga. 382 , 276 S.E.2d 28 (1981) (decided under former Code 1933, § 85-707).

Under Georgia law, a perpetual option violates the rule against perpetuities and is void. A perpetual lease or a perpetual right to renew a lease, however, does not violate the rule. Even an option to purchase within a perpetually renewable lease does not violate the rule. Parker v. Reynolds Metals Co., 747 F. Supp. 711 (M.D. Ga. 1990) (decided under former § 44-6-1 ).

Lease agreement with purchase option. - Lease agreement for a specified term of two years, containing provisions for the purchase of the property, which lease and option agreement were renewed by action of the parties thereto for a like term of two years, would not be violative of the rule against perpetuities. McKown v. Heery, 200 Ga. 819 , 38 S.E.2d 425 (1946) (decided under former Code 1933, § 85-707).

Purchase option exercisable within period of lease. - An option to purchase written into a lease and exercisable within the period of the lease does not violate the rule against perpetuities even though the period within which the option may be exercised extends beyond the period specified in the rule. St. Regis Paper Co. v. Brown, 247 Ga. 361 , 276 S.E.2d 24 (1981) (decided under former Code 1933, § 85-707).

Effect of lease renewable in perpetuity. - An option within a lease renewable in perpetuity does not violate the rule against perpetuities. Rose v. Chandler, 247 Ga. 382 , 279 S.E.2d 423 (1981) (decided under former Code 1933, § 85-707).

Purchase option limited in time to life of grantee. - There is no violation of the rule against perpetuities when the option is limited in time to the life of the grantee and his wife, or at the death of the survivor of the grantees. Floyd v. Hoover, 141 Ga. App. 588 , 234 S.E.2d 89 (1977) (decided under former Code 1933, § 85-707).

Purchase option with unlimited time to exercise is violation. - Option to purchase realty or an interest therein which is unlimited as to the time within which the option may be exercised constitutes a perpetuity and is prohibited under the statute. Smith v. Aggregate Supply Co., 214 Ga. 20 , 102 S.E.2d 539 (1958); Floyd v. Hoover, 141 Ga. App. 588 , 234 S.E.2d 89 (1977) (decided under former Code 1933, § 85-707).

Perpetual option to purchase land is a direct violation of the rule against perpetuities and is void ab initio. Rose v. Chandler, 247 Ga. 382 , 279 S.E.2d 423 (1981) (decided under former Code 1933, § 85-707).

Perpetual option to buy goods off land. - Clause in a deed of land reserving a perpetual right to remove sand from land conveyed, for which grantee and grantee's successors are to be paid a fixed fee per car of sand removed, grants a perpetual option to buy sand and is violative of the rule against perpetuities. Brown v. Mathis, 201 Ga. 740 , 41 S.E.2d 137 (1947) (decided under former Code 1933, § 85-707).

Repurchase option without time limit is void. - Clause which authorized the grantor to repurchase land at a stated price, without fixing any time limit during which the property should be used or within which the option should be exercised, is void as violative of the rule against perpetuities. Gearhart v. West Lumber Co., 212 Ga. 25 , 90 S.E.2d 10 (1955); Thomas v. Murrow, 245 Ga. 38 , 262 S.E.2d 802 (1980) (decided under former Code 1933, § 85-707).

Clause which gives to the living descendants of grantor the right of first refusal to repurchase the land without fixing any time limit within which the option should be exercised is void as violative of the rule against perpetuities. Lufburrow v. Williams, 152 Ga. App. 674 , 263 S.E.2d 535 (1979) (decided under former Code 1933, § 85-707).

Deed in which grantor conveys only the agricultural interest and timber rights, while retaining the mineral rights coupled with an option to repurchase, violates the rule against perpetuities, but does not void the deed and/or vest the underlying fee interest in the grantor's successors-in-interest. Milner v. Bivens, 255 Ga. 49 , 335 S.E.2d 288 (1985) (decided under former § 44-6-1 ).

Rule against perpetuities was not violated by a provision that an option to purchase land "shall extend for a period of 90 days beyond the death of the survivor of two life tenants . . . except that, if grantor shall fail to notify grantee of the death of said survivor of said life tenants, then said period shall extend 90 days beyond such time as grantee is notified." A reasonable time for giving notice was to be implied which in no case could exceed 21 years from the death of the last survivor. Young v. Cass, 255 Ga. 508 , 340 S.E.2d 185 (1986) (decided under former § 44-6-1 ).

Agreement which created a lease to mine for a 50-year period and gave an option to continue that had to be exercised by mining within that period, did not violate the rule against perpetuities, even though the lease could be extended indefinitely. Parker v. Reynolds Metals Co., 747 F. Supp. 711 (M.D. Ga. 1990) (decided under former § 44-6-1 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 61 Am. Jur. 2d, Perpetuities, §§ 5, 22 et seq.

C.J.S. - 70 C.J.S., Perpetuities, §§ 22, 23, 39 et seq., 51. 90 C.J.S., Trusts, § 26. 90A C.J.S., Trusts, § 218.

ALR. - Validity of appointment under power, with reference to the rule against perpetuities, 1 A.L.R. 374 ; 101 A.L.R. 1282 ; 104 A.L.R. 1352 .

Perpetual lease or covenant to renew lease perpetually as violation of rule against perpetuities or the suspension of the power of alienation, 3 A.L.R. 498 ; 162 A.L.R. 1147 .

Postponing distribution until payment of debts or settlement of estate as violating rule against perpetuities, 13 A.L.R. 1033 .

Devise or bequest for upkeep of cemetery lot as violation of rule against perpetuities, 14 A.L.R. 118 .

Conveyance by life tenant and remaindermen in esse as cutting off interest of unborn persons under devise for life with remainder to a class, 25 A.L.R. 770 .

Prior estate as affected by remainder void for remoteness, 28 A.L.R. 375 ; 75 A.L.R. 124 ; 168 A.L.R. 321 .

Rule against perpetuities as affecting limitation over to charity after a gift of indefinite duration to another charity, 30 A.L.R. 594 .

Provision for application of rent or income from property to discharge of encumbrance as violation of statute against accumulation of income, 65 A.L.R. 1069 .

Doctrine as to possibility of issue extinct as affecting property rights or taxation, 67 A.L.R. 538 ; 98 A.L.R.2d 1285.

Applicability of rule against perpetuities to reverter on breach of condition subsequent, 70 A.L.R. 1196 ; 133 A.L.R. 1476 .

Rule against accumulation of income as applicable to stock dividends, 70 A.L.R. 1336 .

Provision for application of rent or income to improvement, restoration, or maintenance of trust property as violation of statute against accumulation of income, 71 A.L.R. 417 .

Violation of rule against perpetuities, or unlawful restraint of alienation or suspension of ownership, by postponement of vesting or alienation of ownership until exercise of discretion as to sale or disposal, 89 A.L.R. 1046 .

Provision which suspends vesting of estate or interest for a fixed period upon the condition or with the qualification to effect that period shall not be longer than the lifetime of person or persons in being at death of testator as violation of rule against perpetuities, 91 A.L.R. 771 .

Distinction as regards rule against perpetuities between time of vesting of future estates and time fixed for enjoyment of possession, 110 A.L.R. 1450 .

Rule against perpetuities as applied to gift to class, conditional upon specified age being attained, 155 A.L.R. 698 .

Estoppel to invoke rule or statute against perpetuities, 162 A.L.R. 156 .

Gift to charity as affected by conjoined noncharitable gift invalid under rule or statute against perpetuities or rule against accumulations, 170 A.L.R. 760 .

Settlor's right to revoke or terminate trust, or to withdraw funds or invade corpus thereof, as affecting operation of rule against perpetuities, 7 A.L.R.2d 1089.

Validity, under rule against perpetuities, of gift in remainder to creator's great-grandchildren, following successive life estates to children and grandchildren, 18 A.L.R.2d 671.

Validity of restraint, ending not later than expiration of a life or lives in being, on alienation of an estate in fee, 42 A.L.R.2d 1243.

Application of rule against perpetuities to limitation over on discontinuance of use for which premises are given or granted, or the commencement of a prohibited use, 45 A.L.R.2d 1154.

Perpetual nonparticipating royalty interest in oil and gas as violating rule against perpetuities, 46 A.L.R.2d 1268.

Gift for maintenance or care of private cemetery or burial lot, or of tomb or of monument, including the erection thereof, as valid trust, 47 A.L.R.2d 596.

Separability, for purposes of rule against perpetuities, of gift to several persons by one description, 56 A.L.R.2d 450.

When is a gift by will or deed of trust one to a class, 61 A.L.R.2d 212; 13 A.L.R.4th 978.

Lease for term of years, or contract therefor, as violating rule against perpetuities, 66 A.L.R.2d 733.

Applicability of doctrine of equitable approximation to cut down to a permissible time period the time of a testamentary gift that violates rule against perpetuities, 95 A.L.R.2d 807.

Rule against perpetuities where estate is limited on alternative contingencies, one within and one beyond the period allowed by the rule, 98 A.L.R.2d 807.

Modern status of presumption against possibility of issue being extinct, 98 A.L.R.2d 1285.

Validity and effect of provision or condition against alienation in gift for charitable trust or to charitable corporation, 100 A.L.R.2d 1208.

Doctrine that gift which might be void under rule against perpetuities will be given effect where contingency actually occurs within period of rule, 20 A.L.R.3d 1094.

Pre-emptive rights to realty as violation of rule against perpetuities or rule concerning restraints on alienation, 40 A.L.R.3d 920.

Construction and application of "first refusal" option contained in trust instrument and relating to sale or shares of stock, 51 A.L.R.3d 1327.

Construction and operation of private pension plan provision for distribution of pension funds upon termination of plan, 55 A.L.R.3d 767.

Independent option to purchase real estate as violating rule against perpetuities or restraints or alienation, 66 A.L.R.3d 1294.

Wills: gift to persons individually named but also described in terms of relationship to testator or another as class gift, 13 A.L.R.4th 978.

Sufficiency of provision of lease to effect second or perpetual right of renewal, 29 A.L.R.4th 172.

Lease renewal provision as violating rule against perpetuities or restraints on alienation, 99 A.L.R.6th 591.

44-6-201. Validity of nonvested property interest or power of appointment.

  1. A nonvested property interest is invalid unless:
    1. When the interest is created, it is certain either to vest or to terminate within the lifetime of an individual then alive or within 21 years after the death of that individual; or
    2. The interest either vests or terminates within 360 years after its creation.
  2. A general power of appointment not presently exercisable because of a condition precedent is invalid unless:
    1. When the power is created, the condition precedent is certain either to be satisfied or to become impossible to satisfy within the lifetime of an individual then alive or within 21 years after the death of that individual; or
    2. The condition precedent either is satisfied or becomes impossible to satisfy within 360 years after its creation.
  3. A nongeneral power of appointment or a general testamentary power of appointment is invalid unless:
    1. When the power is created, it is certain to be irrevocably exercised or otherwise to terminate within the lifetime of an individual then alive or within 21 years after the death of that individual; or
    2. The power is irrevocably exercised or otherwise terminates within 360 years after its creation.
  4. In determining whether a nonvested property interest or a power of appointment is valid under paragraph (1) of subsection (a), paragraph (1) of subsection (b), or paragraph (1) of subsection (c) of this Code section, the possibility that a child will be born to an individual after the individual's death is disregarded. (Code 1981, § 44-6-201 , enacted by Ga. L. 1990, p. 1837, § 2; Ga. L. 2018, p. 262, § 1/HB 121.)

The 2018 amendment, effective July 1, 2018, substituted "360 years" for "90 years" in paragraphs (a)(2), (b)(2), and (c)(2).

Law reviews. - For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 219 (2018).

JUDICIAL DECISIONS

Vesting within 90 years. - Executrix failed to obtain a declaratory judgment from a federal district court to the effect that a realty sales agreement between a decedent and a public trust, which contained a right of first offer (RFO), was unenforceable under Georgia law; the contract did not violate the common law rule against perpetuities or, even if it did, did not violate the rule's codification at O.C.G.A. § 44-6-201(a)(2) because the RFO, which expired 20 years from the date of its creation, was reasonable as a matter of law, and it was not clearly impossible for the RFO to vest within 90 years under the statute's "wait and see" provision. Stephens v. Trust for Pub. Land, 475 F. Supp. 2d 1299 (N.D. Ga. 2007).

Cited in Owenby v. Holley, 256 Ga. App. 13 , 567 S.E.2d 351 (2002).

44-6-202. Time of creation of nonvested property interest or power of appointment.

  1. Except as provided in subsections (b) and (c) of this Code section and in subsection (a) of Code Section 44-6-205, the time of creation of a nonvested property interest or a power of appointment is determined under general principles of property law.
  2. For purposes of this article, if there is a person who alone can exercise a power created by a governing instrument to become the unqualified beneficial owner of:
    1. A nonvested property interest; or
    2. A property interest subject to a power of appointment described in subsection (b) or (c) of Code Section 44-6-201,

      the nonvested property interest or power of appointment is created when the power to become the unqualified beneficial owner terminates.

  3. For purposes of this article, a nonvested property interest or a power of appointment arising from a transfer of property to a previously funded trust or other existing property arrangement is created when the nonvested property interest or power of appointment in the original contribution was created. (Code 1981, § 44-6-202 , enacted by Ga. L. 1990, p. 1837, § 2.)

44-6-203. Reform of disposition by court to approximate transferor's plan of distribution.

Upon the petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the number of years allowed by paragraph (2) of subsection (a), (b), or (c) of Code Section 44-6-201 if:

  1. A nonvested property interest or a power of appointment becomes invalid under Code Section 44-6-201;
  2. A class gift is not but might still become invalid under Code Section 44-6-201 and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or
  3. A nonvested property interest that is not validated by paragraph (1) of subsection (a) of Code Section 44-6-201 can vest, but not within 360 years after its creation. (Code 1981, § 44-6-203 , enacted by Ga. L. 1990, p. 1837, § 2; Ga. L. 2018, p. 262, § 2/HB 121.)

The 2018 amendment, effective July 1, 2018, substituted "number of years allowed by paragraph (2) of subsection (a), (b), or (c)" for "90 years allowed by paragraph (2) of subsection (a), paragraph (2) of subsection (b), or paragraph (2) of subsection (c)" in the middle of the introductory paragraph; and substituted "360 years" for "90 years" in paragraph (3).

Law reviews. - For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 219 (2018).

44-6-204. Exceptions to applicability of article.

Code Section 44-6-201 shall not apply to:

  1. A nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of:
    1. A premarital or postmarital agreement;
    2. A separation or divorce settlement;
    3. A spouse's election;
    4. A similar arrangement arising out of a prospective, existing, or previous marital relationship between the parties;
    5. A contract to make or not to revoke a will or trust;
    6. A contract to exercise or not to exercise a power of appointment;
    7. A transfer in satisfaction of a duty of support; or
    8. A reciprocal transfer;
  2. A fiduciary's power relating to the administration or management of assets, including the power of a fiduciary to sell, lease, or mortgage property, and the power of a fiduciary to determine principal and income;
  3. A power to appoint a fiduciary;
  4. A discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal. Nothing contained in paragraphs (2) and (3) of this Code section and this paragraph shall be construed to permit the fiduciary to continue the administration or management of assets once the nonvested property interest becomes invalid as described in subsection (a) of Code Section 44-6-201;
  5. A nonvested property interest held by a charity, government, or governmental agency or subdivision, if the nonvested property interest is preceded by an interest held by another charity, government, or governmental agency or subdivision;
  6. A nonvested property interest in or a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan for one or more employees, independent contractors, or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income, or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary or spouse; or
  7. A property interest, power of appointment, or arrangement that was not subject to the common-law rule against perpetuities or is excluded by another statute of this state. (Code 1981, § 44-6-204 , enacted by Ga. L. 1990, p. 1837, § 2.)

JUDICIAL DECISIONS

Cited in Cartersville Ranch, LLC v. Dellinger, 295 Ga. 195 , 758 S.E.2d 781 (2014).

44-6-205. Applicability of article; court reform of nonvested dispositions created before article became effective.

  1. Except as extended by subsection (b) of this Code section, this article applies to a nonvested property interest or a power of appointment that is created on or after July 1, 2018. For purposes of this Code section only, a nonvested property interest or a power of appointment created by the exercise of a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable.
  2. With respect to a nonvested property interest or a power of appointment that was created before July 1, 2018, and that violates this state's rule against perpetuities as that rule existed before July 1, 2018, a court upon the petition of an interested party may exercise its equitable power to reform the disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created. (Code 1981, § 44-6-205 , enacted by Ga. L. 1990, p. 1837, § 2; Ga. L. 2018, p. 262, § 3/HB 121.)

The 2018 amendment, effective July 1, 2018, substituted "July 1, 2018" for "May 1, 1990" in the first sentence of subsection (a) and twice in subsection (b).

Law reviews. - For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 219 (2018).

JUDICIAL DECISIONS

In general. - Trial court properly utilized the court's statutory authority under O.C.G.A. § 44-6-205(b) to reform a trust instrument that violated the rule against perpetuities. Scott v. South Trust Asset Mgmt. Co., 274 Ga. 523 , 555 S.E.2d 732 (2001).

Cited in Stephens v. Trust for Pub. Land, 475 F. Supp. 2d 1299 (N.D. Ga. 2007); Cartersville Ranch, LLC v. Dellinger, 295 Ga. 195 , 758 S.E.2d 781 (2014).

44-6-206. Application and construction of article.

This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among states enacting it.

(Code 1981, § 44-6-206 , enacted by Ga. L. 1990, p. 1837, § 2.)

JUDICIAL DECISIONS

Cited in Cartersville Ranch, LLC v. Dellinger, 295 Ga. 195 , 758 S.E.2d 781 (2014).

CHAPTER 7 LANDLORD AND TENANT

Article 1

In General.

Article 2

Security Deposits.

Article 3

Dispossessory Proceedings.

Article 4

Distress Warrants.

Article 5

Croppers.

Article 6

Abandoned Mobile Home.

Cross references. - Forfeiture of rights of lessees or tenants for unlawful manufacture, sale, etc., of distilled spirits on leased premises, § 3-10-6 .

Allocating water and waste-water usage among tenants, § 12-5-180.1 .

Estates for years, § 44-6-100 et seq.

Law reviews. - For article discussing 1976 to 1977 developments in landlord-tenant law, see 29 Mercer L. Rev. 219 (1977). For article surveying recent legislature and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For article, "Usufructs and Estates for Years Distinguished," see 18 Ga. St. B.J. 116 (1982). For article, "The New Documentary Concerns Associated With Intelligent Buildings," see 22 Ga. St. B.J. 16 (1985). For annual survey of law of real property, see 40 Mercer L. Rev. 337 (1988). For annual survey on real property, see 71 Mercer L. Rev. 241 (2019). For article, "Not so Fast! Enforcing Accelerated Rent Clauses in Commercial Lease Agreements," see 25 Ga. St. B.J. 19 (Dec. 2019). For note discussing landlord liability for crime in apartments, see 5 Ga. L. Rev. 349 (1971). For note arguing the necessity for specific state legislation to deal with the mobile home park landlord-tenant relationship, see 9 Ga. L. Rev. 212 (1974). For note outlining the 1976 revisions in Georgia's Landlord and Tenant Law and their potential impact on tenant's rights and remedies, see 28 Mercer L. Rev. 351 (1976).

JUDICIAL DECISIONS

Cited in Warehouses, Inc. v. Wetherbee, 203 Ga. 483 , 46 S.E.2d 894 (1948).

RESEARCH REFERENCES

Value of Growing Crop, 20 POF2d 115.

Proof of Tenant's Abandonment of Real Property Lease, 70 POF3d 1.

Proof of Landlord's Liability for Injury Inflicted by Tenant's Dog, 85 POF3d 1.

ALR. - Changes of physical conditions on property of landlord other than that leased, as affecting rights and liabilities of landlord and tenant, 44 A.L.R. 59 .

Liability of lessee's guarantor or surety beyond the original period fixed by lease, 10 A.L.R.3d 582.

When lessor may withhold consent under unqualified provision in lease prohibiting assignment or subletting of leased premises without lessor's consent, 21 A.L.R.4th 188.

Validity and construction of law regulating conversion of rental housing to condominiums, 21 A.L.R.4th 1083.

Landlord's tort liability to tenant for personal injury or property damage resulting from criminal conduct of employee, 38 A.L.R.4th 240.

Commercial leases: application of rule that lease may be canceled only for "material" breach, 54 A.L.R.4th 595.

Specificity of description of premises as affecting enforceability of lease, 73 A.L.R.4th 236.

Landlord's liability to third person for injury resulting from attack off leased premises by dangerous or vicious animal kept by tenant, 89 A.L.R.4th 374.

Coverage of leases under state consumer protection statutes, 89 A.L.R.4th 854.

ARTICLE 1 IN GENERAL

Law reviews. - For article discussing 1976 statutory changes in landlord-tenant law, see 13 Ga. St. B.J. 43 (1976). For comment discussing Robinson v. Diamond Housing Corp., 463 F.2d 853 (D.C. Cir. 1972), as to retaliatory eviction following tenant's successful assertion of rights, see 6 Ga. L. Rev. 805 (1972).

JUDICIAL DECISIONS

Cited in Griffin v. Loman, 206 Ga. 116 , 56 S.E.2d 263 (1949).

RESEARCH REFERENCES

Retaliatory Eviction Claims, 99 Am. Jur. Trials 289.

ALR. - Perpetual lease or covenant to renew lease perpetually as violation of rule against perpetuities or the suspension of the power of alienation, 3 A.L.R. 498 ; 162 A.L.R. 1147 .

Commission of waste as ground for forfeiture of lease, 3 A.L.R. 672 .

Change in time for assessment or payment of taxes as affecting provision for payment of taxes during term of lease, 3 A.L.R. 1159 ; 20 A.L.R. 1502 .

Knowledge of owner of improvements or repairs, intended or in process under orders of lessee or vendee, as "consent," which will subject his interest to mechanics' liens, 4 A.L.R. 685 .

Effect of nonhabitability of leased dwelling or apartment, 4 A.L.R. 1453 ; 13 A.L.R. 818 ; 29 A.L.R. 52 ; 34 A.L.R. 711 .

Covenant to pay taxes as including income taxes, 9 A.L.R. 1566 ; 30 A.L.R. 991 ; 45 A.L.R. 756 ; 124 A.L.R. 1020 ; 140 A.L.R. 517 .

Liability of landlord for injury to person or property of tenant, or his privies, from defects in heating or lighting plant or plumbing, 13 A.L.R. 837 ; 26 A.L.R. 1253 ; 52 A.L.R. 864 .

Right to receive rent as between mortgagor and mortgagee of leased premises, 14 A.L.R. 640 ; 105 A.L.R. 744 .

Effect of foreclosure of mortgage as terminating lease, 14 A.L.R. 664 .

Statute prescribing damages for forcibly ejecting or excluding one from possession of real property as applying to possession held by one as servant or employee, 14 A.L.R. 808 .

What are "minerals" within deed, lease, or license, 17 A.L.R. 156 ; 86 A.L.R. 983 .

Taking partner or assigning to cotenant as breach of provision in lease against assignment or subletting, 17 A.L.R. 183 .

Implied covenants of title or possession on assignment of lease, 19 A.L.R. 608 .

Advertising rights on leased premises, 22 A.L.R. 800 ; 20 A.L.R.2d 940.

Liability of landlord for damage to tenant because of infection from contagious or infectious disease, 26 A.L.R. 1265 .

Reentry by lessor as terminating lessee's option to renew or purchase, 29 A.L.R. 1040 ; 115 A.L.R. 376 .

Validity and enforceability of provision for renewal of lease at rental not determined, 30 A.L.R. 572 ; 68 A.L.R. 157 ; 166 A.L.R. 1237 .

Right to recover exaction by lessor as condition of consent to assignment or sublease, 40 A.L.R. 553 .

Waiver by lessor of failure to comply with conditions of lease as to manner or terms of assignment by lessee, 42 A.L.R. 1108 .

Construction and effect of provision of sublease or assignment making it subject to, or assuming, the provisions of the lease, 42 A.L.R. 1173 .

Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 43 A.L.R. 1176 ; 163 A.L.R. 679 .

Extent of lessee's obligation under express covenant as to repairs, 20 A.L.R. 782 ; 45 A.L.R. 12 .

Acts of other tenants as chargeable to landlord, 45 A.L.R. 1126 .

Duty of tenant in absence of express provision, to occupy the premises, or to use them for the particular purpose indicated by words in the lease descriptive of their character, 46 A.L.R. 1134 .

Surrender of lease as affecting liability on covenants other than for rent, 51 A.L.R. 1061 .

Crop failure as affecting liability for rent, 51 A.L.R. 1291 .

Agreement to take lease as raising corresponding agreement to give one, 53 A.L.R. 288 .

Acts of other tenants as chargeable to landlord, 58 A.L.R. 1049 .

Tenant's liability for rent subsequent to appointment of receiver in suit or proceeding by landlord or by parties in privity with landlord, 61 A.L.R. 372 .

When landlord's reletting or efforts to relet, after tenant's abandonment or refusal to enter, deemed to be acceptance of surrender, 61 A.L.R. 773 ; 110 A.L.R. 368 .

Right of sublessee to take lease from lessor after expiration of lease to sublessor, 75 A.L.R. 847 .

Assignment of lease as breach of covenant against subletting, 79 A.L.R. 1379 .

Rights and remedies of parties in respect to lease of filling station, 83 A.L.R. 1416 ; 126 A.L.R. 1375 .

Parol evidence rule as applied to lease, 88 A.L.R. 1380 ; 151 A.L.R. 279 .

Receiver of insolvent lessee, who elects to take over the lease, as holding under privity of estate within rule allowing termination of assignee's liability by reassignment of lease, 95 A.L.R. 379 .

Validity, construction, and effect of provision in mortgage or deed of trust regarding status of mortgagor or his grantee in possession after sale under foreclosure or otherwise, 103 A.L.R. 981 .

Measure of damages for breach by lessor of contract to lease or to lessee into possession, 104 A.L.R. 132 ; 88 A.L.R.2d 1024.

Relation and rights inter se of purchaser under foreclosure of mortgage and tenant under lease subsequent to mortgage, 109 A.L.R. 447 .

Landlord's acceptance of rent as waiver of right to forfeit because of tenant's past or future violation of terms of lease, 109 A.L.R. 1267 .

Transaction between lessor and sublessee or assignee after forfeiture or cause of forfeiture by lessee as waiver of forfeiture, 118 A.L.R. 124 .

Language of lease as creating conditional limitation as distinguished from a condition subsequent, or vice versa, 118 A.L.R. 283 .

Apportionment of income where right to income commences or ends during accrual period, 126 A.L.R. 12 .

Time when rent payable in absence of provision of lease fixing time applicable to all payments, 126 A.L.R. 565 .

What amounts to a leasehold interest within insurance policy, 130 A.L.R. 818 .

Option of one party to terminate lease upon condition which does not entitle other party to similar option, 137 A.L.R. 362 .

Provision of lease or statute as to forfeiture where premises used for unlawful purpose, as contemplating a single use or a continuous use, 145 A.L.R. 1063 .

Liability of lessee's assignee to lessor for rent accruing after assignment by him, in the absence of assumption of covenant of the lease, 148 A.L.R. 196 .

What agreement or conduct subsequent to assignment of lease amounts to assumption by assignee of covenants of lease, or estoppel to deny such assumption, 148 A.L.R. 393 .

Provision in lease as to purpose for which premises are to be used, as excluding use for other purpose, 148 A.L.R. 583 .

Validity and effect, as between assignor and assignee or claimants under them, of assignment by purchaser under land contract, or by tenant under lease, as affected by provision of contract or lease restricting or prohibiting assignment, 148 A.L.R. 1361 .

Constitutionality and construction of Emergency Price Control Act as relating to rent, 155 A.L.R. 1461 ; 156 A.L.R. 1459 ; 157 A.L.R. 1457 ; 158 A.L.R. 1464 .

Provision of lease for protection of lessee in event of specified collateral contingency as affected by his failure to avoid the contingency, 156 A.L.R. 302 .

Restrictions in lessor's record title as to use of premises as affecting rights between lessor and lessee, 165 A.L.R. 1178 .

Provision of lease authorizing its termination by lessor in event of insolvency, bankruptcy, or receivership of lessee, 168 A.L.R. 504 .

What is nuisance within meaning of rent control act or regulation governing eviction of tenant, 174 A.L.R. 989 .

Right of owner of housing development or apartment houses to restrict canvassing, peddling, solicitation of contributions, etc., 3 A.L.R.2d 1431.

Granting to lessee of "first" privilege or right to re-lease or to renewal or extension of tenancy period as conditioned upon lessor's willingness to re-lease, 6 A.L.R.2d 820.

Conditions accompanying or following dissolution of lessee corporation, as breach of covenant against assignment or sublease, 12 A.L.R.2d 179.

Remedy of tenant against stranger wrongfully interfering with his possession, 12 A.L.R.2d 1192.

Implied covenant in lease for business purposes, that lessor will not compete in business activity for conducting of which lessee leased the premises, 22 A.L.R.2d 1466.

Sublessee's obligation to sublessor to perform latter's covenants in original lease, 24 A.L.R.2d 707.

Relative rights and liabilities of landlord, tenant, assignee, or sublessee where act is done increasing insurance rates, 30 A.L.R.2d 489.

Misrepresentation by lessor, in negotiations for lease, as to offers of rental received from third persons, as actionable fraud, 30 A.L.R.2d 923.

Breach of covenant for quiet enjoyment in lease, 41 A.L.R.2d 1414.

Enforcement of, or waiver of or estoppel to assert, forfeiture clause of lease made or held by cotenants as lessors, 50 A.L.R.2d 1365.

Measure of evicted tenant's recovery for improvements made by him on premises for lease uses, 71 A.L.R.2d 1104.

Liability of mortgagee or lienholder of a lease with respect to rents or covenants therein, 73 A.L.R.2d 1118.

Estoppel of lessee, because of occupancy of, or other activities in connection with, premises, to assert invalidity of lease because of irregularities in description or defects in execution, 84 A.L.R.2d 920.

Liability as between lessor and lessee, where lease does not specify, for taxes and assessments, 86 A.L.R.2d 670.

Validity, construction, and effect of lessor's covenant against use of his other property in competition with the lessee-covenantee, 97 A.L.R.2d 4.

Liability of lessee who assigns lease for rent accruing subsequently to extension or renewal of term, 10 A.L.R.3d 818.

Tenant's rights under unexercised option to purchase as affected by landlord's breach of lease or lease agreement, 12 A.L.R.3d 1128.

Landlord's duty, on tenant's failure to occupy, or abandonment of, premises, to mitigate damages by accepting or procuring another tenant, 21 A.L.R.3d 534.

Infestation of leased dwelling or apartment with vermin as entitling tenant to abandon premises or as constructive eviction by landlord, in absence of express covenant of habitability, 27 A.L.R.3d 924.

Landlord and tenant: constructive eviction based on flooding, dampness, or the like, 33 A.L.R.3d 1356.

Landlord and tenant: what amounts to "sale" of property for purposes of provision giving tenant right of first refusal if landlord desires to sell, 70 A.L.R.3d 203.

Landlord supplying electricity, gas, water, or similar facility to tenant as subject to utility regulation, 75 A.L.R.3d 1204.

Requirements as to certainty and completeness of terms of lease in agreement to lease, 85 A.L.R.3d 414.

Lease provisions providing for rent adjustment based on event or formula outside control of parties, 87 A.L.R.3d 986.

Use of property for multiple dwellings as violating restrictive covenant permitting property to be used for residential purposes only, 99 A.L.R.3d 985.

Landlord and tenant: constructive eviction by another tenant's conduct, 1 A.L.R.4th 849.

Shopping center lease restrictions on type of business conducted by tenant, 1 A.L.R.4th 942.

Measure of damages for landlord's breach of implied warranty of habitability, 1 A.L.R.4th 1182.

Option to purchase real property as affected by optionor's receipt of offer for, or sale of, larger tract which includes the optioned parcel, 34 A.L.R.4th 1217.

Sublessee's rights with respect to primary lessee's option to renew lease, 39 A.L.R.4th 824.

Landlord's fraud, deceptive trade practices, and the like, in connection with mobile home owner's lease or rental of landsite, 39 A.L.R.4th 859.

Merger or consolidation of corporate lessee as breach of clause in lease prohibiting, conditioning, or restricting assignment or sublease, 39 A.L.R.4th 879.

Death of lessee as terminating lease, 42 A.L.R.4th 963.

Landlord's liability for failure to protect tenant from criminal activities of third person, 43 A.L.R.5th 207.

Validity, construction, and application of mobile home eviction statutes, 43 A.L.R.5th 705.

Measure and elements of damages for lessee's breach of covenant as to repairs, 45 A.L.R.5th 251.

44-7-1. Creation of landlord and tenant relationship; rights of tenant; construction of lease for less than five years.

  1. The relationship of landlord and tenant is created when the owner of real estate grants to another person, who accepts such grant, the right simply to possess and enjoy the use of such real estate either for a fixed time or at the will of the grantor. In such a case, no estate passes out of the landlord and the tenant has only a usufruct which may not be conveyed except by the landlord's consent and which is not subject to levy and sale.
  2. All renting or leasing of real estate for a period of time less than five years shall be held to convey only the right to possess and enjoy such real estate, to pass no estate out of the landlord, and to give only the usufruct unless the contrary is agreed upon by the parties to the contract and is so stated in the contract.

    (Orig. Code 1863, § 2261; Code 1868, § 2253; Code 1873, § 2279; Ga. L. 1876, p. 35, § 1; Code 1882, § 2279; Civil Code 1895, § 3115; Civil Code 1910, § 3691; Code 1933, § 61-101.)

Cross references. - Rights and obligations of tenants of premises being converted to condominiums, § 44-3-87 .

Distinction between estate for years and landlord and tenant relationship, § 44-6-101 .

Law reviews. - For article, "Some Rescission Problems in Truth-in-Lending, as Viewed from Georgia," see 7 Ga. St. B.J. 315 (1971). For article discussing options to purchase realty in Georgia, with respect to renewable leases, see 8 Ga. St. B.J. 229 (1971). For article discussing ad valorem taxation and interest in real property in Georgia, prior to the enactment of the Georgia Public Revenue Code, T. 48, see 31 Mercer L. Rev. 293 (1979). For article, "Usufructs and Estates for Years Distinguished," see 18 Ga. St. B.J. 116 (1982). For article, "Commercial Tenant Defaults: Fact Issues to Anticipate," see 27 Ga. St. B.J. 181 (1991). For survey article on real property law, see 59 Mercer L. Rev. 371 (2007). For note discussing assignment and subletting, see 2 Mercer L. Rev. 412 (1951). For comment on Garbutt & Donovan v. Barksdale Pruitt Junk Co., 37 Ga. App. 210 , 139 S.E. 357 (1927), see 1 Ga. L. Rev. No. 2, p. 46 (1927). For comment regarding distinction between estate for years and landlord-tenant relationship, in light of State v. Davison, 198 Ga. 27 , 31 S.E.2d 225 (1944), see 7 Ga. B.J. 233 (1944). For comment discussing the legal effect of concurrent leases under both common law and statutory law in Georgia, see 6 Ga. St. B.J. 320 (1970).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Tenant has no right to challenge a zoning decision. - Because the usufruct granted in a tenant's lease did not convey an interest in real property, the tenant had no cognizable interest in a county zoning decision that the tenant could assert adversely to the actual property owner's interest and, therefore, lacked standing to challenge the zoning decision; nor was the tenant entitled to enforce restrictive covenants. The Stuttering Foundation, Inc. v. Glynn County, 301 Ga. 492 , 801 S.E.2d 793 (2017).

Carrying weapons on property leased by city. - If the city, a public entity, was the holder of a present estate under the lease, the leased premises were not private property within the meaning of O.C.G.A. § 16-11-127(c) , thus, the garden would have no right to exclude the carrying of firearms on the leased premises because the garden was not in legal control of private property through a lease; however, since the lease was not in the record on appeal the garden was not entitled to summary judgment. GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 306 Ga. 829 , 834 S.E.2d 27 (2019).

Cited in A.F. Burnett & Bro. v. William Rich & Co., 45 Ga. 211 (1872); Brown v. Persons, 48 Ga. 60 (1873); Hutcheson v. Hodnett, 115 Ga. 990 , 42 S.E. 422 (1902); Hearn v. Huff, 6 Ga. App. 56 , 64 S.E. 298 (1909); Motor Aid, Inc. v. Ray, 53 Ga. 772 , 187 S.E. 120 (1936); Johnson v. First Nat'l Bank, 53 Ga. App. 643 , 187 S.E. 300 (1936); Chastain v. Gardner, 187 Ga. 462 , 200 S.E. 786 (1939); Stephens v. Pickering, 192 Ga. 199 , 15 S.E.2d 202 (1941); State v. Davison, 198 Ga. 27 , 31 S.E.2d 225 (1944); Flynt v. Barrett, 73 Ga. App. 396 , 36 S.E.2d 868 (1946); Jones v. E.I. Rooks & Son, 78 Ga. App. 790 , 52 S.E.2d 580 (1949); Nunnally v. Shockley, 91 Ga. App. 767 , 87 S.E.2d 115 (1955); Ray v. Ashburn Bank, 212 Ga. 37 , 89 S.E.2d 889 (1955); Stephens v. Stephens, 220 Ga. 22 , 136 S.E.2d 726 (1964); Henson v. Airways Serv., Inc., 220 Ga. 44 , 136 S.E.2d 747 (1964); Sewell Dairy Supply Co. v. Taylor, 113 Ga. App. 729 , 149 S.E.2d 540 (1966); Scarbor v. Scarbor, 226 Ga. 323 , 175 S.E.2d 6 (1970); Brown v. Wood, 124 Ga. App. 500 , 184 S.E.2d 661 (1971); Smith v. Top Dollar Stores, Inc., 129 Ga. App. 60 , 198 S.E.2d 690 (1973); Tenstate Distribution Co. v. Averett, 397 F. Supp. 1227 (N.D. Ga. 1975); Southland Inv. Corp. v. McIntosh, 137 Ga. App. 216 , 223 S.E.2d 257 (1976); Rains Inv. Co. v. George Roe & Assocs., 140 Ga. App. 566 , 231 S.E.2d 460 (1976); Martin v. Heard, 239 Ga. 816 , 238 S.E.2d 899 (1977); Overlin v. Boyd, 598 F.2d 423 (5th Cir. 1979); Ansley Park Plumbing & Heating Co. v. Mikart, Inc., 9 Bankr. 144 (Bankr. N.D. Ga. 1981); Clayton County Bd. of Tax Assessors v. City of Atlanta, 164 Ga. App. 864 , 298 S.E.2d 544 (1982); Parrott v. Wilson, 707 F.2d 1262 (11th Cir. 1983); Eastern Air Lines v. Joint City-County Bd. of Tax Assessors, 253 Ga. 18 , 315 S.E.2d 890 (1984); Henderson v. Easters, 178 Ga. App. 867 , 345 S.E.2d 42 (1986); Glen Oak, Inc. v. Henderson, 258 Ga. 455 , 369 S.E.2d 736 (1988); Thompson v. Crownover, 259 Ga. 126 , 381 S.E.2d 283 (1989); Hallisy v. Snyder, 219 Ga. App. 128 , 464 S.E.2d 219 (1995); Outdoor Sys. v. Wood, 247 Ga. App. 287 , 543 S.E.2d 414 (2000); Williams v. State, 261 Ga. App. 511 , 583 S.E.2d 172 (2003).

Existence of Relationship

Usufruct defined. - Usufructs are rights or privileges usually arising out of landlord and tenant relationships with privileges granted to tenants holding less interest in real estate than estate for years. Roe v. Doe, 246 Ga. 138 , 268 S.E.2d 901 (1980).

Usufruct is a lesser interest in real estate than is an estate for years which does not involve the landlord-tenant relationship. Searcy v. Peach County Bd. of Tax Assessors, 180 Ga. App. 531 , 349 S.E.2d 515 (1986).

Tenant defined. - Tenant is generally defined as one who occupies the lands or premises of another in subordination to that other's title, and with the other's assent, express or implied. Sharpe v. Mathews, 123 Ga. 794 , 51 S.E. 706 (1905).

Tenancy at will. - Tenant at will is in possession by right, evidenced by the will of the landlord and that of the tenant, which will is expressed by the express or implied consent of the landlord to the occupancy of the premises, concurrent with the will of the tenant to occupy the premises; the payment of rent is not essential to the creation of a tenancy at will. Carruth v. Carruth, 77 Ga. App. 131 , 48 S.E.2d 387 (1948).

When the plaintiff purchased a mobile home, never signed a lease with defendants or the company which then owned the lot, and presented no evidence to support plaintiff's assertion that the property owner ever contracted for or consented to the establishment of a life estate in the property, that the prior tenant had possessed a life interest, or that plaintiff assumed a lease or a life estate when plaintiff purchased the mobile home, there was no error in finding as a matter of law that plaintiff had a tenancy at will. Gentry v. Chateau Properties, 236 Ga. App. 371 , 511 S.E.2d 892 (1999).

Tenancy at will for trust beneficiary. - Jury issues remained as to whether a trust beneficiary, who had been allowed to stay at the trust's ranch periodically without having to pay rent and without a formal lease agreement, was a tenant at will of the trust and whether, as a result, the trustees were liable for not following the dispossessory procedures of O.C.G.A. § 44-7-1(a) in removing the beneficiary and the beneficiary's property. Kahn v. Britt, 330 Ga. App. 377 , 765 S.E.2d 446 (2014).

Familial relationship between parties. - In a wrongful death suit wherein a visiting youth of a tenant was shot and killed by a gun left loaded in the leased premises, a lease was found to have existed between the parties, who were all related to each other, despite no written lease agreement existing and the payment of rent was not regularly made. McCullough v. Reyes, 287 Ga. App. 483 , 651 S.E.2d 810 (2007), cert. denied, 2008 Ga. LEXIS 178 (Ga. 2008).

Effect of lease for less than five years. - Lease of real estate for less than five years passes no estate out of the landlord; the tenant has only a usufruct, and the tenant can neither sublet the premises, convey the tenant's usufructuary interest, nor assign the tenant's lease, without the landlord's consent. Hudson v. Stewart, 110 Ga. 37 , 35 S.E. 178 (1900); DeFoor v. Stephens & Lastinger, 133 Ga. 617 , 66 S.E. 786 (1909).

When a lease carries a term of less than five years and does not clearly indicate by its express terms that it passes an estate for years, the lease conveys a mere usufruct and is not assignable absent the express consent of the landlord. Splish Splash Waterslides, Inc. v. Cherokee Ins. Co., 167 Ga. App. 589 , 307 S.E.2d 107 (1983).

Estate for years. - When the term of a lease is greater than five years, a rebuttable presumption arises that an estate for years is created. In re Emory Properties, Ltd., 106 Bankr. 318 (Bankr. N.D. Ga. 1989).

Effect of lease for over five years. - Lease of real estate for a period of five years passes such an estate from the landlord to the tenant as the landlord may convey or contract to convey to another with all the incident rights and duties of the tenancy. Robinson v. Perry, 21 Ga. 183 , 68 Am. Dec. 455 (1857); Perry v. Paschal, 103 Ga. 134 , 29 S.E. 703 (1897); Jones v. Fuller, 27 Ga. App. 84 , 107 S.E. 544 (1921); Shell Petro. Corp. v. Jackson, 47 Ga. App. 667 , 171 S.E. 171 (1933); Shell Petro. Corp. v. Stallings, 51 Ga. App. 351 , 180 S.E. 654 (1935).

Circumscribed and limited use of premises are characteristic of a usufruct. Allright Parking of Ga., Inc. v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378 , 260 S.E.2d 315 (1979).

Estate for years and tenancy distinguished. - Estate for years, when applied to realty, differs from the relation of landlord and tenant in that in the latter the tenant has no estate, but a mere right of use very similar to the right of a hirer of personalty. Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723 , 49 S.E.2d 779 (1948).

Tenancies at sufferance and at will distinguished. - Tenancy at sufferance differs from a tenancy at will in this: the tenant at sufferance enters lawfully and holds over wrongfully without the landlord's assent or dissent; the tenant at will holds by the landlord's permission. It takes little to convert a tenancy at sufferance into a tenancy at will; anything that indicates the permission of the landlord for the tenant to remain in possession will have this effect. Carruth v. Carruth, 77 Ga. App. 131 , 48 S.E.2d 387 (1948).

Timber conveyance distinguished from lease. - Conveyances of timber to be removed within a certain time are distinguishable from leases because those conveyances are assignable without the consent of the grantor. Baxter v. Mattox, 106 Ga. 344 , 32 S.E. 94 (1898); McRae v. Stillwell, Millen & Co., 111 Ga. 65 , 36 S.E. 604 , 55 L.R.A. 513 (1900); McLendon Bros. v. Finch, 2 Ga. App. 421 , 58 S.E. 690 (1907).

Sale of timber on land. - Relation between the parties to a conveyance whereby the one sells to the other the timber on land is that of vendor and vendee, and not that of landlord and tenant; and the conveyance is a deed, not a lease, although the time within which the timber is to be cut and removed is limited to less than five years. Coody v. Gress Lumber Co., 82 Ga. 793 , 10 S.E. 218 (1889); Morgan v. Perkins, 94 Ga. 353 , 21 S.E. 574 (1894); Baxter v. Mattox, 106 Ga. 344 , 32 S.E. 94 (1898); McRae v. Stillwell, Millen & Co., 111 Ga. 65 , 36 S.E. 604 , 55 L.R.A. 513 (1900).

Distinction between cropper and renter. - When an owner of land furnishes the land with supplies and other like necessaries, keeping general supervision over the farm, and agrees to pay a certain portion of the crop to the laborer for the laborer's work, the laborer is a cropper, and judgments or liens cannot sell the laborer's part of the crop until the landlord is fully paid; but if there is a renting, and the relation of landlord and tenant exists, an older judgment will subject the renter's crop, although the landlord may have a parol contract with the tenant by which it is stipulated that the crop is to be the landlord's until the debt for supplies is paid. Almand v. Scott, 80 Ga. 95 , 4 S.E. 892 , 12 Am. St. R. 241 (1887).

When a tenant retained control and direction of the farm, and croppers worked the farm under this direction and were to receive a part of the crop as wages for their labor, the relation between them and the tenant was not that of landlord and tenant, but of master and servant; but if the tenant made an additional and separate contract with one of the croppers, by which it was agreed that the cropper was to pay $60.00 for a crop which had been begun and abandoned by another, work it and give the tenant half, the remaining half to be bound for the $60.00, this cropper became a renter of the land occupied by that crop, and the title to the crop raised on it was in the cropper. Bryant v. Pugh, 86 Ga. 525 , 12 S.E. 927 (1891).

Unsigned lease. - When a two-year lease is not signed by the lessor, even though signed by the lessee in possession, it is inoperative as such. Lewis v. Floyd, 126 Ga. App. 520 , 191 S.E.2d 291 (1972).

Lease to begin in future. - Fact that the beginning of the term of the lease was postponed until the time the United States government ceased to use the airport would not render the agreement invalid; a valid lease, the term of which is to begin in the future, may be made. Southern Airways Co. v. De Kalb County, 216 Ga. 358 , 116 S.E.2d 602 (1960).

Limitations not creating usufruct. - Contract which ordinarily would be construed to create an estate for years is not reduced to a mere usufruct because certain limitations are put upon the contract's use; the interest so passing may be encumbered or somewhat limited without necessarily changing the character of the estate. Camp v. Delta Air Lines, 232 Ga. 37 , 205 S.E.2d 194 (1974).

Parties intended by restrictions to create a usufruct when the agreement completely restricted assignment of the lease without lessor's written consent; the agreement limited the lessees' rights in the property to cultivation matters, specifically excluding lessees from exercising mineral rights and "other rights of every kind and nature;" and the agreement required lessees to maintain the property in the "usual high standard of care, cultivation and fertilization" practiced by lessees on their own land and required lessees to clear the land and leave it in good cultivatable condition suitable for grain or row-crop cultivation upon termination of the lease. Therefore, lessors, not lessees, was subject to ad valorem taxation on the property. Searcy v. Peach County Bd. of Tax Assessors, 180 Ga. App. 531 , 349 S.E.2d 515 (1986).

Effect of restrictions upon lease. - Certain restrictions imposed upon use of the premises under a lease can be so pervasive as to be fundamentally inconsistent with the concept of an estate for years. Allright Parking of Ga., Inc. v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378 , 260 S.E.2d 315 (1979).

Contract of purchase. - When the owner of land puts another in possession thereof under a parol contract to allow the latter to purchase the land at a given price and pay for the land in annual installments, but on condition that if the other was not able to pay for the land the other should pay as rent for the same each year the other occupied the land 10 percent of the price agreed upon and the taxes on the land, and the occupant of the land failed for two years to make any payment to the owner, either as purchase money or as rent, the relation of landlord and tenant existed between the parties as to the second year's occupation. Reddick & Webster v. Hutchinson, 94 Ga. 675 , 21 S.E. 712 (1894).

Crop adjustment program. - Under the crop adjustment program, the federal government acquires no right to possession, no usufruct; it simply acquires the right to say to the farmer that the farmer shall use the farmer's lands in a fashion determined to promote soil building and soil conservation. Georgia Power Co. v. Fletcher, 113 Ga. App. 559 , 148 S.E.2d 915 (1966).

Contract to manage property. - Intent of the parties was that Southern Airways simply contracted with the county to manage and operate the county's airport, as its agent, for public and governmental purposes, and whether the contract between the parties be called a lease, a license, a franchise or a contract of agency or management, it was the intention of the parties that Southern Airways would not obtain any interest in the real estate described in the contract, but only a circumscribed and limited use of the airport facilities. The reserved rights of the lessor as to the control, improvement, inspection, and supervision of the premises with the right of others to use the facilities, negate any contention that the lessee would have the exclusive possession and control of the premises. Southern Airways Co. v. De Kalb County, 216 Ga. 358 , 116 S.E.2d 602 (1960).

Assignees who rented a portion of an airplane hangar from a lessee of the premises were trespassers who were not entitled to notice to vacate since there was no evidence indicating a consent or election on the part of the landlords to accept the assignees as tenants. Block v. Brown, 199 Ga. App. 127 , 404 S.E.2d 288 , cert. denied, 199 Ga. App. 905 , 404 S.E.2d 288 (1991).

Conveyance of room for stipulated sum. - Conveyance of a room for a stipulated sum to be kept as a first class bar room is clearly not a mere contract of writing, so as to give the tenant only an usufruct, which cannot be conveyed to another without consent of the landlord. Such a conveyance creates an estate for years. Clark v. Herring & Mock, 43 Ga. 226 (1871).

Furnished room on week-to-week term. - Fact that bedroom and bath were rented furnished in a building containing other rooms and the term was on a week-to-week basis does not affirmatively show that landlord-tenant relationship alleged by plaintiff did not exist so as to change the duty owed by the defendant to the plaintiff from that of landlord to tenant to innkeeper and guest. Garner v. La Marr, 88 Ga. App. 364 , 76 S.E.2d 721 (1953).

Lease of transportation privileges. - When complainants "rented and farmed out" all the transportation privileges of the defendant for 99 years, complainants did not take an estate for years, but came within the provisions of this statute, and became tenants having the mere right of possession and use with no interest in the property which was taxable, all estate therein subject to taxation remaining in the lessor. Louisville & N.R.R. v. Wright, 199 F. 454 (N.D. Ga. 1912), aff'd, 201 F. 1023 (5th Cir. 1913), modified, 236 U.S. 687, 35 S. Ct. 475 , 59 L. Ed. 788 (1915).

Lessor's inherent right to terminate lease. - When the lessee's failure to maintain the farm in a reasonable manner was found by the jury to amount to such a breach of the lease in a matter so substantial and fundamental as to defeat the object of the lease, the lessor retains the inherent right to rescind or terminate the lease even in the absence of an express provision in the lease. Nunn v. Taylor, 177 Ga. App. 44 , 338 S.E.2d 453 (1985).

Creation of Relationship

Use of land. - When there is a sale or contract of sale of title, the relation of landlord and tenant does not exist, but it exists only when the use of the land either for a specified time or at will, is granted. Allread v. Harris, 75 Ga. 687 (1885).

Possession and enjoyment. - When the owner of the land granted to the defendant the right to possess and enjoy the use of such land, and the grant was accepted, the relation of landlord and tenant arose between them. Taylor v. Coney, Lovejoy & Co., 101 Ga. 655 , 28 S.E. 974 (1897).

Specified time and price. - When the owner of land rent is to one person for the year at a specified price, the relation of landlord and tenant exists between them by contract. Willingham v. Faircloth, 52 Ga. 126 (1874).

Agreement to pay rent. - Agreement to pay rent creates the relation of landlord and tenant. In re O'Dowd, 18 F. Cas. 593 (S.D. Ga. 1873) (No. 10, 439).

Payment of rent is not essential to the creation of a tenancy at will. May v. May, 165 Ga. App. 461 , 300 S.E.2d 215 (1983).

Contract for land for stipulated rent for five years created the relation of landlord and tenant. Napier v. Varner, 149 Ga. 586 , 101 S.E. 580 (1919).

Acceptance by tenant of terms of contract. - Before the relation of landlord and tenant exists, the tenant must accept the grant or enter the premises under the terms of the contract, and not in some other relationship or capacity. Edwards v. Gulf Oil Corp., 71 Ga. App. 649 , 31 S.E.2d 677 (1944).

Taking possession not necessary. - Fact that the tenant did not at any time occupy the premises has no effect on the landlord-tenant relationship. Hudson v. Stewart, 110 Ga. 37 , 35 S.E. 178 (1900).

Relationship created by parol. - When the defendant, under the parol contract, took possession of the rented premises, the relation of landlord and tenant was established between the plaintiffs and the defendant. Nicholes v. Swift, 118 Ga. 922 , 45 S.E. 708 (1903).

Oral agreement and no rent sufficient to create relationship. - In a trust beneficiary's action for wrongful eviction from trust property against the trustee, the trial court erred in finding there was no landlord-tenant relationship between the trust and the beneficiary as no rent was paid and there was no lease because all that was required was an oral agreement for use of the premises. Kahn v. Britt, 330 Ga. App. 377 , 765 S.E.2d 446 (2014).

Joint possession and use. - When a railroad company, by contract express or implied, admits another company into the possession, use and occupation, jointly with itself, of the railroad's depot, yards, yardtracks, and other terminal facilities, the relation of landlord and tenant is established between the two companies and continues, if no term be fixed by contract, so long as such joint possession, use, and occupation may last. Rome R.R. v. Chattanooga, R. & C.R.R., 94 Ga. 422 , 21 S.E. 69 (1894).

Terms creating usufruct. - When the terms of the lease stated: "This contract shall create the relationship of landlord and tenant between lessor and lessee, and no estate shall pass out of the lessor; the said lease is not subject to levy and sale and not assignable by lessee except by lessor's consent," only a usufruct was granted to the original lessee. Stevenson v. Allen, 94 Ga. App. 123 , 93 S.E.2d 794 (1956).

Lease between port authority and warehouse company of warehouse property created a usufruct, rather than an estate for years, since the authority retained dominion or control over the leased property, and the warehouse company was required to keep and maintain the premises, and was prohibited from assigning or permitting any part of the subject property to be used by others without the authority's written consent. Richmond County Bd. of Tax Assessors v. Richmond Bonded Whse. Corp., 173 Ga. App. 278 , 325 S.E.2d 891 (1985).

Landlord need not be owner. - It is not essential to the establishment of the relationship of landlord and tenant that the landlord be the owner of the premises. Pugh v. Middlebrooks, 47 Ga. App. 528 , 171 S.E. 160 (1933), cert. dismissed, 179 Ga. 64 , 175 S.E. 16 (1934).

Characteristics of Relationship

Contract of tenancy may "concern" lands without conveying an interest therein. Neely v. Sheppard, 185 Ga. 771 , 196 S.E. 452 (1938).

No premises liability. - Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) to a grandmother of an adult grandson who shot and killed his girlfriend as there was no showing that the grandmother had any duty to supervise the grandson, nor did the grandmother own the premises where the shooting occurred, such that a claim of premises liability could not stand under O.C.G.A. § 44-7-1(a) ; summary judgment to the mother of the adult son was also proper on the negligent supervision claim as the mother only had a duty to supervise the son, who was out on bond, during the mother's non-working hours, and the son committed the killing during the mother's work hours. Spivey v. Hembree, 268 Ga. App. 485 , 602 S.E.2d 246 (2004).

Relationship of landlord and tenant may be for any length of time fixed by agreement. Garner v. La Marr, 88 Ga. App. 364 , 76 S.E.2d 721 (1953).

There is a rebuttable presumption that a lease for five years or more is a taxable estate for years, but, whether an estate in the land passes to the tenant, or the tenant obtains merely the usufruct, depends upon the intention of the parties, and this is true without regard to the length of the term. A company's 50-year lease from a city recreational authority was a usufruct since the provisions of the parties' lease showed that the authority retained dominion and control over the property and that the company took only a circumscribed and limited use of the premises. Diversified Golf, LLC v. Hart County Bd. of Tax Assessors, 267 Ga. App. 8 , 598 S.E.2d 791 (2004).

Whether an estate in the land passes to the tenant, or the tenant merely obtains a usufruct depends upon the intention of the parties; and this is true without regard to the length of the term. Macon-Bibb County Bd. of Tax Assessors v. Atlantic S.E. Airlines, 262 Ga. 119 , 414 S.E.2d 635 (1992).

Lease as sale. - Lease of an estate for years of lands is in effect the sale of an estate for years therein. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667 , 171 S.E. 171 (1933).

Usufruct not taxable estate. - Usufruct is not considered to be a taxable estate because the fee estate in the property remains with the lessor and is undisturbed by the agreement for the lessee to use the property. Camp v. Delta Air Lines, 232 Ga. 37 , 205 S.E.2d 194 (1974); Allright Parking of Ga., Inc. v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378 , 260 S.E.2d 315 (1979).

Usufruct not subject to levy and sale. - Usufruct is not subject to levy and sale. Boone v. Sirrine, 38 Ga. 121 (1868); Harms v. Entelman, 21 Ga. App. 295 , 94 S.E. 276 (1917).

Lease of lands for five years or more creates estate for years and passes as realty in this state. Such an estate may be bought and sold as any other estate, subject to the terms and conditions of the lease. Paces Partnership v. Grant, 212 Ga. App. 621 , 442 S.E.2d 826 (1994).

Estate for years may be sold. - Lease of land for five years or more which creates an estate for years may be bought and sold as any other estate, subject to the terms and conditions of the lease. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667 , 171 S.E. 171 (1933).

Each partner liable to landlord. - When the relationship exists between landlord and copartners as tenants, the owner of the land would have been entitled to look to each of the parties for the preservation of the party's property and payment of the rents. Boone v. Sirrine, 38 Ga. 121 (1868); Kraft v. Hendry, 150 Ga. 155 , 103 S.E. 169 (1920).

Promise of payment is consideration. - Payment or promise of payment of stipulated rentals alone constitutes a valid consideration for a lease, without the necessity for any other consideration from the lessee. Shell Petro. Corp. v. Stallings, 51 Ga. App. 351 , 180 S.E. 654 (1935).

Agent is not landlord. - While one may be a landlord without being the owner of the premises, yet the agent of the landlord to collect rents and who agrees and assumes the duty of making repairs does not become the landlord of the tenant, and no recovery can be had against such agent as landlord. Sanders v. A.T. Holt Co., 76 Ga. App. 279 , 45 S.E.2d 480 (1947).

Effect of holding over. - When after the expiration of a lease for 20 years, the tenants held over another year without objection on the part of the landlord, the holding over did not entitle the tenants to another 20 years tenancy but constituted them tenants at sufferance. Sutton v. Hiram Lodge, 83 Ga. 770 , 10 S.E. 585 , 6 L.R.A. 703 (1889).

Damages for wrongful holding over. - When the owner of land conveys the land for such term of years as to convey an estate for years in that land, the holder of such estate may, if entitled to possession under such conveyance, maintain an action for damages against a tenant for wrongful holding over and beyond the tenant's term. Baxley v. Davenport, 75 Ga. App. 659 , 44 S.E.2d 388 (1947).

Presumptions as to usufruct or estate for years. - When the term of the lease is less than five years, a rebuttable presumption arises that only a usufruct is created by the instrument, but when the term of the lease is for more than five years, there is a presumption that an estate for years is created by the agreement of the parties. Camp v. Delta Air Lines, 232 Ga. 37 , 205 S.E.2d 194 (1974); Allright Parking of Ga., Inc. v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378 , 260 S.E.2d 315 (1979).

Presumption of estate for years not conclusive. - Although there may be a presumption that a lease for five years or more conveys an estate for years, this fact alone does not conclusively show that an estate for years was created in the lessee and that the relation of landlord and tenant did not exist between the parties. Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723 , 49 S.E.2d 779 (1948).

Presumption of continued possession under lease. - If it is proved that one alleged to be a tenant entered the premises originally under the lease, in the absence of any other evidence to the contrary, there is a presumption that one's continued possession was under the lease, since such possession is consistent with the terms of the lease. Edwards v. Gulf Oil Corp., 71 Ga. App. 649 , 31 S.E.2d 677 (1944).

Description of property conveyed. - Description will not be declared void for uncertainty if the description furnishes the key to identification of the property conveyed. Roe v. Doe, 246 Ga. 138 , 268 S.E.2d 901 (1980).

Agreement held to create usufruct. - Agreement created a usufruct, rather than an estate for years, despite provision that "it is the intent of the parties to create a leasehold estate . . . and not a mere usufruct" since the initial term was for seven months, but provided for automatic renewals for ten consecutive one-year periods, provided the program was funded by the General Assembly, and the lessor was responsible for all insurance, taxes, and upkeep of the premises, including maintenance and repairs. Huntingdon II, Ltd. v. Chatham County Bd. of Tax Assessors, 207 Ga. App. 466 , 428 S.E.2d 605 (1993).

Subletting and Assignment

Subletting defined. - "Subletting" is a leasing by the lessee of a whole or a part of the premises during a portion of the unexpired balance of one's term. Georgia Power Co. v. Fletcher, 113 Ga. App. 559 , 148 S.E.2d 915 (1966).

At common law, a tenant had the right to assign the tenant's his lease, but the tenant could not substitute another paymaster in the tenant's stead, without the consent and acceptance of the landlord. Garner v. Byard, 23 Ga. 289 , 68 Am. Dec. 527 (1857).

Modification of common law. - Statute changed the common law power of the tenant to sublet for at common law the tenant could assign the tenant's interests. Garner v. Byard, 23 Ga. 289 , 68 Am. Dec. 527 (1857) (see O.C.G.A. § 44-7-1 ).

Subletting prohibited. - When the landlord rents land and tenements to another for a fixed time, or at the will of the landlord, the tenant has only a usufruct in the premises, which the tenant cannot convey to another, except by the landlord's consent. Sealy v. Kuttner, 41 Ga. 594 (1871); Hooper, Hough & Force v. Dwinnell, 48 Ga. 442 (1873); McLendon Bros. v. Finch, 2 Ga. App. 421 , 58 S.E. 690 (1907); Butts Bros. v. Ennis, 148 Ga. 153 , 96 S.E. 131 (1918).

Assignment of lease for years. - When, in consideration of the grant of a leasehold estate in realty, the lessee agrees for the lessee and assigns to pay a stipulated yearly rental to the lessor, and thereafter conveys and assigns the lessee's entire unexpired leasehold to a third person, the effect of the instrument is to establish a privity of estate between the assignee and the original lessor, and to authorize the latter to hold the former liable upon covenants running with the land, such as the payment of the yearly rental while the leasehold estate remains vested in the assignee, but the rule is to the contrary when property is leased for a period of less than five years, so as not to constitute a leasehold estate. Dunlap v. George, 48 Ga. App. 341 , 172 S.E. 657 (1934).

Consent of lessor to assignment not necessary. - Even though a lessee cannot by an assignment of a lease of five years or more, or by a sublease thereunder, free oneself from the obligations of the lease without the consent of the lessor, such consent is not necessary to the validity of the sublease. Shell Petro. Corp. v. Stallings, 51 Ga. App. 351 , 180 S.E. 654 (1935).

Effect of attempted transfer. - Lessee cannot, without the consent of the landlord, transfer the lessee's lease; the transferee in such a case would be a mere intruder and subject to be summarily ousted by the landlord. Bass v. West, 110 Ga. 698 , 36 S.E. 244 (1900).

Landlord's permission constitutes right to sublet. - Tenant can sublet only with the landlord's consent, and the terms and conditions of the subtenant's right to possess and enjoy the use of the demised property must be found in the landlord's permission. Dodd v. Ozburn, 128 Ga. 380 , 57 S.E. 701 (1907).

Refusal to consent as rescission. - Refusal on the part of the landlord to consent to tenant's subletting the premises does not constitute a rescission of the lease agreement between the tenant and the landlord if no provision is made for subletting by the tenant. Jenkins v. Smith, 92 Ga. App. 296 , 88 S.E.2d 533 (1955).

Landlord's reasonableness in considering sublet implied. - Even if a lease does not contain a clause requiring reasonableness on the part of a landlord in the denial of a sublease, such a provision will be implied. Stern's Gallery of Gifts, Inc. v. Corporate Property Investors, Inc., 176 Ga. App. 586 , 337 S.E.2d 29 (1985).

Landlord's acceptance of subtenant. - If a tenant, without consent, undertakes to assign or transfer such lease to another person, the landlord may, by affirmative action, elect to treat such unauthorized transferee as one's own tenant, and thereby establish between them the relation of landlord and tenant according to the terms of the original lease. McBurney v. McIntyre, 38 Ga. 261 (1868); McConnell v. East Point Land Co., 100 Ga. 129 , 28 S.E. 80 (1897); Lawson v. Haygood, 202 Ga. 501 , 43 S.E.2d 649 (1947); Estralita Lamps, Inc. v. Marietta Indus. Ass'n, 80 Ga. App. 196 , 55 S.E.2d 822 (1949).

In the event of an unauthorized transfer or assignment of a lease, the landlord may by affirmative action elect to substitute the transferee or assignee for the original tenant. The landlord's election to recognize an unauthorized subtenant as the landlord's tenant may be effected by an expressed recognition, or the election may be implied from such affirmative acts and conduct as will clearly indicate an intention on the part of the landlord to effect such a substitution. Splish Splash Waterslides, Inc. v. Cherokee Ins. Co., 167 Ga. App. 589 , 307 S.E.2d 107 (1983).

Affirmative act by landlord. - In order for the relation of landlord and tenant to exist between the owner of the property and a subtenant, some affirmative action must be had by the landlord showing that the landlord elected to treat the subtenant as the landlord's tenant. Hudson v. Stewart, 110 Ga. 37 , 35 S.E. 178 (1900), later appeal, Liberty Loan Corp. v. Leftwich, 115 Ga. App. 113 , 153 S.E.2d 596 (1967); 116 Ga. App. 799 , 159 S.E.2d 142 (1967); 118 Ga. App. 383 , 163 S.E.2d 837 (1968); Ihlanfeldt v. Courtney, 132 Ga. App. 155 , 207 S.E.2d 653 (1974).

Relationship of subtenant to landlord. - Subtenant becomes the tenant of the landlord, if the landlord elects to recognize the subtenant as such, and the landlord may proceed against the subtenant for holding over; or the landlord may refuse to recognize the tenancy and proceed to expel the person placed upon the premises by the tenant as an intruder, in any manner prescribed by law for the expulsion of trespassers or intruders. McBurney v. McIntyre, 38 Ga. 261 (1868).

Landlord's mere failure to object and the landlord's acceptance of payment of the rent from the subtenant, without more, are not together sufficient to constitute an election by the landlord to accept the subtenant as the landlord's immediate tenant. Liberty Loan Corp. v. Leftwich, 115 Ga. App. 113 , 153 S.E.2d 596 (1967); 116 Ga. App. 799 , 159 S.E.2d 142 (1967), later appeal, 118 Ga. App. 383 , 163 S.E.2d 837 (1968).

Question for jury. - Since a 20-year lease stipulated that the tenant received only a usufruct and expressly prohibited the assignment of the interest or the subletting of the premises without the landlord's prior written consent, but a subtenant was in possession with the landlord's knowledge for approximately seven months before the landlord entered into an agreement with the tenant to terminate the lease, these facts, while not alone sufficient to find that the landlord accepted the subtenant as the landlord's tenant, and could not terminate the underlying lease with the subtenant's consent, raised a jury question. Step Ahead, Inc. v. Lehndorff Greenbriar, Ltd., 171 Ga. App. 805 , 321 S.E.2d 115 (1984).

Rights of Tenant

Tenant may protect interests in property. - Tenant, although the tenant has no estate in the land, is the owner of the land's use for the term of the tenant's rent contract, and can recover damages for any injury to such use occasioned by a public nuisance. Bentley v. City of Atlanta, 92 Ga. 623 , 18 S.E. 1013 (1893).

Due process right of lessee. - Holder of a valid rent contract for realty, though it be for a period of less than five years, has a property right in the leased premises which is protected by the constitutional provision declaring that private property cannot be taken or damaged, for a public use, without first paying just and adequate compensation for the property. Waters v. DeKalb County, 208 Ga. 741 , 69 S.E.2d 274 (1952).

Tenancy not part of tenant's assets. - When the tenancy of the storehouse occupied by the assignors was by the year, they had no estate in it, and therefore it could not have been a part of their assets. Stultz & Blair v. Fleming & Bussey, 83 Ga. 14 , 9 S.E. 1067 (1889).

Lessee's right to possess and enjoy. - Leasing, even for less than a year, conveys to the lessee the "right to possess and enjoy the real estate," though it passes no estate out of the lessor. Georgia Power Co. v. Fletcher, 113 Ga. App. 559 , 148 S.E.2d 915 (1966).

Lessee's right to possession. - When the owner of lands does not convey the title or an estate therein but gives the lessees only the usufruct, such lessees may not maintain an action for damages or one to recover possession from a tenant of the owner who is alleged to be holding over and beyond the term for which the tenant rented the premises, but the lessees must look to the owner to place the lessees in possession of the premises and may maintain an action for damages against the owner for a refusal or failure to do so. Baxley v. Davenport, 75 Ga. App. 659 , 44 S.E.2d 388 (1947).

Because the evidence presented at trial made it clear that a lessor conveyed no ownership interest to a tenant, leaving that tenant with only a right to possess and use the leased property, and more specifically, a usufruct, the tenant did not own an interest in the property, and thus could not pursue an easement by necessity under O.C.G.A. § 44-9-40 ; hence, summary judgment in the lessor's favor as to this issue was upheld on appeal. Read v. Ga. Power Co., 283 Ga. App. 451 , 641 S.E.2d 680 (2007).

Landlord's failure to repair latent defect. - Responsibility of a landlord for failure to repair a latent defect in the premises before leasing the premises is predicable only on the landlord's knowledge of the defect and the consequent necessity for repairs; this knowledge may be constructive as well as actual. Accordingly, if by the exercise of ordinary care in the performance of one's obligation to keep the premises in repair, one ought to have known of a latent defect therein, one is answerable in damages to the tenant, or to one entering under the authority of the tenant, for personal injuries sustained by reason of such defect. Elijah A. Brown Co. v. Wilson, 191 Ga. 750 , 13 S.E.2d 779 (1941).

Tenant severing trees. - Tenant of farm lands has no right to sever trees thereon for the purpose of sale, and when the tenant does so, animus furandi, the tenant is guilty of larceny and not larceny after trust. Higgins v. State, 58 Ga. App. 480 , 199 S.E. 158 (1938).

Liability of subtenant to tenant. - One who rents land and sublets the land to a third person stands in the relation of landlord to the subtenant and may have a distress warrant for the rent. Harrison v. Guill, 46 Ga. 427 (1872).

Existing condition as constructive eviction. - Tenant was precluded by lease from claiming that the tenant was constructively evicted by a condition that existed at the time the tenant signed the lease. Snipes v. Halpern Enters., Inc., 160 Ga. App. 207 , 286 S.E.2d 511 (1981).

Defense based on fraud prohibited if lease contains stipulation regarding entire agreement. - Tenants who sign a lease containing a stipulation regarding the "entire agreement," when sued for the rent thereunder, cannot defend on the grounds of fraudulent representations as to the condition of the premises. Snipes v. Halpern Enters., Inc., 160 Ga. App. 207 , 286 S.E.2d 511 (1981).

Status of Third Parties

Lienor. - When the owner of property encumbered the property with a security deed and a contractor's lien, and thereafter leased a portion of the property to a third person for a term of years, the lessee had a right to enjoy the property for the term of the lease, and the holders of the liens will be compelled to sell such property in such a manner as not capriciously, unnecessarily, and unjustly to interfere with such leasehold interest. Western Union Tel. Co. v. Brown & Randolph Co., 154 Ga. 229 , 114 S.E. 36 (1922).

Transferee. - If one has a leasehold estate and a right to assign it, and makes to another a lease covering one's whole term, it will be treated as an assignment relative to the landlord so as to establish a privity between the transferee and the landlord, and to authorize the latter to hold the former upon covenants running with the land. But, as between the original lessee and the sublessee, even though the former demise one's whole term, if the parties intend a lease, the relation of landlord and tenant, at least as to all but strictly reversionary rights, will arise. Potts-Thompson Liquor Co. v. Potts, 135 Ga. 451 , 69 S.E. 734 (1910).

Trustee in bankruptcy. - Trustee in bankruptcy of a lessee has only the same rights and interest that the tenant has under the contract of lease, and cannot enforce a different contract. The lessee could not assign the lease without the consent of the lessee's landlord, and neither could the trustee in bankruptcy. Cox v. Howell, 37 Ga. App. 596 , 141 S.E. 82 , cert. denied, 37 Ga. App. 833 (1928).

Effect of transfer to trustee in bankruptcy. - When a lease to a bankrupt for five years, though containing a covenant against assignment and subletting, did not expressly prohibit such transfer nor provide for termination on the transfer of the lessee's interest by bankruptcy proceedings, such a transfer to the lessee's trustee in bankruptcy was an act of the law and did not terminate the lease, especially under this statute inferentially providing that a lease for five years confers a legal estate on the lessee. Nelson v. Denmark (In re Gutman), 197 F. 472 (S.D. Ga. 1912) (see O.C.G.A. § 44-7-1 ).

Partner. - Lessee's association of a third person with the lessee as a partner is not an assignment of the lease. The incoming partner may not have a legal interest in the lease, because it was not formally assigned to that partner by the tenant with the landlord's consent; but as the partner was on the premises engaged in the business with the landlord's tenant, with the landlord's knowledge and consent, the partner was not a trespasser. The partner was at least a licensee whose rights as such the landlord was bound to respect. DeFoor v. Stephens & Lastinger, 133 Ga. 617 , 66 S.E. 786 (1909).

Effect of covenant to renew on purchaser. - As against a purchaser from the landlord, with notice, the covenant on the part of the lessor to renew is a covenant real, the burden of which rests with the reversion, and may therefore be enforced against the grantee of the reversion. Parker v. Gortatowsky, 127 Ga. 560 , 56 S.E. 846 (1907).

OPINIONS OF THE ATTORNEY GENERAL

Lease of land for five years or longer which does not by the lease's own terms purport an intention to convey a lesser interest will be presumed to convey an estate for years and as such passes as realty. 1969 Op. Att'y Gen. No. 69-352.

Oral lease. - One may make a valid oral lease agreement for a period of one year or less and be bound by the agreed terms thereof just as in a written contract although one may be somewhat handicapped in presenting evidence as to the terms of the agreement. 1967 Op. Att'y Gen. No. 67-59.

Lease subject to ad valorem taxation. - Lease of real property conveying an interest therein is subject to ad valorem taxation. 1969 Op. Att'y Gen. No. 69-482.

City holding usufruct is not owner. - When city holds a mere usufruct, terminable on six months' notice, which cannot be levied upon or sold, city has only the limited rights of possession and use, and no estate has passed to the city; therefore, the property is not publicly owned and is not subject to the provisions of § 4 (f) of the Department of Transportation Act of 1966. 1976 Op. Att'y Gen. No. 76-49.

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 1.

16A Am. Jur. Pleading and Practice Forms, Landlord and Tenant, § 4.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 4.

ALR. - Fraud, misrepresentation, or mistake as affecting estoppel of tenant to deny landlord's title, 2 A.L.R. 359 .

Right of tenant to treat interference with his possession as an eviction and recover damages for loss of unexpired term, 7 A.L.R. 1103 .

Rights and remedies of tenant who remains in possession of all or part of the premises against landlord for interfering with his possession or enjoyment, 20 A.L.R. 1369 ; 28 A.L.R. 1333 ; 64 A.L.R. 900 .

Parol-evidence rule as applied to lease, 25 A.L.R. 787 ; 88 A.L.R. 1380 ; 151 A.L.R. 279 .

Effect of nonhabitability of leased dwelling or apartment, 29 A.L.R. 52 ; 34 A.L.R. 711 .

Acts of insurance company or public authorities to protect property after fire as constructive eviction of tenant, 29 A.L.R. 1361 .

Landlord's consent to one assignment or sublease as obviating necessity of consent to subsequent assignment or sublease, 31 A.L.R. 153 ; 32 A.L.R. 1080 .

Status and rights of one renting room in club, 32 A.L.R. 1016 .

Rights of lessee who relets for entire term as against sublessee or person claiming under latter, 32 A.L.R. 1429 .

Construction of provision for termination of lease in event of sale of property, 35 A.L.R. 518 ; 116 A.L.R. 931 ; 163 A.L.R. 1019 .

Nature of occupancy of person occupying premises of employer as part of compensation, 39 A.L.R. 1145 .

Forfeiture of lease by act of subtenant, 49 A.L.R. 830 .

Surrender and acceptance of term as affecting right to recover rent or on obligation given for rent, 58 A.L.R. 906 .

What is objectionable purpose within provision of lease against assigning or subletting for objectionable purpose, 61 A.L.R. 708 .

Special assessments as within provisions of a lease requiring lessee to pay "taxes," "taxes and assessments," as variations, 63 A.L.R. 1391 .

Rights and remedies of assignee or sublessee as against assignor or sublessor who misrepresents facts regarding lessor's consent, 78 A.L.R. 356 .

Landlord's acceptance of chattel mortgage, or conditional sales contract, as waiver of landlord's lien or reservation of title, 96 A.L.R. 568 .

Rights as between the landlord and conditional seller of property to tenant, 98 A.L.R. 628 .

Status as licensee or lessee of one in occupation of land in anticipation of the making or execution of a lease, 123 A.L.R. 700 .

Validity and effect of acceleration clause in lease or bailment, 128 A.L.R. 750 .

Lease or tenancy agreement as creating partnership relationship between lessor and lessee, 131 A.L.R. 508 .

Construction and application of provisions as to assignment by "tenant-owner" in "co-operative" apartment house plan, 141 A.L.R. 1162 .

Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 A.L.R. 679 .

Sublease or assignment of tenancy at will, 167 A.L.R. 1040 .

Character and duration of tenancy created by entry under invalid or unenforceable lease, 6 A.L.R.2d 685.

Enforceability of option to purchase, consideration for which is payment of rentals exceeding rent control law maximum, 28 A.L.R.2d 1204.

Covenant in lease to arbitrate, or to submit to appraisal, as running with the leasehold so as to bind assignee, 81 A.L.R.2d 804.

Construction and effect of provision in lease that consent to subletting or assignment will not be arbitrarily or unreasonably withheld, 54 A.L.R.3d 679.

Grazing or pasturage agreement as violative of covenant in lease or provision of statute against assigning or subletting without lessor's consent, 71 A.L.R.3d 780.

Recovery of expected profits lost by lessor's breach of lease preventing or delaying operation of new business, 92 A.L.R.3d 1286.

Farmland cultivation arrangement as creating status of landlord-tenant or landowner-cropper, 95 A.L.R.3d 1013.

Implied covenant or obligation to provide lessee with actual possession, 96 A.L.R.3d 1155.

Right to exercise option to renew or extend lease as affected by tenant's breach of other covenants or condition, 23 A.L.R.4th 908.

Children's day-care use as violation of restrictive covenant, 29 A.L.R.4th 730.

Sufficiency as to method of giving oral or written notice exercising option to renew or extend lease, 29 A.L.R.4th 903.

What constitutes timely notice of exercise of option to renew or extend lease, 29 A.L.R.4th 956.

Waiver or estoppel as to notice requirement for exercising option to renew or extend lease, 32 A.L.R.4th 452.

Sufficiency as to parties giving or receiving notice of exercise of option to renew or extend lease, 34 A.L.R.4th 857.

Express or implied restriction on lessee's use of residential property for business purposes, 46 A.L.R.4th 496.

Implied warranty of fitness or suitability in commercial leases - modern status, 76 A.L.R.4th 928.

What constitutes abandonment of residential or commercial lease - modern cases, 84 A.L.R.4th 183.

Landlord's permitting third party to occupy premises rent-free as acceptance of tenant's surrender of premises, 18 A.L.R.5th 437.

Effect, as between landlord and tenant, of lease clause restricting the keeping of pets, 114 A.L.R.5th 443.

44-7-2. Parol contract creating landlord and tenant relationship; certain provisions prohibited; effect of provision for attorney's fees.

  1. Contracts creating the relationship of landlord and tenant for any time not exceeding one year may be by parol.
  2. In any contract, lease, license agreement, or similar agreement, oral or written, for the use or rental of real property as a dwelling place, a landlord or a tenant may not waive, assign, transfer, or otherwise avoid any of the rights, duties, or remedies contained in the following provisions of law:
    1. Code Section 44-7-13, relating to the duties of a landlord as to repairs and improvements;
    2. Code Section 44-7-14, relating to the liability of a landlord for failure to repair;
    3. Ordinances adopted pursuant to Code Section 36-61-11;
    4. Article 3 of this chapter, relating to proceedings against tenants holding over;
    5. Article 4 of this chapter, relating to distress warrants;
    6. Article 2 of this chapter, relating to security deposits; and
    7. Any applicable provision of Chapter 11 of Title 9 which has not been superseded by this chapter.
  3. A provision for the payment by the tenant of the attorney's fees of the landlord upon the breach of a rental agreement by the tenant, which provision is contained in a contract, lease, license agreement, or similar agreement, oral or written, for the use or rental of real property as a dwelling place shall be void unless the provision also provides for the payment by the landlord of the attorney's fees of the tenant upon the breach of the rental agreement by the landlord.

    (Orig. Code 1863, § 2262; Code 1868, § 2254; Code 1873, § 2280; Code 1882, § 2280; Civil Code 1895, § 3117; Civil Code 1910, § 3693; Code 1933, § 61-102; Ga. L. 1976, p. 1372, § 1; Ga. L. 1982, p. 3, § 44.)

Cross references. - Statute of frauds, § 13-5-30 et seq.

Law reviews. - For article surveying developments in Georgia contracts law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 67 (1981). For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981). For note concerning the availability of an implied warrant or habitability and an illegal contract defense under subsection (b) of this Code section, see 28 Mercer L. Rev. 351 (1976). For note discussing exculpatory clauses in leases in light of Country Club Apts. v. Scott, 246 Ga. 443 , 271 S.E.2d 841 (1980), see 32 Mercer L. Rev. 419 (1980). For note, "Don't Let the Bed Bugs Bill: Landlord Liability for Bed Bug Infestations," see 34 Ga. St. U. L. Rev. 479 (2018).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Public policy. - General Assembly has consistently expressed the public policy of this state as one in favor of imposing upon the landlord liability for damages to others from defective construction and failure to keep the landlord's premises in repair. The expressed public policy in favor of landlord liability is matched by an equally strong and important public policy in favor of preventing unsafe residential housing. Thompson v. Crownover, 259 Ga. 126 , 381 S.E.2d 283 (1989).

Subsection (b) of O.C.G.A. § 44-7-2 forbids landowners from avoiding the duty to make repairs and improvements or the duties created by housing codes. Gresham v. Atlanta Gas Light Co., 193 Ga. App. 841 , 389 S.E.2d 502 (1989), rev'd on other grounds, 260 Ga. 391 , 394 S.E.2d 345 (1990).

Certainty and definiteness. - Parol contract sought to be enforced as within some exception to the statute of frauds must be certain and definite in all essential particulars. Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343 , 259 S.E.2d 729 (1979).

Executory contract may be parol. - Contract establishing the relation of landlord and tenant for one year, though made before the year begins, may be in parol. Steininger v. Williams, 63 Ga. 475 (1879); Gay v. Peak, 5 Ga. App. 583 , 63 S.E. 650 (1909); Ridgway v. Bryant, 8 Ga. App. 564 , 70 S.E. 28 (1911); Render v. Harris, 25 Ga. App. 302 , 103 S.E. 179 (1920), later appeal, 26 Ga. App. 741 , 107 S.E. 283 (1921); Butler v. Godley, 51 Ga. App. 784 , 181 S.E. 494 (1935); Roland v. Floyd, 53 Ga. App. 282 , 185 S.E. 580 (1936).

Unsigned lease ineffective. - When a two-year lease is not signed by the lessor, even though signed by the lessee in possession, the lease is inoperative as such. Lewis v. Floyd, 126 Ga. App. 520 , 191 S.E.2d 291 (1972).

Liability for statutory defect. - Tenant correctly asserted that although defect was obvious when the tenant took possession of the apartment, recovery was not necessarily barred when the defect was in violation of duty created by applicable statute or administrative regulation stipulated in O.C.G.A. § 44-7-2(b)(3), such that the trial court erred in granting landlord's motion for summary judgment. Bastien v. Metropolitan Park Lake Assocs., 209 Ga. App. 881 , 434 S.E.2d 736 (1993).

Storage contract, requiring the lessee to provide all insurance on stored possessions, was not a contract for "the use or rental of real property as a dwelling place," within the meaning of subsection (b) of O.C.G.A. § 44-7-2 . Whipper v. McLendon Movers, Inc., 188 Ga. App. 249 , 372 S.E.2d 820 (1988).

Part performance. - Parol contract for the rent of lands for a period of five years is invalid and will not have the effect of creating a tenacy for longer than one year in absence of such part performance of the contract as will take the contract out of the statute of frauds. Carl v. Hansbury, 67 Ga. App. 830 , 21 S.E.2d 302 (1942).

Part performance insufficient. - Reliance upon the statements and representations of a landlord, prompting a tenant to purchase business coupled with the tenant's possession of the premises and payment of rent, does not constitute sufficient part performance to remove a parol lease agreement from the strictures of this statute. Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343 , 259 S.E.2d 729 (1979) (see O.C.G.A. § 44-7-2 ).

Authority of agent. - Contracts creating the relation of landlord and tenant for any time exceeding one year must be in writing, and when executed by an agent, the authority of the agent to execute the contract must likewise be in writing. Butler v. Godley, 51 Ga. App. 784 , 181 S.E. 494 (1935).

When a new partner of a lessee signed an option to renew a lease, a guarantor's emailed explanation regarding the partner's authority did not satisfy the statute of frauds because the email was not a writing in equal dignity to that of the original lease; however, there was a genuine issue of material fact as to the partner's apparent agency. Sage Atlanta Props., Ltd. v. Hawxhurst, 349 Ga. App. 758 , 824 S.E.2d 387 (2019).

Landlord's failure to maintain. - Genuine issues of fact remained regarding the landlord's failure to maintain a leased home; the court rejected the landlord's contention that the lease was commercial rather than residential because the tenant had an option to purchase and intended the lease as an investment because there was no dispute that the tenant was using the leased home as the tenant's residence. Tela Invs., LLC v. Razavi, 351 Ga. App. 518 , 831 S.E.2d 175 (2019), cert. denied, No. S19C1631, 2020 Ga. LEXIS 150 (Ga. 2020).

Renewal of lease for more than one year. - Lease for more than a year cannot be renewed except in writing. Hooks v. Lease, 68 Ga. App. 850 , 24 S.E.2d 601 (1943).

Purported lease renewal was void and inoperative since there was no writing as required by the statute of frauds to authorize the exercise of an option to renew the lease for another three-year term. Brookhill Mgt. Corp. v. Shah, 197 Ga. App. 305 , 398 S.E.2d 290 (1990).

Parol renewal for one year valid. - Evidence authorized a finding that after the expiration of the original written lease between the parties a new parol contract was entered into by the parties for the rent of the property for another year which was valid. King v. Patillo, 19 Ga. App. 59 , 90 S.E. 1033 (1916).

Automatic renewal. - Fact that a lease provides that the lease would be automatically renewed from year to year in the event the tenant did not give the notice required to the contrary does not necessarily make it a lease for longer than one year. Butler v. Godley, 51 Ga. App. 784 , 181 S.E. 494 (1935).

Disaffirming executory parol contract. - Valid executory parol contract for the rent of land for the ensuing year for an agreed price cannot be disaffirmed by the landlord before the time the contract is to take effect on the ground that no part of the contract has been performed and that neither party has acted to the party's prejudice because of it, without subjecting oneself to an action for damages. Roland v. Floyd, 53 Ga. App. 282 , 185 S.E. 580 (1936).

Instructions. - In a negligence action by a tenant against the tenant's landlord for compensation for injuries resulting from a rat bite, the trial court erred in instructing the jury that the landlord could not avoid the landlord's duty to repair the property absent evidence of the landlord's negligence. Valdosta Hous. Auth. v. Finnessee, 160 Ga. App. 552 , 287 S.E.2d 569 (1981).

Recovery of damages. - In order to recover, a tenant is required to show not only that the landlord breached the landlord's statutory duty to keep the premises in repair, but that such breach was the proximate cause of the tenant's injury. Brown v. RFC Mgt., Inc., 189 Ga. App. 603 , 376 S.E.2d 691 (1988).

Attorney fees provision not mutual and not enforceable. - Under O.C.G.A. § 44-7-2(c) , a provision for attorney fees in a residential lease was unenforceable because it was not mutual; the fact that the tenant had an option to purchase and intended the house as an investment did not render the lease a commercial lease. Tela Invs., LLC v. Razavi, 351 Ga. App. 518 , 831 S.E.2d 175 (2019), cert. denied, No. S19C1631, 2020 Ga. LEXIS 150 (Ga. 2020).

Cited in Springfield Fire & Marine Ins. Co. v. Price, 132 Ga. 687 , 64 S.E. 1074 (1909); Tatum v. Padrosa, 24 Ga. App. 259 , 100 S.E. 653 (1919); Candler v. Smyth, 168 Ga. 276 , 147 S.E. 552 (1929); Killian v. Cherokee County, 169 Ga. 313 , 150 S.E. 158 (1929); Heaton v. Fulton Nat'l Bank, 46 Ga. App. 773 , 169 S.E. 216 (1933); Blanchard & Calhoun Realty Co. v. Comer, 185 Ga. 448 , 195 S.E. 420 (1938); Neely v. Sheppard, 185 Ga. 771 , 196 S.E. 452 (1938); Lamons v. Good Foods, Inc., 195 Ga. 475 , 24 S.E.2d 678 (1943); Meeks v. Adams La. Co., 49 F. Supp. 489 (S.D. Ga. 1943); Citizens Oil Co. v. Head, 201 Ga. 542 , 40 S.E.2d 559 (1946); Deriso v. Castleberry, 202 Ga. 174 , 42 S.E.2d 356 (1947); Carruth v. Carruth, 77 Ga. App. 131 , 48 S.E.2d 387 (1948); Cooper v. Vaughan, 81 Ga. App. 330 , 58 S.E.2d 453 (1950); Moon v. Stone Mt. Mem. Ass'n, 223 Ga. 696 , 157 S.E.2d 461 (1967); Smith v. Top Dollar Stores, Inc., 129 Ga. App. 60 , 198 S.E.2d 690 (1973); Blease v. Blease, 238 Ga. 651 , 235 S.E.2d 21 (1977); Hill v. Hill, 143 Ga. App. 549 , 239 S.E.2d 154 (1977); Opportunities Industrialization Ctr. of Atlanta, Inc. v. Whiteway Neon Ad, Inc., 146 Ga. App. 871 , 247 S.E.2d 494 (1978); General Hosps. of Humana v. Jenkins, 188 Ga. App. 825 , 374 S.E.2d 739 (1988); Evans v. Richardson, 189 Ga. App. 751 , 377 S.E.2d 521 (1989); Thompson v. Crownover, 259 Ga. 126 , 381 S.E.2d 283 (1989); Roth v. Wu, 199 Ga. App. 665 , 405 S.E.2d 741 (1991); Gaffney v. EQK Realty Investors, 213 Ga. App. 653 , 445 S.E.2d 771 (1994); Fields v. Lanier, 294 Ga. App. 355 , 670 S.E.2d 145 (2008).

Exculpatory Clauses

Property not to be used as dwelling place. - While a landlord may not avoid in any lease of real property as a dwelling place any of the requirements set forth in Arts. 3 and 4 of this chapter, a landlord may contract to avoid these statutory requirements when renting property which is not to be used as a dwelling place. Colonial Self Storage of S.E., Inc. v. Concord Properties, Inc., 147 Ga. App. 493 , 249 S.E.2d 310 (1978).

Landlord was entitled to rely on default provisions of lease of residence for commercial purposes in refusing tender of past due rent and in taking action to dispossess appellant, and appellant was not entitled to defenses of O.C.G.A. § 44-7-50 et seq., having waived those provisions in the lease. Eason Publications, Inc. v. Monson, 163 Ga. App. 370 , 294 S.E.2d 585 (1982).

Warranty of good repair. - Landlord's implied warranty that the rented premises were in good repair at the time the premises were rented cannot be defeated by an exculpatory provision in the lease. Country Club Apts., Inc. v. Scott, 246 Ga. 443 , 271 S.E.2d 841 (1980).

Houseboat not alleged to be dwelling place. - When no contention was made in a houseboat lessee's action that the slips or spaces in the marina, or even the houseboats docked there, were to be used as dwelling places, the landlord may contract to avoid the statutory requirements of former Code 1933, Ch. 61-3 or 61-4 (see O.C.G.A. Art. 3 or 4, Ch. 7, T. 44). Wilkerson v. Chattahoochee Parks, 244 Ga. 472 , 260 S.E.2d 867 (1979).

Exculpatory clause void as against public policy. - Exculpatory and indemnity provision in commercial lease providing that "lessee hereby releases lessor from any and all damages to both person and property and will hold the lessor harmless from such damages during the terms of this lease" was void as against public policy. Barnes v. Pearman, 163 Ga. App. 790 , 294 S.E.2d 619 (1982), aff'd, 250 Ga. 628 , 301 S.E.2d 647 (1983).

Liability for wrongful death. - Exculpatory clauses in residential lease would not relieve landlord of liability for wrongful death of tenant. Cain v. Vontz, 703 F.2d 1279 (11th Cir. 1983).

Insurance requirement. - Provision in a lease agreement that imposed upon a tenant a condition that the tenant purchase insurance to protect oneself against the tenant's landlord's negligence, and another provision that purported to bar the tenant's recovery in a negligence case because of the tenant's failure to purchase such insurance, were both void as against public policy as the provisions clearly avoided the "rights, duties, or remedies" contained in O.C.G.A. §§ 44-7-13 and 44-7-14 . Schuster v. Plaza Pac. Equities, Inc., 588 F. Supp. 61 (N.D. Ga. 1984).

Decisions Under Prior Law

Editor's notes. - Georgia Laws 1976, p. 1372, deleted from present subsection (a), "and if made for a greater time shall have the effect of a tenancy at will."

In general. - When an oral lease agreement for a definite term exceeds one year, the agreement creates a tenancy at will. Cody v. Quarterman, 12 Ga. 386 (1852); Hooper, Hough & Force v. Dwinnell, 48 Ga. 442 (1873); Abbott v. Padrosa, 136 Ga. 278 , 71 S.E. 419 (1911); Beveridge v. Simmerville, 26 Ga. App. 373 , 106 S.E. 212 (1921); Sikes v. Carter, 30 Ga. App. 539 , 118 S.E. 430 (1923); City Council v. Henry, 92 Ga. App. 408 , 88 S.E.2d 576 (1955); Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343 , 259 S.E.2d 729 (1979).

Creation of tenancy at will. - Tenancies at will in Georgia may be created by express contract, by force of statute, when a contract creating the relationship of landlord and tenant is made in parol for a greater time than one year, and the tenancy is to be treated as one at will, or by implication when there was no original express contract for a definite term. Stepp v. Richman, 75 Ga. App. 169 , 42 S.E.2d 773 (1947).

Section inapplicable to written lease. - Statute is not applicable when there was a written lease under which the defendant held and the lease does not create a tenancy at will. King & Prince Surf Hotel, Inc. v. McLendon, 74 Ga. App. 805 , 41 S.E.2d 556 (1947) (see O.C.G.A. § 44-7-2 ).

Part performance under void lease. - Although a parol lease may be void under the statute of frauds, a tenancy at will is nevertheless created when the tenant goes into possession or pays rent. Western Union Tel. Co. v. Fain & Parrott, 52 Ga. 18 (1874); Weed v. Lindsay & Morgan, 88 Ga. 686 , 15 S.E. 836 , 20 L.R.A. 33 (1892); Hayes v. City of Atlanta, 1 Ga. App. 25 , 57 S.E. 1087 (1907); Mendel v. C.L. Barrett & Son, 32 Ga. App. 581 , 124 S.E. 107 (1924); Merry v. Georgia Big Boy Mtg., Inc., 135 Ga. App. 707 , 218 S.E.2d 694 (1975).

Part performance under tenancy at will. - When an oral agreement creates a tenancy at will, part performance does not render the agreement valid and enforceable as a lease for years. Nicholes v. Swift, 118 Ga. 922 , 45 S.E. 708 (1903); Norris v. Downtown LaGrange Dev. Auth., 151 Ga. App. 343 , 259 S.E.2d 729 (1979).

Term depending upon contingency. - When the term of the lease was indefinite, depending upon a contingency, and could not extend beyond a year, the plaintiff was a tenant at will. Anthony Shoals Power Co. v. Fortson, 138 Ga. 460 , 75 S.E. 606 (1912).

Unsigned lease. - When the tenant was to rent land for a term of five years but the landlord failed to sign the lease as modified by the tenant, but the tenant entered and paid notes for rent and did the same the following year, only a tenancy at will was created. Beasley v. Lee, 155 Ga. 634 , 117 S.E. 743 (1923).

That the tenant is in possession under a written lease for more than one year, signed only by the landlord, is immaterial when the landlord sells the property to a third party who seeks to evict the tenant on the ground that the lease is void, and that the tenant is a tenant at will. Blanton v. Moseley, 133 Ga. App. 144 , 210 S.E.2d 368 (1974).

Agent without authority. - Since an agent's authority to sign a sealed contract must be in writing, the making of a lease for a longer term than one year by the agent is void and hence an entering of the principal under such a contract creates a tenancy at will. Hayes v. City of Atlanta, 1 Ga. App. 25 , 57 S.E. 1087 (1907).

RESEARCH REFERENCES

C.J.S. - 51C C.J.S., Landlord and Tenant, § 2.

ALR. - Parol-evidence rule as applied to lease, 25 A.L.R. 787 ; 88 A.L.R. 1380 ; 151 A.L.R. 279 .

Effect of nonhabitability of leased dwelling or apartment, 29 A.L.R. 52 ; 34 A.L.R. 711 .

Rights of lessee who relets for entire term as against sublessee or person claiming under latter, 32 A.L.R. 1429 .

Nature of occupancy of person occupying premises of employer as part of compensation, 39 A.L.R. 1145 .

Right to recover exaction by lessor as condition of consent to assignment or sublease, 40 A.L.R. 553 .

Landlord's responsibility to third persons for conditions created during tenancy as affected by renewal of the lease, or a new lease subject to the original lease, 49 A.L.R. 1418 .

Period covered by lessee's, sublessee's or assignee's covenant to pay taxes or assessments, 97 A.L.R. 931 .

When landlord's reletting, or efforts to relet, after tenant's abandonment or refusal to enter, deemed to be acceptance of surrender, 110 A.L.R. 368 .

When lease deemed to show intention that an assignment thereof shall relieve the lessee from further liability, contrary to the general rule in that regard, 110 A.L.R. 591 .

Rights and remedies of tenant who takes possession of land under agreement in violation of statute of frauds, 119 A.L.R. 1225 .

Status as licensee or lessee of one in occupation of land in anticipation of the making or execution of a lease, 123 A.L.R. 700 .

Option for renewal of lease or for purchase as conditional upon optionor's purpose to lease or sell property, 127 A.L.R. 894 .

Option in lease for renewal or purchase as affecting rights and obligations in respect of sublease, 127 A.L.R. 948 .

Validity, construction, and enforceability of provision of lease creating or reserving option or election for future enlargement, reduction, or other variation as regards the premises to be occupied by tenant, 129 A.L.R. 772 .

Right of lessee to equitable relief against forfeiture for breach of conditions as affected by lessor's giving a lease to or entering into other contractual obligations with a third person, 166 A.L.R. 807 .

Right of owner of housing development or apartment houses to restrict canvassing, peddling, solicitation of contributions, etc., 3 A.L.R.2d 1431.

Construction and application of provision in lease under which landlord is to receive percentage of lessee's profits or receipts, 38 A.L.R.2d 1113; 58 A.L.R.3d 384.

Doctrine of part performance with respect to renewal option in lease not complying with statute of frauds, 80 A.L.R.2d 425.

Effect, on nonsigner, of provision of lease exempting landlord from liability on account of condition of property, 12 A.L.R.3d 958.

Liability of lessee who refuses to take possession under executed lease or executory agreement to lease, 85 A.L.R.3d 514.

Recovery of expected profits lost by lessor's breach of lease preventing or delaying operation of new business, 92 A.L.R.3d 1286.

Tenant's agreement to indemnify landlord against all claims as including losses resulting from landlord's negligence, 4 A.L.R.4th 798.

Sufficiency of provision of lease to effect second or perpetual right of renewal, 29 A.L.R.4th 172.

Children's day-care use as violation of restrictive covenant, 29 A.L.R.4th 730.

Applicability of exculpatory clause in lease to lessee's damages resulting from defective original design or construction, 30 A.L.R.4th 971.

Provision in lease as to purpose for which premises are to be used as excluding other uses, 86 A.L.R.4th 259.

What constitutes tenant's holding over leased premises, 13 A.L.R.5th 169.

44-7-3. Disclosure of ownership and agents; effect of failure to comply.

  1. At or before the commencement of a tenancy, the landlord or an agent or other person authorized to enter into a rental agreement on behalf of the landlord shall disclose to the tenant in writing the names and addresses of the following persons:
    1. The owner of record of the premises or a person authorized to act for and on behalf of the owner for the purposes of serving of process and receiving and receipting for demands and notice; and
    2. The person authorized to manage the premises.

      In the event of a change in any of the names and addresses required to be contained in such statement, the landlord shall advise each tenant of the change within 30 days after the change either in writing or by posting a notice of the change in a conspicuous place.

  2. A person who enters into a rental agreement on behalf of an owner or a landlord or both and who fails to comply with the disclosure requirements in paragraphs (1) and (2) of subsection (a) of this Code section becomes an agent of the owner or the landlord or both for serving of process and receiving and receipting for notices and demands; for performing the obligations of the landlord under this chapter; and for expending or making available, for the purpose of fulfilling such obligations, all rent collected from the premises.

    (Code 1933, § 61-102.1, enacted by Ga. L. 1976, p. 1372, § 2; Ga. L. 1982, p. 3, § 44.)

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 3.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 1 et seq.

ALR. - Fraud, misrepresentation, or mistake as affecting estoppel of tenant to deny landlord's title, 2 A.L.R. 359 .

Continued possession of tenant as constructive notice to third person of unrecorded transfer of title of original lessor, 1 A.L.R.2d 322.

44-7-4. Local ordinances relating to security of premises occupied by tenants; cumulative effect of this Code section.

  1. Municipalities and counties may establish by local ordinance minimum security standards not in conflict with applicable fire codes to prevent the unauthorized entry of premises occupied by a tenant as a dwelling place and may require landlords to comply with such standards.
  2. This Code section shall be cumulative to and shall not prohibit the enactment of other general and local laws, rules and regulations of state or local agencies, and local ordinances on this subject.

    (Code 1933, § 61-102.2, enacted by Ga. L. 1976, p. 1372, § 3.)

RESEARCH REFERENCES

C.J.S. - 62 C.J.S., Municipal Corporations, § 104 et seq.

ALR. - Landlord's liability for failure to protect tenant from criminal activities of third person, 43 A.L.R.5th 207.

44-7-5. When implied contract to pay rent arises.

When, in an action for rent, title is shown in the plaintiff and occupation by the defendant is proved, an obligation to pay rent is generally implied. However, if the entry of the defendant on the premises was not under the plaintiff or if the possession of the defendant is adverse to the plaintiff, no such implication arises.

(Civil Code 1895, § 3116; Civil Code 1910, § 3692; Code 1933, § 61-103.)

History of section. - This Code section is derived from the decision in Lathrop v. Standard Oil Co., 83 Ga. 307 , 9 S.E. 1041 (1889).

JUDICIAL DECISIONS

Derivation of section. - See Lenney v. Finley, 118 Ga. 718 , 45 S.E. 593 (1903) (see O.C.G.A. § 44-7-5 ).

Statute is a rule of evidence as to what proof will authorize the implication of the relation of landlord and tenant and a consequent implied obligation to pay rent. Lathrop v. Standard Oil Co., 83 Ga. 307 , 9 S.E. 1041 (1889); Lenney v. Finley, 118 Ga. 718 , 45 S.E. 593 (1903) (see O.C.G.A. § 44-7-5 ).

Nature of relationship required. - Distress for rent will lie only if the relation of landlord and tenant exists between the parties. Cohen v. Broughton, 54 Ga. 296 (1875); Lathrop v. Standard Oil Co., 83 Ga. 307 , 9 S.E. 1041 (1889); Cleveland v. Watson, 51 Ga. App. 37 , 179 S.E. 586 (1935).

Statute is inapplicable if entry was not under the plaintiff or if the possession is adverse to the plaintiff. Atlanta, K. & N. Ry. v. McHan, 110 Ga. 543 , 35 S.E. 634 (1900); Lenney v. Finley, 118 Ga. 718 , 45 S.E. 593 (1903); New v. Quinn, 31 Ga. App. 102 , 119 S.E. 457 (1923) (see O.C.G.A. § 44-7-5 ).

Possession adverse to landlord. - When the entry is under one holding adversely to another, the latter is not the landlord of the tenant. Sims v. Price, 123 Ga. 97 , 50 S.E. 961 (1905).

Obligation to pay reasonable rent implied. - When one enters into possession of the premises of another under the relation of a tenant, and no amount of compensation is agreed upon, the law will imply an undertaking to pay such as will be fair and reasonable. Rome R.R. v. Chattanooga, R. & C.R.R., 94 Ga. 422 , 21 S.E. 69 (1894); Taylor v. Coney, Lovejoy & Co., 101 Ga. 655 , 28 S.E. 974 (1897).

Termination of gratuitous tenancy at will. - When a property owner gave notice to the tenant that the gratuitous tenancy at will was terminated, and there was evidence of the reasonable rental value, the owner was entitled to rental payments beginning 60 days after the demand for possession. Auburn Maranatha Inst., Inc. v. Georgia Korean Church, 232 Ga. App. 415 , 501 S.E.2d 846 (1998).

Vendor remaining in possession. - When one party conveys land to another, and it is agreed between the parties that the vendor shall remain in possession until a fixed time when the vendor shall surrender possession to the vendee, the relation of landlord and tenant exists between the two by implication under this statute, the vendor being tenant. Prichard v. Tabor, 104 Ga. 64 , 30 S.E. 415 (1898); Hand v. Matthews, 153 Ga. 75 , 111 S.E. 408 (1922); Chason v. O'Neal, 158 Ga. 725 , 124 S.E. 519 (1924) (see O.C.G.A. § 44-7-5 ).

Security deed given but possession retained. - One who makes to a creditor for the purpose of securing a debt a deed to land, but retains possession of the land, does not thereby become the tenant either of such creditor or of the creditor's vendee. Finn v. Reese, 36 Ga. App. 591 , 137 S.E. 574 (1927). See also Ray v. Boyd, 96 Ga. 808 , 22 S.E. 916 (1895).

Tenant's disclaimer of owner's title. - If A owns land that is the occupancy of B, the law will imply a liability on the part of B to pay rent for the lands unless B expressly disclaims holding possession under A. Jacks & Bros. v. Mowry, 30 Ga. 143 (1860).

When tenant's possession not interfered with. - Even if title is not shown, a landlord is still entitled to collect rent from one who enters into possession as the landlord's tenant, when the tenant's possession is not interfered with by superior title. Goodman v. Friedman, 117 Ga. App. 475 , 161 S.E.2d 71 , cert. dismissed, 224 Ga. 497 , 162 S.E.2d 295 (1968).

Lease in third party excludes presumption of relationship. - When it appears that a third party has the right, under an express lease contract with the plaintiff, to the use and occupancy of the premises during the time for which rent is claimed against the defendant, there is no room for the implication that the relation of landlord and tenant exists between the plaintiff and the defendant. Lenney v. Finley, 118 Ga. 718 , 45 S.E. 593 (1903).

Rental contract with third party as landlord. - When there was no proof to establish the relation of landlord and tenant between the parties, and the evidence showed that the defendant held the premises under a contract of rental with a person other than the plaintiff administrator or plaintiff's intestate, no obligation for rent existed. Kaufman v. Treadaway, 40 Ga. App. 274 , 149 S.E. 325 (1929).

Vague contract of sale resulting in tenancy at will. - In a dispossessory action, the trial court correctly found a contract for sale of land to be too vague, indefinite, and uncertain to be enforceable. There being no valid contract for the sale of the property, the trial court's ruling that defendants were tenants at will was not error. Burns v. Pugmire, 194 Ga. App. 898 , 392 S.E.2d 62 (1990).

Lessor and third party. - Lessor of real property has no right of action against a third party for the use and occupation of a portion of the leased premises during the period of the lease and at a time when the lessee was entitled to the possession of the property. Since there is no injury to the freehold, the right of action, if any, is in the lessee. Southern Ry. v. State, 116 Ga. 276 , 42 S.E. 508 (1902); Lenney v. Finley, 118 Ga. 718 , 45 S.E. 593 (1903).

If, relative to the plaintiff and to the receiver, the defendant was nothing but a trespasser, the relation of landlord and tenant could not have existed between plaintiff and the defendant, or between the defendant and the receiver, by the express terms of this statute. Hearn v. Huff, 6 Ga. App. 56 , 64 S.E. 298 (1909) (see O.C.G.A. § 44-7-5 ).

Purchaser from trustee in bankruptcy. - When the purchaser of a stock of goods from trustee in bankruptcy continued in possession, no such contract is implied. Stevens v. McCurdy, 124 Ga. 456 , 52 S.E. 762 (1905).

Successor of tenant at will. - Action for use and occupation of land will not lie against successor to tenant at will for entry was not under plaintiff. Atlanta, K. & N. Ry. v. McHan, 110 Ga. 543 , 35 S.E. 634 (1900).

Expiration of cropper's contract. - When contract of cropper had expired, and the defendant had ceased to occupy the premises as a cropper but occupied the premises under a different relationship, the defendant was presumably a tenant. Malone v. Floyd, 50 Ga. App. 701 , 179 S.E. 176 (1935).

Effect of reliance on express contract. - Having elected to rely on an express contract, a party is not entitled to rely on an implied contract. Willis v. Kemp, 130 Ga. App. 758 , 204 S.E.2d 486 (1974).

Cited in Sharpe v. Mathews, 123 Ga. 794 , 51 S.E. 706 (1905); Roberts v. Roberts, 39 Ga. App. 810 , 148 S.E. 606 (1929); Anderson v. Watkins, 42 Ga. App. 319 , 156 S.E. 43 (1930); Daniel v. Radford, 47 Ga. App. 282 , 170 S.E. 302 (1933); Young v. Wilson, 183 Ga. 59 , 187 S.E. 44 (1936); Price v. Bloodworth, 55 Ga. App. 268 , 189 S.E. 925 (1937); Stephens v. Pickering, 192 Ga. 199 , 15 S.E.2d 202 (1941); Faircloth v. State, 69 Ga. App. 441 , 26 S.E.2d 118 (1943); Chamblee-Camp Gordon Water, Light & Power Co. v. Flowers, 70 Ga. App. 45 , 27 S.E.2d 234 (1943); Cooper v. Vaughan, 81 Ga. App. 330 , 58 S.E.2d 453 (1950); Smith v. Abercrombie, 89 Ga. App. 129 , 78 S.E.2d 826 (1953); Bank Bldg. & Equip. Corp. v. Georgia State Bank, 132 Ga. App. 762 , 209 S.E.2d 82 (1974).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 408.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 988.

ALR. - Surrender and acceptance of term as affecting right to recover rent or an obligation given for rent, 18 A.L.R. 957 ; 58 A.L.R. 906 .

Where rent payable, 23 A.L.R. 883 .

Effect of nonhabitability of leased dwelling or apartment, 29 A.L.R. 52 ; 34 A.L.R. 711 .

Validity and enforceability of provision for renewal of lease at rental not determined, 30 A.L.R. 572 ; 68 A.L.R. 157 ; 166 A.L.R. 1237 .

Right to compensation for board furnished to relatives of wife, 36 A.L.R. 677 .

Lease of property for sale of liquor in violation of law as affecting right to rent, 42 A.L.R. 1036 .

Crop failure as affecting liability for rent, 51 A.L.R. 1291 .

Surrender and acceptance of term as affecting right to recover rent or on obligation given for rent, 58 A.L.R. 906 .

Tenant's liability for rent subsequent to appointment of receiver in suit or proceeding by landlord or by parties in privity with landlord, 61 A.L.R. 372 .

Liability of lessee's assignee to lessor for rent where he abandons possession, 70 A.L.R. 1102 .

Claim of lessor or privy against receiver of lessee in respect of leasehold which latter elects not to take over, 84 A.L.R. 892 ; 111 A.L.R. 556 .

Status as licensee or lessee of one in occupation of land in anticipation of the making or execution of a lease, 123 A.L.R. 700 .

Validity, construction, and application of statute or ordinance which precludes recovery of rent in case of occupancy of building which does not conform to building and health regulations, or where certificate of conformity has not been issued, 144 A.L.R. 259 .

Seller's, bailor's, lessor's, or lender's knowledge of the other party's intention to put the property or money to an illegal use as defense to action for purchase price, rent, or loan, 166 A.L.R. 1353 .

Factors and elements considered in fixing rental for extended or renewal term where removal or extension clause leaves amount of rental for future determination, 6 A.L.R.2d 448.

Vendee's liability for use and occupancy of premises, where vendor disaffirms an unenforceable land contract, 49 A.L.R.2d 1169.

Right of tenant to recover rentals previously paid to one mistakenly believed to be owner of property, 57 A.L.R.2d 350.

Landlord and tenant: constructive eviction based on flooding, dampness, or the like, 33 A.L.R.3d 1356.

44-7-6. Tenancy at will - Creation when no time period specified.

Where no time is specified for the termination of a tenancy, the law construes it to be a tenancy at will.

(Orig. Code 1863, § 2271; Code 1868, § 2264; Code 1873, § 2290; Code 1882, § 2290; Civil Code 1895, § 3132; Civil Code 1910, § 3708; Code 1933, § 61-104; Ga. L. 1952, p. 201, § 1.)

Law reviews. - For comment on Metzer v. Connally Realty Co., 75 Ga. App. 274 , 43 S.E.2d 169 (1947), see 10 Ga. B.J. 229 (1947).

JUDICIAL DECISIONS

Creation of tenancy at will. - Tenancies at will in Georgia may be created by express contract, by force of statute, when a contract creating the relationship of landlord and tenant is made in parol for a greater time than one year, or by implication, as for example, if there was no original express contract for a definite term. Stepp v. Richman, 75 Ga. App. 169 , 42 S.E.2d 773 (1947).

Creditor won relief from the automatic stay per 11 U.S.C. § 362 to pursue any rights that the creditor had under Georgia law such as those provided in O.C.G.A. §§ 44-7-6 and 44-7-7 under which the creditor was entitled to terminate a tenancy at will with sixty days' notice. If, as the debtor argued, the creditor's acceptance of "rent" created a tenancy at will under state law, the existence of a state law right to terminate that tenancy constituted "cause" for relief from stay. In re Nittolo, Bankr. (Bankr. N.D. Ga. Mar. 16, 2012).

Term in dispute. - Statute is not applicable merely because there is a disagreement over the term of the tenancy. Harris v. Cleghorn, 121 Ga. 314 , 48 S.E. 959 (1904); Buice v. McCarty-Johnstone Co., 28 Ga. App. 192 , 110 S.E. 503 (1922) (see O.C.G.A. § 44-7-6 ).

Tenant holding over. - Provision in a written lease contract conferring upon lessee privilege of renewal of lease for five years at same rental is a covenant to grant an estate, and not a present demise; consequently, upon expiration of original lease, the execution of a new lease is necessary, and the lessee holding over after the expiration of the original lease becomes a tenant at will. Walker v. Brooks Simmons Co., 44 Ga. App. 470 , 161 S.E. 659 (1931).

Right of first refusal to re-lease in expired written leases. - Right of first refusal to re-lease given to a corporation under written leases for nursing home facilities was not a general term or condition of the leases; even assuming there was an extension of the written leases, it terminated, and any lease beyond that time was, at best, an oral agreement for an indefinite period of time, hence unenforceable; because the leases limited the time for the right of first refusal to "during the lease term" and because the corporation was a tenant-at-will after the expiration of the written leases, the corporation could not enforce the right of first refusal contained in the expired leases. Mariner Healthcare, Inc. v. Foster, 280 Ga. App. 406 , 634 S.E.2d 162 (2006).

Tenancy at will not created. - Although the tenant in a dispossessory action argued that the tenant was a tenant at will and entitled to 60 days notice of the termination of the tenant's tenancy under O.C.G.A. § 44-7-7 , the tenant admitted that the tenant entered into a 10-year lease and thus was not a tenant at will; in any event, there was no requirement that the lease or the tenancy be terminated before filing a dispossessory action for nonpayment of rent. Siratu v. Diane Inv. Group, 298 Ga. App. 127 , 679 S.E.2d 359 (2009).

Term dependent on contingency. - When the plaintiff agreed orally with the defendant that the plaintiff could occupy a house of the defendant until certain other property was sold by the plaintiff and the duration of the tenancy by its express terms depended upon the happening of the contingency, such an agreement, not naming any term, cannot properly be considered as a lease for years, but created a tenancy at will. Heaton v. Fulton Nat'l Bank, 46 Ga. App. 773 , 169 S.E. 216 (1933).

Oral agreement to rent real property that did not specify a date for termination was a tenancy at will and the trial court's judgment ordering two tenants to vacate the property after the landlord gave them 60 days' notice that the landlord was terminating the tenancy was upheld. Gu v. Liu, 262 Ga. App. 443 , 585 S.E.2d 740 (2003).

Cited in Smith v. Hightower, 80 Ga. App. 293 , 55 S.E.2d 872 (1949); Cooper v. Vaughan, 81 Ga. App. 330 , 58 S.E.2d 453 (1950); City Council v. Henry, 92 Ga. App. 408 , 88 S.E.2d 576 (1955); Roberts v. Graham, 98 Ga. App. 309 , 105 S.E.2d 801 (1958); Pitman v. Griffeth, 131 Ga. App. 489 , 206 S.E.2d 115 (1974); Thomas v. Clark, 178 Ga. App. 823 , 344 S.E.2d 754 (1986); Williams v. State, 261 Ga. App. 511 , 583 S.E.2d 172 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Rule stated. - Parties may agree orally or in writing to any manner of termination the parties desire, which manner shall be binding upon the parties; however, if no time is specified for the termination of the lease, the law construes the lease to be a tenancy at will. 1967 Op. Att'y Gen. No. 67-59.

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 69 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 157.

ALR. - Deed or lease of real property as affecting rights and remedies available against tenant at will or by sufferance, 151 A.L.R. 369 .

Indefiniteness as to term in option for extension or renewal of lease, 172 A.L.R. 421 .

Waiver or estoppel as to notice requirement for exercising option to renew or extend lease, 32 A.L.R.4th 452.

What constitutes tenant's holding over leased premises, 13 A.L.R.5th 169.

44-7-7. Tenancy at will - Notice required for termination.

Sixty days' notice from the landlord or 30 days' notice from the tenant is necessary to terminate a tenancy at will.

(Orig. Code 1863, § 2272; Code 1868, § 2265; Code 1873, § 2291; Code 1882, § 2291; Civil Code 1895, § 3133; Civil Code 1910, § 3709; Code 1933, § 61-105; Ga. L. 1962, p. 463, § 1.)

Law reviews. - For article surveying real property law, see 34 Mercer L. Rev. 255 (1982).

JUDICIAL DECISIONS

Applicability to tenant at sufferance. - Tenant at sufferance is not entitled to notice to quit. Willis v. Harrell, 118 Ga. 906 , 45 S.E. 794 (1903); Carruth v. Carruth, 77 Ga. App. 131 , 48 S.E.2d 387 (1948); Wilson v. Lee, 129 Ga. App. 647 , 200 S.E.2d 480 (1973).

Tenant became a tenant at sufferance by continuing to maintain the tenant's billboards on the property without the city's consent after the city purchased the property and the amended lease was terminated and, thus, the tenant was not entitled to 60-days notice of termination. Outfront Media, LLC v. City of Sandy Springs, 356 Ga. App. 405 , 847 S.E.2d 597 (2020).

Not applicable to failure to pay rent. - Statute is applicable to the refusal of the tenant to vacate after the tenant had been given the two months' notice to quit, required by this statute, and not upon the failure to pay rent when due. Morris v. Battey, 28 Ga. App. 90 , 110 S.E. 342 (1922); Craig v. Day, 92 Ga. App. 339 , 88 S.E.2d 451 (1955) ??? (see O.C.G.A. § 44-7-7 ).

Although the tenant in a dispossessory action argued that the tenant was a tenant at will and entitled to 60 days notice of the termination of the tenant's tenancy under O.C.G.A. § 44-7-7 , the tenant admitted that the tenant entered into a 10-year lease and thus was not a tenant at will; in any event, there was no requirement that the lease or the tenancy be terminated before filing a dispossessory action for nonpayment of rent. Siratu v. Diane Inv. Group, 298 Ga. App. 127 , 679 S.E.2d 359 (2009).

Notice is not demand for possession. - Two months' notice required by this statute is not such a demand for possession of the premises as will warrant the issuance by the landlord of a summary proceeding to dispossess the tenant. Ginn v. Johnson, 74 Ga. App. 35 , 38 S.E.2d 753 (1946); Goff v. Cooper, 110 Ga. App. 339 , 138 S.E.2d 449 (1964); Trumpet v. Brown, 215 Ga. App. 299 , 450 S.E.2d 316 (1994) ??? (see O.C.G.A. § 44-7-7 ).

Condition precedent for eviction. - Notice to quit is a condition precedent for an action to evict a tenant at will. Carruth v. Carruth, 77 Ga. App. 131 , 48 S.E.2d 387 (1948).

Defense to dispossessory warrant. - Failure by the landlord to give the statutory notice of two months would be a good defense to a dispossessory warrant. Imperial Hotel Co. v. Martin, 199 Ga. 801 , 35 S.E.2d 502 (1945).

Actual receipt of notice. - Though notice to quit was not served upon the proper agent of the tenant, if the tenant got the notice it is sufficient. Godfrey v. Walker, 42 Ga. 562 (1871).

When the landlord, more than 60 days before the expiration of the term of the lease, told the tenants that the landlord would sell the house after the tenants advised the landlord of their inability to buy the house, and placed a For Sale sign in the yard, notice to quit was satisfactorily given. Burns v. Reves, 217 Ga. App. 316 , 457 S.E.2d 178 (1995).

Notice to attorney. - When the matter had been referred to the attorneys by both parties, the 60 days' notice to vacate the premises given by the attorney for the landlord to the attorney for the tenant is a sufficient compliance with this statute. Farlow v. Central Oil Co., 74 Ga. App. 349 , 39 S.E.2d 561 (1946); Proffitt v. Housing Sys., 154 Ga. App. 114 , 267 S.E.2d 650 (1980) ??? (see O.C.G.A. § 44-7-7 ).

Creation of tenancy by contract or operation of law immaterial. - There is no distinction recognized by our Code between a tenant at will by express agreement and a tenant at will by operation of law so far as the right to terminate the tenancy by either party is concerned by giving the required notice. Western Union Tel. Co. v. Fain & Parrott, 52 Ga. 18 (1874).

Landlord must prove notice. - Burden of proof is on the landlord to show that the required notice was timely given. Harrell v. Souter, 27 Ga. App. 531 , 109 S.E. 301 (1921); Howington v. W.H. Ferguson & Sons, 147 Ga. App. 636 , 249 S.E.2d 687 (1978).

Emoluments. - Tenant at will is entitled to notice to quit, and to emoluments. Cody v. Quarterman, 12 Ga. 386 (1852); Nicholes v. Swift, 118 Ga. 922 , 45 S.E. 708 (1903).

Expiration of term. - Term of a tenant at will does not expire at the instance of the landlord until two months after notice from the landlord to terminate the tenancy. Byrne v. Bearden, 27 Ga. App. 149 , 107 S.E. 782 (1921); Harrell v. Souter, 27 Ga. App. 531 , 109 S.E. 301 (1921).

Purchaser may terminate tenancy. - Purchaser of realty from a landlord during the term of a tenant at will is entitled, upon notice as prescribed by law, to terminate the tenancy, and thereafter to dispossess the tenant. Willis v. Harrell, 118 Ga. 906 , 45 S.E. 794 (1903); Tatum v. Padrosa, 24 Ga. App. 259 , 100 S.E. 653 (1919).

Contract for sale does not terminate tenancy. - When neither party to the purchase and sale of a home attempted to terminate the tenancy of the purchaser, the agreement did not terminate the tenancy or the obligation of the purchaser to pay rent. Dismuke v. Abbott, 233 Ga. App. 844 , 505 S.E.2d 58 (1998).

Effect of automatic stay. - Debtor failed to prove by a preponderance of the evidence that the debtor's current Chapter 13 case was filed in good faith as to the debtor's landlord when the debtor's attempt to assume the lease and the debtor's past dealings with the landlord indicated that the petition was filed for the sole purpose of hindering the landlord's ability to dispossess the debtor. Assuming without deciding that the debtor could attempt to assume the debtor's lease, once assumed the debtor would obtain no more rights in the lease than the debtor held on the petition date and, as the debtor's interest in property as of that date was, at best, a tenancy at will, then despite the bankruptcy filing, the landlord would still have the right to terminate the debtor's tenancy under Georgia law by providing 60 days' notice. In re Bowman, 555 Bankr. 918 (Bankr. S.D. Ga. 2016).

Parol agreement with indefinite term. - When the term of the parol agreement was indefinite, the defendant was a tenant at will of the plaintiff, and the plaintiff could terminate the tenancy by giving the defendant two months' notice. Heaton v. Fulton Nat'l Bank, 46 Ga. App. 773 , 169 S.E. 216 (1933).

Acceptance of rent from tenant holding over. - If a landlord seeks to regain possession of the landlord's premises on the ground that the tenant is holding over beyond the term, the landlord's acceptance of rent which has accrued subsequent to the time the dispossessory proceedings are initiated and up to the time of trial is not inconsistent with the landlord's demand for possession of the property and does not require a finding that a new tenancy at will has been created. Since there was no suggestion in the record that the landlord accepted a rent payment before instituting the dispossessory proceedings, the evidence did not support a finding that the original notice of termination and demand for possession were waived. Williams v. Clayton Park Mobile Home Court, 166 Ga. App. 359 , 304 S.E.2d 483 (1983).

When a lessor terminated a lease for reasons other than nonpayment of rent, and the lessee held over, acceptance of rent from the lessee did not convert the tenancy at sufferance to one of tenancy at will. Solon Automated Servs., Inc. v. Corporation of Mercer Univ., 221 Ga. App. 856 , 473 S.E.2d 544 (1996).

Creditor won relief from the automatic stay per 11 U.S.C. § 362 to pursue any rights that the creditor had under Georgia law such as those provided in O.C.G.A. §§ 44-7-6 and 44-7-7 under which the creditor was entitled to terminate a tenancy at will with sixty days' notice. If, as the debtor argued, the creditor's acceptance of "rent" created a tenancy at will under state law, the existence of a state law right to terminate that tenancy constituted "cause" for relief from stay. In re Nittolo, Bankr. (Bankr. N.D. Ga. Mar. 16, 2012).

Notice found adequate. - Oral agreement to rent real property that did not specify a date for termination was a tenancy at will, and the trial court's judgment ordering two tenants to vacate the property after the landlord gave them 60 days' notice that the landlord was terminating the tenancy was upheld. Gu v. Liu, 262 Ga. App. 443 , 585 S.E.2d 740 (2003).

Cited in Weed v. Lindsay & Morgan, 88 Ga. 686 , 15 S.E. 836 , 20 L.R.A. 33 (1892); Roberson v. Simons, 109 Ga. 360 , 34 S.E. 603 (1899); Nicholes v. Swift, 118 Ga. 922 , 45 S.E. 708 (1903); Parham v. Kennedy, 60 Ga. App. 52 , 2 S.E.2d 765 (1939); Mattox v. Chapman, 67 Ga. App. 465 , 20 S.E.2d 859 (1942); Lamons v. Good Foods, Inc., 195 Ga. 475 , 24 S.E.2d 678 (1943); In re Freeman, 49 F. Supp. 163 (S.D. Ga. 1943); Minor v. Sutton, 73 Ga. App. 253 , 36 S.E.2d 158 (1945); Kenney v. Pitts, 73 Ga. App. 450 , 36 S.E.2d 820 (1946); Simpson v. Blanchard, 73 Ga. App. 843 , 38 S.E.2d 634 (1946); Jackson v. Hardin, 74 Ga. App. 39 , 38 S.E.2d 695 (1946); Pace v. Radcliff Mem. Presbyterian Church, 76 Ga. App. 840 , 47 S.E.2d 588 (1948); Smith v. Hightower, 80 Ga. App. 293 , 55 S.E.2d 872 (1949); City Council v. Henry, 92 Ga. App. 408 , 88 S.E.2d 576 (1955); Stevenson v. Allen, 94 Ga. App. 123 , 93 S.E.2d 794 (1956); Ammons v. Central of Ga. Ry., 215 Ga. 758 , 113 S.E.2d 438 (1960); Moon v. Stone Mt. Mem. Ass'n, 223 Ga. 696 , 157 S.E.2d 461 (1967); Merry v. Georgia Big Boy Mgt., Inc., 135 Ga. App. 707 , 218 S.E.2d 694 (1975); Harkins v. Harkins, 153 Ga. App. 104 , 264 S.E.2d 572 (1980); Knighton v. Gary, 163 Ga. App. 394 , 295 S.E.2d 138 (1982); Cheeves v. Horne, 167 Ga. App. 786 , 307 S.E.2d 687 (1983); D. Jack Davis Corp. v. Karp, 175 Ga. App. 482 , 333 S.E.2d 685 (1985); Craft's Ocean Court, Inc. v. Coast House Ltd., 255 Ga. 336 , 338 S.E.2d 277 (1986); DeKalb County v. Glaze, 189 Ga. App. 1 , 375 S.E.2d 66 (1988); Alexander v. Steining, 197 Ga. App. 328 , 398 S.E.2d 390 (1990); Diner One, Inc. v. Bank South, 219 Ga. App. 702 , 466 S.E.2d 234 (1995); Williams v. State, 261 Ga. App. 511 , 583 S.E.2d 172 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 73, 825.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 173.

ALR. - Construction of provision for termination of lease in event of sale of property, 35 A.L.R. 518 ; 116 A.L.R. 931 ; 163 A.L.R. 1019 .

Computation and requisites of period of notice given to terminate tenancy, 86 A.L.R. 1346 .

Waiver or revocation by landlord of notice given by him to terminate tenancy, 120 A.L.R. 557 .

Conveyance or lease by landlord as termination of existing tenancy at will, 120 A.L.R. 1006 .

Deed or lease of real property as affecting rights and remedies available against tenant at will or by sufferance, 151 A.L.R. 369 .

Right of landlord legally entitled to possession to dispossess tenant without legal process, 6 A.L.R.3d 177.

44-7-8. Tenancy at will - Right of tenant to emblements.

The tenant at will is entitled to his emblements if the crop is sowed or planted before the landlord gives him notice of termination of the tenancy, if the tenancy is terminated by the judicial sale of the estate by the landlord or by death of the landlord or tenant, or if for any other cause the tenancy is suddenly terminated.

(Orig. Code 1863, § 2273; Code 1868, § 2266; Code 1873, § 2292; Code 1882, § 2292; Civil Code 1895, § 3134; Civil Code 1910, § 3710; Code 1933, § 61-106.)

JUDICIAL DECISIONS

In general. - Tenant is entitled to the tenant's emblements, if any, as provided by this statute. Western Union Tel. Co. v. Fain & Parrott, 52 Ga. 18 (1874); Chappell v. Boyd, 56 Ga. 578 (1876) ??? (see O.C.G.A. § 44-7-8 ).

Applicable regardless of how terminated. - Tenant at will or tenant's legal representative are entitled to the emblements, whether tenancy is terminated by notice or by death of tenant. Morgan v. Morgan, 65 Ga. 493 (1880).

Doctrine of emblements does not arise when tenancy is not one at will, but is instead for a definite period. Knighton v. Gary, 163 Ga. App. 394 , 295 S.E.2d 138 (1982).

Rights where land sold under execution. - Purchaser at an execution sale acquires the title of the owner, and when it is rented to a tenant, though the rental contract was made subsequent to the judgment, the purchaser acquires only the interests of the owner. If the purchaser converts matured crop to the purchaser's own use, the tenant may recover the value in trover. Blitch v. Lee, 115 Ga. 112 , 41 S.E. 275 (1902); Garrison v. Parker, 117 Ga. 537 , 43 S.E. 849 (1903).

Failure to assert counterclaim in dispossessor action. - Trial court correctly disallowed evidence of emblements or emoluments in a dispossessory action after the defendant failed to assert any such claim in the defendant's answer or as a counterclaim, to proffer evidence of details of the alleged specific improvements that might be the basis for such a claim, or to proffer evidence as to an agreement between the parties for reimbursement of the cost of any improvements. Gentry v. Chateau Properties, 236 Ga. App. 371 , 511 S.E.2d 892 (1999).

Cited in Bristol Sav. Bank v. Nixon, 169 Ga. 282 , 150 S.E. 148 (1929).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 69 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 156.

ALR. - Duty and liability of farm tenant in respect to livestock leased with farm, 32 A.L.R. 857 .

Rights, as between landlord and tenant, in respect of crops unharvested at expiration of tenancy (doctrine of emblements), 141 A.L.R. 1240 .

Deed or lease of real property as affecting rights and remedies available against tenant at will or by sufferance, 151 A.L.R. 369 .

Rights of lessee to minerals extracted during the lease but remaining on the premises after its termination, 51 A.L.R.2d 1121.

44-7-9. Estoppel to dispute landlord's title or attorn to another.

The tenant may not dispute his landlord's title or attorn to another claimant while he is in actual physical occupation, while he is performing any active or passive act or taking any position whereby he expressly or impliedly recognizes his landlord's title, or while he is taking any position that is inconsistent with the position that the landlord's title is defective.

(Orig. Code 1863, § 2265; Code 1868, § 2257; Code 1873, § 2283; Code 1882, § 2283; Civil Code 1895, § 3122; Civil Code 1910, § 3698; Code 1933, § 61-107; Ga. L. 1967, p. 774, § 1.)

JUDICIAL DECISIONS

In general. - Tenant may not dispute the title of the tenant's landlord without first surrendering possession. Doe v. Roe & Beckom, 33 Ga. 163 (1862); Richardson v. Harvey, 37 Ga. 224 (1867); Gleaton v. Gleaton, 37 Ga. 650 (1868); Grizzle v. Gaddis, 75 Ga. 350 (1885); Beckham v. Maples, 95 Ga. 773 , 22 S.E. 894 (1895); Sparks v. Conrad, 99 Ga. 643 , 27 S.E. 764 (1896); Grizzard v. Roberts, 110 Ga. 41 , 35 S.E. 291 (1900); Veazey v. Sinclair Ref. Co., 66 Ga. App. 730 , 19 S.E.2d 53 (1942); Salter v. Salter, 81 Ga. App. 864 , 60 S.E.2d 424 (1950).

Exception to rule. - If the landlord parts with the title to the disputed premises or if the premises be lawfully sold under execution against the landlord, the tenant may in good faith attorn to the purchaser. Roe v. Doe, 48 Ga. 165 , 15 Am. R. 656 (1873); Raines v. Hindman, 136 Ga. 450 , 71 S.E. 738 , 38 L.R.A. (n.s.) 863, 16 Am. Ann. Cas. 347 (1911); Hines v. Lavant, 158 Ga. 336 , 123 S.E. 611 (1924); Salter v. Salter, 81 Ga. App. 864 , 60 S.E.2d 424 (1950).

Rationale for rule. - Reason for the rule is that one who goes into possession under another shall not be permitted to deny the character in which that one went in. A.F. Burnett & Bro. v. William Rich & Co., 45 Ga. 211 (1872).

Extension of rule. - As a general rule, a tenant shall never be permitted to controvert the landlord's title, or set up against the landlord a title acquired by the tenant during the tenancy which is hostile in its character to that which the tenant acknowledged in accepting the demise, and this rule extends to a tenant holding over as well as to an undertenant, assignee, or other person claiming under the lessee. Veazey v. Sinclair Ref. Co., 66 Ga. App. 730 , 19 S.E.2d 53 (1942).

Change of character of holding. - Tenant cannot change the character of the tenant's holding without the consent of the landlord, even after the expiration of the original rent period, until the tenant surrenders the premises. This is true notwithstanding the person putting the tenant in possession may not have owned the land. Morgan v. Morgan, 65 Ga. 493 (1880); Grizzle v. Gaddis, 75 Ga. 350 (1885); Grizzard v. Roberts, 110 Ga. 41 , 35 S.E. 291 (1900); Johnson v. Thrower, 117 Ga. 1007 , 44 S.E. 846 (1903); Hodges v. Waters, 124 Ga. 229 , 52 S.E. 161 , 110 Am. St. R. 166 , 1 L.R.A. (n.s.) 1181 (1905); Bullard v. Hudson, 125 Ga. 393 , 54 S.E. 132 (1906); Watters v. Hertz, 135 Ga. 804 , 70 S.E. 338 (1911); New v. Quinn, 31 Ga. App. 102 , 119 S.E. 457 (1923).

Trustee as landlord. - Trustee is bound to perform the duty, enjoined by this statute upon all landlords of keeping the premises in repair, and especially so when the landlord expressly undertook by agreement with the tenant so to do. Miller v. Smythe, 92 Ga. 154 , 18 S.E. 46 (1893) (see O.C.G.A. § 44-7-9 ).

Action by tenant against subtenant. - In dispossessory warrant proceeding, brought by tenant against subtenant for nonpayment of rent, subtenant could not set up a superior title in the owner of the premises when the owner had not elected to treat the subtenant as the owner's tenant. Veazey v. Sinclair Ref. Co., 66 Ga. App. 730 , 19 S.E.2d 53 (1942).

Attornment to vendee. - When the landlord parts with the landlord's title pending the lease, the tenant in the absence of any reservation to the contrary becomes the tenant of the purchaser. Grizzle v. Gaddis, 75 Ga. 350 (1885); Stewart Bros. v. Cook, 24 Ga. App. 509 , 101 S.E. 304 (1919).

Landlord's successor in title. - In a summary proceeding by a landlord to dispossess a tenant as one holding over beyond the expiration of one's term, it is no defense that the landlord's title to the premises expired before the institution of the dispossessory proceeding, and that the tenant is now holding under the landlord's successor in title, since it does not appear that after the creation of the tenancy the landlord parted with title, or that the alleged successor to the landlord's title is in privity with it. Lee v. Lacy, 26 Ga. App. 126 , 105 S.E. 619 , cert. denied, 26 Ga. App. 801 (1921).

Attacking title of former landlord. - Rule estops the tenant from disputing the landlord's title so long as the tenant is in possession. The rule does not prevent the tenant from attacking the title of the former landlord, but requires as a prerequisite to such attack that the tenant surrender possession. Barnett v. Lewis, 194 Ga. 203 , 20 S.E.2d 912 (1942).

Vendee purchasing apparent title from tenant. - Vendee of a tenant who has an apparent legal title and from whom the purchase was made, with or without notice of the tenancy, cannot dispute the title of the landlord, in an action of complaint for land, until the vendee has restored the possession to the tenant. Vada Naval Stores Co. v. Sapp, 148 Ga. 677 , 98 S.E. 79 (1919).

Lessee-landlord's term expired. - Lessee whose terms under an unsigned lease for five years has expired cannot evict subtenant who has not attorned to owner of land. Beasley v. Lee, 155 Ga. 634 , 117 S.E. 743 (1923).

Tenant in possession claiming title when term begins. - Rule that a tenant cannot set up a title to the rented premises in opposition to that claimed by the landlord is applicable, although at the time the contract of rent was made the tenant was in possession, claiming title to the premises. Johnson v. Thrower, 117 Ga. 1007 , 44 S.E. 846 (1903); Willis v. Harrell, 118 Ga. 906 , 45 S.E. 794 (1903); Wills v. Purcell, 198 Ga. 666 , 32 S.E.2d 392 (1944).

Tenant returning to premises. - When a landlord enters into a valid agreement with a tenant by the terms of which the landlord agrees to accept symbolical delivery of the premises on the last day of the term, the vacation of the premises on the date stipulated is a complete surrender of the premises, and a tenant who thereafter moves back on the premises under a claim of title is not the tenant of the former landlord and is not estopped to dispute title to the premises. Lasseter v. Fenn, 66 Ga. App. 173 , 17 S.E.2d 303 (1941).

Tenant of husband and wife as to homestead property. - When the head of a family rented land set apart as an exemption under former Civil Code 1910, § 3425 (see O.C.G.A. § 44-13-100 ), after having abandoned his wife and moved away from the exempted land, the principle that a tenant cannot attorn to another claimant is not applicable, as the tenant in such circumstances will be treated as the tenant of the wife when she is the sole beneficiary of the homestead exemption. Wood v. Wood, 171 Ga. 389 , 155 S.E. 678 (1930).

Tenant's heirs cannot dispute the landlord's title. Lewis v. Adams, 61 Ga. 559 (1878).

Tenant claiming life estate. - When a tenant alleged that the landlord had orally granted the tenant a life estate in a portion of property the tenant had farmed under a series of crop leases, by executing a lease covering all of the property, the tenant was estopped from taking the inconsistent position of claiming a life estate in a portion thereof. Eslinger v. Keith, 218 Ga. App. 742 , 463 S.E.2d 501 (1995).

Since plaintiff never signed a lease on a lot, but paid rent on a month-to-month basis, plaintiff was estopped from asserting a life estate ownership interest in the property and thereby disputing the landlord's title to the property during a dispossessory hearing. Gentry v. Chateau Properties, 236 Ga. App. 371 , 511 S.E.2d 892 (1999).

Specific performance to sell land. - Tenant in possession of land is not estopped from seeking specific performance by administrator of deceased landlord's estate of landlord's agreement to devise land to tenant since such an agreement does not involve a dispute of the landlord's title, but necessarily amounts to an admission by the tenant that the landlord had title. Bowles v. White, 206 Ga. 433 , 57 S.E.2d 547 (1950).

Void judicial sale. - If after a judicial sale of land, which was void, the defendant in fi. fa. treats the sale as valid and enters into a contract with the purchaser whereby the defendant becomes the tenant of the purchaser and remains in possession of the land under the new relation of the parties as landlord and tenant, the defendant will be estopped by so remaining in possession from disputing the title of the landlord. Bryant v. Towns, 177 Ga. 571 , 170 S.E. 669 (1933).

Fraudulent title. - Even if title is fraudulent, the tenant has no right to dispute the title. Gleaton v. Gleaton, 37 Ga. 650 (1868); Tufts v. DuBignon, 61 Ga. 322 (1878).

Misrepresentations of lessor. - Estoppel is not operative when lessees' recognition of the lessors' title has been induced by misrepresentations of the latter. Goodman v. Friedman, 117 Ga. App. 475 , 161 S.E.2d 71 , cert. dismissed, 224 Ga. 497 , 162 S.E.2d 295 (1968).

Recovery upon admission of title. - When it is established that the relation of landlord and tenant exists, the landlord may recover upon the admission of title which grows out of that relation. City of Jefferson v. Trustees of Martin Inst., 199 Ga. 71 , 33 S.E.2d 354 (1945).

Testimony showing tenancy. - Provisions of this statute are applicable when, although no plea of estoppel was filed by the defendant who claims to be the landlord and it does not appear in the petition, the testimony of the petitioner, admitted without objection, shows the petitioner to be the tenant of such defendant. Consolidated Realty Invs., Inc. v. Gasque, 203 Ga. 790 , 48 S.E.2d 510 (1948) ??? (see O.C.G.A. § 44-7-9 ).

Landlord need not prove title. - By virtue of O.C.G.A. § 44-11-1 , a landlord is authorized to file a complaint for the ejectment of a tenant alleging, not that the landlord has a presently enforceable legal title to the land, but that the landlord has a presently enforceable lease contract with the tenant and that the tenant has breached that contract so as to entitle the landlord to possession. Ingold, Inc. v. Adair, 247 Ga. 155 , 274 S.E.2d 560 (1981).

Defense of dispossessory action. - Tenant could not defend a dispossessory action by challenging the existence of a landlord-tenant relationship based on an attack on the validity of the original landlord's title to the land and transfer of the property to a city. Bridges v. City of Moultrie, 210 Ga. App. 697 , 437 S.E.2d 368 (1993).

When a tenant's defense to a dispossessory action was that the landlord had lost title to the property prior to the filing of the action, the tenant was entitled to a trial on the issue of whether a landlord-tenant relationship still existed between the parties, and the trial court's grant of a writ of possession was reversed. Holy Fellowship Church of God in Christ v. Greater Travelers Rest Baptist Church, 236 Ga. App. 177 , 511 S.E.2d 280 (1999).

Cited in McDowell v. Sutlive, 78 Ga. 142 , 2 S.E. 937 (1886); Dennard v. Lewis, 142 Ga. 171 , 82 S.E. 558 (1914); Hardeman v. Ellis, 162 Ga. 664 , 135 S.E. 195 (1926); English v. Little, 164 Ga. 805 , 139 S.E. 678 (1927); Dunlop Tire & Rubber Co. v. White, 45 Ga. App. 268 , 164 S.E. 414 (1932); Sterchi Bros. Stores, Inc. v. Mitchell, 49 Ga. App. 826 , 176 S.E. 537 (1934); West v. Flynn Realty Co., 53 Ga. App. 594 , 186 S.E. 753 (1936); Jones v. Home Owners Loan Corp., 188 Ga. 466 , 4 S.E.2d 146 (1939); Brinkley v. Newell, 188 Ga. 678 , 4 S.E.2d 827 (1939); Smith v. Aldridge, 192 Ga. 376 , 15 S.E.2d 430 (1941); Cliett v. Metropolitan Life Ins. Co., 195 Ga. 257 , 24 S.E.2d 59 (1943); Darling Stores Corp. v. William Beatus, Inc., 68 Ga. App. 869 , 24 S.E.2d 805 (1943); Holliday v. Guill, 196 Ga. 723 , 27 S.E.2d 398 (1943); Partain v. King, 206 Ga. 530 , 57 S.E.2d 617 (1950); Seay v. Malone, 219 Ga. 149 , 132 S.E.2d 261 (1963); Friedman v. Goodman, 222 Ga. 613 , 151 S.E.2d 455 (1966); Moorman v. Brumby, 223 Ga. 39 , 153 S.E.2d 444 (1967); Scarbor v. Scarbor, 226 Ga. 323 , 175 S.E.2d 6 (1970); Leslie, Inc. v. Solomon, 141 Ga. App. 673 , 234 S.E.2d 104 (1977); Lamas v. Citizens & S. Nat'l Bank, 241 Ga. 349 , 245 S.E.2d 301 (1978); Ferguson v. Bank of S., 164 Ga. App. 443 , 296 S.E.2d 756 (1982); Myers v. North Ga. Title & Tax Free Exchange, LLC, 241 Ga. App. 379 , 527 S.E.2d 212 (1999).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 98 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 266 et seq.

ALR. - Fraud, misrepresentation, or mistake as affecting estoppel of tenant to deny landlord's title, 2 A.L.R. 359 .

Estoppel of assignee or sublessee to dispute lessor's title where assignment or sublease is conditioned upon validity of the title, 36 A.L.R. 1287 .

Estoppel to dispute landlord's title where tenant never was in possession under the lease, 98 A.L.R. 545 .

Tenant's adverse possession or use of third person's land not within the description in the lease as inuring to landlord's benefit so as to support latter's title or right by adverse possession or prescription, 105 A.L.R. 1187 .

Right of tenant, as against landlord, to acquire or assert title based on foreclosure of lien or sale for tax or special assessment, 172 A.L.R. 1181 .

Estoppel by lease: effect of lessor's after-acquired title or interest during lease term, 51 A.L.R.2d 1238.

44-7-10. Delivery of possession at end of term; summary remedy.

The tenant shall deliver possession to the landlord at the expiration of his term; and, if he fails or refuses to do so, a summary remedy pursuant to Article 3 of this chapter is given to the landlord.

(Orig. Code 1863, § 2264; Code 1868, § 2256; Code 1873, § 2282; Code 1882, § 2282; Civil Code 1895, § 3121; Civil Code 1910, § 3697; Code 1933, § 61-108.)

Law reviews. - For article, "Usufructs and Estates for Years Distinguished," see 18 Ga. St. B.J. 116 (1982).

JUDICIAL DECISIONS

Existence of relationship. - In order to maintain a summary eviction proceeding, the relation of landlord and tenant must exist. Carruth v. Carruth, 77 Ga. App. 131 , 48 S.E.2d 387 (1948).

At the termination of the lease, the lessee shall surrender the premises in the same condition as at the commencement of the term, natural wear and tear excepted. Pharr v. Burnette, 158 Ga. App. 473 , 280 S.E.2d 881 (1981).

Lessor is not usually entitled to replacement of an old structure without deduction for depreciation. Pharr v. Burnette, 158 Ga. App. 473 , 280 S.E.2d 881 (1981).

Holding over. - Mere holding over by a tenant beyond the term covered by the contract of tenancy does not make the tenant a tenant at will so as to entitle the tenant to a two-months' notice to quit. U.S. Fid. & Guar. Co. v. Garber, 72 Ga. App. 888 , 35 S.E.2d 371 (1945).

Possession under agent's unratified contract of purchase. - One who makes a contract for the purchase of land with a person assuming to act as agent of the owner, and subject to the approval and ratification of this latter, and who goes into possession under the contract, which is never ratified by the owner, is a tenant at sufferance, and is subject to be dispossessed by the statutory process against a tenant holding over, after possession has been demanded and refused. Smith v. Singleton, Hunt & Co., 71 Ga. 68 (1883).

Cited in Wright v. Harris, 221 F. 736 (S.D. Ga. 1915); Stone Mt. Game Ranch, Inc. v. Hunt, 746 F.2d 761 (11th Cir. 1984); Gully v. Glover, 190 Ga. App. 238 , 378 S.E.2d 411 (1989); Walters v. Betts, 174 Bankr. 636 (Bankr. N.D. Ga. 1994).

RESEARCH REFERENCES

C.J.S. - 51C C.J.S., Landlord and Tenant, § 316.

ALR. - Rent period as criterion of term implied by holding over after expiration of lease for a fixed term, 108 A.L.R. 1464 .

Tenant's liability in damages for holding over after expiration of term as affected by reason or excuse for so doing, 122 A.L.R. 280 .

Implied duty of lessee to remove his property, debris, buildings, improvements, and the like, from leased premises at expiration of lease, 23 A.L.R.2d 655.

Validity and construction of lease provision requiring lessee to pay liquidated sum for failure to vacate premises or surrender possession at expiration of lease, 23 A.L.R.2d 1318.

Measure of damages for tenant's failure to surrender possession of rented premises, 32 A.L.R.2d 582.

Time for exercise of lessee's option to terminate lease, 37 A.L.R.2d 1173.

Right of landlord legally entitled to possession to dispossess tenant without legal process, 6 A.L.R.3d 177.

Holding over under lease, or renewal or extension thereof, as extending time for exercise of option to purchase contained therein, 15 A.L.R.3d 470.

44-7-11. Specific rights of tenants.

The tenant has no rights beyond the use of the land and tenements rented to him and such privileges as are necessary for the enjoyment of his use. He may not cut or destroy growing trees, remove permanent fixtures, or otherwise injure the property. He may use dead or fallen timber for firewood and the pasturage for his cattle.

(Orig. Code 1863, § 2263; Code 1868, § 2255; Code 1873, § 2281; Code 1882, § 2281; Civil Code 1895, § 3119; Civil Code 1910, § 3695; Code 1933, § 61-109.)

JUDICIAL DECISIONS

Tenant's duty of care. - Tenant is under a duty to exercise ordinary care and diligence to prevent damage to the rented premises, and such duty is by implication a part of the lease contract. Martin v. Medlin, 81 Ga. App. 602 , 59 S.E.2d 519 (1950).

Implied covenant. - In a rental contract between a landlord and tenant, a covenant is raised, by implication of law in the absence of express covenants in reference thereto, that the tenant will so use the rented property that no unnecessary or substantial injury shall be done to the property. Martin v. Medlin, 81 Ga. App. 602 , 59 S.E.2d 519 (1950).

Reasonable use by tenant. - Independently of covenant, a tenant is required to return the premises at the end of the term in substantially the same condition as when received, subject to reasonable use. Martin v. Medlin, 81 Ga. App. 602 , 59 S.E.2d 519 (1950).

Distinction between permanent and movable fixtures. - Chattels real are considered as personal property in every respect, if not so annexed and necessarily attached to the freehold as to go along with the freehold in the same path of alienation. In order to make a thing part of the realty by merely annexing, it is necessary that both the thing and the soil to which it is attached should belong to the same owner. McCall v. Walter, 71 Ga. 287 (1883).

Trade fixtures. - In the absence of a contract giving the tenant the right so to do, the tenant cannot lawfully remove fixtures annexed to the freehold, which the tenant has placed on leased land. The exception to this rule existed only in the case of trade fixtures under former Civil Code 1895, § 3120 (see O.C.G.A. § 44-7-11 ). Wright v. DuBignon, 114 Ga. 765 , 40 S.E. 747 , 57 L.R.A. 669 (1902).

While two owners of an aircraft hangar had no formal agreement with the city entitling the owners to extend their stay on city property, and the city could therefore elect to remove the owners at any time as tenants at will, the owners were obligated to remove any trade fixtures from the landlord's property, specifically, the hangar, despite the hangar's size, and at their own expense, upon notification by the city of the expiration of the lease term; moreover, the hangar was such that although the hangar was bolted to the ground, the hangar was done so in such a way that it could be disassembled and rebuilt elsewhere. S.S. Air, Inc. v. City of Vidalia, 278 Ga. App. 149 , 628 S.E.2d 117 (2006).

Removal of fixtures as "necessary repairs". - Tenants had no right under the general license to make "necessary repairs" to have removed permanent fixtures. Center & Treadwell v. Davis, 39 Ga. 210 (1869).

Intention of tenant immaterial. - Servant's room, metallic gutters attached to the roof of a house, waterpipes laid under the ground by a tenant on leased premises, become, when constructed and attached, a part of the freehold, and cannot be lawfully severed from the land by the tenant against the will of the landlord, even though at the time of their erection the tenant intended to remove them at the expiration of the tenant's term. Wright v. DuBignon, 114 Ga. 765 , 40 S.E. 747 , 57 L.R.A. 669 (1902).

Agreement by predecessor in title. - Trover suit for possession of buildings will not lie against the purchaser of the land, although such purchaser took with notice of a specific agreement between the plaintiff and the defendant's predecessor in title that the buildings were to remain personal property and fixtures and be removable. Adams v. Chamberlin, 54 Ga. App. 459 , 188 S.E. 550 (1936).

Counters and drawers in store permanent. - Counters and drawers in a drug store placed there by the landlord, and rented in their place with the store, are fixtures, which the tenant has no right to remove. Pope v. Gerrard, 39 Ga. 471 (1869).

Pavement. - Fixture permanently attached to the land, such as a pavement, is not removable under the right to remove trade fixtures. Mayor of Savannah v. Standard Fuel Supply Co., 151 Ga. 145 , 106 S.E. 178 (1921).

Section houses erected by railroad company on premises over which railroad had easement for tracks to assist the railroad in carrying on the railroad's business could not be removed, after an abandonment of the railroad by the company and the railroad's insolvency, by a purchaser of all the railroad property, without the franchise, from the receiver having custody of the property. Jackson v. Crutchfield, 184 Ga. 412 , 191 S.E. 468 (1937).

Trespass by landlord. - When a landlord, without the tenant's consent and before the expiration of the term, enters upon the rented premises without authority of law and forcibly evicts the tenant and rents the premises to another, and in so doing takes possession of the tenant's effects, and in moving effects damages the effects, the landlord thereby commits an inexcusable trespass against the tenant; the jury is authorized to find a sum in punitive damages or damages for compensation for the wounded feelings of the tenant. Real Estate Loan Co. v. Pugh, 47 Ga. App. 443 , 170 S.E. 698 (1933).

Illegal use of property by sign company unauthorized by landlord. - Under O.C.G.A. § 44-7-11 , a tenant such as a sign company has no right beyond the use of the land actually conveyed or rented. Furthermore, under O.C.G.A. § 44-7-14 , the landlord and neighbor of plaintiffs was not responsible for the tenant's, the sign company's, illegal use of the neighbor's property or airspace. Powell v. Norman Elec. Galaxy, Inc., 255 Ga. App. 407 , 565 S.E.2d 591 (2002).

Cited in Henderson v. Easters, 178 Ga. App. 867 , 345 S.E.2d 42 (1986).

OPINIONS OF THE ATTORNEY GENERAL

Condemnation of fixtures. - In a condemnation proceeding in which there exists a landlord-tenant relationship, those fixtures which are physically or constructively made a part of the realty, even those which were placed there by the tenant, are to be considered as a part of the realty and property of the landowner; the tenant would not be allowed compensation for such fixtures unless the tenant had, by previous agreement, entered into a written agreement with the landlord that these fixtures were to be considered as personalty of the tenant. The only exception to this rule would be in those cases in which the tenant was engaged in some trade or business and the fixtures in question were used as part of the tenant's business or trade and could be considered as trade fixtures. 1969 Op. Att'y Gen. No. 69-122.

Condemnation of trade fixtures. - Trade fixtures are considered as property of the tenant; in any condemnation proceeding, the tenant is eligible for relocation moving expenses for trade fixtures. 1969 Op. Att'y Gen. No. 69-122.

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 211, 228.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 348 et seq.

ALR. - Gas range as fixture, 7 A.L.R. 1578 .

Right of tenant to make alterations in structures on leased premises, 9 A.L.R. 445 ; 13 A.L.R. 824 .

Status of one employed by landlord to perform work on premises who enters or remains without consent or against protest of tenant, 10 A.L.R. 715 .

Change of physical conditions on property of landlord, other than that leased, as affecting the rights and liabilities of landlord and tenant, 12 A.L.R. 160 ; 38 A.L.R. 1090 ; 44 A.L.R. 59 .

Division of the premises by the lessor, or the creation of undivided interests therein, as affecting the enforcement of the lessee's covenants, 12 A.L.R. 826 .

Pavement, flooring, platform, walks, and the like as fixtures, 13 A.L.R. 1454 .

Rights and remedies of tenant who remains in possession of all or part of the premises against landlord for interfering with his possession or enjoyment, 20 A.L.R. 1369 ; 28 A.L.R. 1333 ; 64 A.L.R. 900 .

Duty and liability of farm tenant in respect to live stock leased with farm, 32 A.L.R. 857 .

Liability for injury to trespassing stock from poisonous substances or other conditions on the premises, 33 A.L.R. 448 .

Oil or gas or other mineral rights in land as affected by language in conveyance specifying purpose for which the property is to be used, 39 A.L.R. 1340 .

Rights of cotenants inter se as to timber, 41 A.L.R. 582 .

Liability of owner of office building or tenement house for loss of or damage to property of tenant due to dishonesty or negligence of owner's employee, 42 A.L.R. 1335 .

Right of third person to enter premises against objection of landlord, 43 A.L.R. 206 .

Storage tank or other apparatus of gasoline station as fixture, 52 A.L.R. 798 ; 99 A.L.R. 69 .

Right of mortgagor or owner of equity of redemption to cut timber, 57 A.L.R. 451 .

Liability of landlord for interfering with tenants of lessee, 70 A.L.R. 1477 .

Waste, as between landlord and tenant, as including loss or damages due to act or negligence of third person, 84 A.L.R. 393 .

Buildings erected by a tenant as "trade fixtures," 107 A.L.R. 1153 .

Right to remove fixtures or improvements placed upon property by one holding under lease as affected by renewal or new lease made to him or his successor without reservation of the right to remove, 110 A.L.R. 480 .

Common-law duty of landlord as regards installation and maintenance of fire equipment, 122 A.L.R. 167 .

Bowling alleys as fixtures, 123 A.L.R. 690 .

Refrigerator or refrigerating plant as fixture, 169 A.L.R. 478 .

Recovery by tenant of damages for physical injury or mental anguish occasioned by wrongful eviction, 17 A.L.R.2d 936.

Relative rights and liabilities as between landlord and tenant with respect to keeping of dogs, birds, or other pets, 18 A.L.R.2d 880.

Advertising rights on leased premises, 20 A.L.R.2d 940.

Landlord's duty under express covenant to repair, rebuild, or restore, where property is damaged or destroyed by fire, 38 A.L.R.2d 682.

Breach of covenant for quite enjoyment in lease, 41 A.L.R.2d 1414.

Effect, as between lessor and lessee, of provision in mineral lease purporting to except or reserve a previously granted right of way or other easement through, over, or upon the premises, 49 A.L.R.2d 1191.

Timber rights of life tenant, 51 A.L.R.2d 1374.

What constitutes alterations or changes in premises within lease provision permitting making thereof by lessee, 57 A.L.R.2d 963.

Implied covenant or obligation of lessor to furnish water or water supply for business needs of the lessee, 65 A.L.R.2d 1313.

Measure of damages in landlord's action for waste against tenant, 82 A.L.R.2d 1106.

Liability of landlord for personal injury or death due to inadequacy or lack of lighting on portion of premises used in common by tenants, 66 A.L.R.3d 202.

Landlord's liability for personal injury or death due to defects in appliances supplied for use of different tenants, 66 A.L.R.3d 374.

Grazing or pasturage agreement as violative of covenant in lease or provision of statute against assigning or subletting without lessor's consent, 71 A.L.R.3d 780.

Implied covenant or obligation to provide lessee with actual possession, 96 A.L.R.3d 1155.

Modern status of rule as to tenant's rent liability after injury to or destruction of demised premises, 99 A.L.R.3d 738.

Production on one tract as extending term on other tract, where one mineral deed conveys oil or gas in separate tracts for as long as oil or gas is produced, 9 A.L.R.4th 1121.

Right to exercise option to renew or extend lease as affected by tenant's breach of other covenants or condition, 23 A.L.R.4th 908.

Landlord and tenant: respective rights in excess rent when landlord relets at higher rent during lessee's term, 50 A.L.R.4th 403.

Validity, construction, and effect of statute or lease provision expressly governing rights and compensation of lessee upon condemnation of leased property, 22 A.L.R.5th 327.

Time within which tenant's right to remove trade fixtures must be exercised, 109 A.L.R.5th 421.

Effect, as between landlord and tenant, of lease clause restricting the keeping of pets, 114 A.L.R.5th 443.

44-7-12. Removal of trade fixtures during term; when abandoned.

During the term of his tenancy or any continuation thereof or while he is in possession under the landlord, a tenant may remove trade fixtures erected by him. After the term and his possession are ended, any trade fixtures remaining will be regarded as abandoned for the use of the landlord and will become the landlord's property.

(Civil Code 1895, § 3120; Civil Code 1910, § 3696; Code 1933, § 61-110.)

History of section. - This Code section is derived from the decisions in Youngblood & Harris v. Eubank, 68 Ga. 630 (1881), and Wright v. DuBignon, 114 Ga. 765 , 40 S.E. 747 , 57 L.R.A. 669 (1902).

Law reviews. - For article discussing lawful removal of fixtures by tenant, see 4 Ga. B.J. 16 (1942). For article on the law governing the removal of trade fixtures from property in Georgia, see 19 Ga. B.J. 35 (1956). For article discussing U.C.C. provisions establishing a security interest in fixtures as a means of protecting sellers, see 16 Mercer L. Rev. 404 (1965). For article discussing origin and construction of Georgia provision concerning tenant's rights to fixtures constructed by him, see 14 Ga. L. Rev. 239 (1980). For article, "Usufructs and Estates for Years Distinguished," see 18 Ga. St. B.J. 116 (1982).

JUDICIAL DECISIONS

Section is exception to general rule. - Tenant cannot remove fixtures annexed to the freehold, which the tenant has placed on the land, and the exception to this rule exists only in the case of trade fixtures. Armour & Co. v. Block, 147 Ga. 639 , 95 S.E. 228 (1918).

Section applicable only to trade fixtures. - Statute is to be construed to refer only to trade fixtures. Wright v. DuBignon, 114 Ga. 765 , 40 S.E. 747 , 57 L.R.A. 669 (1902); Raymond v. Strickland, 124 Ga. 504 , 52 S.E. 619 , 3 L.R.A. (n.s.) 69 (1905) (see O.C.G.A. § 44-7-12 ).

Definition of trade fixture. - See Wright v. DuBignon, 114 Ga. 765 , 40 S.E. 747 , 57 L.R.A. 669 (1902); Raymond v. Strickland, 124 Ga. 504 , 52 S.E. 619 , 3 L.R.A. (n.s.) 69 (1905); Currin v. Milhollin, 53 Ga. App. 270 , 185 S.E. 380 (1936); Chouinard v. Leah Enters., Inc., 205 Ga. App. 206 , 422 S.E.2d 204 (1992).

Applicability to purchaser of land. - Trover suit for possession of buildings will not lie against the purchaser of the land, although such purchaser took with notice of a specific agreement between the plaintiff and the defendant's predecessor in title that the buildings were to remain personal property and fixtures and be removable. Adams v. Chamberlin, 54 Ga. App. 459 , 188 S.E. 550 (1936).

Applicability to mere chattel. - When a lease of land for use as a filling station provided that the lessee shall have the right to erect on the land "such buildings, pumps, underground tanks and other improvements as may be necessary and incident to the conduct of a filling station for the dispensing of petroleum products, tires and automobile accessories," that "all improvements erected on said land by the lessee shall revert and be the property of the lessor," and that the lessor agrees to pay "all taxes on the land and improvements," the stipulation that the improvements shall become the property of the lessor refers only to improvements in the realty itself and does not apply to a mere chattel used by the lessee in connection with the lessee's business. Irvin v. Smith, 185 Ga. 386 , 194 S.E. 906 (1938).

Fixtures attached to realty. - In a suit in trover to recover certain shelving supplied by the tenant for use in the rented property, the lease having expired, it could not be recovered, even as trade fixtures, if attached to the realty. Powell v. Griffith, 38 Ga. App. 40 , 142 S.E. 466 (1928).

While two owners of an aircraft hangar had no formal agreement with the city entitling the owners to extend their stay on city property, and the city could therefore elect to remove the owners at any time as tenants at will, the owners were obligated to remove any trade fixtures from the landlord's property, specifically, the hangar, despite the hangar's size, and at the owners own expense, upon notification by the city of the expiration of the lease term; moreover, the hangar was such that although the hangar was bolted to the ground, it was done so in such a way that the hangar could be disassembled and rebuilt elsewhere. S.S. Air, Inc. v. City of Vidalia, 278 Ga. App. 149 , 628 S.E.2d 117 (2006).

Brick and roofing material remaining after a fire which were a part of a kiln and lumber sheds erected and used by the tenant in carrying on a lumberyard business are trade fixtures. Ory v. Tate, 211 Ga. 256 , 85 S.E.2d 36 (1954).

Depot building. - Depot building, erected by a railroad, not for the purpose of improving the inheritance, but to aid and assist the company in carrying on the company's business, is a trade fixture, and a tenant may remove such fixtures before the expiration of the tenant's term; but after having forfeited the tenant's estate in the land, and having abandoned the tenant's possession, the railroad could not remove such fixtures. Carr v. Georgia R.R., 74 Ga. 73 (1884).

Meat smokehouse. - When by an agreement the landlord erected a smokehouse for the tenant upon the tenant paying $4,000.00, the smokehouse became "a trade fixture" which could be removed by the tenant. Armour & Co. v. Block, 147 Ga. 639 , 95 S.E. 228 (1918).

An air compressor used to furnish free air at a filling station is a trade fixture. Rucker v. Hunt, 44 Ga. App. 836 , 163 S.E. 612 (1932).

Removal of domestic and ornamental fixtures. - Domestic or ornamental fixtures which a tenant has attached to a dwellinghouse or the grounds on which the dwellinghouse is located, to promote the tenant's domestic comfort, and which may be easily severed and made equally useful to the tenant in another house, may be removed by the tenant's during the tenant's term. Wright v. DuBignon, 114 Ga. 765 , 40 S.E. 747 , 57 L.R.A. 669 (1902).

Tenant must be in possession. - Tenant may remove domestic and ornamental fixtures during the tenant's term, but cannot remove the fixtures after the term's expiration without the landlord's consent unless the tenant remains in possession of the premises under right to still be considered the landlord's tenant. Youngblood & Harris v. Eubanks, 68 Ga. 630 (1882); Raymond v. Strickland, 124 Ga. 504 , 52 S.E. 619 (1905).

Landlord's acceptance of rent during pendency of dispossessory proceedings pursuant to consent agreement with tenant did not amount to acquiescence by landlord of tenant's possession and tenant had no right to remove trade fixtures once the tenant's rightful possession of the premises ended. Chouinard v. Leah Enters., Inc., 205 Ga. App. 206 , 422 S.E.2d 204 , cert. denied, 205 Ga. App. 899 , 422 S.E.2d 204 (1992).

Trial court erred by granting the landlord summary judgment on the tenant's claims for conversion and reasonable hire as well as any associated claims for punitive damages and attorneys' fees because a genuine issue of material fact existed as to whether the landlord, in exchange for money from the tenant, agreed to extend the tenant's time of possession and thereby the tenant's right to the trade fixtures. Heany v. Bennett Street Properties, L.P., 336 Ga. App. 290 , 785 S.E.2d 1 (2016).

Interference by landlord. - Any wrongful act or refusal on the part of the landlord with respect to the removal of the tenant's fixtures amounts to a conversion for which an action will lie. Wright v. DuBignon, 114 Ga. 765 , 40 S.E. 747 , 57 L.R.A. 669 (1902); Richards v. Gilbert, 116 Ga. 382 , 42 S.E. 715 (1902).

Personalty which has not become a fixture remains the property of the tenant; although the personalty may be left in the building, it is not by the fact alone to be treated as abandoned to the landlord. Cozart v. Johnson, 181 Ga. 337 , 182 S.E. 502 (1935).

Definition and illustrations of domestic and ornamental fixtures. - See Wright v. DuBignon, 114 Ga. 765 , 40 S.E. 747 , 57 L.R.A. 669 (1902); Raymond v. Strickland, 124 Ga. 504 , 52 S.E. 619 , 3 L.R.A. (n.s.) 69 (1905).

Interest of security holder in fixtures not subject to summary judgment. - Trial court erred by granting the landlord summary judgment on the security interest holder's claims for conversion and reasonable hire as for some reasonable period of time, the holder's security interest in the items took priority over whatever interest the landlord might have received under O.C.G.A. § 44-7-12 when the landlord took possession of the premises and what a reasonable time constituted was not subject to summary judgment. Heany v. Bennett Street Properties, L.P., 336 Ga. App. 290 , 785 S.E.2d 1 (2016).

Cited in Stokes v. First Ga. Bank, 500 F.2d 393 (5th Cir. 1974); Turner Communications Corp. v. Hickcox, 161 Ga. App. 79 , 289 S.E.2d 260 (1982); Benton v. Georgia Marble Co., 258 Ga. 58 , 365 S.E.2d 413 (1988).

OPINIONS OF THE ATTORNEY GENERAL

Compensation for condemned fixtures. - In a condemnation proceeding in which there exists a landlord-tenant relationship, those fixtures which are physically or constructively made a part of the realty, even those which were placed there by the tenant, are to be considered as a part of the realty and property of the landowner; the tenant would not be allowed compensation for such fixtures unless the tenant had, by previous agreement, entered into a written agreement with the landlord that these fixtures were to be considered as personalty of the tenant; the only exception to this rule would be in those cases in which the tenant was engaged in some trade or business and the fixtures in question were used as part of the tenant's business or trade and could be considered as trade fixtures. 1969 Op. Att'y Gen. No. 69-122.

Condemnation of fixtures. - State Highway Department (now Department of Transportation), being a condemning authority, stands in the position of a grantee and the principle of law applicable to trade fixtures has no bearing on the rights of the condemnor; if fixtures exist on property which is being condemned at the time of the condemnation and the condemnation describes the property condemned sufficient to include the fixtures, upon a judgment of condemnation the fixtures become property of the State of Georgia; it is insignificant and immaterial in this event that the fixtures may have been trade fixtures. 1967 Op. Att'y Gen. No. 67-127.

Tenant's relocation expenses in condemnation. - Trade fixtures are considered as property of the tenant; in any condemnation proceeding, the tenant is eligible for relocation moving expenses for trade fixtures. 1969 Op. Att'y Gen. No. 69-122.

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 856 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 288.

ALR. - Right of tenant to make alterations in structures on leased premises, 9 A.L.R. 445 ; 13 A.L.R. 824 .

Pavement, flooring, platform, walks, and the like as fixtures, 13 A.L.R. 1454 .

Eviction before expiration of term as affecting right to remove trade fixtures, 39 A.L.R. 1099 .

Storage tank or other apparatus of gasoline station as fixture, 52 A.L.R. 798 ; 99 A.L.R. 69 .

Refrigerator or refrigerating plant as fixture, 64 A.L.R. 1222 ; 169 A.L.R. 478 .

Cotton gin as fixture, 70 A.L.R. 1128 .

Buildings erected by a tenant as "trade fixtures," 107 A.L.R. 1153 .

Right to remove fixtures or improvements placed upon property by one holding under lease as affected by renewal or new lease made to him or his successor without reservation of the right to remove, 110 A.L.R. 480 .

Bowling alleys as fixtures, 123 A.L.R. 690 .

Time within which tenant's right to remove trade fixtures must be exercised, 6 A.L.R.2d 322.

Rights of lessee to minerals extracted during the lease but remaining on the premises after its termination, 51 A.L.R.2d 1121.

Electric range as fixture, 57 A.L.R.2d 1103.

What constitutes improvements, alterations, or additions within provisions of lease permitting or prohibiting tenant's removal thereof at termination of lease, 30 A.L.R.3d 998.

Air-conditioning appliance, equipment, or apparatus as fixture, 69 A.L.R.4th 359.

Time within which tenant's right to remove trade fixtures must be exercised, 109 A.L.R.5th 421.

44-7-13. Landlord's duties as to repairs and improvements.

The landlord must keep the premises in repair. He shall be liable for all substantial improvements placed upon the premises by his consent.

(Orig. Code 1863, § 2266; Code 1868, § 2258; Code 1873, § 2284; Code 1882, § 2284; Civil Code 1895, § 3123; Civil Code 1910, § 3699; Code 1933, § 61-111.)

Cross references. - Prohibition against waiving landlord's duties by contractual agreement, § 44-7-2(b)(1).

Law reviews. - For article, "Exculpatory Clauses in Leases," see 15 Ga. B.J. 389 (1953). For article, "Usufructs and Estates for Years Distinguished," see 18 Ga. St. B.J. 116 (1982). For note advocating reasonable man standard for tort liability of landlord, see 23 Emory L.J. 1051 (1974). For note, "Don't Let the Bed Bugs Bill: Landlord Liability for Bed Bug Infestations," see 34 Ga. St. U. L. Rev. 479 (2018). For comment on Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723 , 49 S.E.2d 779 (1948), see 11 Ga. B.J. 352 (1949).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Origin of section. - Statute introduced a new rule on the subject of keeping rented premises in repair, devolving the burden on the landlord instead of upon the tenant, since it rested by the rule of the common law. Vason v. City of Augusta, 38 Ga. 542 (1868); Center & Treadwell v. Davis, 39 Ga. 210 (1869); Whittle v. Webster, 55 Ga. 180 (1875); Driver v. Maxwell, 56 Ga. 11 (1876); Roach v. LeGree, 18 Ga. App. 250 , 89 S.E. 167 (1916); Finley v. Williams, 45 Ga. App. 863 , 166 S.E. 265 (1932); Wallace v. Adams, 47 Ga. App. 144 , 169 S.E. 852 (1933) (see O.C.G.A. § 44-7-13 ).

Public policy. - General Assembly has consistently expressed the public policy of this state as one in favor of imposing upon the landlord liability for damages to others from defective construction and failure to keep one's premises in repair. The expressed public policy in favor of landlord liability is matched by an equally strong and important public policy in favor of preventing unsafe residential housing. Thompson v. Crownover, 259 Ga. 126 , 381 S.E.2d 283 (1989).

Section does not impose tort liability on landlord. - Clear import of O.C.G.A. § 44-7-13 is that the landlord is liable for the payment of costs for repairs or improvements made to the property by the tenant. It thus imposes contractual, but not tort, liability on a landlord. Colquitt v. Rowland, 265 Ga. 905 , 463 S.E.2d 491 (1995).

O.C.G.A. § 44-7-13 provided remedy to member of military and spouse, who lived in military base housing, and recovery was not barred under the "activity incident to service" doctrine. Elliott ex rel. Elliott v. United States, 877 F. Supp. 1569 (M.D. Ga. 1992), aff'd, 13 F.3d 1555 (11th Cir. 1995).

Proximate cause of injury. - In order to recover, a tenant is required to show not only that the landlord breached the landlord's statutory duty to keep the premises in repair, but that such breach was the proximate cause of the tenant's injury. Brown v. RFC Mgt., Inc., 189 Ga. App. 603 , 376 S.E.2d 691 (1988); Jones v. Campbell, 198 Ga. App. 83 , 400 S.E.2d 364 (1990).

Section applies when no estate for years. - Statute expresses the general rule as to the obligation of a landlord when there is no tenancy for years. Shippen v. Georgia Better Foods, Inc., 79 Ga. App. 813 , 54 S.E.2d 704 (1949) (see O.C.G.A. § 44-7-13 ).

Word "repair" contemplates an existing structure or thing which has become imperfect, and means to supply in the original existing structure that which is lost or destroyed, and thereby restore it to the condition in which it originally existed, as near as may be. Childers v. Speer, 63 Ga. App. 848 , 12 S.E.2d 439 (1940).

Any upkeep necessary to preserve premises as to tenantability is a repair. - Any upkeep, including, if necessary, an entire replacement of a component part of a building upon the rented premises - as, for instance, a furnace - which is necessary to the preservation of the premises in their entirety in the same condition as to tenantability as they were at the time of the execution of the lease, is a repair. Pharr v. Burnette, 158 Ga. App. 473 , 280 S.E.2d 881 (1981).

O.C.G.A. § 25-2-40 controlled over O.C.G.A. § 44-7-13 . - Summary judgment was properly entered for a landlord and a property manager (appellees) in a negligence suit filed by an injured party as appellees complied with state law as to the installation of smoke detectors contained in O.C.G.A. § 25-2-40 (a)(2), and as evidence of any failure to maintain the detectors was inadmissible under § 25-2-40(g) ; as § 25-2-40(a)(2) was more specific, it governed over any conflicting statutory or common law duty of care, such as those contained in O.C.G.A. §§ 44-7-13 and 51-3-1 , and as O.C.G.A. § 25-2-40(g) was enacted more recently than the older statutes, it controlled. Hill v. Tschannen, 264 Ga. App. 288 , 590 S.E.2d 133 (2003).

Implied covenant of suitability. - Except as provided by this statute there is no implied covenant that the premises are suitable for the purpose for which the premises are leased, or for the particular use for which the premises are intended by the tenant. Cox v. Walter M. Lowney Co., 35 Ga. App. 51 , 132 S.E. 257 (1926); Childers v. Speer, 63 Ga. App. 848 , 12 S.E.2d 439 (1940); Point Apts., Inc. v. Bryant, 99 Ga. App. 110 , 107 S.E.2d 684 (1959) (see O.C.G.A. § 44-7-13 ).

Suitability for intended use. - From former Code 1933, §§ 61-111 and 61-112 (see O.C.G.A. §§ 44-7-13 and 44-7-14 ) has been derived the principle that suitability for the use "intended by the lessee and known to the lessor" was assured. Thus, a jury question existed as to the suitability of a lock to prevent burglaries. Warner v. Arnold, 133 Ga. App. 174 , 210 S.E.2d 350 (1974).

Remedy of tenant when landlord fails to keep premises in repair. - When a landlord covenants to keep premises in repair, the landlord's failure to do so, whereby the use of the premises by the tenant is impaired, will not work a forfeiture of the rent, unless the premises become untenantable and a constructive eviction results; the remedy of the tenant is, after reasonable opportunity to the landlord, and failure by the landlord to repair, to make the repairs personally and look to the landlord for reimbursement, or to occupy the premises without repair and hold the landlord responsible for damages by action, or by recoupment to an action for the rent. Swim Dixie Pool Corp. v. Kraemer, 157 Ga. App. 748 , 278 S.E.2d 448 (1981).

Evidence sufficient to preclude summary judgment. - When evidence shows injured defendant took care to inspect work area for possible hazards before starting to remove a roof, asked workers for the property owner to stay away from the area defendant was working in and generally tried to keep the area safe, defendant's personal injury suit should survive summary judgment. Greenforest Baptist Church, Inc. v. Shropshire, 221 Ga. App. 465 , 471 S.E.2d 547 (1996).

Constructive eviction. - Rented building becomes untenantable and the tenant is constructively evicted therefrom and thereafter relieved of one's obligation to pay rent, when the landlord whose duty it is to keep it in a proper state of repair allows it to deteriorate to such an extent that it is an unfit place for the tenant to carry on the business for which it was rented, and when it cannot be restored to such condition by ordinary repairs which can be made without unreasonable interruption of the tenant's business. Overstreet v. Rhodes, 213 Ga. 181 , 97 S.E.2d 561 (1957).

To establish an affirmative defense of constructive eviction from the rented premises it is necessary for the defendant to prove: (1) that the landlord in consequence of the landlord's failure to keep the rented building repaired allowed the building to deteriorate to such an extent that the building had become an unfit place for the defendant to carry on the business for which the building was rented; and (2) that the building could not be restored to a fit condition by ordinary repairs which could be made without unreasonable interruption of the tenant's business. Swim Dixie Pool Corp. v. Kraemer, 157 Ga. App. 748 , 278 S.E.2d 448 (1981).

Express contract concerning repairs. - Any statutory requirement as to the landlord-tenant relationship is not applicable or controlling in a case when the landlord and the tenant have expressly contracted as to this obligation with reference to repairs. Sewell v. Royal, 147 Ga. App. 88 , 248 S.E.2d 165 (1978).

Contractual modification. - Landlord may by express contract relieve oneself from liability for concealed defects in the premises, known to the landlord, but unknown to the tenant. Jadronja v. Bricker, 49 Ga. App. 37 , 174 S.E. 251 (1934).

Owner of property not used as a "dwelling place" can contract to avoid the duties to repair and improve the property. Groutas v. McCoy, 219 Ga. App. 252 , 464 S.E.2d 657 (1995).

Consideration for promise to repair. - When by the terms of the lease the landlord has not the obligation of repairing the premises, a promise made by the landlord during the term to make repairs, or lay out money in having repairs made, must be supported by some new consideration to be valid. Jadronja v. Bricker, 49 Ga. App. 37 , 174 S.E. 251 (1934).

Liability of subsequent purchaser. - Subsequent purchaser is not personally liable for the breach to pay for repairs where the breach occurred prior to the purchase; the liability is personal to the landlord at the time of breach. Mead Corp. v. Abeles, 530 F.2d 38 (5th Cir. 1976).

Liability of vendee for improvements. - When one rents premises under a contract to purchase and during the tenancy places repairs upon the premises, one cannot hold the vendee of one's landlord liable for the improvements because the landlord or vendee did not consent. Grizzle v. Gaddis, 75 Ga. 350 (1885).

No recovery against landlord's agent. - While one may be a landlord without being the owner of the premises, yet the agent of the landlord to collect rents and who agrees and assumes the duty of making repairs does not become the landlord of the tenant, and no recovery can be had against such agent as landlord. Sanders v. A.T. Holt Co., 76 Ga. App. 279 , 45 S.E.2d 480 (1947).

Nonowner as landlord. - An action by a tenant, against one from whom the tenant rented certain premises, for damages on account of the negligence of the latter in making repairs to the premises is not subject to demurrer because it does not appear that the defendant is the owner of the premises; a person may be a landlord without being an owner. Hill v. Liebman, Inc., 53 Ga. App. 462 , 186 S.E. 431 (1936).

Lapse of reasonable time in making repairs. - In a suit for damages caused by a failure to repair a roof destroyed by fire, it should appear that the damage was done after the time when the landlord by proper diligence could have covered the building. Driver v. Maxwell, 56 Ga. 11 (1876); J.B. White & Co. v. Montgomery, 58 Ga. 204 (1877); Lewis & Co. v. Chisolm, 68 Ga. 40 (1881); Miller v. Smythe, 95 Ga. 288 , 22 S.E. 532 (1895); Johnson v. Collins, 98 Ga. 271 , 26 S.E. 744 (1896); Stack v. Harris, 111 Ga. 149 , 36 S.E. 615 (1900); Gavan v. Norcross, 117 Ga. 356 , 43 S.E. 771 (1903).

Landlord not insurer of tenant's safety. - Even though the landlord is under a duty to keep the premises in repair pursuant to O.C.G.A. §§ 44-7-13 and 44-7-14 , the landlord is not an insurer of the tenant's safety. Ethridge v. Davis, 243 Ga. App. 11 , 530 S.E.2d 477 (2000).

Husband's knowledge of defective condition not imputed to wife. - Since the plaintiff had no notice or knowledge of the defective condition of the steps, which was a latent defect, she would not be precluded from recovering for injuries arising therefrom merely because her husband, who was the tenant, knew of the condition of the steps. Wall Realty Co. v. Leslie, 54 Ga. App. 560 , 188 S.E. 600 (1936).

Relevancy of Housing Code violations in determining damages. - Failure of the landlord to keep rented premises in repair as required by statute and to comply with provisions of the housing code would be relevant on the issue of ordinary damages to the property of the tenant, but would not per se authorize the imposition of punitive damages. Kaplan v. Sanders, 237 Ga. 132 , 227 S.E.2d 38 (1976).

Questions for jury. - Whether landlord who was aware of a defective gas heater failed to exercise reasonable care to repair the heater, and whether the condition of the heater constituted a violation of the housing code, were questions for the jury. Thompson v. Crownover, 259 Ga. 126 , 381 S.E.2d 283 (1989).

Whether landlord approved substantial improvements made by the tenant to the property was a jury question. Roberts v. Roberts, 205 Ga. App. 371 , 422 S.E.2d 253 (1992).

In a negligence action brought by a tenant who slipped and fell on the steps of the tenant's rented home, when both tenant and landlord were aware of a problem with the steps, the question was, given the tenant's equal or superior knowledge, whether the tenant could have avoided the accident, either by avoiding the problematic area, or by using the area more cautiously. Phillips v. King, 214 Ga. App. 712 , 448 S.E.2d 780 (1994).

Whether a landlord provided an adequate fire detection and alarm system in a rented house was an issue of fact for the jury. Denise v. Cannon, 219 Ga. App. 765 , 466 S.E.2d 885 (1995).

After learning that its back-up generator was irreparable, determining whether the landlord acted negligently, breached the statutory duties as landlord, or violated local ordinances or housing codes were questions for the jury. McCullough v. Briarcliff Summit, 237 Ga. App. 630 , 516 S.E.2d 353 (1999).

Cited in Oakland Motor Car Co. v. Rippey Motor Co., 41 Ga. App. 784 , 154 S.E. 823 (1930); Gledhill v. Harvey, 55 Ga. App. 322 , 190 S.E. 61 (1937); Bixby v. Sinclair Ref. Co., 74 Ga. App. 626 , 40 S.E.2d 677 (1946); Kanes v. Koutras, 203 Ga. 570 , 47 S.E.2d 558 (1948); Ginsberg v. Wade, 95 Ga. App. 475 , 97 S.E.2d 915 (1957); Golf Club Co. v. Rothstein, 97 Ga. App. 128 , 102 S.E.2d 654 (1958); Big Apple Super Mkts. of Peachtree, Inc. v. W.J. Milner & Co., 111 Ga. App. 282 , 141 S.E.2d 567 (1965); Howell Gas of Athens, Inc. v. Coile, 112 Ga. App. 732 , 146 S.E.2d 145 (1965); Townsend & Ghegan Enters. v. W.R. Bean & Son, 117 Ga. App. 109 , 159 S.E.2d 776 (1968); Scarboro Enters., Inc. v. Hirsh, 119 Ga. App. 866 , 169 S.E.2d 182 (1969); Zeeman Mfg. Co. v. L.R. Sams Co., 123 Ga. App. 99 , 179 S.E.2d 552 (1970); Kaplan v. Sanders, 136 Ga. App. 902 , 222 S.E.2d 630 (1975); Porter v. Moschella, 152 Ga. App. 678 , 263 S.E.2d 538 (1979); Bradley v. Godwin, 152 Ga. App. 782 , 264 S.E.2d 262 (1979); Jacobi v. Timmers Chevrolet, Inc., 164 Ga. App. 198 , 296 S.E.2d 777 (1982); Vizzini v. Blonder, 165 Ga. App. 840 , 303 S.E.2d 38 (1983); Schuster v. Plaza Pac. Equities, Inc., 588 F. Supp. 61 (N.D. Ga. 1984); Bettis v. Ryle, 176 Ga. App. 88 , 335 S.E.2d 399 (1985); Dyches Constr. Co. v. Strauss, 192 Ga. App. 454 , 385 S.E.2d 316 (1989); Watts v. Jaffs, 216 Ga. App. 565 , 455 S.E.2d 328 (1995); Culberson v. Lanier, 216 Ga. App. 686 , 455 S.E.2d 385 (1995); Doe v. Prudential-Bache/A.G. Spanos Realty Partners, 222 Ga. App. 169 , 474 S.E.2d 31 (1996); Doe v. Briargate Apts., Inc., 227 Ga. App. 408 , 489 S.E.2d 170 (1997); Standard Mgt. Co. v. Scott, 229 Ga. App. 36 , 493 S.E.2d 216 (1997).

Duties of Landlord

Liability for injury from defective condition. - Landlord is not an insurer, but the landlord is under a legal duty to keep the rented premises in repair, and is liable in damages to a person who receives injury while lawfully upon the premises and who is in the exercise of due care, if the injury arises because of the defective construction of a building erected on the premises by the landlord, or because of the landlord's failure to repair defects of which the landlord knows, or in the exercise of reasonable diligence ought to know. Oglesby v. Rutledge, 67 Ga. App. 656 , 21 S.E.2d 497 (1942); Ween v. Saul, 88 Ga. App. 299 , 76 S.E.2d 525 (1953).

Even if the lack of a smoke detector rendered a leased mobile home defective, the owner of the real property on which the mobile home was located did not violate a duty to supply a smoke detector since a third party owned the mobile home and rented the mobile home to the tenants. Crowder v. Larson, 236 Ga. App. 858 , 513 S.E.2d 771 (1999).

Liability for dangerous condition. - When a portion of leased premises is dangerously out of repair and such condition is known to tenant who continues to use that area, tenant cannot recover from the landlord for damages resulting from the condition; but the severity of the doctrine of assumption of risk has been ameliorated in cases where its application would make the tenant "a captive" in the tenant's own home. Carey v. Bradford, 218 Ga. App. 325 , 461 S.E.2d 290 (1995).

When a dangerous area is tenant's only access or only safe or reasonable access to the home, tenant's equal knowledge of the danger does not excuse the landlord of damages caused by a failure to keep the premises in repair. Carey v. Bradford, 218 Ga. App. 325 , 461 S.E.2d 290 (1995).

Landlord is bound to keep in repair the premises which landlord has leased, unless the contract of lease contains a stipulation to the contrary. Pharr v. Burnette, 158 Ga. App. 473 , 280 S.E.2d 881 (1981).

Landlord has a duty to keep premises in repair, and when defects render premises unsafe or uninhabitable, a landlord may not avoid duties created by statutes or by housing codes even though the defect is patent. Roth v. Wu, 199 Ga. App. 665 , 405 S.E.2d 741 (1991).

Plaintiff as tenant cannot place liability for improvements on defendants as landlords, absent consent to improvements or an agreement between the parties to the contrary. May v. May, 165 Ga. App. 461 , 300 S.E.2d 215 (1983).

Failure to ameliorate mold and roach problems. - Trial court erred in granting the landlord and property management company (defendants) summary judgment because the tenants presented evidence, including the failure to ameliorate the mold and roach problems, which was sufficient to create a jury question on the issue of whether the defendants violated the negligence per se statute of O.C.G.A. § 44-7-13 . Ellis v. Hartford Run Apartments, LLC, 335 Ga. App. 118 , 779 S.E.2d 103 (2015), cert. denied, No. S16C0607, 2016 Ga. LEXIS 289 (Ga. 2016).

Absence of contractual stipulation. - Landlord, in the absence of a stipulation to the contrary, is bound to keep the premises in repair. Mathis v. Gazan, 51 Ga. App. 805 , 181 S.E. 503 (1935); Paulk v. Ellis St. Realty Corp., 79 Ga. App. 36 , 52 S.E.2d 625 (1949); Kersh v. Manis Whsle. Co., 135 Ga. App. 943 , 219 S.E.2d 604 (1975).

Exculpatory provision void. - Landlord's implied warranty concerning latent defects existing at the inception of the lease is sufficiently analogous to a contract for maintenance or repair that an exculpatory provision purporting to nullify the effect of the implied warranty is void and unenforceable; the landlord's warranty exists by operation of law in the interest of public safety. Porubiansky v. Emory Univ., 156 Ga. App. 602 , 275 S.E.2d 163 (1980), aff'd, 248 Ga. 391 , 282 S.E.2d 903 (1981).

Duty to repair arising from contract. - When duty to repair or rebuild arises from a contract, it must be by an express agreement to that effect; it will not be inferred even from a reservation of the right to enter for that purpose. Gavan v. Norcross, 117 Ga. 356 , 43 S.E. 771 (1903).

Suitability of rental property. - It is the duty of the landlord to make rental property suitable for the purpose for which it is rented, unless the tenant knows as much about the property's condition as the landlord does; the landlord must, upon notice of any defect, keep it in such condition as to be suitable for such use. Whittle v. Webster, 55 Ga. 180 (1875); Driver v. Maxwell, 56 Ga. 11 (1876); J.B. White & Co. v. Montgomery, 58 Ga. 204 (1877); Lewis & Co. v. Chisolm, 68 Ga. 40 (1881); Miller v. Smythe, 95 Ga. 288 , 22 S.E. 532 (1895); Johnson v. Collins, 98 Ga. 271 , 26 S.E. 744 (1896); Stack v. Harris, 111 Ga. 149 , 36 S.E. 615 (1900); Thompson v. Walker, 6 Ga. App. 80 , 64 S.E. 336 (1909); Clements v. Blanchard, 141 Ga. 311 , 80 S.E. 1004 , 17 L.R.A. 993 (1914); Florence v. Northcutt, 145 Ga. 265 , 88 S.E. 933 (1916); King v. Investors' Mtg. & Loan Co., 51 Ga. App. 235 , 179 S.E. 910 (1935); Point Apts., Inc. v. Bryant, 99 Ga. App. 110 , 107 S.E.2d 684 (1959).

Grant of summary judgment to an apartment management company on its counterclaim for unpaid rent was affirmed as its alleged failure to provide security or to properly repair the tenant's lock did not constitute acts of a grave and permanent character committed with the intention of depriving the tenant of the use of their apartment without unreasonable interruption nor did they render the apartment uninhabitable. George v. Hercules Real Estate Services, Inc., 339 Ga. App. 843 , 795 S.E.2d 81 (2016).

Duty to inspect. - When the landlord is notified that the premises are out of repair, it becomes the landlord's duty to inspect and investigate in order that the landlord may make such repairs as the safety of the tenant requires; therefore, when, after such notice, the landlord fails, within a reasonable time, to make the repairs, the landlord is chargeable with notice of all defects that a proper inspection would have disclosed. Mathis v. Gazan, 51 Ga. App. 805 , 181 S.E. 503 (1935); Ball v. Murray, 91 Ga. App. 686 , 86 S.E.2d 706 (1955); Dempsey v. Smith, 108 Ga. App. 88 , 132 S.E.2d 233 (1963), overruled on other grounds, Frist v. U.S. 5 & 10 › Stores, Inc., 110 Ga. App. 237 , 138 S.E.2d 186 (1964).

No duty to inspect without request. - When the tenant is in the exclusive possession and control of the rented premises, the landlord is under no duty to inspect the premises to ascertain whether or not repairs are needed, unless requested so to do. Ocean S.S. Co. v. Hamilton, 112 Ga. 901 , 38 S.E. 204 (1901); Ross v. Jackson, 123 Ga. 657 , 51 S.E. 578 (1905); Sutton v. Murray, 49 Ga. App. 130 , 174 S.E. 174 (1934); Cone v. Lawhon, 61 Ga. App. 797 , 7 S.E.2d 597 (1940); Elijah A. Brown Co. v. Wilson, 191 Ga. 750 , 13 S.E.2d 779 (1941); Ramey v. Pritchett, 90 Ga. App. 745 , 84 S.E.2d 305 (1954); Tribble v. Somers, 115 Ga. App. 847 , 156 S.E.2d 130 (1967).

Duty to rebuild. - Words, "keep . . . in repair," as used in this statute are not technical words, but are used in their ordinary sense. The usual meaning of "to repair" is to mend, to restore to a sound state what has been partially destroyed, to make good an existing thing; not to make a new thing, such as erecting a new building to take the place of one destroyed. The law requiring the landlord to keep the rented premises in repair does not mean that the landlord shall rebuild buildings wholly destroyed by casualty not caused by the landlord. Mayer & Crine v. Morehead, 106 Ga. 434 , 32 S.E. 349 (1899); Sewell v. Royal, 147 Ga. App. 88 , 248 S.E.2d 165 (1978) (see O.C.G.A. § 44-7-13 ).

Tenant's implied duty to rebuild. - When the lessee has agreed "to repair" or "to keep in repair" generally the building or property rented and qualifies these words with other words, to-wit: to deliver the possession of the same property in the same condition at the expiration of the lease as at the time of the execution of the lease, natural wear and tear excepted (or words to like effect), the obligation is subject to the implied condition that the building or property shall be in existence at the end of the term and if before that time the property is destroyed by fire, the lessee will not be required, under the terms of the contract, to rebuild or be liable therefor. Otherwise when the covenant is to repair, or keep in repair generally, without the qualifying words, the tenant must rebuild. Williams v. Bernath, 61 Ga. App. 350 , 6 S.E.2d 184 (1939).

Covenant to repair ordinarily does not bind the landlord to rebuild, though there are cases in which the word "repair," aided by the context, has been held to mean "rebuild." When the contract requires the tenant to keep the premises in repair, and return the premises in the same condition as when received, or other language is employed showing an intention to make either party rebuild, such duty will be imposed, even though the word "rebuild" is not used. Shippen v. Georgia Better Foods, Inc., 79 Ga. App. 813 , 54 S.E.2d 704 (1949).

Rebuilding in case of destruction. - Provision of this statute making landlords liable for repairs does not require landlords to rebuild in case of the destruction of the tenement. Mayer & Crine v. Morehead, 106 Ga. 434 , 32 S.E. 349 (1899) (see O.C.G.A. § 44-7-13 ).

Negligent repair. - When the landlord is notified of defective premises and undertakes to repair, landlord must do so properly; landlord will be liable if landlord negligently repairs the premises. Dempsey v. Hertsfield, 30 Ga. 866 (1860); Adams v. Klasing, 20 Ga. App. 203 , 92 S.E. 960 (1917); Marr v. Dieter, 27 Ga. App. 711 , 109 S.E. 532 (1921); Jadronja v. Bricker, 49 Ga. App. 37 , 174 S.E. 251 (1934); Hill v. Liebman, Inc., 53 Ga. App. 462 , 186 S.E. 431 (1936); Thomson v. Avery, 67 Ga. App. 671 , 21 S.E.2d 331 (1942); Oglesby v. Rutledge, 67 Ga. App. 656 , 21 S.E.2d 497 (1942).

Landlord is liable for damages when the repairs the landlord has a duty to make are completed negligently so that a defect in the premises remains despite the attempted repair. However, when the worker hired is an independent contractor, the landlord is not liable for the negligent acts of the worker during the course of the repairs. Mason v. Gracey, 189 Ga. App. 150 , 375 S.E.2d 283 (1988).

Trial court erred in granting an apartment owner and a manager summary judgment in a tenant's action to recover damages for the personal injuries the tenant sustained from carbon-monoxide poisoning because the owner and manager could be liable for the actions of a construction company's workers even if the company, which was orally hired to assist in the clean up of the owner's apartments, was an independent contractor; the evidence showed that a temporary tarp repair the workers performed was completed so negligently that a defect in the premises was created, and some evidence showed that the company and its workers were not independent contractors. In placing a temporary tarp on the roof of the tenant's apartment, the company was performing the duty of the owner and manager to repair the premises by stopping a leak until a more permanent repair could be effected. Atkins v. MRP Park Lake, L. P., 301 Ga. App. 275 , 687 S.E.2d 215 (2009).

Trial court erred in granting an apartment owner and a manager summary judgment in a tenant's action to recover damages for the personal injuries the tenant sustained from carbon-monoxide poisoning on the ground that the tenant had equal knowledge with the owner and manager that the vents of the apartment were covered because some evidence showed that other agents of the owner and manager had superior knowledge of the defect, and the evidence was disputed as to whether the tenant had equal knowledge; an employee of the owner and manager supervised the emergency repairs of the apartment and was constantly walking the property to check on those repairs, and should have seen the vent pipe problem. Atkins v. MRP Park Lake, L. P., 301 Ga. App. 275 , 687 S.E.2d 215 (2009).

Questions of fact as to whether duty to repair was met. - Trial court erred in granting the landlord and property management company (defendants) summary judgment because the tenants presented evidence that the tenants repeatedly notified the defendants about the problems with the apartment, but in spite of that notice, the defendants never made the apartment fit for habitation, which raised questions of fact for the jury to decide. Ellis v. Hartford Run Apartments, LLC, 335 Ga. App. 118 , 779 S.E.2d 103 (2015), cert. denied, No. S16C0607, 2016 Ga. LEXIS 289 (Ga. 2016).

Genuine issues of fact remained regarding the landlord's failure to maintain a leased home; the court rejected the landlord's contention that the lease was commercial rather than residential because the tenant had an option to purchase and intended the lease as an investment because there was no dispute that the tenant was using the leased home as the tenant's residence. Tela Invs., LLC v. Razavi, 351 Ga. App. 518 , 831 S.E.2d 175 (2019), cert. denied, No. S19C1631, 2020 Ga. LEXIS 150 (Ga. 2020).

Liability for defects in construction. - Landlord will not be liable for an injury to a tenant on account of defective construction of rented premises which the landlord has not constructed or caused to be constructed. However, when a building was defectively constructed by a predecessor in title of the landlord, and the landlord knew, or in the exercise of reasonable diligence could have known, of the building's improper construction before the tenancy was created, the landlord would be answerable to the plaintiff for injuries sustained by reason of a negligent failure to put the premises in a safe condition if the tenant could not have avoided the injury by the exercise of ordinary care. Thomson v. Avery, 67 Ga. App. 671 , 21 S.E.2d 331 (1942).

Duty to prevent condemnation. - When the relation between parties is purely landlord and tenant, the duty is on the landlord to make such improvements and repairs necessary to preserve the buildings on the premises and prevent their decadence as well as to prevent their condemnation and destruction as fire hazards and unsafe buildings, and as nuisances. Evans Theatre Corp. v. De Give Inv. Co., 79 Ga. App. 62 , 52 S.E.2d 655 (1949).

Landlord's duty to subtenant. - It is the duty of the landlord to keep the premises in repair, whether the premises be occupied by a tenant or a subtenant. Hooks v. Bailey, 5 Ga. App. 211 , 62 S.E. 1054 (1908).

No continuing obligation to repair. - When a lease provided that the lessee would make all necessary repairs, and require no repairs be made by the lessor, the mere fact that the landlord has made repairs at the request of the tenant does not impose upon the landlord any obligation to continue to make repairs. Jadronja v. Bricker, 49 Ga. App. 37 , 174 S.E. 251 (1934).

Landlord not insurer. - Landlord is not an insurer of the tenant's safety, but the landlord is certainly no bystander. Warner v. Arnold, 133 Ga. App. 174 , 210 S.E.2d 350 (1974).

Notice

Landlord not liable absent notice or actual knowledge of defect. - Landlord is not liable to a tenant for injuries resulting from defects unless the landlord has had actual knowledge of the defects, or has been notified of such defects and has failed to make repairs within a reasonable time and the tenant could not have avoided the injuries resulting therefrom by the exercise of ordinary care on the tenant's own part. Stack v. Harris, 111 Ga. 149 , 36 S.E. 615 (1900); McGee v. Hardacre, 27 Ga. App. 106 , 107 S.E. 563 (1921); Kleinberg v. Lyons, 39 Ga. App. 774 , 148 S.E. 535 (1929); Wallace v. Adams, 47 Ga. App. 144 , 169 S.E. 852 (1933); Mathis v. Gazan, 51 Ga. App. 805 , 181 S.E. 503 (1935).

Landlord, in the absence of a stipulation to the contrary, is bound to keep the premises in repair. Landlord is, however, entitled to notice from the tenant that the premises are out of repair, and if, after such notice has been given, the tenant suffers damage on account of the failure of the landlord to make the necessary repairs, the landlord is liable for the damage thus sustained, provided the conduct of the tenant was not such as to preclude the tenant from recovering. Harris v. Edge, 92 Ga. App. 827 , 90 S.E.2d 47 (1955); Point Apts., Inc. v. Bryant, 99 Ga. App. 110 , 107 S.E.2d 684 (1959).

When the premises were destroyed by a fire originating from a furnace, the landlord, who had no actual knowledge of any furnace problem, could not be charged with notice that the removal of exterior asbestos shingles may have created a hazard with the furnace. Harris v. Sloan, 199 Ga. App. 340 , 405 S.E.2d 68 , cert. denied, 199 Ga. App. 906 , 405 S.E.2d 68 (1991).

No duty without notice. - Landlord has no duty to repair until the landlord has notice of, or otherwise acquires knowledge of, the necessity for repair. Upchurch v. Coggins, 70 Ga. App. 205 , 27 S.E.2d 869 (1943); Holloway v. Feinberg, 100 Ga. App. 160 , 110 S.E.2d 413 (1959); Davis v. General Gas Corp., 106 Ga. App. 317 , 126 S.E.2d 820 (1962).

Effect of notice. - Notice of a defect given by the tenant to the landlord charges the landlord with notice of such other defects as might reasonably be discovered by a compliance with such request for repairs. Stack v. Harris, 111 Ga. 149 , 36 S.E. 615 (1900); Roach v. LeGree, 18 Ga. App. 250 , 89 S.E. 167 (1916); Cone v. Lawhon, 61 Ga. App. 797 , 7 S.E.2d 597 (1940); Home Owners Loan Corp. v. Brazzeal, 62 Ga. App. 683 , 9 S.E.2d 773 (1940); Shattles v. Blanchard, 87 Ga. App. 15 , 73 S.E.2d 112 (1952); Ball v. Murray, 91 Ga. App. 686 , 86 S.E.2d 706 (1955).

Effect of notice of patent defect. - Notice of a separate and independent patent defect, in no way connected with the latent defect which is alleged to have occasioned the injury, cannot be taken as constructive notice of the latter, or as devolving upon the landlord any duty of inspection. Hendrick v. Muse, 48 Ga. App. 295 , 172 S.E. 661 (1934); Cone v. Lawhon, 61 Ga. App. 797 , 7 S.E.2d 597 (1940); Tribble v. Somers, 115 Ga. App. 847 , 156 S.E.2d 130 (1967).

Liability after notice or knowledge. - When the landlord, after knowledge or notice that the premises are out of repair, neglects to repair the premises within a reasonable time the landlord may be liable to the tenant in a proper case for damage sustained by reason of the failure to make such repairs. Whittle v. Webster, 55 Ga. 180 (1875); Stack v. Harris, 111 Ga. 149 , 36 S.E. 615 (1900); Ross v. Jackson, 123 Ga. 657 , 51 S.E. 578 (1905); Wall Realty Co. v. Leslie, 54 Ga. App. 560 , 188 S.E. 600 (1936); Oglesby v. Rutledge, 67 Ga. App. 656 , 21 S.E.2d 497 (1942); Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723 , 49 S.E.2d 779 (1948).

No actual or constructive knowledge. - Landlord is not liable for injuries to a tenant on account of latent defects existing at the time of the lease, which the landlord might have discovered by an inspection not required of the landlord by law, unless the landlord actually knew, or by the exercise of ordinary care might otherwise have known, of their existence. Tribble v. Somers, 115 Ga. App. 847 , 156 S.E.2d 130 (1967).

Landlord without actual notice of defect. - Owner may be held liable for injuries arising from failure to maintain building in proper repair, even without actual notice of the defect, if, in the exercise of ordinary care, the owner should have known of the defect. Home Owners Loan Corp. v. Brazzeal, 62 Ga. App. 683 , 9 S.E.2d 773 (1940).

Property company was not liable for negligence after an apartment fire because, even assuming that the alleged defect existed and caused the fire, the company lacked notice of the condition. There was no evidence that the stove lacked drip pans when the victim moved into the apartment and the company was never told of a problem with the stove. Haynes v. Kingstown Props., Inc., 260 Ga. App. 102 , 578 S.E.2d 898 (2003).

Actual knowledge derived from inspection. - Whether or not owner was under the duty to inspect for latent defects, having actually made such inspection the owner was under the duty to make such repairs as may have been called for by the knowledge so obtained. Home Owners Loan Corp. v. Brazzeal, 62 Ga. App. 683 , 9 S.E.2d 773 (1940).

Landlord not in possession. - When landlord has surrendered complete possession to tenant landlord must have knowledge of defect, or have been notified to repair, before landlord becomes liable. Finley v. Williams, 45 Ga. App. 863 , 166 S.E. 265 (1932); Home Owners Loan Corp. v. Brazzeal, 62 Ga. App. 683 , 9 S.E.2d 773 (1940); Shattles v. Blanchard, 87 Ga. App. 15 , 73 S.E.2d 112 (1952); Ball v. Murray, 91 Ga. App. 686 , 86 S.E.2d 706 (1955).

Notice not required when landlord retains qualified possession. - When a landlord retains a qualified possession of and a general supervision over the rented premises, by placing an agent in charge thereof, no notice from the tenant is required. Guthman v. Castleberry, 49 Ga. 272 (1873); J.B. White & Co. v. Montgomery, 58 Ga. 204 (1877); Monahan v. National Realty Co., 4 Ga. App. 680 , 62 S.E. 127 (1908); Florence v. Northcutt, 145 Ga. 265 , 88 S.E. 933 (1916); Davis v. Hall, 21 Ga. App. 265 , 94 S.E. 274 (1917).

Landlord occupying premises. - When a landlord occupies a room in the rented premises the landlord is presumed to have knowledge of the defective and leaky condition of the roof, and notice by the tenant to repair is not necessary. Turner v. Long, 61 Ga. App. 785 , 7 S.E.2d 595 (1940).

Landlord must be charged with knowledge of the physical construction of the landlord's own premises. Shattles v. Blanchard, 87 Ga. App. 15 , 73 S.E.2d 112 (1952).

When structure is built by predecessor in title of a landlord, or by some other person not acting under the supervision of the landlord, before the landlord can be held liable for injuries caused by the defective structure, it must appear that the landlord actually knew, or by the exercise of ordinary diligence could and should have known, of the improper construction before the tenancy was created; or that the landlord had been notified thereof by the tenant, and had failed, after a reasonable time, to repair and render the defective structure safe; or that the landlord had acquired such knowledge, and had failed, after a reasonable time, to render the structure safe. Upchurch v. Coggins, 70 Ga. App. 205 , 27 S.E.2d 869 (1943).

Patent defects known at lease. - If there are patent defects known to both parties at the time of executing the lease, and the lessee takes the premises as the premises are, the lessee cannot thereafter demand that the landlord remedy the defect. Driver v. Maxwell, 56 Ga. 11 (1876); Aikin v. Perry, 119 Ga. 263 , 46 S.E. 93 (1903); Lumpkin v. Provident Loan Soc'y, Inc., 15 Ga. App. 816 , 84 S.E. 216 (1915); Desverges v. Marchant, 18 Ga. App. 248 , 89 S.E. 221 (1916).

Notice to agent. - Notice of the defective condition of the property when given to the agent with whom the tenant dealt under instructions of the landlord, and to whom the rents were paid, is notice to the landlord. Wall Realty Co. v. Leslie, 54 Ga. App. 560 , 188 S.E. 600 (1936).

Burden of proof of notice. - In order to sustain a cause of action against a landlord for failure to keep the premises in repair, the tenant must allege and prove that the tenant has given the landlord notice of the defective condition of the premises. Roach v. LeGree, 18 Ga. App. 250 , 89 S.E. 167 (1916).

Knowledge of owner as jury question. - Fact that landing floor broke through, when used in the ordinary manner by the plaintiff, together with the fact of the floor's condition as shown by the exhibits and openness of the inspection, made it a jury question as to whether or not the floor's defective condition could have been known to the owner by the exercise of ordinary care. Home Owners Loan Corp. v. Brazzeal, 62 Ga. App. 683 , 9 S.E.2d 773 (1940).

Reasonable notice as jury question. - Question of what is a reasonable time for the performance of an act required to be performed upon "reasonable notice" is determined by the character of the act contemplated, considered with its purposes and the attendant facts and circumstances, and accordingly, when, the only means of ingress and egress from an apartment rented by the landlord is a set of outside steps, whether two days' notice of a defect in the steps is such reasonable notice as would raise a duty on the part of the landlord to repair the steps within such period of time is a jury question. Shattles v. Blanchard, 87 Ga. App. 15 , 73 S.E.2d 112 (1952).

Rights and Duties of Tenant

Duty of tenant to give notice. - When rented premises become out of repair, it is the duty of the tenant to notify the landlord of this fact, and also to abstain from using any part of the premises, the use of which would be attended with danger. J.B. White & Co. v. Montgomery, 58 Ga. 204 (1877); Ocean S.S. Co. v. Hamilton, 112 Ga. 901 , 38 S.E. 204 (1901); Clements v. Blanchard, 141 Ga. 311 , 80 S.E. 204 , 1917A L.R.A. 993 (1914); Roach v. LeGree, 18 Ga. App. 250 , 89 S.E. 167 (1916); Alexander v. Owen, 18 Ga. App. 326 , 89 S.E. 437 (1916); Davis v. Hall, 21 Ga. App. 265 , 94 S.E. 274 (1917).

Acceptance of premises. - When lessees accepted the premises in the condition in which the premises were at the time of the lease, as suitable for the purpose intended, and further relieved the landlord of any obligation to repair except after written notice, these provisions in the contract constituted a "stipulation to the contrary" relieving the lessor of any duty to repair the premises except after notice to it by the tenants. Point Apts., Inc. v. Bryant, 99 Ga. App. 110 , 107 S.E.2d 684 (1959).

Effect of tenant's covenant to repair. - Tenant will not be required to make repairs in addition to or beyond those expressly covenanted in the contract. Midtown Chain Hotels Co. v. Bender, 77 Ga. App. 723 , 49 S.E.2d 779 (1948).

Tenant's covenant to keep the rented premises in repair absolves the landlord from the landlord's statutory duty to make repairs. Browning v. F.E. Fortenberry & Sons, 131 Ga. App. 498 , 206 S.E.2d 101 (1974); Kersh v. Manis Whsle. Co., 135 Ga. App. 943 , 219 S.E.2d 604 (1975).

Election by tenant. - Tenant may repair and charge the landlord or the tenant may notify the landlord that the repairs are needed. Vason v. City of Augusta, 38 Ga. 542 (1868); Driver v. Maxwell, 56 Ga. 11 (1876).

Landlord must keep the premises in repair; and if on notice the landlord fails to do so, the tenant has a right of action, or the tenant may recoup against the rent. Lewis & Co. v. Chisolm, 68 Ga. 40 (1881); Mayer & Crine v. Morehead, 106 Ga. 434 , 32 S.E. 349 (1899).

Tenant has as tenant's option to make the repairs and recover from the landlord the reasonable expense incurred, the tenant can set off the expense against the rent, or the tenant may omit to make the repairs personally and may seek compensation by an action for the damages. Dougherty v. Taylor & Norton Co., 5 Ga. App. 773 , 63 S.E. 928 (1909).

Recoupment against distress warrant. - When the landlord fails to repair the roof of the storehouse, after notice of the roof's leaky condition, and the tenant's goods are damaged thereby, the tenant is entitled to recoup the amount of such damages as against a distress warrant for the rent. Williamson v. May, 44 Ga. App. 532 , 162 S.E. 162 (1932).

Use of defective premises as negligence. - When rented premises become defective and unsafe, it is the duty of the tenant to refrain from using that part of the premises the use of which would be attended with danger; it is the tenant's duty to exercise ordinary care for the tenant's own safety; and when the tenant is injured as a result of the tenant's failure to exercise such care, the tenant cannot recover damages from the tenant's landlord. Guthman v. Castleberry, 48 Ga. 172 (1873); Driver v. Maxwell, 56 Ga. 11 (1876); Stack v. Harris, 111 Ga. 149 , 36 S.E. 615 (1900); Henley v. Brockman, 124 Ga. 1059 , 53 S.E. 672 (1906); Donehoe v. Crane, 141 Ga. 224 , 80 S.E. 712 (1914); Roach v. LeGree, 18 Ga. App. 250 , 89 S.E. 167 (1916); Mathis v. Gazan, 51 Ga. App. 805 , 181 S.E. 503 (1935); Turner v. Long, 61 Ga. App. 785 , 7 S.E.2d 595 (1940); Brooks v. Arnold, 89 Ga. App. 782 , 81 S.E.2d 289 (1954); Holloway v. Feinberg, 100 Ga. App. 160 , 110 S.E.2d 413 (1959).

Even after notice to the defendant, the tenants had a perfect right to use that part of the premises which was apparently in good and sound condition, unless there was something to call their attention to a defect in that part. Clements v. Blanchard, 141 Ga. 311 , 80 S.E. 1004 , 17 L.R.A. 993 (1914); Roach v. LeGree, 18 Ga. App. 250 , 89 S.E. 167 (1916); Mathis v. Gazan, 51 Ga. App. 805 , 181 S.E. 503 (1935).

By electing to use a stairway at night, when the lighting was out, a tenant assumed the risk of injury as a matter of law and was thus barred from recovery. Wells v. Citizens & S. Trust Co., 199 Ga. App. 31 , 403 S.E.2d 826 , cert. denied, 199 Ga. App. 907 , 403 S.E.2d 826 (1991).

Quality of repairs by tenant. - In making the necessary repairs the tenant is not bound to use precisely the same materials as were originally used. If the tenant employs capable workmen, uses suitable materials, and the work is reasonable and properly done, the tenant is entitled to be reimbursed for the money expended by the tenant in making the repairs. Dougherty v. Taylor & Norton Co., 5 Ga. App. 773 , 63 S.E. 928 (1909).

Liability where tenant supervised work. - When a tenant had been occupying a certain store, and at the tenant's instance and under the tenant's immediate supervision the landlord caused repairs to be made in the flooring, and thereupon the tenant rented for a term, agreeing that no repairs should be required to the landlord, if the floor subsequently gave way by reason of putting a heavy load upon the floor, there could be no setoff from the rent on account of damages resulting from such accident. Bosworth v. Thomas, 67 Ga. 640 (1881).

Persons present with tenant's permission. - Members of a tenant's family, the tenant's guests, servants, employees, and others present at the tenant's express or implied invitation, stand in the tenant's shoes, and are controlled by the rules governing the tenant as to the right of recovery for injuries arising from failure to keep the premises in repair. Wallace v. Adams, 47 Ga. App. 144 , 169 S.E. 852 (1933); Oglesby v. Rutledge, 67 Ga. App. 656 , 21 S.E.2d 497 (1942).

Negligence not imputed to child. - Child of three years of age is conclusively presumed to be incapable of contributory negligence, and any negligence of the tenant in failing to prevent the tenant's child from using the alleged defective portion of the premises would not be imputable to the child in an action maintained in the child's own behalf. Oglesby v. Rutledge, 67 Ga. App. 656 , 21 S.E.2d 497 (1942).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 618 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, §§ 366 et seq., 387 et seq.

ALR. - Breach of lessor's agreement as ground of liability for personal injury to tenant or one in privity with latter, 8 A.L.R. 765 ; 78 A.L.R.2d 1238.

Status of one employed by landlord to perform work on premises who enters or remains without consent or against protest of tenant, 10 A.L.R. 715 .

Effect of noninhabitability of leased dwelling or apartment, 13 A.L.R. 818 ; 29 A.L.R. 52 ; 34 A.L.R. 711 .

Rights and remedies of tenant upon landlord's breach of covenant to repair, 28 A.L.R. 1448 ; 28 A.L.R.2d 446.

Necessity of notice to landlord as condition of asserting breach of express covenant to repair, 28 A.L.R. 1525 .

Measure of damages for breach of landlord's covenant to heat, or furnish hot water for, premises leased for business or manufacturing purposes, 28 A.L.R. 1550 .

Transfer or devolution of reversion as carrying lessee's covenants to repair, or to yield up in repair, 34 A.L.R. 782 .

Liability of landlord for personal injuries due to defective halls, stairways, and the like, for use of different tenants, 39 A.L.R. 294 ; 58 A.L.R. 1411 ; 75 A.L.R. 154 ; 97 A.L.R. 220 .

Extent of lessee's obligation under express covenant as to repairs, 45 A.L.R. 12 ; 20 A.L.R. 782 .

Landlord's responsibility to third persons for conditions created during tenancy as affected by renewal of the lease, or a new lease subject to the original lease, 49 A.L.R. 1418 .

Liability of landlord for injury to person or property of tenant or his privies, from defects in heating or lighting plant or plumbing, 52 A.L.R. 864 .

Conclusiveness of appraisal of buildings or other improvements under provision of lease for compensation to tenant on termination of lease, 53 A.L.R. 697 .

Rights and remedies of parties where landlord fails to exercise option to renew lease at end of term or pay lessee for improvements, 63 A.L.R. 1158 .

Breach of covenant to furnish heat for building or room other than dwelling or apartment as an eviction, 69 A.L.R. 1093 .

Constructive notice by record of true title or interest as affecting right to compensation for improvements, 82 A.L.R. 921 .

Equitable lien on real property in favor of one who makes advances or expenditures to improve the same, 89 A.L.R. 1455 .

Rights as between surviving spouse and holder of leasehold interest under a lease from deceased spouse in respect of improvements made pursuant to provisions of lease, 92 A.L.R. 1382 .

Common-law duty of landlord as regards installation and maintenance of fire equipment, 122 A.L.R. 167 .

Lessor as subject to income tax in respect of improvements or additions by lessee, 138 A.L.R. 238 .

Validity, construction, and application of statute or ordinance which precludes recovery of rent in case of occupancy of building which does not conform to building and health regulations, or where certificate of conformity has not been issued, 144 A.L.R. 259 .

Landlord's liability for injury to person or damage to property as affected by his making of repairs in absence of obligation to do so, 150 A.L.R. 1373 .

Covenant respecting condition of premises as requiring indemnity for amount paid or liability incurred on account of injury to third person or his property, 157 A.L.R. 623 .

Lease of premises as affecting owner's liability for injury arising out of condition in highway connected with use of property, 160 A.L.R. 825 .

Breach of lessor's agreement to repair as ground of liability for personal injury to tenant or one in privity with latter, 163 A.L.R. 300 ; 78 A.L.R.2d 1238.

Statute requiring property to be kept in good repair as affecting landlord's liability for personal injury to tenant or his privies, 17 A.L.R.2d 704.

Extent of lessee's obligation under express covenant as to repairs, 20 A.L.R.2d 1331.

Tenant's right to lien, in absence of agreement therefor, for improvements made on leased premises, 25 A.L.R.2d 885.

Landlord's liability for injury to tenant's person or property caused by water overflowing from defective appliances in other premises of landlord, 26 A.L.R.2d 1044.

Liability of landlord to tenant or member of tenant's family, for injury by animal or insect, 67 A.L.R.2d 1005.

Clause of lease providing for payment of taxes by lessor as applicable to increase in real estate taxes occasioned by lessee's improvements, 68 A.L.R.2d 1289.

Landlord's liability for personal injury or death of tenant or his privies from heating system or equipment, 86 A.L.R.2d 791.

Landlord's liability for personal injury or death of tenant or privies from electrical system or equipment, 86 A.L.R.2d 838.

Improvements and betterments insurance, 97 A.L.R.2d 1243.

Effect, on nonsigner, of provision of lease exempting landlord from liability on account of condition of property, 12 A.L.R.3d 958.

Premises liability: proceeding in the dark as contributory negligence, 22 A.L.R.3d 286.

Who, as between landlord and tenant, must make, or bear expense of, alterations, improvements, or repairs ordered by public authorities, 22 A.L.R.3d 521.

Landlord's liability for damage to tenant's property caused by water, 35 A.L.R.3d 143.

Modern status of the rule absolving a possessor of land of liability to those coming thereon for harm caused by dangerous physical conditions in which the injured party knew and realized the risk, 35 A.L.R.3d 230.

Modern status of rules as to existence of implied warranty of habitability or fitness for use of leased premises, 40 A.L.R.3d 646.

Landlord's failure to repair as aggravated negligence or similar fault, 40 A.L.R.3d 795.

Tenant's right, where landlord fails to make repairs, to have them made and set off cost against rent, 40 A.L.R.3d 1369.

Liability of owner or operator of park for mobile homes or trailers for injuries caused by appliances or other instruments on premises, 41 A.L.R.3d 324.

Landlord's liability for injury or death due to defects in areas of building (other than stairways) used in common by tenants, 65 A.L.R.3d 14.

Liability of landlord for personal injury or death due to inadequacy or lack of lighting on portion of premises used in common by tenants, 66 A.L.R.3d 202.

Landlord's liability for personal injury or death due to defects in appliances supplied for use of different tenants, 66 A.L.R.3d 374.

Landlord's liability for injury or death due to defects in outside walks, drives, or grounds used in common by tenants, 68 A.L.R.3d 382.

Landlord's liability to tenant's child for personal injuries resulting from defects in premises, as affected by tenant's negligence with respect to supervision of child, 82 A.L.R.3d 1079.

Failure of landlord to make, or permit tenant to make, repairs or alterations required by public authority as constructive eviction, 86 A.L.R.3d 352.

Liability for injuries in connection with ice or snow on nonresidential premises, 95 A.L.R.3d 15.

Landlord and tenant: violation of statute or ordinance requiring landlord to furnish specified facilities or services as ground of liability for injury resulting from tenant's attempt to deal with deficiency, 63 A.L.R.4th 883.

Landlord's liability to third party for repairs authorized by tenant, 46 A.L.R.5th 1.

Comparative negligence, contributory negligence and assumption of risk in action against owner of store, office, or similar place of business by invitee falling on tracked-in water or snow, 83 A.L.R.5th 589.

44-7-14. Tort liability of landlord.

Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.

(Civil Code 1895, § 3118; Civil Code 1910, § 3694; Code 1933, § 61-112; Ga. L. 1982, p. 3, § 44.)

History of section. - This Code section is derived from the decisions in J.B. White & Co. v. Montgomery, 58 Ga. 204 (1877), and Freidenburg & Co. v. Jones, 63 Ga. 612 (1879).

Cross references. - Liability of owners and occupiers of land, § 51-3-1 et seq.

Law reviews. - For article surveying torts law, see 34 Mercer L. Rev. 271 (1982). For survey article on tort law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 425 (2003). For note advocating reasonable man standard for tort liability of landlord, see 23 Emory L.J. 1051 (1974). For note, "Don't Let the Bed Bugs Bill: Landlord Liability for Bed Bug Infestations," see 34 Ga. St. U. L. Rev. 479 (2018). For comment on Martin v. Medlin, 81 Ga. App. 602 , 59 S.E.2d 519 (1950), see 13 Ga. B.J. 240 (1950).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Origin of section. - Under this statute, which is a mere codification of the principles laid down in J.B. White & Co. v. Montgomery, 58 Ga. 204 (1877), and Freidenburg & Co. v. Jones, 63 Ga. 612 (1879), a landlord is responsible to third persons both for damage arising from defective construction and for damage arising from failure to keep the premises in repair. As to positive misfeasance in construction, landlord is subject to the same rule which is announced in Mayor of Brunswick v. Braxton, 70 Ga. 193 (1833). Monahan v. National Realty Co., 4 Ga. App. 680 , 62 S.E. 127 (1908) (see O.C.G.A. § 44-7-14 ).

Public policy. - General Assembly has consistently expressed the public policy of this state as one in favor of imposing upon the landlord liability for damages to others from defective construction and failure to keep one's premises in repair. The expressed public policy in favor of landlord liability is matched by an equally strong and important public policy in favor of preventing unsafe residential housing. Thompson v. Crownover, 259 Ga. 126 , 381 S.E.2d 283 (1989).

O.C.G.A. § 44-7-14 provided remedy to member of military and spouse, who lived in military base housing, and recovery was not barred under the "activity incident to service" doctrine. Elliott ex rel. Elliott v. United States, 877 F. Supp. 1569 (M.D. Ga. 1992), aff'd, 13 F.3d 1555 (11th Cir. 1995).

Construction of section. - Properly construed, this statute does not make a landlord responsible as an insurer, but liable only in the event the landlord fails to comply with the landlord's statutory duty of keeping the premises in repair. Birdsey v. Greene, 176 Ga. 688 , 168 S.E. 564 (1933) (see O.C.G.A. § 44-7-14 ).

O.C.G.A. § 44-7-14 makes it clear that a landlord who relinquishes possession of the premises cannot be liable to third parties for damages arising from the negligence of the tenant. Colquitt v. Rowland, 265 Ga. 905 , 463 S.E.2d 491 (1995); Johnson v. Loy, 231 Ga. App. 431 , 499 S.E.2d 140 (1998).

Landlord not insurer of tenant's safety. - Even though the landlord is under a duty to keep the premises in repair pursuant to O.C.G.A. §§ 44-7-13 and 44-7-14 , the landlord is not an insurer of the tenant's safety. Ethridge v. Davis, 243 Ga. App. 11 , 530 S.E.2d 477 (2000).

Purpose of section. - Statute was designed simply to embody a rule of law which was well settled and well understood at the time of the law's codification, and not to enlarge the duty devolving upon landlords with respect to the making of repairs nor to impose upon the landlord a harsher rule of responsibility than that to which the landlord were already subject. Ocean S.S. Co. v. Hamilton, 112 Ga. 901 , 38 S.E. 204 (1901); Birdsey v. Greene, 176 Ga. 688 , 168 S.E. 564 (1933); Howell Gas of Athens, Inc. v. Coile, 112 Ga. App. 732 , 146 S.E.2d 145 (1965) (see O.C.G.A. § 44-7-14 ).

Modification of common law. - Statute changed the rule which had been applied under the common law for under the common law the burden of repairing was upon the tenant. Roach v. LeGree, 18 Ga. App. 250 , 89 S.E. 167 (1916); Wallace v. Adams, 47 Ga. App. 144 , 169 S.E. 852 (1933) (see O.C.G.A. § 44-7-14 ).

Relationship of landlord and tenant required. - When a party enters upon land under a contract of purchase, prior to the consummation of the sales transaction, a landlord and tenant relationship does not come into existence, and, absent this relationship, the provisions of this statute concerning the liability of a landlord to third persons cannot apply. MacKenna v. Jordan, 123 Ga. App. 801 , 182 S.E.2d 550 (1971) (see O.C.G.A. § 44-7-14 ).

Liability of out-of-possession owner limited. - When a plaintiff, injured when the plaintiff fell from an amusement ride, has presented no evidence to contradict a defendant's showing that it was out of possession of the amusement park, the defendant's tort liability is limited by O.C.G.A. § 44-7-14 , which states that a landlord is not liable for the negligence of a tenant toward third persons; as the alleged negligence in this action was the tenant's, the landlord's motion for summary judgment would be granted. Fraley ex rel. Fraley v. Lake Winnepesaukah, Inc., 631 F. Supp. 160 (N.D. Ga. 1986).

After a minor child was bitten by another tenant's dog, an action by the mother of the child against the owner of the apartment complex and the apartment's leasing agent resulted in summary judgment against the mother, as the out-of-possession landlord's only liability to third persons was that of O.C.G.A. § 44-7-14 , which was inapplicable; there was no showing that either the owner or agent had any type of knowledge of the dog's propensities or viciousness, and the agent was therefore not shown to be liable on any claim arising under O.C.G.A. § 51-3-1 . Griffiths v. Rowe Props., 271 Ga. App. 344 , 609 S.E.2d 690 (2005).

Trial court erred in denying the lessor's motion for summary judgment on the premises liability claim brought by a tree trimmer and spouse after the tenants asked for help to get a chainsaw unstuck from a tree because regardless of any actions taken by the tenants, the lessor was not liable for faulty construction or a failure to repair. Barclay v. Stephenson, 337 Ga. App. 365 , 787 S.E.2d 322 (2016).

Suitability for intended use. - There is in this state, as at common law (the statute not having changed this rule), no implied covenant that the premises are suitable for the purpose for which they are leased, or for the particular use for which they are intended by the tenant; the only modification of this rule in Georgia is as to the duty of the landlord to "keep the premises in repair." Childers v. Speer, 63 Ga. App. 848 , 12 S.E.2d 439 (1940).

Implied covenant of suitability for the intended use has crept into the law only to the extent that this statute places upon such landlord a duty to keep the premises in repair, which must necessarily imply that state of repair which is reasonably necessary to make the premises fit for the use intended by the lessee and known to the lessor. Point Apts., Inc. v. Bryant, 99 Ga. App. 110 , 107 S.E.2d 684 (1959) (see O.C.G.A. § 44-7-14 ).

From former Code 1933, §§ 61-111 and 61-112 (see O.C.G.A. §§ 47-7-13 and 47-7-14) has been derived the principle that suitability for the use "intended by the lessee and known to the lessor" was assured. Thus, a jury question existed as to the suitability of a lock to prevent burglaries. Warner v. Arnold, 133 Ga. App. 174 , 210 S.E.2d 350 (1974).

Persons present by invitation of tenant. - Tenant's family, tenant's guests, servants, employees, or others present by the tenant's express or implied invitation, stand in his shoes and are controlled by the rules governing the right to recover for injuries arising from a landlord's failure to keep the premises in repair. Archer v. Blalock, 97 Ga. 719 , 25 S.E. 391 (1896); Williams v. Mayes, 46 Ga. App. 142 , 166 S.E. 876 (1932); Wallace v. Adams, 47 Ga. App. 144 , 169 S.E. 852 (1933); Chamberlain v. Nash, 54 Ga. App. 508 , 188 S.E. 276 (1936); Dobbs v. Noble, 55 Ga. App. 201 , 189 S.E. 694 (1937); Rogers v. Columbus Bank & Trust Co., 111 Ga. App. 792 , 143 S.E.2d 438 (1965); Yates v. Crumbley, 116 Ga. App. 366 , 157 S.E.2d 295 (1967); Black v. New Holland Baptist Church, 122 Ga. App. 606 , 178 S.E.2d 571 (1970).

Actions by invitees. - While actions by invitees of tenants against landlords for failure to repair premises are based on this statute, the rationale of the basis for the actions is the same as if the duty had been a general common-law duty. University Apts., Inc. v. Uhler, 84 Ga. App. 720 , 67 S.E.2d 201 (1951) (see O.C.G.A. § 44-7-14 ).

Liability for nuisance. - If the nuisance existed upon the premises when the lease was made, the landlord is liable, but if the tenant continues the nuisance after the tenant obtains exclusive possession and control, the tenant alone is liable for the nuisance's continuance. Robertson v. Liggett Drug Co., 81 Ga. App. 850 , 60 S.E.2d 268 (1950); Howell Gas of Athens, Inc. v. Coile, 112 Ga. App. 732 , 146 S.E.2d 145 (1965).

Contractual stipulations. - When lessees accepted the premises in the condition in which the premises were at the time of the lease, as suitable for the purpose intended, and further relieved the landlord of any obligation to repair except after written notice, these provisions in the contract constituted a "stipulation to the contrary" relieving the lessor of any duty to repair the premises except after notice to the lessor by the tenants. Point Apts., Inc. v. Bryant, 99 Ga. App. 110 , 107 S.E.2d 684 (1959).

Owner of property not used as a "dwelling place" can contract to avoid the duties to repair and improve the property. Groutas v. McCoy, 219 Ga. App. 252 , 464 S.E.2d 657 (1995).

Proximate cause of injury. - In order to recover, a tenant is required to show not only that the landlord breached the landlord's statutory duty to keep the premises in repair, but that such breach was the proximate cause of the tenant's injury. Brown v. RFC Mgt., Inc., 189 Ga. App. 603 , 376 S.E.2d 691 (1988); Jones v. Campbell, 198 Ga. App. 83 , 400 S.E.2d 364 (1990).

Defective construction defined. - Construction which is not strong enough to stand the strain of ordinary use is defective construction. Monahan v. National Realty Co., 4 Ga. App. 680 , 62 S.E. 127 (1908).

Neither the mere juxtaposition of a toilet and elevator nor the absence of lights in the passageway to the toilet at night constitutes defective construction. Smith v. Inman, 32 Ga. App. 24 , 122 S.E. 632 (1924).

Repair defined. - Word repair contemplates an existing structure or thing which has become imperfect, and means to supply in the original existing structure that which is lost or destroyed, and thereby restore it to the condition in which it originally existed. Childers v. Speer, 63 Ga. App. 848 , 12 S.E.2d 439 (1940).

Responsibility not waived. - As between a landlord and tenant, the responsibility for damages may be waived, but no such waiver results from a provision which merely refers to a defective condition amounting to an affirmative act of the landlord committed during the term of the tenancy and resulting in the creation of a defect which would not otherwise have existed. Kulman v. Sulcer, 99 Ga. App. 28 , 107 S.E.2d 674 (1959), overruled on other grounds by George v. Hercules Real Estate Servs., 795 S.E.2d 81 (Ga. Ct. App. 2016).

Pleading. - Allegation that the defendant knew or ought to have known of the defective condition of the premises is an allegation, when construed most strongly against the pleader, that the defendant had no knowledge and was negligent in failing to know or discover the alleged defective condition. Echols v. Patterson, 60 Ga. App. 372 , 4 S.E.2d 81 (1939).

Failure to state cause of action. - Petition alleging that the owner had fully parted with possession and the right of possession but failing to allege that the damages were from injuries due to defective construction or to a failure to keep the premises in repair did not state a case against the owner. Reddien v. C.M.S. Realty Co., 75 Ga. App. 848 , 44 S.E.2d 825 (1947).

Tenant's knowledge of condition requiring dismissal of petition. - When it appears from the allegations of a petition, brought by a tenant against a landlord for personal injuries alleged to have been caused by the landlord's failure to repair, that the tenant had knowledge of the defective and unsafe condition of the premises, having discussed the unsafe and defective condition thereof with a carpenter sent by the landlord to repair other portions of the rented premises, a motion to dismiss the petition was properly sustained although the petition contained allegations that the tenant was without fault, in that the tenant did not know of the defective and unsafe condition of the steps, and in the exercise of ordinary care could not have discovered the unsafe condition of the steps. Upchurch v. Coggins, 70 Ga. App. 205 , 27 S.E.2d 869 (1943).

Question for trier of fact as to what are common areas. - Question of whether a particular area of an apartment building - i.e., a patio deck behind an apartment, from which a tenant fell after the railing gave way - was a common area over which the landlord retained a qualified right of possession, rendering the landlord liable for failure to exercise ordinary care in keeping the premises safe, or was an area which was in the exclusive possession of the tenant, rendering the landlord liable for failure to repair in the face of a notice of defect, was a matter for determination by the trier of fact, thus the court properly instructed the jury as to both legal theories. Andres v. Roswell-Windsor Village Apts., 777 F.2d 670 (11th Cir. 1985).

Setting aside verdict. - In an action for damages for injuries to a tenant alleged to have been caused by defective premises, a verdict for the plaintiff will not be set aside on the ground that the landlord could not have discovered the defect allegedly causing the injury in the repairing of another defect of which notice was given to the landlord, when the evidence is sufficient to authorize the finding that the defect allegedly causing the injury was in existence at the time the premises were leased to the tenant, and that the landlord could have discovered the defect by the exercise of ordinary care, as in such a case the landlord's duty to discover the defect arose from the landlord's duty under the law not to lease premises having a latent defect discoverable by the exercise of ordinary care, and the landlord was thus charged regardless of notice. Dodge v. Huggins, 62 Ga. App. 724 , 9 S.E.2d 844 (1940).

Owner had relinquished control. - Trial court properly granted summary judgment to warehouse owner who leased premises to tenant who installed skateboard ramp from which invitee fell and was injured as the record was devoid of evidence that the warehouse owner had not fully relinquished possession of the premises to the tenant; thus, the invitee could not show that the warehouse owner had a duty it owed to the invitee. Ray v. Smith, 259 Ga. App. 749 , 577 S.E.2d 807 (2003).

Trial court did not err in granting landlord summary judgment in a patron's action to recover damages for injuries the patron sustained in a restaurant owner's parking lot on the ground that the landlord had fully parted with possession of the leased property and could not be held liable for the patron's injuries pursuant to O.C.G.A. § 44-7-14 because the evidence the patron offered was insufficient to create an issue of fact as to whether the landlord was an out-of-possession landlord; the owner had exclusive control of the parking lot where the patron's injury occurred, and there was no evidence that the landlord contractually undertook to remain in possession of any common areas on the property, let alone over the parking lot where the patron's injury occurred. Lake v. APH Enters., LLC, 306 Ga. App. 317 , 702 S.E.2d 654 (2010).

Landlord was not liable for injuries a patron sustained in a restaurant owner's parking lot because although the landlord was responsible by verbal lease for the main structure, while the owner was responsible for maintaining the area where the injury occurred, and the landlord retained limited entry or inspection rights that were unrelated to the cause of the injuries, such limited rights did not evidence such dominion and control of the premises so as to vitiate the landlord's limited liability imposed by O.C.G.A. § 44-7-14 and replace it with the liability imposed by O.C.G.A. § 51-3-1 . Lake v. APH Enters., LLC, 306 Ga. App. 317 , 702 S.E.2d 654 (2010).

Cited in Augusta-Aiken Ry. & Elec. Corp. v. Hafer, 21 Ga. App. 246 , 94 S.E. 252 (1917); Gledhill v. Harvey, 55 Ga. App. 322 , 190 S.E. 61 (1937); McCrory Stores Corp. v. Ahern, 65 Ga. App. 334 , 15 S.E.2d 797 (1941); Townsend & Ghegan Enters. v. W.R. Bean & Son, 117 Ga. App. 109 , 159 S.E.2d 776 (1968); Scarboro Enters., Inc. v. Hirsh, 119 Ga. App. 866 , 169 S.E.2d 182 (1969); Ragland v. Rooker, 124 Ga. App. 361 , 183 S.E.2d 579 (1971); Espy v. Miller Bros. Co., 126 Ga. App. 98 , 189 S.E.2d 911 (1972); Moody v. Southland Inv. Corp., 126 Ga. App. 225 , 190 S.E.2d 578 (1972); Kaplan v. Sanders, 136 Ga. App. 902 , 222 S.E.2d 630 (1975); Thompson-Weinman & Co. v. Brock, 144 Ga. App. 346 , 241 S.E.2d 279 (1977); Daniel v. Georgia Power Co., 146 Ga. App. 596 , 247 S.E.2d 139 (1978); Porter v. Moschella, 152 Ga. App. 678 , 263 S.E.2d 538 (1979); Bradley v. Godwin, 152 Ga. App. 782 , 264 S.E.2d 262 (1979); Wilner's, Inc. v. Fine, 153 Ga. App. 591 , 266 S.E.2d 278 (1980); Mills v. Bonanza Int'l Corp., 160 Ga. App. 104 , 286 S.E.2d 337 (1981); Vizzini v. Blonder, 165 Ga. App. 840 , 303 S.E.2d 38 (1983); Atkins v. Tri-Cities Steel, Inc., 166 Ga. App. 349 , 304 S.E.2d 409 (1983); Davis v. Smith, 169 Ga. App. 635 , 314 S.E.2d 471 (1984); Schuster v. Plaza Pac. Equities, Inc., 588 F. Supp. 61 (N.D. Ga. 1984); Bettis v. Ryle, 176 Ga. App. 88 , 335 S.E.2d 399 (1985); Shepherd v. Holmes, 184 Ga. App. 648 , 362 S.E.2d 396 (1987); Whipper v. McLendon Movers, Inc., 188 Ga. App. 249 , 372 S.E.2d 820 (1988); Barlow v. Brant, 206 Ga. App. 313 , 425 S.E.2d 309 (1992); Stephens v. Ernie's Steakhouse of Stone Mt., Inc., 215 Ga. App. 166 , 450 S.E.2d 275 (1994); Culberson v. Lanier, 216 Ga. App. 686 , 455 S.E.2d 385 (1995); Walker v. Sturbridge Partners, Ltd., 221 Ga. App. 36 , 470 S.E.2d 738 (1996); Doe v. Prudential-Bache/A.G. Spanos Realty Partners, 222 Ga. App. 169 , 474 S.E.2d 31 (1996); Doe v. Briargate Apts., Inc., 227 Ga. App. 408 , 489 S.E.2d 170 (1997); Standard Mgt. Co. v. Scott, 229 Ga. App. 36 , 493 S.E.2d 216 (1997); Asbell v. BP Exploration & Oil, Inc., 230 Ga. App. 700 , 497 S.E.2d 260 (1998); Myers v. Harris, 257 Ga. App. 286 , 570 S.E.2d 600 (2002); Norman v. Jones Lang LaSalle Ams., Inc., 277 Ga. App. 621 , 627 S.E.2d 382 (2006).

Duties of Landlord
1. In General

Construed with § 51-3-1 . - Word "owner," as used in former Civil Code 1910, § 4420 (see O.C.G.A. § 51-3-1 ), was not synonymous with "landlord," as the latter word was used in former Civil Code 1910, § 3694 (see O.C.G.A. § 44-7-14 ), and since the owner of land has fully parted with both possession and right of possession by any lawful contract of rental, the landlord's liabilities are those prescribed by former Civil Code 1910, § 3694. Augusta-Aiken Ry. & Elec. Corp. v. Hafer, 21 Ga. App. 246 , 94 S.E. 252 (1917); Dobbs v. Noble, 55 Ga. App. 201 , 189 S.E. 694 (1937); Edwards v. Lassiter, 67 Ga. App. 368 , 20 S.E.2d 451 (1942); Goettee v. Carlyle, 68 Ga. App. 288 , 22 S.E.2d 854 (1942); Rothberg v. Bradley, 85 Ga. App. 477 , 69 S.E.2d 293 (1952); Maloof v. Blackmon, 105 Ga. App. 207 , 124 S.E.2d 441 (1962); Howell Gas of Athens, Inc. v. Coile, 112 Ga. App. 732 , 146 S.E.2d 145 (1965); Powell v. United Oil Corp., 160 Ga. App. 810 , 287 S.E.2d 667 (1982); Cooperwood v. Auld, 175 Ga. App. 694 , 334 S.E.2d 22 (1985).

Retention of the right to enter the leased premises in emergencies and during business hours for landlord related purposes did not evidence such dominion and control of the premises so as to vitiate appellee's limited liability under O.C.G.A. § 44-7-14 and replace it with liability imposed by O.C.G.A. § 51-3-1 . Godwin v. Olshan, 161 Ga. App. 35 , 288 S.E.2d 850 (1982).

Landlord was not liable for injuries to a tenant suffered as the result of the independent criminal conduct of a third party which occurred within the premises over which the tenant had complete control; the owner's duty to the tenant was limited to that imposed under O.C.G.A. § 44-7-14 , i.e., a duty to ensure that the leased premises were properly constructed and maintained, and it was not the duty owed under O.C.G.A. § 51-3-1 , pertaining to the landlord's duty to exercise ordinary care in keeping common areas safe. Plott v. Cloer, 219 Ga. App. 130 , 464 S.E.2d 39 (1995).

Retention of right to approve tenant insurance policies did not evidence such dominion and control of the premises so as to vitiate appellee's limited liability under O.C.G.A. § 44-7-14 and replace it with the liability imposed by O.C.G.A. § 51-3-1 , which pertains to the duty of an owner or occupier of land to invitees. Godwin v. Olshan, 161 Ga. App. 35 , 288 S.E.2d 850 (1982).

Liability generally. - If, after notice of the defective condition of the premises and after the lapse of a reasonable time in which to make the needed repairs, the repairs are not made, the landlord will be liable to the tenant or a member of the tenant's family for damages occasioned by the disrepair of the premises, if the injured party's own negligence did not bring about the injury. Veal v. Hanlon, 123 Ga. 642 , 51 S.E. 579 (1905).

O.C.G.A. § 44-7-14 imposes liability upon a landlord for damages that arise from defective construction or the landlord's failure to keep the premises in repair. Flores v. Strickland, 259 Ga. App. 335 , 577 S.E.2d 41 (2003).

Duty and liability for repair. - Landlord is not an insurer, but the landlord is under a legal duty to keep the rented premises in repair, and is liable in damages to a person who receives injury while lawfully upon the premises and who is in the exercise of due care, if the injury arises because of the defective construction of a building erected on the premises by the landlord, or because of the landlord's failure to repair defects of which the landlord knows or in the exercise of reasonable diligence ought to know. Stack v. Harris, 111 Ga. 149 , 36 S.E. 615 (1900); Ocean S.S. Co. v. Hamilton, 112 Ga. 901 , 38 S.E. 204 (1901); Monahan v. National Realty Co., 4 Ga. App. 680 , 62 S.E. 127 (1908); Crook v. Foster, 142 Ga. 715 , 83 S.E. 670 (1914); Marr v. Dieter, 27 Ga. App. 711 , 109 S.E. 532 (1921); Birdsey v. Greene, 176 Ga. 688 , 168 S.E. 564 (1933); Oglesby v. Rutledge, 67 Ga. App. 656 , 21 S.E.2d 497 (1942).

Trial court erred in granting an apartment owner and a manager summary judgment in a tenant's action to recover damages for the personal injuries the tenant sustained from carbon-monoxide poisoning because the owner and manager could be liable for the actions of a construction company's workers even if the company, which was orally hired to assist in the clean up of the owner's apartments, was an independent contractor; the evidence showed that a temporary tarp repair the workers performed was completed so negligently that a defect in the premises was created, and some evidence showed that the company and its workers were not independent contractors. In placing a temporary tarp on the roof of the tenant's apartment, the company was performing the duty of the owner and manager to repair the premises by stopping a leak until a more permanent repair could be effected. Atkins v. MRP Park Lake, L. P., 301 Ga. App. 275 , 687 S.E.2d 215 (2009).

Trial court erred in granting an apartment owner and a manager summary judgment in a tenant's action to recover damages for the personal injuries the tenant sustained from carbon-monoxide poisoning on the ground that the tenant had equal knowledge with the owner and manager that the vents of the apartment were covered because some evidence showed that other agents of the owner and manager had superior knowledge of the defect, and the evidence was disputed as to whether the tenant had equal knowledge; an employee of the owner and manager supervised the emergency repairs of the apartment and was constantly walking the property to check on those repairs, and should have seen the vent pipe problem. Atkins v. MRP Park Lake, L. P., 301 Ga. App. 275 , 687 S.E.2d 215 (2009).

Although O.C.G.A. § 44-7-14 provided that an out-of-possession landlord was responsible for damages arising from the failure to keep the premises in repair, the plaintiff's equal or superior knowledge of the defect defeated premises liability based on the statute. Cottingham v. Sapp, 344 Ga. App. 651 , 811 S.E.2d 442 (2018).

Genuine issues of fact remained regarding the landlord's failure to maintain a leased home; the court rejected the landlord's contention that the lease was commercial rather than residential because the tenant had an option to purchase and intended the lease as an investment because there was no dispute that the tenant was using the leased home as the tenant's residence. Tela Invs., LLC v. Razavi, 351 Ga. App. 518 , 831 S.E.2d 175 (2019), cert. denied, No. S19C1631, 2020 Ga. LEXIS 150 (Ga. 2020).

Degree of diligence required in keeping the premises safe does not consist in either slight diligence or of extraordinary diligence, but rather consists of ordinary care, such as a prudent householder might reasonably be expected to exercise. Cuthbert v. Schofield, 35 Ga. App. 443 , 133 S.E. 303 (1926); Black v. New Holland Baptist Church, 122 Ga. App. 606 , 178 S.E.2d 571 (1970).

Due care required in making repairs. - Landlord making repairs on the rented premises, either voluntarily or in compliance with the landlord's statutory obligation, is required to use due care to leave the repaired portion free from defects. McGee v. Hardacre, 27 Ga. App. 106 , 107 S.E. 563 (1921); later appeal, 33 Ga. App. 43 , 125 S.E. 383 (1924); Marr v. Dieter, 27 Ga. App. 711 , 109 S.E. 532 (1921); Hill v. Liebman, Inc., 53 Ga. App. 462 , 186 S.E. 431 (1936); Oglesby v. Rutledge, 67 Ga. App. 656 , 21 S.E.2d 497 (1942).

Liability for latent defects. - Landlord is liable for injuries to the tenant arising from latent defects unknown to the tenant, existing at the time of the lease, provided the landlord actually knew, or in the exercise of ordinary care on the landlord's part might have known, of their existence. Oglesby v. Rutledge, 67 Ga. App. 656 , 21 S.E.2d 497 (1942).

When rented premises become out of repair, it is the duty of the landlord to repair the same on notice by the tenant, and where, after such notice and before repairs are made, a tenant is injured by some latent defect which the repairs might have disclosed, but which in the exercise of ordinary care the tenant is not put on notice of, and which is in apparently sound condition, the plaintiff is not thereby precluded from recovery. Harris v. Edge, 92 Ga. App. 827 , 90 S.E.2d 47 (1955).

Landlord was not liable for any faulty construction of a premises since an alleged defect, the uneven steps and small landing, was simply a latent defect in existence at the time the landlord purchased the property which the landlord did not build. Rainey v. 1600 Peachtree, L.L.C., 255 Ga. App. 299 , 565 S.E.2d 517 (2002).

Liability for patent defects. - In the absence of an express contract to do so, a landlord is under no duty to repair a patent defect in the rented premises since the defect's existence was known to the tenant at the time the rent contract was entered into; and subsequent notice by a tenant of the existence of such a defect would not place upon the landlord any duty of inspection or repair. Chamberlain v. Nash, 54 Ga. App. 508 , 188 S.E. 276 (1936); Barnes v. Thomas, 72 Ga. App. 827 , 35 S.E.2d 364 (1945).

Landlord is liable for damages when the repairs the landlord has a duty to make are completed negligently so that a defect in the premises remains despite the attempted repair. However, when the worker hired is an independent contractor, the landlord is not liable for the negligent acts of the worker during the course of the repairs. Mason v. Gracey, 189 Ga. App. 150 , 375 S.E.2d 283 (1988).

Landlord has a duty to keep premises in repair, and if defects render premises unsafe or uninhabitable, a landlord may not avoid duties created by statutes or by housing codes even though the defect is patent. Roth v. Wu, 199 Ga. App. 665 , 405 S.E.2d 741 (1991).

Common area defect. - When the allegedly defective condition on an owner's property involved the common area of a parking lot and not the residential living area over which tenant had dominion, and there was no assertion that the landowner violated any applicable statute or housing code, liability was properly predicated upon O.C.G.A. § 51-3-1 and not O.C.G.A. § 44-7-14 . Commerce Properties, Inc. v. Linthicum, 209 Ga. App. 853 , 434 S.E.2d 769 (1993).

Landlord's knowledge of hazard in back yard. - In the invitee's premises liability action against the landlord, a factual issue existed as to the landlord's knowledge of the backyard hazard because the invitee offered proof that the landlord did not act responsibly in taking care of the outside of the house; the landlord admittedly did not inspect the yard for hazards or perform work in the back yard; the tenant testified that the landlord was very poor at maintaining the back yard; and the invitee's testimony regarding the size of the hole and the overgrowth covering the hole would permit a reasonable jury to infer both that the hole had been in existence for a substantial period of time and that the hole was large enough to have been observable during routine mowing and maintenance. Watson v. Dana, 356 Ga. App. 645 , 848 S.E.2d 654 (2020).

Whether landlord retained control over yard. - In the invitee's premises liability action against the landlord, the tenant's testimony raised a question of fact as to whether the landlord retained control over the backyard and thus owed a duty of ordinary care to keep the yard reasonably safe for the invitee. Watson v. Dana, 356 Ga. App. 645 , 848 S.E.2d 654 (2020).

Liability for dangerous condition. - When a portion of leased premises is dangerously out of repair and such condition is known to a tenant who continues to use that area, a tenant cannot recover from the landlord for damages resulting from the condition; but the severity of the doctrine of assumption of risk has been ameliorated in cases when the doctrine's application would make the tenant "a captive" in the tenant's own home. Carey v. Bradford, 218 Ga. App. 325 , 461 S.E.2d 290 (1995).

When a dangerous area is tenant's only access or only safe or reasonable access to the home, tenant's equal knowledge of the danger does not excuse the landlord of damages caused by a failure to keep the premises in repair. Carey v. Bradford, 218 Ga. App. 325 , 461 S.E.2d 290 (1995).

Questions for jury. - Whether landlord who was aware of a defective gas heater failed to exercise reasonable care to repair the heater, and whether the condition of the heater constituted a violation of the housing code, were questions for the jury. Thompson v. Crownover, 259 Ga. 126 , 381 S.E.2d 283 (1989).

After learning that its back-up generator was irreparable, determining whether the landlord acted negligently, breached the statutory duties as landlord, or violated local ordinances or housing codes were questions for the jury. McCullough v. Briarcliff Summit, 237 Ga. App. 630 , 516 S.E.2d 353 (1999).

Landlord is not an insurer of the tenant's safety. Black v. New Holland Baptist Church, 122 Ga. App. 606 , 178 S.E.2d 571 (1970); Warner v. Arnold, 133 Ga. App. 174 , 210 S.E.2d 350 (1974).

Liability to invitee of tenant. - Landlord is liable to one lawfully present on the rented premises, by invitation of the tenant, for injuries arising from defective construction, or from failure to keep the premises in repair, since the defect is known to the landlord or in the exercise of reasonable diligence could have been known, and the injured person was personally in the exercise of due care. Ross v. Jackson, 123 Ga. 657 , 51 S.E. 578 (1905); Crossgrove v. Atlantic Coast Line R.R., 30 Ga. App. 462 , 118 S.E. 694 (1923); See § 4420. Mattox v. Lambright, 31 Ga. App. 441 , 120 S.E. 685 (1923); Ramey v. Pritchett, 90 Ga. App. 745 , 84 S.E.2d 305 (1954); Spence v. Citizens & S. Nat'l Bank, 195 Ga. App. 294 , 393 S.E.2d 1 (1990).

An out-of-possession landlord's tort liability to third persons is determined under the bases set forth in O.C.G.A. § 44-7-14 and it was error to assess liability based upon principles of common law negligence. Martin v. Johnson-Lemon, 271 Ga. 120 , 516 S.E.2d 66 (1999), reversing Lemon v. Martin, 232 Ga. App. 579 , 502 S.E.2d 273 (1998).

In a personal injury action arising from a fall suffered by a lessee's visitor from a pull-down staircase, because no questions of fact remained as to an out-of-possession landlord's liability for failure to repair, defective construction, or failure to warn, the landlord was properly granted summary judgment as to those issues. Gainey v. Smacky's Invs., Inc., 287 Ga. App. 529 , 652 S.E.2d 167 (2007).

Liability of landlord to third persons. - Landlord's liability to a third person who is injured on property which was relinquished by rental or under a lease is determined by O.C.G.A. § 44-7-14 . Younger v. Dunagan, 318 Ga. App. 554 , 733 S.E.2d 81 (2012).

Liability for unforeseen and extraordinary causes. - Landlord is not liable to the tenant for damages to the tenant's goods resulting from unforeseen and extraordinary causes unless so stipulated in the contract at the time of renting. Guthman v. Castleberry, 49 Ga. 272 (1873); Lumpkin v. Provident Loan Soc'y, Inc., 15 Ga. App. 816 , 84 S.E. 216 (1915).

Contractual modification of landlord's liability. - Liability of a landlord arising from failure to keep the premises in repair may be limited as between the parties by a lease containing contrary stipulations. Tribble v. Somers, 115 Ga. App. 847 , 156 S.E.2d 130 (1967).

No exemption from responsibility. - Knowledge required for liability may be constructive as well as actual for a landlord or the landlord's agent charged with the duty to repair cannot exempt oneself from responsibility merely by remaining ignorant of the facts out of which one's duty arises. Bazemore v. Burnet, 117 Ga. App. 849 , 161 S.E.2d 924 (1968).

Suspension of liability until tenant gives notice. - When a tenant has exclusive possession of the property and there is no covenant to repair or right of entry to inspect or repair, the law suspends the liability of the lessor as to injuries from defects existing at the time of the lease which the lessor could not have discovered by the exercise of ordinary care, those known to the tenant at the time, or patent and discoverable by the exercise of ordinary care, and those arising after the tenancy began until notice by the tenant. City of Dalton v. Anderson, 72 Ga. App. 109 , 33 S.E.2d 115 (1945).

Landlord with qualified possession. - When the landlord retains qualified possession of the rented premises for the purpose of supervising the building, collecting the rents, and making repairs, the landlord is liable for an injury resulting from a defective condition of the building, if the landlord has actual notice of such defective condition, or if, in the exercise of ordinary and reasonable care and diligence, the landlord ought to have known of the defect. Monahan v. National Realty Co., 4 Ga. App. 680 , 62 S.E. 127 (1908); Davis v. Hall, 21 Ga. App. 265 , 94 S.E. 274 (1917); Marr v. Dieter, 27 Ga. App. 711 , 109 S.E. 532 (1921); White v. Thacker, 89 Ga. App. 656 , 80 S.E.2d 699 (1954).

Reservation of limited right to enter. - Mere presence of a lease clause reserving the right to enter for repairs and inspection cannot impose a general duty to exercise ordinary care in making reasonable inspections of those areas of the building over which the landlord retained neither a right to control nor the duty to repair. Ladson Invs. v. Bagent, 151 Ga. App. 24 , 258 S.E.2d 718 (1979).

Person may be landlord without being owner. Hill v. Liebman, Inc., 53 Ga. App. 462 , 186 S.E. 431 (1936).

Tenant must be free from negligence. - It is presumed that the premises leased are in a condition suitable for the purposes for which they were rented, and if such is not the case, and damage results therefrom to the tenant, the landlord is liable, provided the landlord has had notice of the defective condition of the premises and has failed after a reasonable time to make the necessary repairs, and provided also that the tenant has not been guilty of such negligence as to bar a recovery of the tenant. Black v. New Holland Baptist Church, 122 Ga. App. 606 , 178 S.E.2d 571 (1970).

Monitoring lessee's compliance with covenant to repair. - Fact that lessee was obligated under terms of lease to maintain premises in safe condition cannot be held to have placed any duty upon lessor to monitor lessee's compliance. Ragsdale v. Harris, 162 Ga. App. 888 , 293 S.E.2d 475 (1982).

Lessor's liability when trademark signs displayed at gas stations. - Distinctive colors and trademark signs are displayed at gasoline stations by independent dealers of petroleum products suppliers, and represent no more than notice to the motorists that a given company's products are being marketed at the station, and do not render lessor company liable for lessee's failure to maintain premises in safe condition. Ragsdale v. Harris, 162 Ga. App. 888 , 293 S.E.2d 475 (1982).

Illegal use of property by sign company unauthorized by landlord. - Under O.C.G.A. § 44-7-11 , a tenant such as a sign company has no right beyond the use of the land actually conveyed or rented. Furthermore, under O.C.G.A. § 44-7-14 , the landlord and neighbor of plaintiffs was not responsible for the tenant's, the sign company's, illegal use of the neighbor's property or airspace. Powell v. Norman Elec. Galaxy, Inc., 255 Ga. App. 407 , 565 S.E.2d 591 (2002).

2. Knowledge or Notice

Liability predicated upon knowledge. - Landlord's liability is predicated upon actual or constructive knowledge of the defective condition. Stack v. Harris, 111 Ga. 149 , 36 S.E. 615 (1900); Ocean S.S. Co. v. Hamilton, 112 Ga. 901 , 38 S.E. 204 (1901); Monahan v. National Realty Co., 4 Ga. App. 680 , 62 S.E. 127 (1908); Wall Realty Co. v. Leslie, 54 Ga. App. 560 , 188 S.E. 600 (1936); Dobbs v. Noble, 55 Ga. App. 201 , 189 S.E. 694 (1937); Echols v. Patterson, 60 Ga. App. 372 , 4 S.E.2d 81 (1939); Turner v. Long, 61 Ga. App. 785 , 7 S.E.2d 595 (1940); Home Owners Loan Corp. v. Brazzeal, 62 Ga. App. 683 , 9 S.E.2d 773 (1940); Upchurch v. Coggins, 70 Ga. App. 205 , 27 S.E.2d 869 (1943); Ball v. Murray, 91 Ga. App. 686 , 86 S.E.2d 706 (1955); National Distrib. Co. v. Georgia Indus. Realty Co., 106 Ga. App. 475 , 127 S.E.2d 303 (1962); Fincher v. Fox, 107 Ga. App. 695 , 131 S.E.2d 651 (1963); Howell Gas of Athens, Inc. v. Coile, 122 Ga. App. 732 , 146 S.E.2d 145 (1965); Tribble v. Somers, 115 Ga. App. 847 , 156 S.E.2d 130 (1967); Bazemore v. Burnet, 117 Ga. App. 849 , 161 S.E.2d 924 (1968).

In a personal injury action, because an injured party failed to show that the landlords could not have had constructive notice of the deteriorated condition of the steps upon which that party fell and was injured, the landlords were not liable for their failure to keep the premises in repair. Thus, the landlords were properly granted summary judgment as to the issue of liability for the party's injuries. Stelter v. Simpson, 288 Ga. App. 402 , 655 S.E.2d 237 (2007).

Effect of notice. - Notice of a defect given by the tenant to the landlord charges the landlord with notice of such other defects as might reasonably be discovered upon an inspection to repair the defect of which notice was given. Cone v. Lawhon, 61 Ga. App. 797 , 7 S.E.2d 597 (1940); Home Owners Loan Corp. v. Brazzeal, 62 Ga. App. 683 , 9 S.E.2d 773 (1940); Dempsey v. Smith, 108 Ga. App. 88 , 132 S.E.2d 233 (1963); Tribble v. Somers, 115 Ga. App. 847 , 156 S.E.2d 130 (1967).

Duration of notice. - Notice may be actual or constructive but, if the latter, it must be shown to have existed for such a length of time, or under such circumstances, as to put the owner of the building on notice before the owner will be liable for resulting injuries. Fincher v. Fox, 107 Ga. App. 695 , 131 S.E.2d 651 (1963).

Liability without actual notice. - Owner may be held liable for injuries arising from failure to maintain building in proper repair, even without actual notice of the defect if, in the exercise of ordinary care, the landlord should have known of the defect. Home Owners Loan Corp. v. Brazzeal, 62 Ga. App. 683 , 9 S.E.2d 773 (1940).

Defective construction by landlord. - If a defective structure is built by the landlord or under the landlord's direction, the landlord's knowledge of the defective condition will be conclusively presumed. Fuller v. Louis Steyerman & Sons, 46 Ga. App. 830 , 169 S.E. 508 (1933); Dobbs v. Noble, 55 Ga. App. 201 , 189 S.E. 694 (1937); Robertson v. Liggett Drug Co., 81 Ga. App. 850 , 60 S.E.2d 268 (1950).

When the tenant erected a swimming pool after the landlord had relinquished possession and control over the property, the landlord was not liable for injuries sustained by a guest of the tenant even though the landlord was aware of the construction of the pool. Colquitt v. Rowland, 265 Ga. 905 , 463 S.E.2d 491 (1995).

Defective construction by predecessor. - If a defective structure has been built by a predecessor in title of the landlord or some other person not acting under the landlord's supervision or direction, before the landlord can be held responsible, it must appear that the landlord actually knew or by the exercise of ordinary diligence could have and should have known of the improper construction before the tenancy was created. Ross v. Jackson, 123 Ga. 657 , 51 S.E. 578 (1905); Dobbs v. Noble, 55 Ga. App. 201 , 189 S.E. 694 (1937); Upchurch v. Coggins, 70 Ga. App. 205 , 27 S.E.2d 869 (1943); Barnes v. Thomas, 72 Ga. App. 827 , 35 S.E.2d 364 (1945); National Distrib. Co. v. Georgia Indus. Realty Co., 106 Ga. App. 475 , 127 S.E.2d 303 (1962).

If a building was defectively constructed by a predecessor in title, and the landlord knew or by the exercise of reasonable diligence could have known of the building's improper construction before the tenancy was created, the landlord would be answerable to the tenant, or to any one lawfully on the premises by invitation of the tenant, for injuries sustained by reason of the landlord's failure to put the premises in a safe condition, if the person sustaining the injuries could not have avoided the injuries by the exercise of ordinary care. Savage v. Flagler Co., 258 Ga. 335 , 368 S.E.2d 504 (1988).

Trial court erred by denying a landlord summary judgment because the evidence showed that the ramp was not built by the landlord or the tenant but by a prior lessee who did not obtain the landlord's approval before construction; thus, since the ramp was not constructed by or under the supervision or direction of the landlord, liability was precluded under O.C.G.A. § 44-7-14 . Cowart v. Schevitz, 335 Ga. App. 715 , 782 S.E.2d 816 (2016).

In a tenant's claim for injuries against the tenant's landlord after a staircase collapsed, the trial court erred in disregarding the tenant's expert's opinion that a pre-purchase structural inspection would have led the landlord to discover the defects; although the expert was not a home inspector, the expert was a licensed residential and commercial contractor. However, the trial court properly concluded that failure to warn is not a ground upon which an out-of-possession landlord can be held liable under O.C.G.A. § 44-7-14 and, therefore, summary judgment was proper. Pajaro v. S. Ga. Bank, 339 Ga. App. 334 , 793 S.E.2d 209 (2016).

Landlord's knowledge at time of leasing. - If it appears that the landlord had actual knowledge of a latent defect at the time of leasing, the duty to repair has already arisen. Howell Gas of Athens, Inc. v. Coile, 112 Ga. App. 732 , 146 S.E.2d 145 (1965).

Landlords had no superior knowledge of gun in tenant's leased premises. - In a wrongful death suit, because the record was devoid of any evidence that the landlords knew that a tenant, a nephew, had left a gun accessible and loaded on the day a visiting youth was shot, or any other occasion, a trial court erred in denying summary judgment for the landlords; since the landlords knew or should have known that the nephew would have friends occasionally come to visit at the leased premises, the landlords, as possessors of the land, would have been subject to liability for the youth's fatal injury by the loaded shotgun if, but only if, the landlords knew or had reason to know of the hazard in the nephew's loft room and then failed to exercise reasonable care to make the condition safe or to warn visitors, which such superior knowledge of the hazard on the part of the landlords was not shown. McCullough v. Reyes, 287 Ga. App. 483 , 651 S.E.2d 810 (2007), cert. denied, 2008 Ga. LEXIS 178 (Ga. 2008).

Knowledge of tenant irrelevant to liability to third persons. - As respects third persons lawfully upon the premises, the landlord is liable notwithstanding the tenant knew of the defective condition causing the injury. Greene v. Birdsey, 47 Ga. App. 424 , 170 S.E. 681 (1933).

Equal means of knowledge of patent defect. - When a condition amounted to a patent defect, recovery would be precluded, since a landlord is not liable for injuries to a tenant resulting from a defect existing at the inception of the lease, if the tenant had means of knowledge equal to those of the landlord. Bazemore v. Burnet, 117 Ga. App. 849 , 161 S.E.2d 924 (1968).

Notice to landlord's agent. - Notice of the defective condition of the property when given to the agent with whom the tenant dealt under the instructions of the landlord, and to whom the rents were paid, is notice to the landlord. Wall Realty Co. v. Leslie, 54 Ga. App. 560 , 188 S.E. 600 (1936).

Jury question of city's possession of premises. - When a plaintiff slipped and fell on a recently waxed floor and was injured, and suit was brought against the city as landlord, the tenant, and the cleaning service that waxed the floor, the evidence presented to the trial court was sufficient to raise questions of fact requiring jury resolution as to whether the city had parted with possession of the premises and whether the city had any knowledge (actual or constructive) of the alleged defect. City of Swainsboro v. Riner, 195 Ga. App. 390 , 393 S.E.2d 519 (1990).

Landlord not charged with notice of furnace hazard. - When the premises were destroyed by a fire originating from a furnace, the landlord, who had no actual knowledge of any furnace problem, could not be charged with notice that the removal of exterior asbestos shingles may have created a hazard with the furnace. Harris v. Sloan, 199 Ga. App. 340 , 405 S.E.2d 68 , cert. denied, 199 Ga. App. 906 , 405 S.E.2d 68 (1991).

Property company without notice of alleged defect not liable. - Property company was not liable for negligence after an apartment fire because, even assuming that the alleged defect existed and caused the fire, the company lacked notice of the condition. There was no evidence that the stove lacked drip pans when the victim moved into the apartment and the company was never told of a problem with the stove. Haynes v. Kingstown Props., Inc., 260 Ga. App. 102 , 578 S.E.2d 898 (2003).

Landlord had no actual or constructive knowledge of defect. - In a social guest's suit for personal injuries brought against the tenants of certain real property as well as the property owner and the owner's property management company, the trial court properly granted summary judgment to the property owner as there was no evidence that the property owner had actual or constructive knowledge of any problem with the condition of or construction of the deck that fell while the guest was standing upon the deck. Silman v. Assocs. Bellemeade, 294 Ga. App. 764 , 669 S.E.2d 663 (2008), aff'd, 286 Ga. 27 , 685 S.E.2d 277 (2009).

Condominium unit owner was not liable for a neighbor's claims of negligence and nuisance, when the owner's hot water heater ruptured and flooded the neighbor's unit, because the owner did not know that the water heater was defective and, as an out-of-possession landlord who rented the condominium unit to another party that occupied the unit, the owner had no duty to maintain the hot water heater under O.C.G.A. § 44-7-14 . Karle v. Belle, 310 Ga. App. 115 , 712 S.E.2d 96 (2011).

Trial court erred by denying a building owner's motion for summary judgment under O.C.G.A. § 44-7-14 in an employee's action to recover damages for injuries the employee sustained when the door to a handicap bathroom stall the employee used at work fell off of the door's hinges because there were no facts demonstrating that the owner should have discovered and repaired the hinge on the bathroom stall door before the employee's injury; the owner received no complaints about bathroom stall hinges before the employee's injury and discovered no problems with other bathroom stall hinges afterward. Watts & Colwell Builders, Inc. v. Martin, 313 Ga. App. 1 , 720 S.E.2d 329 (2011).

Under O.C.G.A. § 44-7-14 , an absentee landlord was not liable for a failure to repair a latent defect unless the landlord had knowledge of the defect and the consequent necessity for repairs. Because the landlords testified that the landlords were unaware of any abnormality regarding the height of the top stair in their home or that the landlord violated any building code, the landlord disproved the knowledge element of the tenant's claims and were entitled to summary judgment. Martin v. Hansen, 326 Ga. App. 91 , 755 S.E.2d 892 (2014).

Out-of-possession landlord was not liable to the tenant's guests for injuries suffered when the house's back deck collapsed because pursuant to O.C.G.A. § 44-7-14 , the landlord was liable only for a third party's damages that resulted either from faulty construction of the premises or from the landlord's failure to repair the premises. The landlord had no notice of the defect, and was not liable for faulty construction because the landlord had hired a contractor to build the deck. Aldredge v. Byrd, 341 Ga. App. 300 , 799 S.E.2d 263 (2017).

3. Inspection

No duty to inspect. - After tenant had moved into the house, landlord was under no duty to inspect the premises for the purpose of making repairs. Dobbs v. Noble, 55 Ga. App. 201 , 189 S.E. 694 (1937); Cone v. Lawhon, 61 Ga. App. 797 , 7 S.E.2d 597 (1940); City of Dalton v. Anderson, 72 Ga. App. 109 , 33 S.E.2d 115 (1945); Davis v. City of Atlanta, 84 Ga. App. 572 , 66 S.E.2d 188 (1951); Ramey v. Pritchett, 90 Ga. App. 745 , 84 S.E.2d 305 (1954); Howell Gas of Athens, Inc. v. Coile, 112 Ga. App. 732 , 146 S.E.2d 145 (1965); Tribble v. Somers, 115 Ga. App. 847 , 156 S.E.2d 130 (1967); Black v. New Holland Baptist Church, 122 Ga. App. 606 , 178 S.E.2d 571 (1970).

Liability not dependent upon inspection. - When the landlord has fully parted with the possession of the premises, the landlord owes no duty to inspect the premises and make repairs until the landlord has notice of the defective condition but the landlord is responsible to others for damages arising from defective construction, or for damages for failure to keep the premises in repair. Fuller v. Louis Steyerman & Sons, 46 Ga. App. 830 , 169 S.E. 508 (1933).

When duty to inspect arises. - When the landlord is notified that the premises are out of repair, it becomes the landlord's duty to inspect and investigate in order that the landlord may make such repairs as the safety of the tenant requires. Garner v. La Marr, 88 Ga. App. 364 , 76 S.E.2d 721 (1953).

Duty created by inspection. - Whether or not owner was under the duty to inspect for latent defects, having actually made such inspection, the owner was under the duty to make such repairs as may have been called for by the knowledge so obtained. Home Owners Loan Corp. v. Brazzeal, 62 Ga. App. 683 , 9 S.E.2d 773 (1940).

Proper application of the landlord's duty to inspect premises does not, under any theory, result in making the landlord liable for a latent defect in the premises simply because the defect existed at the time of the lease. Cowart v. Schevitz, 335 Ga. App. 715 , 782 S.E.2d 816 (2016).

4. Miscellaneous Consideration

Liability for acts of tenant. - When the landlord has by lease parted fully with possession and right of possession of the leased premises, although the landlord retains therein the right to enter, examine and repair the premises, the landlord is not liable to third persons for injuries received as a result of the tenants' negligent or illegal use thereof. Leonard v. Fulton Nat'l Bank, 86 Ga. App. 635 , 72 S.E.2d 93 (1952); Howell Gas of Athens, Inc. v. Coile, 112 Ga. App. 732 , 146 S.E.2d 145 (1965).

Liability for tenant's nuisance. - Landlord who has leased premises to a tenant is not liable for a nuisance maintained upon the premises by the tenant. Howell Gas of Athens, Inc. v. Coile, 112 Ga. App. 732 , 146 S.E.2d 145 (1965).

Lease contract provision relieving landlord of obligation to keep premises in repair is not effective as against third persons lawfully on the premises, even if the tenant knew of the defective condition. Flagler Co. v. Savage, 258 Ga. 335 , 368 S.E.2d 504 (1988).

When tenant makes repairs. - Owner of property is liable for injuries caused by defective repairs made by the tenant in possession since the law imposes upon the owner the duty of making such repairs, or when the tenant is authorized by the owner to make the repairs. Byne v. Mayor of Americus, 6 Ga. App. 48 , 64 S.E. 285 (1909).

Out-of-possession landlord not responsible for injury to tenant's employee. - When the employee fell from a ladder while working for a restaurant located in a mall, the mall owner was entitled to summary judgment on the employee's tort claim, as the mall owner was an out-of-possession landlord, and merely retained the right to approve the restaurant's construction of an improvement to the premises without having in any way supervised or directed construction. Cowart v. Crown Am. Props., 258 Ga. App. 21 , 572 S.E.2d 706 (2002).

Liability of landlord for acts of a cotenant. - In respect to each other cotenants are strangers; if damage to one tenant be caused, not by any act or negligence to repair of the landlord, but by the fault exclusively of the cotenant, such cotenant, and not the landlord, would be liable. J.B. White & Co. v. Montgomery, 58 Ga. 204 (1877); Adair v. Allen, 18 Ga. App. 636 , 89 S.E. 1099 (1916).

Liability for toxic fumes from tenant's business. - Because defendants, the owner and manager of a shopping center, had parted with possession of premises used by a tenant as a manicurist business, the defendants were not liable to plaintiff for injuries caused by toxic fumes escaping from the business. Diffley v. Marshall's at E. Lake, 227 Ga. App. 343 , 489 S.E.2d 123 (1997).

Liability of landlord for dog bite. - Landlord was not liable for injuries sustained by the plaintiff when a tenant's dog bit the plaintiff since the landlord had relinquished possession of the property to the tenant. Webb v. Danforth, 234 Ga. App. 211 , 505 S.E.2d 860 (1998).

Out-of-possession landlord could not be held liable for severe injuries that the tenant's pit bulls inflicted on a next door neighbor, who also rented a house owned by the landlord, because under O.C.G.A. § 44-7-14 , the landlord's only duty to third persons was for defective construction of the premises or the landlord's failure to keep the premises in repair. Ranwez v. Roberts, 268 Ga. App. 80 , 601 S.E.2d 449 (2004).

Trial court properly awarded a landlord summary judgment in a postal worker's personal injury suit alleging injuries from a dog owned by a tenant because the landlord was entitled to the protection of O.C.G.A. § 44-7-14 since it was the tenant's dog and the landlord had no right of possession to the premises under the lease; thus, the landlord had no liability to third persons for the negligence of the tenant. Younger v. Dunagan, 318 Ga. App. 554 , 733 S.E.2d 81 (2012).

Landlord had no knowledge or notice of tenants' dogs vicious propensities. - In an action by a woman seriously injured in a pit bull attack, the landlord of the dogs' owners was entitled to summary judgment despite the landlord's failure to fix a broken gate latch, O.C.G.A. § 44-7-14 , because there was no evidence that the landlord was aware of the dogs' vicious propensities. The Court of Appeals erred in applying O.C.G.A. § 51-2-7 to the landlord and to presume such awareness because the statute applied only to owners and keepers of dangerous animals. Tyner v. Matta-Troncoso, 305 Ga. 480 , 826 S.E.2d 100 (2019).

Liability of agent. - Agent who undertakes the sole and complete control and management of the principal's premises is liable to third persons, to whom a duty is owing on the part of the owner, for injuries resulting from the agent's negligence in failing to make or keep the premises in a safe condition. Ramey v. Pritchett, 90 Ga. App. 745 , 84 S.E.2d 305 (1954).

Liability of executor. - Executor, who by will is given authority to manage and rent a building for the benefit of the executor and other legatees, may be held liable as such executor for injuries resulting from a defective condition of the rented premises, under the legal rules which control individuals; but unless some duty or right of control over the property is vested in the executor beyond the executor's mere representative power, the executor is not personally liable. Dobbs v. Noble, 55 Ga. App. 201 , 189 S.E. 694 (1937).

Liability for rape of tenant. - Because the record contained some evidence that the duties of the landlord's employee included looking out for the safety of the apartment premises and the residents, there remained questions as to whether the landlord had assumed a duty to provide security for the apartment complex and whether that duty had been performed in a nonnegligent manner, and the granting of summary judgment in favor of the landlord, in an action by the victim for damages for injuries, was inappropriate. Cooperwood v. Auld, 175 Ga. App. 694 , 334 S.E.2d 22 (1985).

Child of tenant. - When a child was killed by a defect of which the landlord had notice, in a porch of a mill of which the child's stepfather was tenant, the child being lawfully upon the porch, the landlord was liable. Crook v. Foster, 142 Ga. 715 , 83 S.E. 670 (1914).

Landlord owning adjacent premises. - Statute applies when the tenant sues the landlord for negligence arising out of legal duties claimed to be owed plaintiff by reason of defendant's ownership of the adjacent premises and not based upon the landlord-tenant relationship as to the leased unit. Stamsen v. Barrett, 135 Ga. App. 156 , 217 S.E.2d 320 (1975) (see O.C.G.A. § 44-7-14 ).

Lights in common areas. - In the absence of a contract or statutory obligation to do so, a landlord is not under a duty to maintain lights in the corridor or upon the stairway. Chamberlain v. Nash, 54 Ga. App. 508 , 188 S.E. 276 (1936).

Rats. - Nuisance of rats and their bringing food into an office is not such a defect as the landlord is liable for. Lumpkin v. Provident Loan Soc'y, Inc., 15 Ga. App. 816 , 84 S.E. 216 (1915).

Toilet. - It is the duty of the landlord to keep the premises free from the consequences arising ordinarily from the use of a toilet, which becomes a private nuisance when not properly used and attended to; and if the landlord fails, and from such cause damage ensues, the landlord is liable. Marshall v. Cohen, 44 Ga. 489 , 9 Am. R. 170 (1871).

Failure to repair locks. - Genuine issue of material fact existed, precluding summary judgment, as to whether an apartment landlord was negligent in not changing the locking mechanism screws on doors after a neighborhood watch meeting since door safety was discussed in the presence of apartment managers. Demarest v. Moore, 201 Ga. App. 90 , 410 S.E.2d 191 (1991).

What amounts to eviction. - Grant of summary judgment to an apartment management company on its counterclaim for unpaid rent was affirmed as its alleged failure to provide security or to properly repair the tenant's lock did not constitute acts of a grave and permanent character committed with the intention of depriving the tenant of the use of their apartment without unreasonable interruption nor did they render the apartment uninhabitable. George v. Hercules Real Estate Services, Inc., 339 Ga. App. 843 , 795 S.E.2d 81 (2016).

Lack of smoke detector. - Even if the lack of a smoke detector rendered a leased mobile home defective, the owner of the real property on which the mobile home was located did not violate a duty to supply a smoke detector since a third party owned the mobile home and rented the mobile home to the tenants. Crowder v. Larson, 236 Ga. App. 858 , 513 S.E.2d 771 (1999).

Since the jury was not required to believe testimony that a property owner had installed smoke detectors in the owner's rental property, and other testimony authorized the jury's finding that the owner breached the duty under O.C.G.A. § 25-2-40 to install smoke detectors, O.C.G.A. § 44-7-14 did not insulate the owner from liability for the wrongful death of tenants in a fire. Gordon v. Fleeman, 298 Ga. App. 662 , 680 S.E.2d 684 (2009).

Stairways. - Summary judgment for a landlord in a negligence action arising out of a tenant's fall on the outside stairs was affirmed since the tenant had equal knowledge of the accumulation of leaves on the stairs, had used the stairs several times that day without incident, and had not reported the condition to the landlord; the necessity rule was inapplicable as the tenant, the tenant's wife, and the tenants' son had used the exterior stairs many times without incident, including several times earlier that same day, no evidence indicated that the steps were inherently unsafe or otherwise in a state of disrepair, and the tenant's own evidence indicated that the alleged danger did not constitute a known hazard. Flores v. Strickland, 259 Ga. App. 335 , 577 S.E.2d 41 (2003).

Assault of club patron in parking lot. - Owners of property, in the onwers' capacity as a landlord, when a club patron was assaulted in the parking lot by an unruly patron who had been physically removed from the club were not liable under a negligence theory as the landlord's right to inspect the premises was not equivalent to the right to possess the premises; rather, the landlord had parted with possession of the leased premises. Boone v. Udoto, 323 Ga. App. 482 , 747 S.E.2d 76 (2013).

Rights and Duties of Tenant

Tenant's duty of care. - Only duty of care resting on the tenant is to refrain from using those portions of the premises which are patently defective or dangerous. Krapf v. Sternberg, 48 Ga. App. 130 , 172 S.E. 69 (1933); Turner v. Long, 61 Ga. App. 785 , 7 S.E.2d 595 (1940); Bixby v. Sinclair Ref. Co., 74 Ga. App. 626 , 40 S.E.2d 677 (1946); Ween v. Saul, 88 Ga. App. 299 , 76 S.E.2d 525 (1953).

Tenant must plead and prove notice. - In order to sustain a cause of action against a landlord for failure to keep the premises in repair, the tenant must allege and prove that the tenant has given the landlord notice of the defective condition of the premises. Guthman v. Castleberry, 48 Ga. 172 (1873); Stack v. Harris, 111 Ga. 149 , 36 S.E. 615 (1900); Roach v. LeGree, 18 Ga. App. 250 , 89 S.E. 167 (1916); Wallace v. Adams, 47 Ga. App. 144 , 169 S.E. 852 (1933).

No duty to examine property. - While the tenant must avoid obvious dangers, the law does not impose upon the tenant the duty of making a thorough examination of the landlord's property in order to ascertain hidden dangers. Dessau v. Achord, 50 Ga. App. 426 , 178 S.E. 396 (1935).

Negligence of tenant. - Tenant by remaining in the untenantable premises is guilty of such negligence as barred a recovery. Veal v. Hanlon, 123 Ga. 642 , 51 S.E. 579 (1905); Clements v. Blanchard, 141 Ga. 311 , 80 S.E. 1004 , 17 L.R.A. 993 (1914).

Assumption of risk. - By electing to use a stairway at night, when the lighting was out, a tenant assumed the risk of injury as a matter of law and was thus barred from recovery. Wells v. Citizens & S. Trust Co., 199 Ga. App. 31 , 403 S.E.2d 826 , cert. denied, 199 Ga. App. 907 , 403 S.E.2d 826 (1991).

Tenant's liability for nuisance. - If the nuisance grew out of the failure of the landlord to make the repairs, this could not relieve the tenant for the nuisance as the tenant might have made the repairs and charged them to the landlord, and the tenant might set off their reasonable value against the rent due the landlord unless the tenant was bound by contract with the landlord, to make the repairs. Vason v. City of Augusta, 38 Ga. 542 (1868); Gardner v. Rhodes, 114 Ga. 929 , 41 S.E. 63 , 57 L.R.A. 749 (1902).

Nuisance maintained by tenant. - When a nuisance is maintained by a tenant, the landlord is not responsible for the nuisance, unless license is given by the landlord to the tenant. The tenant maintaining the nuisance would be liable to one injured as a result thereof. Robertson v. Liggett Drug Co., 81 Ga. App. 850 , 60 S.E.2d 268 (1950).

Damages recoverable. - Damages proximately resulting from a breach of a landlord's covenant to make repairs are recoverable by the tenant. Atlanta Baggage & Cab Co. v. Loftin, 88 Ga. App. 98 , 76 S.E.2d 92 (1953).

Damages not recoverable. - Humiliation, mortification, and a shock are not such injuries as may be redressed because of the landlord's failure to repair. Davis v. Hall, 21 Ga. App. 265 , 94 S.E. 274 (1917).

Knowledge of husband not imputed to wife. - When the plaintiff had no notice or knowledge of the defective condition of the steps, which was a latent defect, the plaintiff would not be precluded from recovering for injuries arising therefrom merely because the plaintiff's spouse, who was the tenant, knew of the condition of the steps. Wall Realty Co. v. Leslie, 54 Ga. App. 560 , 188 S.E. 600 (1936).

Negligence not imputable to child. - Child of three years of age is conclusively presumed to be incapable of contributory negligence, and any negligence of the tenant in failing to prevent the tenant's child from using the alleged defective portion of the premises would not be imputable to the child in an action maintained in the child's own behalf. Oglesby v. Rutledge, 67 Ga. App. 656 , 21 S.E.2d 497 (1942).

Questions for jury. - Tenant may continue in premises with knowledge of a defect therein, unless the defect is plainly dangerous, and whether the tenant's knowledge of the defect is sufficient to charge the tenant with knowledge of the danger is a question to be determined by the jury. Krapf v. Sternberg, 48 Ga. App. 130 , 172 S.E. 69 (1933); Dessau v. Achord, 50 Ga. App. 426 , 178 S.E. 396 (1935).

Fact that landing floor broke through, when used in the ordinary manner by the plaintiff, together with the fact of the floor's condition as shown by the exhibits and openness of the inspection, made it a jury question as to whether or not the floor's defective condition could have been known to the owner by the exercise of ordinary care. Home Owners Loan Corp. v. Brazzeal, 62 Ga. App. 683 , 9 S.E.2d 773 (1940).

Invitee of theatre house. - One who is in the control of a building which one uses as a show house, to which the public are invited for one's profit, and who assumes the construction of the plastering therein, is liable to an invitee injured by the falling of the plastering because of defects in its construction, of which one had knowledge or of which one ought to have known in the exercise of ordinary care. Bonita Theatre v. Bridges, 31 Ga. App. 798 , 122 S.E. 255 (1924).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 624 et seq.

Liability of an Owner or Operator of a Self-Service Filling Station for Injury or Death of a Business Invitee on the Premises, 46 POF3d 161.

Landlord Liability for Criminal Attack on Tenant, 35 Am. Jur. Trials 1.

C.J.S. - 52A C.J.S., Landlord and Tenant, §§ 893 et seq., 917 et seq.

ALR. - Proximate cause as determining landlord's liability, where injury results to a third person from a nuisance that becomes such only upon tenant's using the premises, 4 A.L.R. 740 .

Breach of lessor's covenant to repair as ground of liability for damages for personal injuries to tenant, or one in privity with latter, 8 A.L.R. 765 ; 78 A.L.R.2d 1238.

Liability of owner to licensee or invitee for conditions on premises recently vacated by tenant, 10 A.L.R. 244 .

Effect of noninhabitability of leased dwelling or apartment, 13 A.L.R. 818 ; 29 A.L.R. 52 ; 34 A.L.R. 711 .

Rights and remedies of tenant who remains in possession of all or part of the premises against landlord for interfering with his possession or enjoyment, 20 A.L.R. 1369 ; 28 A.L.R. 1333 ; 64 A.L.R. 900 .

What is unavoidable or inevitable casualty or accident within provision of lease, 24 A.L.R. 1461 .

Liability of landlord for personal injuries due to defective halls, stairways, and the like, for use of different tenants, 25 A.L.R. 1237 .

Liability of landlord for injury to person or property of tenant, or his privies, from defects in heating or lighting plant or plumbing, 26 A.L.R. 1253 ; 52 A.L.R. 864 .

Rights and remedies of tenant upon landlord's breach of covenant to repair, 28 A.L.R. 1448 ; 28 A.L.R.2d 446.

Necessity of notice to landlord as condition of asserting breach of express covenant to repair, 28 A.L.R. 1525 .

Measure of damages for breach of landlord's covenant to heat, or furnish hot water for, premises leased for business or manufacturing purposes, 28 A.L.R. 1550 .

Tenancy as relieving landlord from liability for injury to third person in street due to snow or ice, 29 A.L.R. 181 .

Landlord's liability to one injured while using, for a purpose for which it was not intended, property remaining in the former's control, 30 A.L.R. 1390 ; 49 A.L.R. 564 ; 12 A.L.R.2d 217.

Transfer or devolution of reversion as carrying lessee's covenants to repair, or to yield up in repair, 34 A.L.R. 782 .

Liability of landlord for personal injuries due to defective halls, stairways, and the like, for use of different tenants, 39 A.L.R. 294 ; 58 A.L.R. 1411 ; 75 A.L.R. 154 ; 97 A.L.R. 220 .

Liability of the landlord for damage to the property of a tenant due to defective condition of foundation, walls, or roof of building intended for use of different tenants, 43 A.L.R. 1292 .

Landlord's responsibility for injury to stranger due to tenant's negligence as to doors, guards, etc., provided by former, but in tenant's possession and control, 47 A.L.R. 846 .

Landlord's responsibility to third persons for conditions created during tenancy as affected by renewal of the lease, or a new lease subject to the original lease, 49 A.L.R. 1418 .

Landlord's liability for damage to property of third person by operations of tenant, 53 A.L.R. 327 .

Acts of other tenants as chargeable to landlord, 58 A.L.R. 1049 .

Contributory negligence of plaintiff as defense to action for personal injuries on account of defective condition of part of the premises within the landlord's control, 58 A.L.R. 1428 .

Permissive character of use as affecting landlord's liability to a tenant, or one in privity with him, for personal injuries received in part of premises remaining in landlord's control, 58 A.L.R. 1433 .

Liability of landlord for personal injuries due to defective accessories to the leased premises which had passed into the possession of the tenant, 58 A.L.R. 1453 .

Liability of owner or occupant for condition of covering over opening or vault in sidewalk, 62 A.L.R. 1067 ; 31 A.L.R.2d 1334.

Lease of property as affecting owner's liability for failure to provide fire escapes as required by law, 77 A.L.R. 1273 .

Validity, construction, application and effect of provision of lease exempting landlord from liability on account of condition of property, 84 A.L.R. 654 .

Landlord's liability for injuries to strangers outside premises as affected by covenant to repair or reservation of right to enter to make repairs, 89 A.L.R. 480 .

Employment of independent contractor as affecting landlord's liability for personal injury to tenant or to one in like case with tenant, 90 A.L.R. 50 ; 162 A.L.R. 1111 .

Statute requiring property to be kept in good repair as affecting landlord's liability for personal injury to tenant or his privies, 93 A.L.R. 778 ; 17 A.L.R.2d 704.

Liability of one exercising the rights of an owner of realty for injuries due to its condition, as affected by want of legal title, 96 A.L.R. 1068 ; 130 A.L.R. 1525 .

Duty of landlord to instruct tenant as to use of appliances furnished with premises, 97 A.L.R. 216 .

Who is a stranger or third person within the rule regarding landlord's liability to stranger or third person where premises are in a ruinous condition or condition amounting to a nuisance when leased, 110 A.L.R. 756 .

Duty to guard against operation of elevator by unauthorized person, 117 A.L.R. 989 .

Lease by municipality of property intended for use and benefit of public as affecting its duty and responsibility in respect of the manner and conditions of operation and maintenance of the property by the lessee, 129 A.L.R. 1163 .

Lessor's liability for personal injuries to tenant or occupant where premises are let furnished, 139 A.L.R. 261 .

Res ipsa loquitur as applicable in action against landlord for injury to person or property due to condition of premises, 145 A.L.R. 870 .

Landlord's liability for injury to person or damage to property as affected by his making of repairs in absence of obligation to do so, 150 A.L.R. 1373 .

Covenant respecting condition of premises as requiring indemnity for amount paid or liability incurred on account of injury to third person or his property, 157 A.L.R. 623 .

Lease of premises as affecting owner's liability for injury arising out of condition in highway connected with use of property, 160 A.L.R. 825 .

Breach of lessor's agreement to repair as ground of liability for personal injury to tenant or one in privity with latter, 163 A.L.R. 300 ; 78 A.L.R.2d 1238.

Liability of a lessor or his property for damages resulting from lessee's sale of intoxicating liquor, 169 A.L.R. 1203 .

Liability of landlord to one using fire escape for other than intended purpose, 12 A.L.R.2d 217.

Liability of landlord for injury to or death of employee of tenant, occasioned by negligent construction, maintenance, or operation of elevator, 19 A.L.R.2d 272.

Liability of tenant occupying abutting premises for injury from ice formed on sidewalk by discharge of rain or melted snow thereon because of condition existing on premises, 22 A.L.R.2d 738.

Landlord's liability for injury or death due to defects in exterior stairs, passageways, areas, or structures used in common by tenants, 26 A.L.R.2d 468; 67 A.L.R.3d 490; 65 A.L.R.3d 14; 68 A.L.R.3d 382.

Landlord's liability for injury to tenant's person or property caused by water overflowing from defective appliances in other premises of landlord, 26 A.L.R.2d 1044.

Liability for injuries occasioned by falling of awning or the like, 34 A.L.R.2d 486.

Landlord's duty under express covenant to repair, rebuild, or restore, where property is damaged or destroyed by fire, 38 A.L.R.2d 682.

Liability of landlord for injury or death of third person on street or highway by nuisance created by tenant for month to month, year to year, or the like, 39 A.L.R.2d 973.

Tenant's capacity to sue independent contractor, as third-party beneficiary, for breach of contract between landlord and such contractor for repair or remodeling work, 46 A.L.R.2d 1210.

Liability of landowner for injury or death of child caused by cut or puncture from broken glass or other sharp object, 47 A.L.R.2d 1048.

Lessor of building as invitee of lessee, with respect to latter's duty and liability to former for personal injuries occasioned by condition of premises, 47 A.L.R.2d 1439.

Liability of landlord to tenant or member of tenant's family, for injury by animal or insect, 67 A.L.R.2d 1005.

Liability for injury or damage from escaping refrigerant, 74 A.L.R.2d 894.

Liability for injury to person in street by glass falling from window, door, or wall, 81 A.L.R.2d 897.

Landlord's liability for personal injury or death of tenant or his privies from plumbing system or equipment, 84 A.L.R.2d 1143.

Landlord's liability for personal injury or death of tenant or privies from water heater, 84 A.L.R.2d 1190.

Landlord's liability for personal injury or death of tenant or his privies from heating system or equipment, 86 A.L.R.2d 791.

Landlord's liability for personal injury or death of tenant or privies from electrical system or equipment, 86 A.L.R.2d 838.

Modern status of rule requiring actual knowledge of latent defect in leased premises as prerequisite to landlord's liability to tenant injured thereby, 88 A.L.R.2d 586.

Liability of owner or operator of shopping center to patrons for injuries from defects or conditions in sidewalks, walks, or pedestrian passageways, 95 A.L.R.2d 1341.

Liability of owner or occupant of building for personal injury or death of person in street resulting from objects falling or thrown from building interior, 97 A.L.R.2d 1431.

Effect, on nonsigner, of provision of lease exempting landlord from liability on account of condition of property, 12 A.L.R.3d 958.

Validity, construction, and effect of provision of lease exempting landlord or tenant from liability on account of fire, 15 A.L.R.3d 786.

Landlord's liability to tenant's business patron injured as a result of defective condition of premises, 17 A.L.R.3d 422.

What constitutes "public" use affecting landlord's liability to tenant's invitees for defects in leased premises, 17 A.L.R.3d 873.

Premises liability: proceeding in the dark as contributory negligence, 22 A.L.R.3d 286.

Landlord's liability for damage to tenant's property caused by water, 35 A.L.R.3d 143.

Liability of landlord for injury or death occasioned by swimming pool maintained for tenants, 39 A.L.R.3d 824.

Modern status of rules as to existence of implied warranty of habitability or fitness for use of leased premises, 40 A.L.R.3d 646.

Landlord's failure to repair as aggravated negligence or similar fault, 40 A.L.R.3d 795.

Tenant's right, where landlord fails to make repairs, to have them made and set off cost against rent, 40 A.L.R.3d 1369.

Liability of owner or operator of park for mobile homes or trailers for injuries caused by appliances or other instruments on premises, 41 A.L.R.3d 324.

Liability of owner or operator of trailer camp or park for injury or death from condition of premises, 41 A.L.R.3d 546.

Tenant's obligation under lease as basis of tort liability to third persons, 44 A.L.R.3d 943.

Validity of exculpatory clause in lease exempting lessor from liability, 49 A.L.R.3d 321.

Landlord's liability to tenant or tenant's invitees for injury or death due to ice or snow in areas or passageways used in common by tenants, 49 A.L.R.3d 387.

Liability of owner or operator for injury caused by door of automatic passenger elevator, 63 A.L.R.3d 893.

Modern status of landlord's tort liability for injury or death of tenant or third person caused by dangerous condition of premises, 64 A.L.R.3d 339.

Liability of owner or operator for injury caused by failure of automatic elevator to level at floor, 64 A.L.R.3d 1020.

Landlord's liability for injury or death due to defects in areas of building (other than stairways) used in common by tenants, 65 A.L.R.3d 14.

Liability of landlord for personal injury or death due to inadequacy or lack of lighting on portion of premises used in common by tenants, 66 A.L.R.3d 202.

Landlord's liability for personal injury or death due to defects in appliances supplied for use of different tenants, 66 A.L.R.3d 374.

Landlord's liability for injury or death due to defects in exterior steps or stairs used in common by tenants, 67 A.L.R.3d 490.

Landlord's liability for injury or death due to defects in interior steps or stairs used in common by tenants, 67 A.L.R.3d 587.

Landlord's liability for injury or death due to defects in outside walks, drives, or grounds used in common by tenants, 68 A.L.R.3d 382.

Landlord's liability to tenant's child for personal injuries resulting from defects in premises, as affected by tenant's negligence with respect to supervision of child, 82 A.L.R.3d 1079.

Failure of landlord to make, or permit tenant to make, repairs or alterations required by public authority as constructive eviction, 86 A.L.R.3d 352.

Res ipsa loquitur as applicable in actions for damage to property by the overflow or escape of water, 91 A.L.R.3d 186.

Liability for injuries in connection with ice or snow on nonresidential premises, 95 A.L.R.3d 15.

Tenant's agreement to indemnify landlord against all claims as including losses resulting from landlord's negligence, 4 A.L.R.4th 798.

Liability of owner of store, office, or similar place of business to invitee falling on tracked-in water or snow, 20 A.L.R.4th 438.

Applicability of exculpatory clause in lease to lessee's damages resulting from defective original design or construction, 30 A.L.R.4th 971.

Landlord's tort liability to tenant for personal injury or property damage resulting from criminal conduct of employee, 38 A.L.R.4th 240.

Strict liability of landlord for injury or death of tenant or third person caused by defect in premises leased for residential use, 48 A.L.R.4th 638.

Legal aspects of speed bumps, 60 A.L.R.4th 1249.

Landlord and tenant: violation of statute or ordinance requiring landlord to furnish specified facilities or services as ground of liability for injury resulting from tenant's attempt to deal with deficiency, 63 A.L.R.4th 883.

Landlord's liability to third person for injury resulting from attack on leased premises by dangerous or vicious animal kept by tenant, 87 A.L.R.4th 1004.

Landlord's liability for injury or death of tenant's child from lead paint poisoning, 19 A.L.R.5th 405.

Liability of owner or operator of shopping center, or business housed therein, for injury to patron on premises from criminal attack by third party, 31 A.L.R.5th 550.

Landlord's liability for failure to protect tenant from criminal acts of third person, 43 A.L.R.5th 207.

Apportionment of liability between landowners and assailants for injuries to crime victims, 54 A.L.R.5th 379.

Liability of owner, operator, or other parties, for personal injuries allegedly resulting from snow or ice on premises of parking lot, 74 A.L.R.5th 49.

44-7-14.1. Landlord's duties as to utilities.

  1. As used in this Code section, the term "utilities" means heat, light, and water service.
  2. It shall be unlawful for any landlord knowingly and willfully to suspend the furnishing of utilities to a tenant until after the final disposition of any dispossessory proceeding by the landlord against such tenant.
  3. Any person who violates subsection (b) of this Code section shall, upon conviction, be assessed a fine not to exceed $500.00. (Code 1981, § 44-7-14.1 , enacted by Ga. L. 1988, p. 923, § 1.)

RESEARCH REFERENCES

ALR. - Landlord and tenant: violation of statute or ordinance requiring landlord to furnish specified facilities or services as ground of liability for injury resulting from tenant's attempt to deal with deficiency, 63 A.L.R.4th 883.

44-7-15. Effect of destruction of tenement on obligation to pay rent.

The destruction of a tenement by fire or the loss of possession by any casualty not caused by the landlord or from a defect of his title shall not abate the rent contracted to be paid.

(Orig. Code 1863, § 2274; Code 1868, § 2267; Code 1873, § 2293; Code 1882, § 2293; Civil Code 1895, § 3135; Civil Code 1910, § 3711; Code 1933, § 61-113.)

JUDICIAL DECISIONS

Rule stated. - Tenant of a rented house is liable for the stipulated rent to the end of the tenant's term although the house, before the expiration of such term, be destroyed by fire, unless the landlord does some act which in law amounts to an eviction of the tenant. Pope v. Gerrard, 39 Ga. 471 (1869); Fleming & Bowles v. King, 100 Ga. 449 , 28 S.E. 239 (1897).

Reason for rule is that the loss of the rent must fall somewhere, and there is no more equity that the landlord should bear it than the tenant, when the tenant has expressly agreed to pay the rent, and when the landlord must bear the loss of the property destroyed. Equity considers the calamity mutual and will not interfere to relieve against the express contract of the tenant. White v. Molyneux, 2 Ga. 124 (1847).

Common law. - Statute is a codification of a common-law principle. Mayer & Crine v. Morehead, 106 Ga. 434 , 32 S.E. 349 (1899) (see O.C.G.A. § 44-7-15 ).

Casualty defined. - Casualty has been defined as "unforeseen circumstances not to be guarded against by human agency, and in which man takes no part," as "an unforeseen accident; a misfortune," as an "event not to be foreseen or guarded against." Oakland Motor Car Co. v. Rippey Motor Co., 41 Ga. App. 784 , 154 S.E. 823 (1930).

Violent windstorm of unusual nature, such as might not reasonably be foreseen or guarded against, resulting in damage, should be deemed a casualty. Oakland Motor Car Co. v. Rippey Motor Co., 41 Ga. App. 784 , 154 S.E. 823 (1930).

What amounts to eviction. - Entering on premises to clean brick is not eviction when tenant did not object, nor was building wall around premises and pulling down remains of building under order of city. Fleming & Bowles v. King, 100 Ga. 449 , 28 S.E. 239 (1897).

To constitute an eviction which will operate as a suspension of rent, there must be either an actual expulsion of the tenant, or some act of a grave and permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises. The granting of an order restraining the tenant from removing the tenant's goods beyond the state, and the appointment of a receiver who took possession for several weeks did not amount to an eviction of the tenant. Potts-Thompson Liquor Co. v. Capital City Tobacco Co., 137 Ga. 648 , 74 S.E. 279 (1912).

Grant of summary judgment to an apartment management company on its counterclaim for unpaid rent was affirmed as its alleged failure to provide security or to properly repair the tenant's lock did not constitute acts of a grave and permanent character committed with the intention of depriving the tenant of the use of their apartment without unreasonable interruption nor did they render the apartment uninhabitable. George v. Hercules Real Estate Services, Inc., 339 Ga. App. 843 , 795 S.E.2d 81 (2016).

Acts by stranger disturbing tenant. - Implied covenant in a lease contract for the quiet enjoyment of the premises by the tenant obligates the landlord to protect the tenant only against the landlord's own acts, and not against the acts of strangers which disturb the tenant in the tenant's quiet enjoyment and possession of the rented premises. Adair v. Allen, 18 Ga. App. 636 , 89 S.E. 1099 (1916); Parker v. Munn Sign & Adv. Co., 29 Ga. App. 420 , 115 S.E. 926 (1923), overruled on other grounds by George v. Hercules Real Estate Servs., 795 S.E.2d 81 (Ga. Ct. App. 2016).

Exception in lease. - If the tenant would guard against loss by fire and tempest, the tenant must introduce into the tenant's lease an exception to that effect. Lennard v. Boynton, 11 Ga. 109 (1852); Pope v. Gerrard, 39 Ga. 471 (1869). See also, Guthman v. Castleberry, 49 Ga. 272 (1873); Fleming & Bowles v. King, 100 Ga. 449 , 28 S.E. 239 (1897).

Right to possession after destruction. - When there is nothing to indicate an intention to limit the possession to buildings, and city premises are described by street numbers, the lessee takes an interest in the yard, garden, subjacent land, and appurtenances, and retains the right to the possession of such land after the buildings thereon have been destroyed, being in turn bound to pay rent for the balance of the term. P.H. Snook & Austin Furn. Co. v. Steiner & Emery, 117 Ga. 363 , 43 S.E. 775 (1903).

When the lease is only of a storeroom, the destruction of the building containing the apartment terminates the tenant's interest in the land, and the tenant has no right to damages on account of the landlord's refusal to permit the tenant to occupy a similar apartment in a new structure erected on the same land. Gavan v. Norcross, 117 Ga. 356 , 43 S.E. 771 (1903).

Landlord's obligation to rebuild. - If a storm completely destroys a dwelling, the landlord is not required to replace the dwelling, nor does the rent abate. Mayer & Crine v. Morehead, 106 Ga. 434 , 32 S.E. 349 (1899).

Tenant's obligation to rebuild. - Statute imposes upon the tenant no obligation to replace a building or any portion thereof destroyed by fire, unless the tenant has contracted to do so. Oakland Motor Car Co. v. Rippey Motor Co., 41 Ga. App. 784 , 154 S.E. 823 (1930) (see O.C.G.A. § 44-7-15 ).

Setoff of building rebuilt by tenant. - Lessee cannot set off against the rent the value of a building which the lessee voluntarily erected on the rented premises to take the place of one destroyed by fire. Hicks & Son v. Mozley & Co., 12 Ga. App. 661 , 78 S.E. 133 (1913).

When landlord parts with title. - While it is true that the destruction of a tenement by fire, or the loss thereof by a casualty not caused by the landlord, will not release the tenant from a rent contract already in existence, still, if the landlord makes an admission in judicio that the landlord has parted with full title to the property, thus rendering the landlord unable to specifically perform the contract as to such property, equity will not decree specific performance as to the adverse party. Ledbetter v. Goodroe, 179 Ga. 69 , 175 S.E. 250 (1934).

Continuation of rent when law prohibits business. - Lessee of hotel with barroom can have no reduction of rent on account of law prohibiting sale of liquors, without express stipulation. Lawrence v. White, 131 Ga. 840 , 63 S.E. 631 , 12 L.R.A. (n.s.) 966, 15 Am. Ann. Cas. 1097 (1909).

Cited in Kanes v. Koutras, 203 Ga. 570 , 47 S.E.2d 558 (1948); Sewell v. Royal, 147 Ga. App. 88 , 248 S.E.2d 165 (1978).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 456, 475.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1010.

ALR. - What is unavoidable or inevitable casualty or accident within provision of lease, 20 A.L.R. 1101 ; 24 A.L.R. 1461 .

Acts of insurance company or public authorities to protect property after fire as constructive eviction of tenant, 29 A.L.R. 1361 .

Landlord's liability for damage to tenant's property by fire, 66 A.L.R. 1393 .

Condition of premises within contemplation of provision of lease or statute for cessation of rent or termination of lease in event of destruction of or damage to property as result of fire, 118 A.L.R. 106 ; 61 A.L.R.2d 1445.

Validity, construction, and application of statute or ordinance which precludes recovery of rent in case of occupancy of building which does not conform to building and health regulations, or where certificate of conformity has not been issued, 144 A.L.R. 259 .

Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 A.L.R. 679 .

Duty of lessee to remove his equipment, machinery, debris, or other property from leased premises after a fire or casualty, 46 A.L.R.2d 839.

Condition of premises within contemplation of provision of lease or statute for cessation of rent or termination of lease in event of destruction of or damage to property as result of fire, calamity, the elements, act of God, or the like, 61 A.L.R.2d 1445.

Validity, construction, and effect of provision of lease exempting landlord or tenant from liability on account of fire, 15 A.L.R.3d 786.

Landlord's liability for damage to tenant's property caused by water, 35 A.L.R.3d 143.

Modern status of rule as to tenant's rent liability after injury to or destruction of demised premises, 99 A.L.R.3d 738.

44-7-16. Accrual of interest on rent owed.

All contracts for rent shall bear interest from the time the rent is due.

(Laws 1811, Cobb's 1851 Digest, p. 901; Code 1863, § 2269; Code 1868, § 2262; Code 1873, § 2288; Code 1882, § 2288; Civil Code 1895, § 3128; Civil Code 1910, § 3704; Code 1933, § 61-114; Ga. L. 1946, p. 761, § 1.)

JUDICIAL DECISIONS

Cited in Simpson v. Earle, 87 Ga. 215 , 13 S.E. 446 (1891); W.W. Kimball Co. v. Rogers, 17 Ga. App. 562 , 87 S.E. 848 (1916); City Prods. Corp. v. Napier & Byers, 107 Ga. App. 733 , 131 S.E.2d 597 (1963); Krupp Realty Co. v. Joel, 168 Ga. App. 480 , 309 S.E.2d 641 (1983).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 416.

C.J.S. - 52A C.J.S., Landlord and Tenant, §§ 1101, 1161 et seq., 1274.

ALR. - Application of usury laws to transactions characterized as "leases,", 94 A.L.R.3d 640.

Propriety of landlord's imposition of fee for late payment of rent, 49 A.L.R.7th Art. 2.

Intentional or negligent infliction of emotional distress in aviation cases involving crashes, hard landings, or in-flight injuries, 49 A.L.R.7th Art. 9.

44-7-17. Exemption from liens against tenant of crops paid as rent.

When it is agreed that the tenant shall pay to the landlord as rent a part of the crop produced on the lands rented from the landlord and the tenant, in good faith, delivers the part of the crop agreed on in discharge of his rent, such part of the crop so delivered shall be discharged from the lien of any judgment, decree, or other process whatsoever against the tenant.

(Ga. L. 1884-85, p. 91, § 1; Civil Code 1895, § 3127; Civil Code 1910, § 3703; Code 1933, § 61-115; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Rent to be paid in money. - When the rent was to be paid in money and the tenant turned over a part of the crop in payment, it was not exempt from a judgment against the tenant. Toler v. Seabrook, 39 Ga. 14 (1869); Almand v. Scott, 80 Ga. 95 , 4 S.E. 892 , 12 Am. St. R. 241 (1887); Duncan v. Clark, 96 Ga. 263 , 22 S.E. 927 (1895).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 565.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1235 et seq.

ALR. - Priority as between landlord's lien on chattels and chattel mortgage, 52 A.L.R. 935 .

Subject-matter covered by landlord's statutory lien for rent, 96 A.L.R. 249 .

44-7-18. Effect of leases for purposes of prostitution or assignation.

  1. As used in this Code section, the term:
    1. "Assignation" means the making of any appointment or engagement for prostitution or any act in furtherance of such appointment or engagement.
    2. "Prostitution" means the offering or giving of the body for sexual intercourse, sex perversion, obscenity, or lewdness for hire.
    3. "Tourist camp" means any temporary or permanent buildings, tents, cabins or structures, or trailers or other vehicles which are maintained, offered, or used for dwelling or sleeping quarters for pay.
  2. All leases and agreements letting, subletting, or renting any house, place, building, tourist camp, or other structure for the purpose of prostitution or assignation shall be void.

    (Ga. L. 1943, p. 568, § 3.)

Cross references. - Penalty for prostitution and keeping place of prostitution, §§ 16-6-9 , 16-6-10 .

Abatement of houses of prostitution, Ch. 3, T. 41.

JUDICIAL DECISIONS

Cited in Price v. State, 76 Ga. App. 108 , 45 S.E.2d 84 (1947); Pippin v. State, 205 Ga. 316 , 53 S.E.2d 482 (1949).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenants, § 39 et seq.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 226.

ALR. - Seller's, bailor's, lessor's, or lender's knowledge of the other party's intention to put the property or money to an illegal use as defense to action for purchase price, rent, or loan, 166 A.L.R. 1353 .

Construction and application of statute authorizing forfeiture or termination of lease because of tenant's illegal use of premises, 100 A.L.R.2d 465.

Lease provisions allowing termination or forfeiture for violation of law, 92 A.L.R.3d 967.

44-7-19. Restrictions on rent regulation by local governments.

No county or municipal corporation may enact, maintain, or enforce any ordinance or resolution which would regulate in any way the amount of rent to be charged for privately owned, single-family or multiple-unit residential rental property. This Code section shall not be construed as prohibiting any county or municipal corporation, or any authority created by a county or municipal corporation for that purpose, from regulating in any way property belonging to such county, such municipal corporation, or such authority from entering into any agreements with private persons, which agreements regulate the amount of rent to be charged for such rental properties.

(Code 1981, § 44-7-19 , enacted by Ga. L. 1984, p. 1079, § 1.)

44-7-20. Notification to prospective tenant of property's propensity toward flooding.

When the owner of real property, either directly or through an agent, seeks to lease or rent that property for residential occupancy, prior to entering a written agreement for the leasehold of that property, the owner shall, either directly or through an agent, notify the prospective tenant in writing of the property's propensity of flooding if flooding has damaged any portion of the living space covered by the lease or attachments thereto to which the tenant or the tenant's resident relative has sole and exclusive use under the written agreement at least three times during the five-year period immediately preceding the date of the lease. An owner failing to give such notice shall be liable in tort to the tenant and the tenant's family residing on the leased premises for damages to the personal property of the lessee or a resident relative of the lessee which is proximately caused by flooding which occurs during the term of the lease. For purposes of this Code section, flooding is defined as the inundation of a portion of the living space covered by the lease which was caused by an increased water level in an established water source such as a river, stream, or drainage ditch or as a ponding of water at or near the point where heavy or excessive rain fell. This Code section shall apply only to leaseholds entered into on or after July 1, 1995.

(Code 1981, § 44-7-20 , enacted by Ga. L. 1995, p. 266, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1995, "inundation" was substituted for "innundation" in the third sentence.

Law reviews. - For note on the 1995 enactment of this Code section, see 12 Ga. St. U.L. Rev. 310 (1995).

JUDICIAL DECISIONS

Failure to state a claim. - In a suit brought by the tenants against the landlord and property management company (defendants), the trial court properly granted the defendants summary judgment on the per se negligence claim under O.C.G.A. § 44-7-20 since the statute was inapplicable due to the tenants not alleging that the tenants living space flooded at least three times during the five-year period because of flooding from a river, stream, drainage ditch, or a ponding of water. Ellis v. Hartford Run Apartments, LLC, 335 Ga. App. 118 , 779 S.E.2d 103 (2015), cert. denied, No. S16C0607, 2016 Ga. LEXIS 289 (Ga. 2016).

44-7-21. Written brokerage agreement as binding obligation; notice of commission rights form.

  1. Where a landlord or tenant has entered into a written brokerage commission agreement for the payment of compensation or promise of payment to a real estate broker in consideration of brokerage services rendered in connection with the consummation of a lease, then, notwithstanding any rule or construction of law under which such written brokerage commission agreement might otherwise be considered the personal obligation of the original landlord or tenant specifically named in the lease, such written brokerage commission agreement shall, pursuant to the terms of this Code section, constitute a binding contractual obligation of such landlord or tenant, as the case may be, and of their respective grantees, successors, and assigns. Upon any sale, transfer, assignment, or other disposition, including, without limitation, by reason of the enforcement of any mortgage, lien, deed to secure debt, or other security instrument, of a landlord's interest in real property or upon any sale, assignment, transfer, or other disposition of a tenant's leasehold interest, the succeeding party shall be bound for all obligations occurring after the sale, transfer, assignment, or other disposition with the same effect as if such succeeding party had expressly assumed the landlord's or tenant's obligations relating to the written brokerage commission agreement if:
    1. A written brokerage commission agreement is incorporated into the lease;
    2. The real estate broker has complied with subsection (b) of this Code section;
    3. The succeeding party assumes the benefits of the tenancy, rental amount, and term of the lease; and
    4. The written brokerage commission agreement has not been waived in writing by the broker.

      The conveyance or transfer of the real property coupled with the continuing assumption of the tenancy, rental amount, and term of said lease shall constitute conclusive evidence of the succeeding landlord's or tenant's agreement to pay such periodic commission payments under the written brokerage commission agreement.

  2. A real estate broker shall be entitled to the protections afforded by this Code section only upon the broker's recording a notice of commission rights in the deed records in the office of the clerk of the superior court in the county in which the real property or leasehold interest is located within 30 days of the execution of the lease incorporating the written brokerage commission agreement. Said notice of commission rights must be filed before conveyance of the real property, must be signed by the broker or by a person expressly authorized to sign on behalf of the broker, and must follow substantially the following form: (e) Notwithstanding any provision of this Code section to the contrary, this Code section does not create an interest in the real property which is the subject of the lease. (Code 1981, § 44-7-21 , enacted by Ga. L. 1997, p. 825, § 1; Ga. L. 1999, p. 81, § 44.)

" NOTICE OF COMMISSION RIGHTS

The undersigned licensed Georgia real estate broker does hereby publish this NOTICE OF COMMISSION RIGHTS pursuant to Code Section 44-7-21 of the Official Code of Georgia Annotated to establish that the lease set forth below contains a written brokerage commission agreement providing for the payment or promise of payment of compensation for brokerage services. __________________________________________________________________________ Owner __________________________________________________________________________ Landlord __________________________________________________________________________ Tenant __________________________________________________________________________ Lease date Lease term __________________________________________________________________________ Project name or building Legal Description: All that tract or parcel of land lying and being in the State of Georgia, County of ________, being more particularly described on Exhibit 'A' attached hereto and made a part hereof. (A full and complete legal description is required for this form to be valid.) Given under hand and seal this ________ day of ________________________, ________. Signed, sealed, and delivered in the presence of: Broker: ______________________________ __________________________ (Seal) Unofficial Witness Name:__________________ ______________________________ ______________________________ Notary Public Georgia Real Estate (Notary Seal Attached) License No. ____________________________" (c) The real estate broker must file a release of commission rights within 30 days of receipt of the final payment of commissions due under the written brokerage commission agreement. (d) This Code section shall only apply to leaseholds of all or a portion of commercial real estate as that term is defined in Code Section 44-14-601 which are entered into on or after July 1, 1997.

Law reviews. - For article commenting on the enactment of this Code section, see 14 Ga. St. U.L. Rev. 244 (1997).

44-7-22. Termination of a residential rental agreement by a service member.

  1. As used in this Code section, the term "service member" means an active duty member of the regular or reserve component of the United States armed forces, the United States Coast Guard, the Georgia National Guard, or the Georgia Air National Guard on ordered federal duty for a period of 90 days or longer.
  2. Any service member may terminate his or her residential rental or lease agreement by providing the landlord with a written notice of termination to be effective on the date stated in the notice that is at least 30 days after the landlord's receipt of the notice if any of the following criteria are met:
    1. The service member is required, pursuant to a permanent change of station orders, to move 35 miles or more from the location of the rental premises;
    2. The service member is released from active duty or state active duty after having leased the rental premises while on active duty status and the rental premises is 35 miles or more from the service member's home of record prior to entering active duty;
    3. After entering into a rental agreement, the service member receives military orders requiring him or her to move into government quarters;
    4. After entering into a rental agreement, the service member becomes eligible to live in government quarters and the failure to move into government quarters will result in a forfeiture of the service member's basic allowance for housing;
    5. The service member receives temporary duty orders, temporary change of station orders, or state active duty orders to an area 35 miles or more from the location of the rental premises, provided such orders are for a period exceeding 60 days; or
    6. The service member has leased the property but prior to taking possession of the rental premises receives a change of orders to an area that is 35 miles or more from the location of the rental premises.
  3. The notice to the landlord pursuant to subsection (b) of this Code section shall be accompanied by either a copy of the official military orders or a written verification signed by the service member's commanding officer.
  4. In the event a service member dies during active duty, an adult member of his or her immediate family may terminate the service member's residential rental or lease agreement by providing the landlord with a written notice of termination to be effective on the date stated in the notice that is at least 30 days after the landlord's receipt of the notice. The notice to the landlord must be accompanied by either a copy of the official military orders showing the service member was on active duty or a written verification signed by the service member's commanding officer and a copy of the service member's death certificate.
  5. Upon termination of a rental agreement under this Code section, the service member is liable for the rent due under the rental agreement prorated to the effective date of the termination payable at such time as would have otherwise been required by the terms of the rental agreement. The service member is not liable for any other rent or damages due to the early termination of the tenancy as provided for in this Code section. Notwithstanding any provision of law to the contrary, if a service member terminates the rental agreement pursuant to this Code section 14 or more days prior to occupancy, no damages or penalties of any kind will be assessable.
  6. The provisions of this Code section shall apply to all residential rental or lease agreements entered into on or after July 1, 2005, and to any renewals, modifications, or extensions of such agreements in effect on such date. The provisions of this Code section may not be waived or modified by the agreement of the parties under any circumstances. (Code 1981, § 44-7-22 , enacted by Ga. L. 2005, p. 213, § 7/SB 258; Ga. L. 2006, p. 72, § 44/SB 465.)

Cross references. - Additional contracts terminable by service members, § 13-1-16 .

44-7-23. Termination of residential lease after issuance of civil family violence order or criminal family violence order; notice; occupancy.

  1. As used in this Code section, the term:
    1. "Civil family violence order" means:
      1. Any protective order issued pursuant to Article 1 of Chapter 13 of Title 19, provided that the respondent was present or had notice of the hearing that resulted in the issuance of such order; or
      2. Any ex parte temporary protective order issued pursuant to Article 1 of Chapter 13 of Title 19, provided that it is accompanied by a police report showing a basis for such order.
    2. "Criminal family violence order" means:
      1. Any order of pretrial release issued as a result of an arrest for an act of family violence; or
      2. Any order for probation issued as a result of a conviction or plea of guilty, nolo contendere, or first offender to an act of family violence.
    3. "Family violence" shall have the same meaning as set forth in Code Section 19-13-1.
  2. A tenant may terminate his or her residential rental or lease agreement for real estate effective 30 days after providing the landlord with a written notice of termination when a civil family violence order or criminal family violence order has been issued:
    1. Protecting such tenant or his or her minor child; or
    2. Protecting such tenant when he or she is a joint tenant, or his or her minor child, even when such protected tenant had no obligation to pay rent to the landlord.
  3. The notice to the landlord pursuant to subsection (b) of this Code section shall be accompanied by a copy of the applicable civil family violence order or criminal family violence order and a copy of the police report if such order was an ex parte temporary protective order.
  4. Upon termination of a residential rental or lease agreement under this Code section, the tenant may occupy the real estate until the termination is effective. Such tenant shall be liable for the rent due under such agreement prorated to the effective date of the termination, payable at such time as would have otherwise been required by the terms of such agreement, and for any delinquent or unpaid rent or other sums owed to the landlord prior to the termination of such agreement. The tenant shall not be liable for any other fees, rent, or damages due to the early termination of the tenancy as provided for in this Code section. Notwithstanding any provision of law to the contrary, if a tenant terminates a residential rental or lease agreement pursuant to this Code section 14 or more days prior to occupancy, no damages or penalties of any kind will be assessable.
  5. This Code section shall apply to all residential real estate rental or lease agreements entered into on or after July 1, 2018, and to any renewals, modifications, or extensions of such agreements in effect on such date. This Code section shall not be waived or modified by the agreement of the parties under any circumstances. (Code 1981, § 44-7-23 , enacted by Ga. L. 2018, p. 969, § 2/HB 834.)

Effective date. - This Code section became effective July 1, 2018.

Cross references. - Offense of violating family violence order, § 16-5-95 .

Family violence, T. 19, C. 13.

Law reviews. - For article on the 2018 enactment of this Code section, see 35 Ga. St. U. L. Rev. 155 (2018). For annual survey on real property law, see 70 Mercer L. Rev. 209 (2018).

44-7-24. Establishment of a prima-facie case of retaliation by tenant against landlord; elements; exception; remedies; rebuttable defense.

  1. A residential tenant establishes a prima-facie case of retaliation by demonstrating that he or she took an action under subsection (b) of this Code section relating to a life, health, safety, or habitability concern and by demonstrating that his or her landlord took an action under subsection (c) of this Code section.
  2. Elements of a prima-facie case under this Code section include that a tenant:
    1. In good faith exercised or attempted to exercise against a landlord a right or remedy granted to such tenant by contract or law;
    2. Gave a landlord a notice to repair or exercise a remedy under this chapter;
    3. Complained to a governmental entity responsible for enforcing building or housing codes or a public utility, and the tenant:
      1. Claims a building or housing code violation or utility problem that is the duty of the landlord to repair; and
      2. Acts in good faith in that a reasonable person would believe that the complaint is valid and that the violation or problem occurred; or
    4. Established, attempted to establish, or participated in a tenant organization to address problems related to the habitability of the property, such as life, health, or safety concerns.
  3. Elements of a prima-facie case under this Code section include that a landlord, within three months after the date that a tenant takes any action described under subsection (b) of this Code section:
    1. Filed a dispossessory action, except for the grounds set forth in paragraph (2) of subsection (d) of this Code section;
    2. Deprived the tenant of the use of the premises, except for reasons authorized by law;
    3. Decreased services to the tenant;
    4. Increased the tenant's rent or terminated the tenant's lease or rental agreement; or
    5. Materially interfered with the tenant's rights under the tenant's lease or rental agreement.
  4. A landlord shall not be liable for retaliation under this Code section:
    1. For increasing rent or reducing services:
      1. Under an escalation clause in a written lease for utilities, taxes, or insurance;
      2. As part of a pattern of rent increases or for reducing services as part of a pattern of service reductions, for an entire multiunit residential building or complex; or
      3. As part of a rent increase due to the terms of the tenant's or landlord's participation in a program regulated by this state or the federal government involving the receipt of federal funds, tenant assistance, or tax credits; or
    2. For a dispossessory action or lease or rental agreement termination in accordance with this chapter based upon one or more of the following circumstances:
      1. The tenant is delinquent in rent when the landlord gives notice to vacate or files a dispossessory action;
      2. The tenant, a member of the tenant's family, or a guest or invitee of the tenant intentionally damages property on the premises or by word or conduct threatens the personal safety of the landlord, the landlord's employees, or another tenant;
      3. The tenant has breached the lease, other than by holding over, by an action such as violating written lease provisions prohibiting serious misconduct or criminal acts;
      4. The tenant holds over after the tenant gives notice of termination or intent to vacate; or
      5. The tenant holds over after the landlord gives notice of termination at the end of the rental term as agreed upon in the written lease.
  5. In addition to any other remedies provided for by law, if a landlord retaliates against a tenant pursuant to this Code section, such retaliation shall be a defense to a dispossessory action, and the tenant may recover from the landlord a civil penalty of one month's rent plus $500.00, court costs, reasonable attorney's fees where the conduct is willful, wanton, or malicious, and declaratory relief less any delinquent rents or other sums for which the tenant is liable to the landlord.
  6. It shall be a rebuttable defense under this Code section that the property has been inspected within the prior 12 months pursuant to any federal, state, or local program which certifies that the property complies with applicable building and housing codes or that the property has been inspected within the prior 12 months by a code enforcement officer or a licensed building inspector who certifies that the property complies with applicable building and housing codes. (Code 1981, § 44-7-24 , enacted by Ga. L. 2019, p. 1026, § 1/HB 346.)

Effective date. - This Code section became effective July 1, 2019.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2019, "willful" was substituted for "wilful" near the end of subsection (e).

Law reviews. - For article on the 2019 enactment of this Code section, see 36 Ga. St. U.L. Rev. 193 (2019).

ARTICLE 2 SECURITY DEPOSITS

Law reviews. - For article discussing 1976 statutory changes in landlord-tenant law, see 13 Ga. St. B.J. 43 (1976).

JUDICIAL DECISIONS

Intent of article. - Intent of provisions on security deposits is only to prevent the wrongful withholding of security deposits from tenants by landlords. It does not in any way alter the statutory or contractual liability of tenants for rent. Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401 , 274 S.E.2d 620 (1980).

Cited in Whipper v. Kirk, 156 Ga. App. 218 , 274 S.E.2d 662 (1980).

RESEARCH REFERENCES

ALR. - Bankruptcy: lessor's right, upon bankruptcy of lessee, to enforce lien or retain security for future rentals, 22 A.L.R. 1307 ; 45 A.L.R. 717 .

Provision in lease for pecuniary forfeiture where lease is prematurely terminated as one for liquidated damages, 106 A.L.R. 292 .

Right of lessor to retain advance rental payments made under lease terms upon lessee's default in rent, 27 A.L.R.2d 656.

Landlord-tenant security deposit legislation, 63 A.L.R.4th 901.

44-7-30. Definitions.

As used in this article, the term:

  1. "Nonrefundable fee" means any money or other consideration paid or given by a tenant to a landlord under the terms of a residential rental agreement which the parties agreed would not be refunded.
  2. "Residential rental agreement" means a contract, lease, or license agreement for the rental or use of real property as a dwelling place.
  3. "Security deposit" means money or any other form of security given after July 1, 1976, by a tenant to a landlord which shall be held by the landlord on behalf of a tenant by virtue of a residential rental agreement and shall include, but not be limited to, damage deposits, advance rent deposits, and pet deposits. Such term shall not include nonrefundable fees, or money or other consideration which are not to be returned to the tenant under the terms of the residential rental agreement or which were to be applied toward the payment of rent or reimbursement of services or utilities provided to the tenant.

    (Code 1933, § 61-601, enacted by Ga. L. 1976, p. 1372, § 6; Ga. L. 1982, p. 3, § 44; Ga. L. 2007, p. 498, § 3/SB 94.)

Administrative Rules and Regulations. - Immediate Transfer of Residents, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health, Personal Care Homes, Rule 111-8-62-.29.

Discharge or Transfer of Residents, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Community Health, Personal Care Homes, Rule 111-8-62-.30.

JUDICIAL DECISIONS

Refundability of a "security deposit" is implicit, and the absence of any express agreement as to the refundability of such a deposit is immaterial. Race, Inc. v. Wade Leasing, Inc., 201 Ga. App. 340 , 411 S.E.2d 56 (1991).

Cited in Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401 , 274 S.E.2d 620 (1980).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 522.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 989 et seq.

ALR. - Validity and construction of provision of lease or condition of bond protecting lessor from loss in consequence of violation of the liquor law, 62 A.L.R. 431 .

44-7-31. Placement of security deposit in trust in escrow account; notice to tenant of account location.

Except as provided in Code Section 44-7-32, whenever a security deposit is held by a landlord or such landlord's agent on behalf of a tenant, such security deposit shall be deposited in an escrow account established only for that purpose in any bank or lending institution subject to regulation by this state or any agency of the United States government. The security deposit shall be held in trust for the tenant by the landlord or such landlord's agent except as provided in Code Section 44-7-34. Tenants shall be informed in writing of the location of the escrow account required by this Code section.

(Code 1933, § 61-602, enacted by Ga. L. 1976, p. 1372, § 6; Ga. L. 2006, p. 656, § 1/HB 1273.)

JUDICIAL DECISIONS

Action to recover rent not barred by landlord's failure to comply with section. - Even though a landlord did not comply with the provisions of the security deposit statute, this did not bar the landlord from bringing an action to recover unpaid rent due on a lease contract or for withholding the security deposit for nonpayment of rent. Zakaria v. McElwaney, 174 Ga. App. 149 , 329 S.E.2d 310 (1985).

Unverified affidavit. - Failure to verify an affidavit as provided by law is an amendable defect. Cobb v. McCrary, 152 Ga. App. 212 , 262 S.E.2d 538 (1979).

Security deposit not part of the estate in bankruptcy. - Security deposits received from tenants and placed in accounts seized by the trustee in bankruptcy were held in trust for the benefit of the tenants. Any property held in trust for the benefit of a third party does not become part of the estate in bankruptcy, accordingly, the trustee could not claim and control the funds from the security deposits as property of the estate. Empire Fin. Servs. v. Gingold (In re Real Estate W. Ventures), 170 Bankr. 736 (Bankr. N.D. Ga. 1993).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 60.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 990.

ALR. - Validity and construction of provision of lease or condition of bond protecting lessor from loss in consequence of violation of the liquor law, 62 A.L.R. 431 .

44-7-32. Surety bond in lieu of escrow account; withdrawal of surety; fees; liability of clerk of superior court.

  1. As an alternative to the requirement that security deposits be placed in escrow as provided in Code Section 44-7-31, the landlord may post and maintain an effective surety bond with the clerk of the superior court in the county in which the dwelling unit is located. The amount of the bond shall be the total amount of the security deposits which the landlord holds on behalf of the tenants or $50,000.00, whichever is less. The bond shall be executed by the landlord as principal and a surety company authorized and licensed to do business in this state as surety. The bond shall be conditioned upon the faithful compliance of the landlord with Code Section 44-7-34 and the return of the security deposits in the event of the bankruptcy of the landlord or foreclosure of the premises and shall run to the benefit of any tenant injured by the landlord's violation of Code Section 44-7-34.
  2. The surety may withdraw from the bond by giving 30 days' written notice by registered or certified mail or statutory overnight delivery to the clerk of the superior court in the county in which the principal's dwelling unit is located, provided that such withdrawal shall not release the surety from any liability existing under the bond at the time of the effective date of the withdrawal.
  3. The clerk of the superior court shall receive a fee of $5.00 for filing and recording the surety bond and shall also receive a fee of $5.00 for canceling the surety bond. The clerk of the superior court shall not be held personally liable should the surety bond prove to be invalid.

    (Code 1933, § 61-603, enacted by Ga. L. 1976, p. 1372, § 6; Ga. L. 2000, p. 1589, § 3.)

OPINIONS OF THE ATTORNEY GENERAL

Section 43-40-20 controls as to brokers' escrow accounts. - Requirement of former Code 1933, § 84-1419 (see O.C.G.A. § 43-40-20 ) that brokers maintain security deposits only in an escrow account, since it dealt with a more specific class than Ga. L. 1976, p. 1372, § 6 (see O.C.G.A. § 44-7-32 ), and predated Ga. L. 1976, p. 1372, § 6, was controlling as to that class or in other words, brokers. 1976 Op. Att'y Gen. No. 76-101.

Partners may not purchase surety bond in lieu of escrow accounts. - General partner, who is a licensed broker in a limited partnership may not purchase a surety bond in lieu of placing security deposits in the broker's designated trust account, and, similarly, a partner in a partnership, who is also a licensed real estate broker, may not purchase a surety bond in lieu of placing deposits in a designated trust account. 1984 Op. Att'y Gen. No. 84-80.

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 523.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 989 et seq.

ALR. - Construction and effect of provision of lease or bond saving liability of tenant or sureties in case of forfeiture of lease or re-entry by landlord, 99 A.L.R. 42 .

44-7-33. Lists of existing defects and of damages during tenancy; inspection of premises by landlord upon termination of lease and vacation or surrender of premises; right of tenant to inspect and dissent; action to recover security deposit.

  1. Prior to tendering a security deposit, the tenant shall be presented with a comprehensive list of any existing damage to the premises which shall be for the tenant's permanent retention. The tenant shall have the right to inspect the premises to ascertain the accuracy of such list prior to taking occupancy. The landlord and the tenant shall sign the list, and this shall be conclusive evidence of the accuracy of the list but shall not be conclusive as to latent defects. If the tenant refuses to sign the list, the tenant shall state specifically in writing the items on such list to which he or she dissents and shall sign such statement of dissent.
    1. Within three business days after the termination of the residential lease and vacation of the premises or the surrender and acceptance of the premises, whichever occurs first, the landlord or his or her agent shall inspect the premises and compile a comprehensive list of any damage done to the premises which is the basis for any charge against the security deposit and the estimated dollar value of such damage. The tenant shall upon request have the right to inspect the premises and such list within five business days after the termination of the residential lease and vacation of the premises or the surrender and acceptance of the premises and the inspection by the landlord or his or her agent. If the tenant is present with the landlord at the time of the inspection, the landlord and the tenant shall sign the list, and this shall be conclusive evidence of the accuracy of the list. If the tenant refuses to sign the list, he or she shall state specifically in writing the items on the list to which he or she dissents and shall sign such statement of dissent. The landlord shall then comply with the provisions of Code Section 44-7-34.
    2. If the tenant vacates or surrenders the premises without notifying the landlord, the landlord shall inspect the premises and compile a comprehensive list of any damage done to the premises which is the basis for any charge against the security deposit and the estimated dollar value of such damage within a reasonable time after discovering the premises has been surrendered by vacancy. The landlord shall sign the list and then comply with the provisions of Code Section 44-7-34.
  3. A tenant who disputes the accuracy of the final damage list compiled pursuant to subsection (b) of this Code section and provided to the tenant pursuant to Code Section 44-7-34 may bring an action in any court of competent jurisdiction in this state to recover the portion of the security deposit which the tenant believes to be wrongfully withheld for damages to the premises. The tenant's claims shall be limited to those items to which the tenant specifically dissented in accordance with this Code section. If the tenant is present for the inspection of the premises after vacancy and signs the landlord's final damage list or fails to dissent specifically in accordance with this Code section, the tenant shall not be entitled to recover the security deposit or any other damages under Code Section 44-7-35, provided that the lists required under this Code section contain written notice of the tenant's duty to sign or to dissent to the list. A tenant who did not inspect the premises after vacancy or was not present for the landlord's inspection of the premises after vacancy and, in either case, did not request a copy of the landlord's final damage list shall have the right to dispute the damages assessed by the landlord.

    (Code 1933, § 61-604, enacted by Ga. L. 1976, p. 1372, § 6; Ga. L. 2018, p. 969, § 3/HB 834.)

The 2018 amendment, effective July 1, 2018, in subsection (a), substituted "premises which shall" for "premises, which list shall" in the first sentence, substituted "such list" for "the list" in the second and fourth sentences, inserted a comma following "sign the list" in the third sentence, and inserted "or she" in the middle of the fourth sentence; substituted the present provisions of subsection (b) for the former provisions, which read: "Within three business days after the date of the termination of occupancy, the landlord or his agent shall inspect the premises and compile a comprehensive list of any damage done to the premises which is the basis for any charge against the security deposit and the estimated dollar value of such damage. The tenant shall have the right to inspect the premises within five business days after the termination of the occupancy in order to ascertain the accuracy of the list. The landlord and the tenant shall sign the list, and this shall be conclusive evidence of the accuracy of the list. If the tenant refuses to sign the list, he shall state specifically in writing the items on the list to which he dissents and shall sign such statement of dissent. If the tenant terminates occupancy without notifying the landlord, the landlord may make a final inspection within a reasonable time after discovering the termination of occupancy."; and, in subsection (c), in the middle of the first sentence, substituted "compiled" for "given" and inserted "and provided to the tenant pursuant to Code Section 44-7-34", substituted "tenant is present for the inspection of the premises after vacancy and signs the landlord's final damage list or fails" for "tenant fails to sign a list or" near the middle of the third sentence, and added the fourth sentence.

Law reviews. - For survey article on real property law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 397 (2003). For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 155 (2018). For annual survey on real property law, see 70 Mercer L. Rev. 209 (2018).

JUDICIAL DECISIONS

Withholding security deposit not barred by noncompliance with security deposit provisions. - Even though a landlord did not comply with the provisions of the security deposit statute, this did not bar the landlord from bringing an action to recover unpaid rent due on a lease contract or for withholding the security deposit for nonpayment of rent. Zakaria v. McElwaney, 174 Ga. App. 149 , 329 S.E.2d 310 (1985).

Retention prerequisite for written statements. - When the plaintiffs did not retain the defendant's security deposit to cover damages caused by a fire, they were never obligated to provide her with any of the written statements listed in the statute. Travelers Ins. Co. v. Linn, 235 Ga. App. 641 , 510 S.E.2d 139 (1998).

No forfeiture when written statements not required. - When a landlord does not retain a security deposit and is therefore not required to provide written statements under O.C.G.A. §§ 44-7-33 and 44-7-34 , the landlord's failure to do so cannot work a forfeiture of the right to sue the tenant for damages to the property under O.C.G.A. § 44-7-35(b) . Travelers Ins. Co. v. Linn, 235 Ga. App. 641 , 510 S.E.2d 139 (1998).

Inspection upon surrender. - Landlord was entitled to retain tenant's security deposit for damages that were not normal wear and tear in the apartment the tenant rented from the landlord pursuant to a lease agreement as the landlord fulfilled the obligation of inspecting the apartment within three days of the date the tenant surrendered the apartment and thereafter notified the tenant of the balance due to repair damage that was not part of normal wear and tear. Cannon v. Wesley Plantation Apts., 256 Ga. App. 244 , 568 S.E.2d 137 (2002).

Cited in Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401 , 274 S.E.2d 620 (1980).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 523.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 989 et seq.

44-7-34. Return of security deposit; grounds for retention of part; delivery of statement and sum due to tenant; unclaimed deposit; court determination of disposition of deposit.

  1. Within 30 days after obtaining possession of the premises as provided in subsection (b) of Code Section 44-7-33, a landlord shall return to the tenant the full security deposit which was deposited with the landlord by the tenant. No security deposit shall be retained to cover ordinary wear and tear which occurred as a result of the use of the premises for the purposes for which the premises were intended, provided that there was no negligence, carelessness, accident, or abuse of the premises by the tenant or members of his or her household or their invitees or guests. In the event that actual cause exists for retaining any portion of the security deposit, the landlord shall provide the tenant with a written statement identifying the exact reasons for the retention thereof, which shall include the comprehensive list of damages prepared as required by Code Section 44-7-33, if the reason for retention is based on damages to the premises. When such statement is delivered, it shall be accompanied by a payment of the difference between any sum deposited and the amount retained. The landlord shall be deemed to have complied with this Code section by mailing such statement and any payment required to the last known address of the tenant via first-class mail. If the letter containing the payment is returned to the landlord undelivered and if the landlord is unable to locate the tenant after reasonable effort, the payment shall become the property of the landlord 90 days after the date the payment was mailed. Nothing in this Code section shall preclude the landlord from retaining the security deposit for nonpayment of rent or of fees for late payment, for abandonment of the premises, for nonpayment of utility charges, for repair work or cleaning contracted for by the tenant with third parties, for unpaid pet fees, or for actual damages caused by the tenant's breach, provided that the landlord attempts to mitigate the actual damages.
  2. In any court action in which there is a determination that neither the landlord nor the tenant is entitled to all or a portion of a security deposit under this article, the judge or the jury, as the case may be, shall determine what would be an equitable disposition of the security deposit; and the judge shall order the security deposit paid in accordance with such disposition.

    (Code 1933, § 61-605, enacted by Ga. L. 1976, p. 1372, § 6; Ga. L. 1982, p. 3, § 44; Ga. L. 2018, p. 969, § 3/HB 834.)

The 2018 amendment, effective July 1, 2018, in subsection (a), substituted "Within 30 days after obtaining possession of the premises as provided in subsection (b) of Code Section 44-7-33," for "Except as otherwise provided in this article, within one month after the termination of the residential lease or the surrender and acceptance of the premises, whichever occurs last," at the beginning of the first sentence, inserted "or her" near the end of the second sentence, substituted the present provisions of the third and fourth sentences for the former provisions, which read: "In the event that actual cause exists for retaining any portion of the security deposit, the landlord shall provide the tenant with a written statement listing the exact reasons for the retention thereof. If the reason for retention is based on damages to the premises, such damages shall be listed as provided in Code Section 44-7-33.", in the fifth sentence, substituted "such" for "the" in the middle and substituted "first-class" for "first class" near the end, and inserted "that" near the end of the last sentence.

Law reviews. - For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 155 (2018).

JUDICIAL DECISIONS

Applicability. - While Ga. L. 1976, p. 1372, § 6 (see O.C.G.A. § 44-7-35(b) ) clearly bars a landlord from withholding a security deposit to cover damages to the premises or from bringing action against the tenant for damages to the premises if the landlord does not provide the specific written statements, it does not bar the landlord from bringing an action to recover unpaid rent due on the lease contract or from withholding the security deposit for nonpayment of rent as provided in Ga. L. 1976, p. 1372, § 6. Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401 , 274 S.E.2d 620 (1980).

When there was no retention of the defendant's security deposit, plaintiffs had no obligation to provide, and could not have provided, a statement giving the reasons for retention. Travelers Ins. Co. v. Linn, 235 Ga. App. 641 , 510 S.E.2d 139 (1998).

No forfeiture when written statements not required. - When a landlord does not retain a security deposit and is therefore not required to provide written statements under O.C.G.A. § 44-7-33 and 44-7-34 , the landlord's failure to do so cannot work a forfeiture of the right to sue the tenant for damages to the property under O.C.G.A. § 44-7-35(b) . Travelers Ins. Co. v. Linn, 235 Ga. App. 641 , 510 S.E.2d 139 (1998).

Landlord's written notification of the landlord's intent to retain the tenant's security deposit timely mailed to the tenant at the tenant's last known address was sufficient to comply with the requirement that the landlord notify the tenant within one month of the date the apartment was surrendered that the landlord would be retaining the security deposit; the tenant's claim of never receiving such written notification was without merit as the applicable statute did not require that the notice actually be received in order to allow the landlord to retain the deposit. Cannon v. Wesley Plantation Apts., 256 Ga. App. 244 , 568 S.E.2d 137 (2002).

Cited in Chrietzberg v. Kristopher Woods, Ltd., 162 Ga. App. 517 , 292 S.E.2d 100 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 525.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 991 et seq.

44-7-35. Remedies for landlord's noncompliance with article.

  1. A landlord shall not be entitled to retain any portion of a security deposit if:
    1. The security deposit was not deposited in an escrow account in accordance with Code Section 44-7-31 or a surety bond was not posted in accordance with Code Section 44-7-32;
    2. The initial damage list required by subsection (a) of Code Section 44-7-33 was not made and presented to the tenant as required by such subsection; and
    3. The final damage list required by subsection (b) of Code Section 44-7-33 was not compiled and made available to the tenant as required by such subsection.
  2. The failure of a landlord to provide the lists and written statements within the time periods specified in Code Section 44-7-34 shall work a forfeiture of all the landlord's rights to withhold any portion of the security deposit or to bring an action against the tenant for damages to the premises.
  3. Any landlord who fails to return any part of a security deposit which is required to be returned to a tenant pursuant to this article shall be liable to the tenant in the amount of three times the sum improperly withheld plus reasonable attorney's fees; provided, however, that the landlord shall be liable only for the sum erroneously withheld if the landlord shows by the preponderance of the evidence that the withholding was not intentional and resulted from a bona fide error which occurred in spite of the existence of procedures reasonably designed to avoid such errors.

    (Code 1933, § 61-606, enacted by Ga. L. 1976, p. 1372, § 6; Ga. L. 2018, p. 969, § 3/HB 834.)

The 2018 amendment, effective July 1, 2018, substituted the present provisions of subsection (a) for the former provisions, which read: "A landlord shall not be entitled to retain any portion of a security deposit if the security deposit was not deposited in an escrow account in accordance with Code Section 44-7-31 or a surety bond was not posted in accordance with Code Section 44-7-32 and if the initial and final damage lists required by Code Section 44-7-33 are not made and provided to the tenant."; and, in subsection (b), substituted "provide the lists and" for "provide each of the" near the beginning, substituted "Code Section 44-7-34" for "Code Sections 44-7-33 and 44-7-34" near the middle, and substituted "the landlord's rights" for "his rights" in the middle.

Law reviews. - For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 155 (2018).

JUDICIAL DECISIONS

Applicability. - While Ga. L. 1976, p. 1372, § 6 (see O.C.G.A. § 44-7-35(b) ) clearly bars a landlord from withholding a security deposit to recover damages to the premises or from bringing action against the tenant for damages to the premises if the landlord does not provide the specific written statements, it does not bar the landlord from bringing an action to recover unpaid rent due on the lease contract or from withholding the security deposit for nonpayment of rent. Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401 , 274 S.E.2d 620 (1980).

When a landlord does not retain a security deposit and is therefore not required to provide written statements under O.C.G.A. §§ 44-7-33 and 44-7-34 , the landlord's failure to do so cannot work a forfeiture of the right to sue the tenant for damages to the property under subsection (b) O.C.G.A. § 44-7-35 . Travelers Ins. Co. v. Linn, 235 Ga. App. 641 , 510 S.E.2d 139 (1998).

Failure to provide defect list works forfeiture. - In an insurer's subrogation action against a tenant who had negligently caused damage to a home, the landlord's failure to provide the tenant with a list of existing defects and damages to the home as required by O.C.G.A. § 44-7-33 worked a forfeiture of the insurer's right to recover damages. State Farm Fire & Cas. Co. v. Bajalia, 216 Ga. App. 707 , 456 S.E.2d 77 (1995).

Landlord's liability for triple damages. - Since the landlord was not required to return the security deposit lawfully withheld for nonpayment of rent, the landlord was not liable under subsection (c) of Ga. L. 1976, p. 1372, § 6 (see O.C.G.A. § 44-7-35 ) or three times the amount of the security deposit, as that is a sanction imposed if security deposits are not returned when there are no damages to the premises, unpaid rent, or other charges for which the deposit may be lawfully retained. Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401 , 274 S.E.2d 620 (1980).

Trial court properly awarded treble damages and attorney fees since the court apparently determined that landlords improperly withheld $305 of tenant's $450 security deposit and the court apparently allowed the landlords to retain $145 of the tenant's security deposit as rent owing to the landlords. Pleasant v. Luther, 195 Ga. App. 889 , 395 S.E.2d 79 (1990).

Tenant's retention of an uncashed security deposit check from the landlord for a period of approximately two weeks pending a scheduled trial date did not manifest an acceptance of it in satisfaction of the tenant's claim for treble damages since the tenant did not acknowledge receipt and retention of the check and had promptly indicated the tenant's rejection of the settlement offer by filing an objection to proposed dismissal of the case. Mehavier v. Tahamtan, 198 Ga. App. 807 , 403 S.E.2d 92 (1991).

Evidence as to reasonable attorney's fees required. - By filing a motion requesting the court to award attorney fees under O.C.G.A. § 44-7-35 , defendant waived defendant's right to a jury trial on this issue; but since it was clear from the trial court's order that the court failed to hear any evidence on this issue, the court was directed to hear evidence as to reasonable attorney fees. Jackson v. Patton, 157 Ga. App. 410 , 277 S.E.2d 769 (1981).

Attorney's fees denied if proof was inadequate. - Denial of attorney fees in the case of an award of damages due to a landlord's failure to return a tenant's security deposit was appropriate since the evidence was inadequate to show what portion of the fees was allocable to the damages award. Augusta Tennis Club, Inc. v. Leger, 186 Ga. App. 440 , 367 S.E.2d 263 (1988).

Attorney's fees properly awarded. - In a suit for return of a security deposit, the jury's award of treble damages to the tenant made clear the jury's finding of intentional withholding and, thus, the trial court could not deny the tenant an award of attorney's fees. Preece v. Turman Realty Co., 228 Ga. App. 609 , 492 S.E.2d 342 (1997).

Cited in Chrietzberg v. Kristopher Woods, Ltd., 162 Ga. App. 517 , 292 S.E.2d 100 (1982); McKay v. Nally, 173 Ga. App. 372 , 326 S.E.2d 560 (1985); Reid v. Reid, 348 Ga. App. 550 , 823 S.E.2d 860 (2019), cert. denied, No. S19C0832, 2019 Ga. LEXIS 689 (Ga. 2019).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 522.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 996.

44-7-36. Certain rental units exempt from article.

Code Sections 44-7-31, 44-7-32, 44-7-33, and 44-7-35 shall not apply to rental units which are owned by a natural person if such natural person, his or her spouse, and his or her minor children collectively own ten or fewer rental units; provided, however, that this exemption does not apply to units for which management, including rent collection, is performed by third persons, natural or otherwise, for a fee.

(Code 1933, § 61-607, enacted by Ga. L. 1976, p. 1372, § 6.)

JUDICIAL DECISIONS

Cited in McKay v. Nally, 173 Ga. App. 372 , 326 S.E.2d 560 (1985).

44-7-37. Liability for rent of military personnel receiving change of duty orders.

Notwithstanding any other provision of this chapter, if a person is on active duty with the United States military and enters into a residential lease of property for occupancy by that person or that person's immediate family and subsequently receives permanent change of station orders or temporary duty orders for a period in excess of three months, any liability of the person for rent under the lease may not exceed:

  1. Thirty days' rent after written notice and proof of the assignment are given to the landlord; and
  2. The cost of repairing damage to the premises caused by an act or omission of the tenant. (Code 1981, § 44-7-37 , enacted by Ga. L. 1990, p. 1829, § 1; Ga. L. 1991, p. 94, § 44; Ga. L. 1991, p. 360, § 1.)

Editor's notes. - Ga. L. 1990, p. 1829, § 2 provides that this Code section shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to all leases of residential property entered into on or after the effective date of this Code section. This Code section became effective April 16, 1990.

ARTICLE 3 DISPOSSESSORY PROCEEDINGS

Law reviews. - For note on the 1994 amendments of Code Sections 44-7-53, 44-7-55 to 44-7-56 of this article, see 11 Ga. St. U.L. Rev. 246 (1994).

JUDICIAL DECISIONS

Legislative intent. - A close reading of O.C.G.A. Art. 3, Ch. 7, T. 44 indicates that intent of legislature was to provide landlord with means to regain possession of premises from tenant who fails to make timely payment of rent. Perimeter Mall v. Retail Sense, Inc., 162 Ga. App. 465 , 291 S.E.2d 392 (1982).

Exclusivity of remedy. - Summary proceedings here provided are the only lawful manner by which a tenant may be summarily and forcibly evicted. Ralls v. E.R. Taylor Auto Co., 202 Ga. 107 , 42 S.E.2d 446 (1947).

Applicability of this article. - Former Code 1933, § 61-301 et seq. (see O.C.G.A. Art. 3, Ch. 7, T. 44) did not apply when the tenant had already relinquished control of the property. Spitzer v. Selig Enters., Inc., 140 Ga. App. 156 , 230 S.E.2d 121 (1976).

Amendment of counterclaim by tenant. - Tenant's claim in a dispossessory proceeding that a leased building was in gross disrepair and that part of the terms of the tenancy had been that no rent would be due until the landlord made repairs does not constitute a counterclaim that may be amended. Trust Co. Bank v. Shaw, 186 Ga. App. 347 , 367 S.E.2d 82 (1988).

Tenant refusing to relinquish possession. - Former Code 1933, § 61-301 et seq. (see O.C.G.A. Art. 3, Ch. 7, T. 44) obviously concerns itself with those tenants who refuse to relinquish possession of property after their right of possession has expired either by termination of lease or by failure to pay rental. Spitzer v. Selig Enters., Inc., 140 Ga. App. 156 , 230 S.E.2d 121 (1976).

Issue is tenancy or no tenancy. - In a dispossessory proceeding, the issue is tenancy or no tenancy. Miron Motel, Inc. v. Smith, 211 Ga. 864 , 89 S.E.2d 643 (1955).

Relationship of landlord and tenant required. - Statutory proceeding authorized by dispossessory proceedings cannot be maintained against a person in possession of premises unless the relation of landlord and tenant exists between the parties. Atlantic Life Ins. Co. v. Ryals, 48 Ga. App. 793 , 173 S.E. 875 (1934); Hightower v. Phillips, 184 Ga. 532 , 192 S.E. 26 (1937); Fountain v. Davis, 71 Ga. App. 1 , 29 S.E.2d 798 (1944); Crain v. Daniel, 79 Ga. App. 647 , 54 S.E.2d 487 (1949).

When the parties are in agreement that the document between the parties relating to a mobile home was a sales contract, not a lease, since the absence of a landlord-tenant relationship between the parties is uncontroverted, no question of fact exists that defendant's use of the dispossessory statute was wrongful since the relationship of landlord and tenant must exist before dispossessory proceedings can be held. Sanders v. Hughes, 183 Ga. App. 601 , 359 S.E.2d 396 , cert. denied, 183 Ga. App. 907 , 359 S.E.2d 396 (1987).

Plaintiff may not assert noncompliance with statute in attacking an eviction proceeding, since under Georgia law, it is clear that the person in possession was not a tenant. Parrott v. Wilson, 707 F.2d 1262 (11th Cir.), cert. denied, 464 U.S. 936, 104 S. Ct. 344 , 78 L. Ed. 2 d 311 (1983) (failure to give formerly required three-day notice prior to eviction).

All related claims to be determined, including rent due. - Law intends for all related claims between the landlord and the tenant to be determinable in the dispossessory proceeding; and the law intends specifically to enable the landlord to collect the rent due the landlord, but the landlord must ask for the rent. Leverette v. Moran, 153 Ga. App. 825 , 266 S.E.2d 574 (1980).

Jurisdiction of contested action. - When a default is properly opened and the dispossessory action becomes contested, a justice of the peace loses jurisdiction over the action and is required to transfer the case to a court of record. Lamb v. Housing Auth., 146 Ga. App. 786 , 247 S.E.2d 597 (1978).

Demand for possession required. - Proper demand for possession is a condition precedent to the right of a landlord to dispossess. Whipper v. Kirk, 156 Ga. App. 218 , 274 S.E.2d 662 (1980).

When demand for possession made. - Demand for possession should be made upon or after the termination of the lease contract. Whipper v. Kirk, 156 Ga. App. 218 , 274 S.E.2d 662 (1980).

Application of declaratory judgment statute. - Declaratory judgment statute does not purport to reach back and nullify the rights, remedies, and penalties in favor of landlords which have already accrued provided by statutory provisions, relating to dispossessory warrants when the tenant is already in default; this is true because a court will not take jurisdiction to render a declaratory judgment where another statutory remedy has been especially provided for the character of case presented, if the effect would be to interfere with the right of the parties to appeal to the court given jurisdiction in that particular matter by the statute. Shippen v. Folsom, 200 Ga. 58 , 35 S.E.2d 915 (1945).

Contracting to avoid statutory requirements. - Landlord may not avoid in any lease "for the use or rental of real property as a dwelling place" any of the requirements set forth in former Code 1933, § 61-301 et seq. (see O.C.G.A. Art. 3, Ch. 7, T. 44); however, the landlord may contract to avoid these statutory requirements when renting property which was not to be used as a dwelling place. Colonial Self Storage of S.E., Inc. v. Concord Properties, Inc., 147 Ga. App. 493 , 249 S.E.2d 310 (1978); Wilkerson v. Chattahoochee Parks, 244 Ga. 472 , 260 S.E.2d 867 (1979); Guthrie v. Pilgrim Realty Co., 155 Ga. App. 692 , 275 S.E.2d 686 (1980).

Purchaser of land from a landlord during the term of a tenant has the same right to dispossess the tenant for the failure to pay the rent as required by the terms of the lease that the original landlord had. Haynie v. Murray, 74 Ga. App. 253 , 39 S.E.2d 567 (1946).

Grantor remaining in possession. - When a security deed provides that, in case of a sale under the power contained in the deed, the grantor or any person in possession under the grantor "shall then become and be tenants holding over and shall forthwith deliver possession to the purchaser at such sale or be summarily dispossessed in accordance with the provisions of law applicable to the tenants holding over," the purchaser at such sale may bring proceedings against the grantor. Redwine v. Frizzell, 184 Ga. 230 , 190 S.E. 789 (1937).

Cited in Jones Mercantile Co. v. Smith, 44 F.2d 168 (5th Cir. 1930); Reardon v. Bland, 206 Ga. 633 , 58 S.E.2d 377 (1950); Reeves v. Reeves, 217 Ga. 348 , 122 S.E.2d 229 (1961); McBride v. Distinctive Food & Entertainment Corp., 133 Ga. App. 424 , 211 S.E.2d 28 (1974); Hill v. Hill, 143 Ga. App. 549 , 239 S.E.2d 154 (1977); Mathews v. Fidelcor Mtg. Corp., 144 Ga. App. 140 , 240 S.E.2d 758 (1977); American Key Corp. v. Metropolitan Atlanta Rapid Transit Auth., 150 Ga. App. 21 , 256 S.E.2d 618 (1979); Bradley v. Godwin, 152 Ga. App. 782 , 264 S.E.2d 262 (1979); Walters v. Chevron U.S.A., Inc., 154 Ga. App. 636 , 269 S.E.2d 495 (1980); Jeffries v. Georgia Residential Fin. Auth., 503 F. Supp. 610 (N.D. Ga. 1980); Omni Int'l, Ltd. v. Mimi's of Atlanta, Inc., 5 Bankr. 623 (N.D. Ga. 1980); Williams-East, Inc. v. Weeks, 156 Ga. App. 861 , 275 S.E.2d 801 (1981); Barkley-Cupit Enters., Inc. v. Equitable Life Assurance Soc'y, 157 Ga. App. 138 , 276 S.E.2d 650 (1981).

OPINIONS OF THE ATTORNEY GENERAL

Dispossessory proceeding is not a civil action but is merely a summary process setting forth the procedure for the disposition of the property pending trial of any contested issues. 1979 Op. Att'y Gen. No. U79-7.

RESEARCH REFERENCES

ALR. - Judgment for rent for particular period as bar to action for rent for subsequent period, 42 A.L.R. 128 .

Construction and effect of provisions of lease as to rights or remedies in event of tenant's failure to vacate, 71 A.L.R. 1448 .

Rights of tenant who holds over after expiration of term with consent of the then owner as against mortgagee or lienor pending the original term, or their successors in interest, 98 A.L.R. 216 .

Notice by landlord of change in rent or other modification of tenancy as affecting rights and liabilities incident to tenant's holding over after expiration of term or rent period or time fixed by notice, 109 A.L.R. 197 .

Tenant's or subtenant's right to damages for claimed constructive eviction or breach of covenant based upon notice to tenant to vacate or other termination notice, 14 A.L.R.2d 1450.

Landlord's consent to extension or renewal of lease as shown by acceptance of rent from tenant holding over, 45 A.L.R.2d 827.

Binding effect on tenant holding over of covenants in expired lease, 49 A.L.R.2d 480.

Estoppel of lessee, because of occupancy of, or other activities in connection with, premises, to assert invalidity of lease because of irregularities in description or defects in execution, 84 A.L.R.2d 920.

Time within which tenant must yield or abandon premises after claimed constructive eviction, 91 A.L.R.2d 638.

Infestation of leased dwelling or apartment with vermin as entitling tenant to abandon premises or as constructive eviction by landlord, in absence of express covenant of habitability, 27 A.L.R.3d 924.

Lessor's retention of past-due rental payments as precluding termination of lease and dispossession of lessee for nonpayment of rent, 39 A.L.R.4th 1204.

What constitutes tenant's holding over leased premises, 13 A.L.R.5th 169.

Excessiveness or inadequacy of punitive damages in cases not involving personal injury or death, 14 A.L.R.5th 242.

44-7-49. Definitions.

As used in this article, the term:

  1. "Application for execution of a writ of possession" means the request or application for a sheriff, constable, or marshal to execute a writ of possession which was issued pursuant to this article.
  2. "Writ of possession" means a writ issued to recover the possession of land or other property and such writ shall not contain restrictions, responsibilities, or conditions upon the landlord in order to be placed in full possession of the land or other property. (Code 1981, § 44-7-49 , enacted by Ga. L. 2007, p. 498, § 1/SB 94; Ga. L. 2019, p. 682, § 1/HB 492.)

The 2019 amendment, effective July 1, 2019, substituted the present provisions of this Code section for the former provisions, which read: "As used in this article, the term 'writ of possession' means a writ issued to recover the possession of land or other property and such writ shall not contain restrictions, responsibilities, or conditions upon the landlord in order to be placed in full possession of the land or other property."

Law reviews. - For article, "2019 Legislative Review," see 24 Ga. St. B.J. 28 (June 2019). For comment, "Providing Fair Relief in Georgia Dispossessory Proceedings," see 32 Georgia St. U. L. Rev. 1003 (2016).

JUDICIAL DECISIONS

Challenge to dispossession following foreclosure sale. - In a dispossessory action by the buyer at a foreclosure sale against the occupant of the foreclosed-upon property, a challenge to the validity of the foreclosure failed because the occupant could not attack dispossession without first setting aside the foreclosure and deed. Even if the occupant's defenses were available in a dispossessory proceeding, the court could not review those defenses because the occupant failed to include a trial transcript in the record. Owens v. Green Tree Servicing LLC, 300 Ga. App. 22 , 684 S.E.2d 99 (2009).

Invalidity of foreclosure not defense. - In a dispossessory action brought by the buyer at a foreclosure sale against the occupant of the property that had been foreclosed upon, the occupant could not assert the alleged invalidity of the foreclosure sale as a defense. Moreover, the occupant failed to include a trial transcript in the record on appeal. Jackman v. Lasalle Bank, N.A., 299 Ga. App. 894 , 683 S.E.2d 925 (2009).

44-7-50. Demand for possession; procedure upon a tenant's refusal; concurrent issuance of federal lease termination notice.

  1. In all cases when a tenant holds possession of lands or tenements over and beyond the term for which they were rented or leased to such tenant or fails to pay the rent when it becomes due and in all cases when lands or tenements are held and occupied by any tenant at will or sufferance, whether under contract of rent or not, when the owner of such lands or tenements desires possession of such lands or tenements, such owner may, individually or by an agent, attorney in fact, or attorney at law, demand the possession of the property so rented, leased, held, or occupied. If the tenant refuses or fails to deliver possession when so demanded, the owner or the agent, attorney at law, or attorney in fact of such owner may immediately go before the judge of the superior court, the judge of the state court, or the clerk or deputy clerk of either court, or the judge or the clerk or deputy clerk of any other court with jurisdiction over the subject matter, or a magistrate in the district where the land lies and make an affidavit under oath to the facts. The affidavit may likewise be made before a notary public.
  2. If issued by a public housing authority, the demand for possession required by subsection (a) of this Code section may be provided concurrently with the federally required notice of lease termination in a separate writing.

    (Laws 1827, Cobb's 1851 Digest, p. 901; Ga. L. 1853-54, p. 52, § 4; Ga. L. 1853-54, p. 55, § 1; Ga. L. 1855-56, p. 268, § 1; Code 1863, § 3983; Ga. L. 1865-66, p. 34, § 1; Code 1868, § 4005; Code 1873, § 4077; Code 1882, § 4077; Civil Code 1895, § 4813; Civil Code 1910, § 5385; Code 1933, § 61-301; Ga. L. 1982, p. 1228, § 1; Ga. L. 1983, p. 884, § 4-1; Ga. L. 1984, p. 892, § 1; Ga. L. 1986, p. 1446, § 9; Ga. L. 1995, p. 577, § 1; Ga. L. 2006, p. 656, § 1.1/HB 1273; Ga. L. 2016, p. 8, § 3/SB 255; Ga. L. 2018, p. 820, § 8/SB 194.)

The 2016 amendment, effective May 12, 2016, substituted "Code Section 18-4-3" for "Code Section 18-4-61, relating to garnishment affidavits" at the end of subsection (a).

The 2018 amendment, effective May 8, 2018, in subsection (a), substituted "such" for "the" throughout, substituted "when" for "where" twice in the first sentence, and deleted ", subject to the same requirements for judicial approval specified in Code Section 18-4-3" following "notary public" at the end of the last sentence.

Law reviews. - For article, "Distress and Dispossessory Warrants in Georgia," see 12 Ga. B.J. 266 (1950). For article surveying real property law, see 34 Mercer L. Rev. 255 (1982). For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998). For comment on Wilensky v. Agoos, 74 Ga. App. 815 , 41 S.E.2d 565 (1947), see 10 Ga. B.J. 109 (1947).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

For history and general consideration of this statute, see Huff v. Markham, 70 Ga. 284 (1883); Hicks v. Beacham, 136 Ga. 89 , 62 S.E. 45 (1908); Carter v. Sutton, 147 Ga. 496 , 94 S.E. 760 (1917); Shehane v. Eberhart, 30 Ga. App. 265 , 117 S.E. 675 (1923), rev'd, 158 Ga. 743 , 124 S.E. 527 , answer conformed to, 33 Ga. App. 23 , 125 S.E. 506 (1924) (see O.C.G.A. § 44-7-50 ).

Constitutionality. - Since this statute merely provides for the making of an affidavit before the justice of the peace in dispossessory proceedings, and any contested issue is transferred to a court of record for trial, there can be no conflict between this statute and the Constitution. Lopez v. Dlearo, 232 Ga. 339 , 206 S.E.2d 454 (1974) (see O.C.G.A. § 44-7-50 ).

Strict construction. - Dispossessory proceeding is statutory and must be strictly construed and observed. Young v. Cowles, 128 Ga. App. 770 , 197 S.E.2d 864 (1973).

Scope. - Statute does not provide for the trial of title to land. Its sole purpose is the determination of the right of possession between a person claiming to be a landlord and one whom the landlord claims to be the landlord's tenant. Jordan v. Jordan, 103 Ga. 482 , 30 S.E. 265 (1898); Willis v. Harrell, 118 Ga. 906 , 45 S.E. 794 (1903); Bullard v. Hudson, 125 Ga. 393 , 54 S.E. 132 (1906); Boatright v. Eason, 24 Ga. App. 364 , 100 S.E. 764 (1919). See also Cassidy v. Clark, 62 Ga. 412 (1879); Hicks v. Beacham, 136 Ga. 89 , 62 S.E. 45 (1908); Tatum v. Padrosa, 24 Ga. App. 259 , 100 S.E. 653 (1919); Griffeth v. Wilmore, 46 Ga. App. 96 , 166 S.E. 673 (1932); Jones v. Windham, 176 Ga. 619 , 168 S.E. 6 (1933); Fitzgerald Trust Co. v. Shepard, 60 Ga. App. 674 , 4 S.E.2d 689 (1939) (see O.C.G.A. § 44-7-50 ).

An attack on plaintiff's title to the premises is not permissible in a proceeding for possession under the dispossessory statutes. Roberts v. Collins, 199 Ga. App. 614 , 405 S.E.2d 508 (1991).

Jury could reasonably conclude that the defendant deputy was never a tenant at sufferance after the foreclosure of the deputy's home had been finalized, and the deputy, not the plaintiffs, was the intruder when the deputy arrested the plaintiffs there. When the deputy relinquished possession of the property to move in with family members elsewhere, the deputy ceased being a tenant at sufferance. Carter v. Butts Cnty., 821 F.3d 1310 (11th Cir. 2016).

Purpose of proceeding. - Dispossessory proceeding is one primarily for the recovery of the possession of land. Roland v. Floyd, 53 Ga. App. 282 , 185 S.E. 580 (1936).

Purpose not to collect rent. - Dispossessory warrant is a summary statutory proceeding by a landlord to obtain possession of premises from the landlord's tenant, and the landlord's purpose is not to collect rent claimed to be due but to determine the right of possession to the premises between landlord and tenant. Healey Real Estate & Imp. Co. v. Wilson, 74 Ga. App. 63 , 38 S.E.2d 747 (1946); Wilson v. Healey Real Estate & Imp. Co., 203 Ga. 52 , 45 S.E.2d 656 (1947). But see Leverette v. Moran, 153 Ga. App. 825 , 266 S.E.2d 574 (1980).

Former Code 1933, § 61-301 (see O.C.G.A. § 44-7-50 ) did not impose a requirement that the landlord terminate the lease before instituting dispossessory proceedings if the landlord did so solely on the basis of nonpayment of rent; rather, a close reading of former Code 1933, § 61-301 et seq. (see O.C.G.A. Art. 3, Ch. 7, T. 44) indicated that the intent of the legislature was to provide a landlord with a means to regain possession of premises from a tenant who fails to make timely payment of rent. Failure to pay rent is a separate ground from that of holding over beyond the term, and it may exist during the term. Metro Mgt. Co. v. Parker, 247 Ga. 625 , 278 S.E.2d 643 (1981).

Discretion of landlord to implement statutory procedure. - O.C.G.A. § 44-7-50 provides an additional right or benefit to landlords as a class, and whether or not a landlord wishes to implement the statutorily provided procedure or waive the benefit of the statute is a matter purely within the landlord's discretion. Price v. Age, Ltd., 194 Ga. App. 141 , 390 S.E.2d 242 (1990).

Landlord is not required to activate the termination provisions in a lease in order to institute dispossessory proceedings against a tenant on the basis of nonpayment of rent, and the statutory remedy may be exercised at any time the landlord sees fit to use the remedy. Price v. Age, Ltd., 194 Ga. App. 141 , 390 S.E.2d 242 (1990).

Waiver of remedy. - Statute is one providing an additional right or benefit to landlords as a class, and whether or not the landlord wishes to waive this benefit is a matter purely within the landlord's discretion. Once the landlord has done so, the landlord cannot thereafter complain that the landlord is being deprived of a right conferred on the landlord by statute. Holden v. Royal Mfg. Co., 79 Ga. App. 767 , 54 S.E.2d 317 (1949) (see O.C.G.A. § 44-7-50 ).

No issue of title involved. - Issue made under this statute is tenancy or no tenancy, and the question of the plaintiff's title is not involved. Patrick v. Cobb, 122 Ga. 80 , 49 S.E. 806 (1905); Downs v. Weaver, 184 Ga. 856 , 193 S.E. 858 (1937); Fitzgerald Trust Co. v. Shepard, 60 Ga. App. 674 , 4 S.E.2d 689 (1939) (see O.C.G.A. § 44-7-50 ).

Tenancy at sufferance defined. - Tenancy at sufferance exists when a wrongdoer is in possession without the consent of the landlord, but as a result of the landlord's laches or neglect. Thrift v. Schurr, 52 Ga. App. 314 , 183 S.E. 195 (1935); Price v. Bloodworth, 55 Ga. App. 268 , 189 S.E. 925 (1937).

An estate at sufferance exists when one comes into possession of land by lawful title but keeps the landlord afterward without any title at all. Williams v. Durham, 77 Ga. App. 840 , 50 S.E.2d 373 (1948); Hunter v. Ranitz, 88 Ga. App. 182 , 76 S.E.2d 542 (1953); Kenner v. Kenner, 92 Ga. App. 851 , 90 S.E.2d 33 (1955).

Tenancy at will is based on the consent of the landlord, either express or implied. Thrift v. Schurr, 52 Ga. App. 314 , 183 S.E. 195 (1935); Price v. Bloodworth, 55 Ga. App. 268 , 189 S.E. 925 (1937).

Tenants at will and sufferance distinguished. - Tenant at will is in possession by right with the consent of the landlord, either express or implied; a tenant at sufferance is a wrongdoer and is in possession without the consent of the landlord, but as a result of the landlord's laches or neglect. Willis v. Harrell, 118 Ga. 906 , 45 S.E. 794 (1903). See also Godfrey v. Walker, 42 Ga. 562 (1871); Weed v. Lindsay & Morgan, 88 Ga. 686 , 15 S.E. 836 , 20 L.R.A. 33 (1892); Henry v. Perry, 110 Ga. 630 , 36 S.E. 87 (1900); Salas v. Davis, 120 Ga. 95 , 47 S.E. 644 (1904); Purtell v. Farris, 137 Ga. 318 , 73 S.E. 634 (1912); Stanley v. Stembridge, 140 Ga. 750 , 79 S.E. 842 (1913).

Dispossessory and ejection warrants distinguished. - Dispossessory warrants used in dispossessing tenants holding over, and warrants for the ejection of intruders, are different only insofar as their specific purposes are concerned, such difference depending on the relationship between the parties. Their natures and the ultimate ends the warrants accomplish are the same, the dispossession of one in favor of another who is legally entitled to the possession. Dantley v. Burge, 88 Ga. App. 478 , 77 S.E.2d 107 (1953).

Distress warrants unaffected. - Statute does not affect the law as to the issuance of distress warrants. Beall v. Hill, 42 Ga. 172 (1871) (see O.C.G.A. § 44-7-50 ).

Jurisdiction. - State courts are explicitly conferred with subject matter jurisdiction over dispossessory actions. Tauber v. Community Ctrs. Two, 235 Ga. App. 705 , 509 S.E.2d 662 (1998), recons. denied, overruled on other grounds by Bowen v. Savoy, 2020 Ga. LEXIS 133 (Ga. 2020).

Trial court had jurisdiction over actions for nonpayment of rent and for holding over; however, it was not necessary to determine whether the trial court exceeded the court's jurisdiction in the landlord's dispossessory action against the tenant in possession of the land, as the trial court erred as a matter of law in denying the landlord's motion for a new trial. SBP Mgmt., LLC v. Price, 277 Ga. App. 130 , 625 S.E.2d 523 (2006).

In a case in which: (1) a lender foreclosed on real property; (2) the lender filed a dispossessory warrant in state court pursuant to O.C.G.A. § 44-7-50 ; (3) a resident of the property petitioned for removal to federal court; and (4) the lender filed an emergency motion to remand the case back to state court, the district court lacked federal question jurisdiction. No federal law or authority was invoked on the face of the dispossessory warrant; thus, the dispossessory claim that formed the basis of the action was exclusively a matter of state law even though the resident argued that Georgia's dispossessory process violated the resident's rights under the U.S. Constitution. Further, jurisdiction did not exist based on diversity as the resident failed to establish that the parties were diverse and that the amount in controversy, as viewed from the lender's perspective, had been met; the lender's claim seeking only ejectment in a dispossessory action could not be reduced to a monetary sum for purposes of determining the amount in controversy. Citimortgage, Inc. v. Dhinoja, F. Supp. 2d (N.D. Ga. Apr. 13, 2010).

Because a tenant's petition to remove under 28 U.S.C. § 1446 was untimely, the trial court retained jurisdiction of the dispossessory proceeding; the tenant was served with the dispossessory affidavit and summons but the tenant did not file the tenant's motion for petition for removal until more than 30 days later. Lingo v. Smith, 316 Ga. App. 164 , 729 S.E.2d 18 (2012).

Magistrate court had jurisdiction over dispossessory proceedings involving a property owner who, by remaining in possession of the premises after a lawful foreclosure of the owner's deed to secure debt, became a tenant at sufferance and subject to summary dispossession by the purchaser at the foreclosure sale. California Fed. Sav. & Loan Ass'n v. Day, 193 Ga. App. 690 , 388 S.E.2d 727 (1989).

Verdict for rent unauthorized when admitted paid. - In a dispossessory proceeding by the landlord to recover land from the tenant, as one holding over, if the jury should find that the tenant was rightfully in possession of the property under a parol contract, the jury must find a verdict for the defendant, and the jury would not be authorized to find for the plaintiff for rent admitted by the defendant to be paid under the contract. Roland v. Floyd, 53 Ga. App. 282 , 185 S.E. 580 (1936).

Tender of payment is equivalent to payment. Arnold v. Selman, 83 Ga. App. 145 , 62 S.E.2d 915 (1951).

Constructive eviction. - Landlord who seeks forcibly to evict a tenant by extralegal means may be liable to the tenant in damages, notwithstanding that the tenant is behind in rental payments; whether a tenant was constructively evicted when landlord turned off water was a jury question. Roberts v. Roberts, 205 Ga. App. 371 , 422 S.E.2d 253 (1992).

Landlord was entitled to rely upon the default provisions in the commercial lease agreement, which gave the landlord the right to reenter and take possession without notice or resort to legal proceedings, and the landlord acted pursuant to the terms of the lease in reentering and taking possession of the premises for rerental upon default by the tenants for nonpayment of rent; accordingly, the trial court properly granted summary judgment in favor of the landlord on the tenant's claim for trespass, breach of the implied covenant of quiet enjoyment of the premises, and breach of the terms of the lease agreement. Rucker v. Wynn, 212 Ga. App. 69 , 441 S.E.2d 417 (1994), overruled on other grounds by George v. Hercules Real Estate Servs., 795 S.E.2d 81 (Ga. Ct. App. 2016).

No independent legal duty imposed upon third party contractors. - Bank, which was the legal title holder of the foreclosed property, had the duty to comply with the statutory dispossessory procedures imposed upon the bank and could not be delegated to a third party hired by the bank to ensure the condition of the foreclosed home. Furthermore, there was no evidence that the bank ever sought to accomplish the bank's statutory duties through an agent by contracting with the third party to file a dispossessory action against the plaintiffs, the former property owners, on the bank's behalf. It follows that as undisputed independent contractors the third parties had no separate legal duty to file a dispossessory action and then comply with the statutory procedures applicable in such an action; thus, the plaintiffs could not succeed on wrongful eviction and trespass claims. Ikomoni v. Exec. Asset Mgmt., LLC, 309 Ga. App. 81 , 709 S.E.2d 282 (2011).

Cited in Culpepper v. Cunningham, 142 Ga. 164 , 82 S.E. 549 (1914); Williams v. Federal Land Bank, 44 Ga. App. 606 , 162 S.E. 408 (1932); Heaton v. Fulton Nat'l Bank, 46 Ga. App. 773 , 169 S.E. 216 (1933); Whitson v. City of Atlanta, 177 Ga. 666 , 170 S.E. 888 (1933); Lovell v. Federal Land Bank, 178 Ga. 578 , 173 S.E. 390 (1934); Justice v. Warner, 178 Ga. 579 , 173 S.E. 703 (1934); Burt v. Crawford, 180 Ga. 331 , 179 S.E. 82 (1935); Ford v. Eskridge, 53 Ga. App. 466 , 186 S.E. 204 (1936); Sinclair Ref. Co. v. Giddens, 54 Ga. App. 69 , 187 S.E. 201 (1936); West v. Flynn Realty Co., 54 Ga. App. 523 , 188 S.E. 468 (1936); Johnson v. Reed, 56 Ga. App. 658 , 193 S.E. 472 (1937); Neely v. Sheppard, 185 Ga. 771 , 196 S.E. 452 (1938); Frazier v. Beasley, 186 Ga. 861 , 199 S.E. 194 (1938); Morgan v. Fidelity Trust Co., 65 Ga. App. 873 , 16 S.E.2d 522 (1941); Akers v. Kinney, 73 Ga. App. 456 , 36 S.E.2d 844 (1946); Cartey v. Swain, 76 Ga. App. 320 , 45 S.E.2d 822 (1947); Smith v. R.F. Brodegaard & Co., 77 Ga. App. 661 , 49 S.E.2d 500 (1948); Arnold v. Selman, 83 Ga. App. 145 , 62 S.E.2d 915 (1951); Estridge v. Janko, 96 Ga. App. 246 , 99 S.E.2d 682 (1957); Goff v. Cooper, 110 Ga. App. 339 , 138 S.E.2d 449 (1964); Smith v. Allen, 115 Ga. App. 80 , 153 S.E.2d 648 (1967); Williams v. Housing Auth., 223 Ga. 407 , 155 S.E.2d 923 (1967); Sanks v. Georgia, 401 U.S. 144, 91 S. Ct. 593 , 27 L. Ed. 2 d 741 (1971); Wilson v. Lee, 129 Ga. App. 647 , 200 S.E.2d 480 (1973); Browning v. F.E. Fortenberry & Sons, 131 Ga. App. 498 , 206 S.E.2d 101 (1974); First Fed. Sav. & Loan Ass'n v. Shepherd, 131 Ga. App. 692 , 206 S.E.2d 571 (1974); Van Schallern v. Stanco, 132 Ga. App. 794 , 209 S.E.2d 243 (1974); Lunsford Co. v. Klingenberg, 138 Ga. App. 791 , 227 S.E.2d 507 (1976); Evans v. Equico Lessors, 140 Ga. App. 583 , 231 S.E.2d 534 (1976); Jordan v. Ford Motor Credit Co., 141 Ga. App. 280 , 233 S.E.2d 256 (1977); Lipshutz v. Shantha, 144 Ga. App. 196 , 240 S.E.2d 738 (1977); Burger King Corp. v. Garrick, 149 Ga. App. 186 , 253 S.E.2d 852 (1979); Bates v. Chevron U.S.A., Inc., 151 Ga. App. 544 , 260 S.E.2d 367 (1979); Lamb v. Sims, 153 Ga. App. 556 , 265 S.E.2d 879 (1980); Proffitt v. Housing Sys., 154 Ga. App. 114 , 267 S.E.2d 650 (1980); Peter E. Blum & Co. v. First Bank Bldg. Corp., 156 Ga. App. 680 , 275 S.E.2d 751 (1980); Jeffries v. Georgia Residential Fin. Auth., 503 F. Supp. 610 (N.D. Ga. 1980); Remy v. Citicorp Person-to-Person Fin. Ctr., Inc., 159 Ga. App. 726 , 285 S.E.2d 76 (1981); Stephens v. Housing Auth., 163 Ga. App. 97 , 293 S.E.2d 53 (1982); C & A Land Co. v. Rudolf Inv. Corp., 163 Ga. App. 832 , 296 S.E.2d 149 (1982); Housing Auth. v. Sterlin, 250 Ga. 95 , 296 S.E.2d 564 (1982); Housing Auth. v. Hudson, 250 Ga. 109 , 296 S.E.2d 558 (1982); McKinnon v. Shoemaker, 166 Ga. App. 231 , 303 S.E.2d 770 (1983); Virginia Highland Assocs. v. Allen, 174 Ga. App. 706 , 330 S.E.2d 892 (1985); Skelton v. Hill Aircraft & Leasing Corp., 175 Ga. App. 152 , 333 S.E.2d 15 (1985); Ranger v. First Family Mtg. Corp., 176 Ga. App. 715 , 337 S.E.2d 388 (1985); Bentley-Kessinger, Inc. v. Jones, 186 Ga. App. 466 , 367 S.E.2d 317 (1988); Dykes v. Federal Land Bank, 189 Ga. App. 771 , 377 S.E.2d 537 (1989); Dodson v. Farm & Home Sav. Assoc., 208 Ga. App. 568 , 430 S.E.2d 880 (1993); Walters v. Betts, 174 Bankr. 636 (Bankr. N.D. Ga. 1994); Solomon v. Norwest Mortg. Corp., 245 Ga. App. 875 , 538 S.E.2d 783 (2000); Wilbanks v. Arthur, 257 Ga. App. 226 , 570 S.E.2d 664 (2002); GMC Group, Inc. v. Harsco Corp., 293 Ga. App. 707 , 667 S.E.2d 916 (2008).

When Remedy Available

In general. - Tenancy such as will authorize the remedy may exist either where the tenant fails to pay rent when due under an express agreement with the landlord, when the tenant holds possession beyond the terms of the tenant's lease, or when the tenant holds possession as a tenant at will or sufferance, whether under contract of rent or not. Thrift v. Schurr, 52 Ga. App. 314 , 183 S.E. 195 (1935); Price v. Bloodworth, 55 Ga. App. 268 , 189 S.E. 925 (1937); Cunningham v. Moore, 60 Ga. App. 850 , 5 S.E.2d 71 (1939).

Right exists apart from rights under lease. - Landlord's right of dispossession for nonpayment of rent exists apart from any right the landlord may have under the lease to terminate the lease for nonpayment of rent. Perimeter Mall v. Retail Sense, Inc., 162 Ga. App. 465 , 291 S.E.2d 392 (1982).

When a valid lease exists which does not expressly waive right to dispossess tenant for nonpayment of rent, the landlord may, when rent is due and unpaid, seek dispossession by filing sworn statement of these facts in proper court. Perimeter Mall v. Retail Sense, Inc., 162 Ga. App. 465 , 291 S.E.2d 392 (1982).

When a landlord chose to pursue the legislatively-provided dispossessory remedy rather than the contract-provided termination remedy, a notice provision in the lease did not have to be fulfilled because the lease did not expressly waive the statutory right. May v. Poole, 174 Ga. App. 224 , 329 S.E.2d 561 (1985).

Motive of the landlord in seeking possession of the landlord's property is immaterial. Williams v. Housing Auth., 158 Ga. App. 734 , 282 S.E.2d 141 (1981).

Relation of landlord and tenant required. - Dispossessory warrant will lie only if the relation of landlord and tenant exists. If the defendant holds possession otherwise than as tenant, such as purchaser, donee, or equitable owner, this remedy is not applicable. Brown v. Persons, 48 Ga. 60 (1873); Cassidy v. Clark, 62 Ga. 412 (1879); Allread v. Harris, 75 Ga. 687 (1885); Watson v. Toliver, 103 Ga. 123 , 29 S.E. 614 (1897); Williams v. Seale, 103 Ga. 801 , 30 S.E. 644 (1898); Henry v. Perry, 110 Ga. 630 , 36 S.E. 87 (1900); Sharpe v. Mathews, 123 Ga. 794 , 51 S.E. 706 (1905); Bacon v. Howard, 19 Ga. App. 660 , 91 S.E. 1066 (1917); Napier v. Varner, 149 Ga. 586 , 101 S.E. 580 (1919); Edwards v. Blackshear, 24 Ga. App. 622 , 101 S.E. 585 (1919); Spooner v. Shelfer, 152 Ga. 190 , 108 S.E. 773 (1921); Allen v. Allen, 154 Ga. 581 , 115 S.E. 17 (1922); Sloan v. Sheffield, 31 Ga. App. 437 , 120 S.E. 795 (1923); Radcliffe v. Jones, 46 Ga. App. 33 , 166 S.E. 450 (1932); Stephenson v. Kellett, 46 Ga. App. 27 , 166 S.E. 457 (1932); Griffeth v. Wilmore, 46 Ga. App. 96 , 166 S.E. 673 (1932); Thrift v. Schurr, 52 Ga. App. 314 , 183 S.E. 195 (1935); Price v. Bloodworth, 55 Ga. App. 268 , 189 S.E. 925 (1937); Patterson v. Baugh, 56 Ga. App. 660 , 193 S.E. 364 (1937); Downs v. Weaver, 58 Ga. App. 259 , 198 S.E. 292 (1938); Williams v. Stark, 75 Ga. App. 668 , 44 S.E.2d 300 (1947); Carruth v. Carruth, 77 Ga. App. 131 , 48 S.E.2d 387 (1948); Hunter v. Ranitz, 88 Ga. App. 182 , 76 S.E.2d 542 (1953); Fountain v. Grant, 210 Ga. 78 , 77 S.E.2d 721 (1953); Roberts v. Graham, 98 Ga. App. 309 , 105 S.E.2d 801 (1958); Harold v. Modern Homes Constr. Co., 104 Ga. App. 415 , 121 S.E.2d 809 (1961); Branch v. Wesav Fin. Corp., 198 Ga. App. 347 , 401 S.E.2d 569 (1991).

Relationship of legal title holder and tenant at sufferance satisfies section. - Although the relationship of landlord and tenant must exist before a dispossessory hearing can be held under O.C.G.A. § 44-7-50 et seq., the provisions of § 44-7-50 are clearly satisfied when the relationship between the parties is that of legal title holder and tenant at sufferance. Stevens v. Way, 167 Ga. App. 688 , 307 S.E.2d 507 (1983); Browning v. Federal Home Loan Mtg. Corp., 210 Ga. App. 115 , 435 S.E.2d 450 (1993); Good Ol' Days Commissary, Inc. v. Longcrier Family Ltd. Partnership I, 240 Ga. App. 111 , 522 S.E.2d 249 (1999).

Trial court did not err in granting the creditor a writ of possession regarding the subject property because the debtors' legal right to possession of the property ended when the creditor became the legal title holder of the property as the purchaser at a foreclosure sale, and the debtors, as tenants at sufferance, were subject to being summarily dispossessed as a result. Bradley v. JPMorgan Chase Bank, 289 Ga. App. 704 , 658 S.E.2d 240 (2008).

Action for possession supported by landlord-tenant relationship. - When defendant contended that no landlord-tenant relationship was shown to exist between the parties, and that the action consequently should have been for ejectment pursuant to O.C.G.A. § 44-11-1 , rather than for possession, pursuant to O.C.G.A. § 44-7-50 , but defendant conceded that it had been defendant's intention to include the house in the property conveyed by security deed and the trial court was authorized to conclude from the evidence that the house was so included, it was held that when the defendant defaulted on the debt and the security deed was foreclosed upon, the relationship between the parties became that of landlord and tenant at sufferance. West v. VA, 182 Ga. App. 767 , 357 S.E.2d 121 (1987).

Execution of deed to secure debt establishes landlord-tenant relationship. - When proof of execution of a deed to secure a debt upon which landlord claimed ownership was necessary to establish a landlord-tenant relationship between parties in order to provide jurisdiction of a court in a dispossessory action, such proof of execution was properly before the court to preclude contrary assertions concerning execution by a homeowner in a subsequent action. Rutledge v. Colonial Fin. Servs., Inc., 173 Ga. App. 662 , 327 S.E.2d 791 (1985).

Time of remedy. - This remedy may be exercised at any time the landlord sees fit to use it. So long as the relation of landlord and tenant exists, the remedy is available; but if the relation be once destroyed, the remedy is no longer available. Willis v. Harrell, 118 Ga. 906 , 45 S.E. 794 (1903). See also Godfrey v. Walker, 42 Ga. 562 (1871); Taylor v. West, 142 Ga. 193 , 82 S.E. 518 (1914); Colvin v. Colvin, 24 Ga. App. 630 , 101 S.E. 586 (1919).

Who may use remedy. - Agents, attorneys-in-fact, or attorneys-at-law may proceed for and in behalf of landlords against tenants to collect rent past due or to recover possession of the premises. Jackson v. Oliphant, 88 Ga. App. 313 , 76 S.E.2d 625 (1953).

Remedy for failure to pay rent. - In all cases when a tenant holding possession of land shall fail to pay the rent when the rent becomes due, the landlord is afforded a summary remedy for the tenant's eviction. Veal v. Jenkins, 58 Ga. App. 4 , 197 S.E. 328 (1938).

Tenant in arrears for rent. - When the tenant is in arrears for rent, it is only necessary for the landlord to make affidavit of that fact and of a demand and refusal to deliver, whereupon the warrant issues. Bussell v. Swift, 50 Ga. App. 148 , 177 S.E. 277 (1934); Craig v. Day, 92 Ga. App. 339 , 88 S.E.2d 451 (1955).

Rent must be past due. - To dispossess a tenant for nonpayment of rent, proceedings must be begun by the landlord at a time when such rent is past due and unpaid. Yates v. Farmer, 102 Ga. App. 570 , 117 S.E.2d 211 (1960).

Refusal to accept past due rent. - Party to a legal contract has the right to insist upon the contract's terms, and in refusing to accept the past due rent the landlord here was clearly within the landlord's rights, and the rent remained unpaid. In these circumstances the tenants were holding over, and the landlord had the right of immediate reentry and dispossession. Cunningham v. Moore, 60 Ga. App. 850 , 5 S.E.2d 71 (1939).

Remedy proper for tenant at sufferance. - If the defendant was a tenant at sufferance, the dispossessory warrant was a proper remedy. Williams v. Durham, 77 Ga. App. 840 , 50 S.E.2d 373 (1948).

Cropper. - When, after the expiration and termination of a contract by which a person has occupied premises as a cropper and not as a tenant, the person continues in possession of the premises, but not as a cropper, the person occupies the premises as a tenant by sufferance, and can be summarily dispossessed. Malone v. Floyd, 50 Ga. App. 701 , 179 S.E. 176 (1935).

Seller remaining in possession. - When title has been divested by a sale made pursuant to a power of sale given by the owner in a deed to the land to secure a debt, and the tenant thereafter remains in possession, the tenant is a tenant at sufferance of the purchaser, and may be summarily dispossessed. Anderson v. Watkins, 42 Ga. App. 319 , 156 S.E. 43 (1930); Lowther v. Patton, 45 Ga. App. 543 , 165 S.E. 487 (1932); Radcliffe v. Jones, 46 Ga. App. 33 , 166 S.E. 450 (1932); Atlantic Life Ins. Co. v. Ryals, 48 Ga. App. 793 , 173 S.E. 875 (1934); Price v. Bloodworth, 55 Ga. App. 268 , 189 S.E. 925 (1937); Ray v. Holden, 62 Ga. App. 554 , 8 S.E.2d 703 (1940); Hunter v. Ranitz, 88 Ga. App. 182 , 76 S.E.2d 542 (1953); Harold v. Modern Homes Constr. Co., 104 Ga. App. 415 , 121 S.E.2d 809 (1961).

Effect of oral notification of election to extend lease. - When lease did not provide any particular method for notification of the election to extend the lease, tenant who gave oral notification of the tenant's election prior to expiration of the original three-year term was in possession under the original written lease and was not a tenant at will who could be subject to disposition. Ask Enters., Inc. v. Johnson Model Bedding, Inc., 155 Ga. App. 294 , 270 S.E.2d 709 (1980).

Possession under option to purchase. - One who obtains possession of the premises from the owner under an option to purchase is not a tenant upon one's failure to exercise the option, and a dispossessory proceeding will not lie to evict one therefrom. Griffeth v. Wilmore, 46 Ga. App. 96 , 166 S.E. 673 (1932).

Heir of tenant at sufferance. - When a father, who has possession of and title to certain realty, sells the legal title to his son, but remains in possession with his wife and daughter with no agreement or understanding with the son concerning the payment of rent on the premises, the father becomes the tenant at sufferance of the son; and, where, upon the death of the father, his wife and daughter remain in possession with no agreement or understanding with the son concerning their payment of rent, they succeed to the position of the father as tenants at sufferance of the son, and he may evict them by the summary proceeding for which provision is made in this statute. Kenner v. Kenner, 92 Ga. App. 851 , 90 S.E.2d 33 (1955) (see O.C.G.A. § 44-7-50 ).

Trustees of unincorporated religious society, holding title in themselves to the society's real property, may bring a dispossessory proceeding through their secretary and agent against a tenant in possession of the property who is holding over and beyond the tenant's term and who refuses to pay rent. Godfrey v. Walker, 42 Ga. 562 (1871); Jackson v. Oliphant, 88 Ga. App. 313 , 76 S.E.2d 625 (1953).

Purchaser of land from a landlord during the term of the tenant has the same right to dispossess the tenant that the landlord had. Morrow v. Sawyer, 82 Ga. 226 , 8 S.E. 51 (1888); Hindman v. Raper, 143 Ga. 643 , 85 S.E. 843 (1915); May v. McDaniel, 145 Ga. 160 , 88 S.E. 934 (1916); Carlton v. Hibernia Sav., Bldg. & Loan Ass'n, 185 Ga. 425 , 195 S.E. 764 (1938); Veal v. Jenkins, 58 Ga. App. 4 , 197 S.E. 328 (1938); McKinney v. South Boston Sav. Bank, 156 Ga. App. 114 , 274 S.E.2d 34 (1980).

Plaintiff need not be owner. - Lessee is not precluded from prosecuting a dispossessory warrant simply because the lessee is not the true owner of the premises. Empire Shoe Co. v. Regal Shoe Shops, 123 Ga. App. 796 , 182 S.E.2d 796 (1971).

Tenants in common. - When the parties at the time the demand for the possession is made are tenants in common, one having title and the other the right to occupy a part of the premises, neither of the tenants in common can legally obtain a dispossessory warrant for the removal of the other. Roberts v. Graham, 98 Ga. App. 309 , 105 S.E.2d 801 (1958).

Motive of landlord immaterial. - When a landlord shows oneself to be entitled under the statute to the summary remedy of a dispossessory warrant one's motive in desiring possession is immaterial, and the fact that in the present case it was made to appear that the landlord had a prospect of leasing the premises to better advantage cannot alter or diminish one's statutory rights. Cunningham v. Moore, 60 Ga. App. 850 , 5 S.E.2d 71 (1939).

Violation of covenant not to sublet. - Remedy does not lie for a tenant's violation of a covenant not to sublet. Rakestraw v. Lubbock, 26 Ga. App. 330 , 106 S.E. 190 (1921).

Demand for Possession

Necessity of demand for possession. - Demand upon a tenant to deliver possession to the tenant's landlord is a condition precedent to the right of the landlord to dispossess the tenant summarily. Broadwell v. Maxwell, 30 Ga. App. 738 , 119 S.E. 344 (1923). See also Willis v. Harrell, 118 Ga. 906 , 45 S.E. 794 (1903); Talley v. Mitchell, 138 Ga. 392 , 75 S.E. 465 (1912); Levens v. Arp, 23 Ga. App. 198 , 97 S.E. 893 (1919); Beveridge v. Simmerville, 26 Ga. App. 373 , 106 S.E. 212 (1921); Bussell v. Swift, 50 Ga. App. 148 , 177 S.E. 277 (1934); Gilbert Hotel No. 22, Inc. v. Black, 67 Ga. App. 221 , 19 S.E.2d 796 (1942); Jackson v. Hardin, 74 Ga. App. 39 , 38 S.E.2d 695 (1946); Ginn v. Johnson, 74 Ga. App. 35 , 38 S.E.2d 753 (1946); Oastler v. Wright, 201 Ga. App. 649 , 40 S.E.2d 531 (1946); Wilensky v. Agoos, 74 Ga. App. 815 , 41 S.E.2d 565 (1947); Jett v. Wolfe, 75 Ga. App. 155 , 42 S.E.2d 505 (1947); Arnold v. Selman, 83 Ga. App. 145 , 62 S.E.2d 915 (1950); Goolsby v. McNair, 97 Ga. App. 491 , 103 S.E.2d 440 (1958); Terrell v. Griffith, 129 Ga. App. 675 , 200 S.E.2d 485 (1973); Harkins v. Boyd, 136 Ga. App. 365 , 221 S.E.2d 207 (1975); Wig Fashions, Inc. v. A-T-O Properties, Inc., 145 Ga. App. 325 , 243 S.E.2d 526 (1978); Housing Auth. v. Berryhill, 146 Ga. App. 374 , 246 S.E.2d 406 (1978); Metro Mgt. Co. v. Parker, 156 Ga. App. 686 , 275 S.E.2d 827 (1980); Metro Mgt. Co. v. Parker, 247 Ga. 625 , 278 S.E.2d 643 (1981); Booker v. Trizec Properties, Inc., 184 Ga. App. 782 , 363 S.E.2d 13 (1987), cert. denied, 184 Ga. App. 909 , 363 S.E.2d 13 (1988); Trumpet v. Brown, 215 Ga. App. 299 , 450 S.E.2d 316 (1994) (see O.C.G.A. § 44-7-50 ).

Prima-facie proof of demand not required. - While demand for possession is a condition precedent to the institution of dispossessory proceedings, and although proof should be made, the dispossessory Code sections do not require prima-facie proof of demand for possession by the plaintiff as a statutory procedure. Able-Craft, Inc. v. Bradshaw, 167 Ga. App. 725 , 307 S.E.2d 671 (1983).

Proof of demand. - When a tenant had filed for bankruptcy and agreed in a bankruptcy consent order to vacate the premises by a specific date and to lift the automatic stay against any future dispossessory action by the landlord, the trial court could reasonably infer that the landlord had already made a demand for possession of the premises. Green Room, Inc. v. Confederation Life Ins. Co., 215 Ga. App. 221 , 450 S.E.2d 290 (1994).

Well-pleaded complaint rule. - In a case in which a landlord sought a dispossessory writ pursuant to O.C.G.A. § 44-7-50 in state court and the tenant removed the case to federal court, the landlord's motion to remand was granted because the complaint relied exclusively on state law, and thus did not satisfy the well-pleaded complaint rule, and the tenant failed to demonstrate grounds for the application of any exception to the well-pleaded complaint rule. Chase Manhattan Mortg. Corp. v. Gresham, F. Supp. 2d (N.D. Ga. Nov. 17, 2005).

Sufficiency of demand. - Two month's notice to a tenant at will to quit is an insufficient demand to comply with the requirements of this statute, nor will an agreement by the tenant with the landlord to vacate by a certain date operate in lieu of the demand required by the statute. Beveridge v. Simmerville, 26 Ga. App. 373 , 106 S.E. 212 (1921); Ginn v. Johnson, 74 Ga. App. 35 , 38 S.E.2d 753 (1946); Wilensky v. Agoos, 74 Ga. App. 815 , 41 S.E.2d 565 (1947); Jett v. Wolfe, 75 Ga. App. 155 , 42 S.E.2d 505 (1947) (see O.C.G.A. § 44-7-50 ).

Demand is sufficient notice to the tenant when the ground for the action is the nonpayment of rent due. Morris v. Battey, 28 Ga. App. 90 , 110 S.E. 342 (1922).

Timely demand for possession is a condition precedent to the institution of dispossessory proceedings under O.C.G.A. § 44-7-50 ; a demand for payment of rent or a debt is not timely unless made after the rent or debt becomes due, and a demand for possession based on nonpayment of rent would not be timely under § 44-7-50 unless the rent had fallen due and the tenant had failed to make payment. Metro Mgt. Co. v. Parker, 247 Ga. 625 , 278 S.E.2d 643 (1981).

Landlord's letter terminating the lease and instructing tenant "to vacate your premises as of the receipt of this letter," constituted a sufficient demand for possession, and was not rendered ineffective by also giving notice in the same document of demand for payment of notes given for back rent and attorney's fees and notice that attorney's fees would be demanded if not paid within ten days. Twin Tower Joint Venture v. American Mktg. & Communications Corp., 166 Ga. App. 364 , 304 S.E.2d 493 (1983).

Certified letter of notice that tenant must surrender possession and quit the premises if rent due and owing is not paid within three days of the date of notice is a sufficient notice of demand for possession. Sandifer v. Long Investors, Inc., 211 Ga. App. 757 , 440 S.E.2d 479 (1994).

When an eviction was carried out under a writ of possession, in compliance with statutory requirements, the writ was lawful until the writ was vacated, and an eviction that occurred before the writ was vacated was not wrongful; although the demand for possession misspelled the residential tenant's name as "Fennell" instead of "Fennelly," it was properly sent to the property address by certified mail. Fennelly v. Lyons, 333 Ga. App. 96 , 775 S.E.2d 587 (2015).

Time for demand. - Demand for possession should have been made upon or after the termination of the lease contract. Edmondson v. White, 19 Ga. 534 (1856); Wilensky v. Agoos, 74 Ga. App. 815 , 41 S.E.2d 565 (1947); Wig Fashions, Inc. v. A-T-O Properties, Inc., 145 Ga. App. 325 , 243 S.E.2d 526 (1978).

Demand by agent sufficient. - Demand by one alleging to be the agent of the landlord, where there is no contention that such person is not such agent of the landlord, is sufficient to meet the requirements of this statute. Bussell v. Swift, 50 Ga. App. 148 , 177 S.E. 277 (1934) (see O.C.G.A. § 44-7-50 ).

When demand unnecessary. - It is not necessary to prove a demand for the possession of the premises since it appears that the demand, if made, would have been refused. Craig v. Day, 92 Ga. App. 339 , 88 S.E.2d 451 (1955); Kenner v. Kenner, 92 Ga. App. 851 , 90 S.E.2d 33 (1955).

Demand for possession is a condition precedent to the right of the landlord to dispossess the tenant. It is not necessary, however, to prove a demand since it appears that if the demand is made it would be refused. Hyman v. Leathers, 168 Ga. App. 112 , 308 S.E.2d 388 (1983); Henderson v. Colony W., Ltd., 175 Ga. App. 676 , 332 S.E.2d 331 (1985).

Rebuttable presumption of demand. - While the defendant did not deny in the defendant's counteraffidavit that a demand for possession had been made upon the defendant by the plaintiff prior to the issuance of the dispossessory warrant, and the defendant's failure to do so raised a presumption of law that such a demand was made, still such presumption must give way to the direct and positive testimony of the defendant on the trial that no demand was made upon the defendant for possession by anyone prior to the issuance of the dispossessory warrant. Ginn v. Johnson, 74 Ga. App. 35 , 38 S.E.2d 753 (1946).

No demand made. - When the testimony of defendant's agent established without any evidence to the contrary that the only demand for possession of the premises had been made on the previous tenant, not on defendant, the presumption raised by the allegation in the affidavit that demand was made was rebutted by direct and positive evidence, and the trial court erred by denying defendant's motion for directed verdict. Jet Air, Inc. v. Management/USA, Inc., 180 Ga. App. 648 , 350 S.E.2d 40 (1986).

Notice of termination of lease by public housing authority could not also serve as a demand for possession under O.C.G.A. § 44-7-50 , not because in every instance of nonpayment of rent the landlord must terminate the lease before making a demand for possession, but because under the federal regulations the landlord does not have the right to possession of the premises during the 14 day grace period; furthermore, the landlord is prohibited from taking any legal action against the tenant during this time, including making a demand for possession. Metro Mgt. Co. v. Parker, 247 Ga. 625 , 278 S.E.2d 643 (1981).

If the ground for dispossession is nonpayment of rent, O.C.G.A. § 44-7-50 provides that a landlord may make a demand for possession when the tenant fails to pay the rent when due; this right exists apart from any right the landlord may have under a lease to terminate the lease for nonpayment of rent. Metro Mgt. Co. v. Parker, 247 Ga. 625 , 278 S.E.2d 643 (1981).

If the ground for dispossession is that the tenant is a holdover, there is a requirement for termination of the lease simply to place the tenant in the status of a holdover; since this requirement for termination exists, it must occur prior to the demand for possession. Metro Mgt. Co. v. Parker, 247 Ga. 625 , 278 S.E.2d 643 (1981).

Once the lease has been terminated, a tenant who refuses to vacate becomes a tenant holding over, and a demand for possession may properly be made on the tenant under O.C.G.A. § 44-7-50 . Metro Mgt. Co. v. Parker, 247 Ga. 625 , 278 S.E.2d 643 (1981).

When the landlord gave a notice to quit, the tenants were in a hold-over status when the landlord demanded possession of the property by letter, and the demand was timely made under O.C.G.A. § 44-7-50 . Burns v. Reves, 217 Ga. App. 316 , 457 S.E.2d 178 (1995).

Affidavit
1. Contents

Sufficiency of affidavit. - Sufficiency of an affidavit seeking a dispossessory warrant must be measured by the same strict rules applicable prior to the Civil Practice Act since the Act does not apply if in conflict with special statutory proceedings. Brinson v. Ingram, 120 Ga. App. 271 , 170 S.E.2d 39 (1969).

Affidavit has to be sufficiently definite and certain in the description of the land to enable the sheriff to identify the premises. Brinson v. Ingram, 120 Ga. App. 271 , 170 S.E.2d 39 (1969).

Alternative grounds insufficient. - When an affidavit under this statute alleging one ground for dispossessing a tenant is followed by the words "or/and" and then another ground, it is not a positive allegation of either ground, and is subject to an oral motion to dismiss. Ralls v. E.R. Taylor Auto Co., 75 Ga. App. 136 , 42 S.E.2d 656 (1947); Saylor v. Williams, 93 Ga. App. 643 , 92 S.E.2d 565 (1956); Brinson v. Ingram, 120 Ga. App. 271 , 170 S.E.2d 39 (1969); Rinconcito Latino, Inc. v. Eriksson, 145 Ga. App. 340 , 243 S.E.2d 721 (1978) (see O.C.G.A. § 44-7-50 ).

Demand for rent unnecessary. - Affidavit need not allege demand for rent. Colclough & Co. v. Mathis, 79 Ga. 394 , 4 S.E. 762 (1887); Almand v. Scott & Co., 83 Ga. 402 , 11 S.E. 653 (1889).

Amount of unpaid rent irrelevant. - Affidavit need not specify the amount of the rent unpaid. Lamar v. Sheppard, 84 Ga. 561 , 10 S.E. 1084 (1890).

Amendable defect in landlord's name. - Affidavit is amendable for such errors as the insertion of the tenant's name at a place where obviously the name of the landlord is intended. Lanier v. Kelly, 6 Ga. App. 738 , 65 S.E. 692 (1909).

Affidavit held sufficient. - Affidavit of the plaintiff, upon which the dispossessory warrant proceeding was founded, alleging as a basis for the issuing of such warrant, "that said tenant is holding said offices and premises over and beyond the term for which the same were rented or leased to him," fully complied with this statute and such affidavit was not subject to demurrer on the grounds that it did not allege the nature or character of the tenancy, whether it was a tenancy at will or a tenancy for a definite term, when the tenancy began or when the tenancy terminated, nor when or how demand for possession was made so as to enable the defendant to properly prepare for trial. Wilson v. Healey Real Estate & Imp. Co., 203 Ga. 52 , 45 S.E.2d 656 (1947) (see O.C.G.A. § 44-7-50 ).

Error to dismiss affidavit. - When an affidavit is in strict accordance with this statute and there are no patent defects in the affidavit, its dismissal on the ground of patent defects apparent in the face of the paper is error. Hitch v. Frasier, 75 Ga. 880 (1885) (see O.C.G.A. § 44-7-50 ).

2. Before Whom Made

Any justice of peace may administer oath, not only the one of the district wherein the land lies. DuBignon v. Tufts, 66 Ga. 59 (1880); Fletcher v. Collins, 111 Ga. 253 , 36 S.E. 646 (1900); Sistrunk v. State, 18 Ga. App. 42 , 88 S.E. 796 (1916).

Affidavit before notary public insufficient. - Notaries public do not have authority to administer the oath required for an affidavit on which a dispossessory warrant is issued. Young v. Cowles, 128 Ga. App. 770 , 197 S.E.2d 864 (1973).

Affidavit before clerks of court. - Oath required for the affidavit on which the dispossessory warrant is issued may be given only by a justice of the peace or a superior court judge, or such other judicial officer as may be authorized by law. The latter includes clerks and deputy clerks of the civil court of Fulton County. Young v. Cowles, 128 Ga. App. 770 , 197 S.E.2d 864 (1973).

Affidavit before civil court judge. - Judges of the civil court of Fulton County are on a par with superior court judges or justices of the peace as to the issuance of dispossessory warrants, but the requirement that the affidavit be taken before the judge issuing the warrant must still be met. Young v. Cowles, 128 Ga. App. 770 , 197 S.E.2d 864 (1973).

Affidavit before state court judge. - Affidavit which under this statute is to be made "before the judge of the superior court or any justice of the peace," includes such other judicial officers as may be authorized by law, including judges of the state courts of each county. Howington v. W.H. Ferguson & Sons, 147 Ga. App. 636 , 249 S.E.2d 687 (1978) ??? (see O.C.G.A. § 44-7-50 ).

Amendable defect in verification. - When the subject affidavit was sworn to and subscribed before a notary public, rather than before the judge of the superior court or any justice of the peace, and a summons was issued, there is an amendable defect in verification or lack thereof, waived by failure timely to object. Crump v. Jordan, 154 Ga. App. 503 , 268 S.E.2d 787 (1980).

3. By Whom Made

Affidavit by agent. - Affidavit may be made by an agent of the landlord. Johnson v. Thrower, 117 Ga. 1007 , 44 S.E. 846 (1903).

Affidavit by administrator. - Affidavit may be made by the administrator of a deceased landlord. Moody v. Ronaldson, 38 Ga. 652 (1869). See also Clark v. Smith, 142 Ga. 200 , 82 S.E. 563 (1914).

Affidavit by attorney prohibited. - Affidavit may not be made by the landlord's attorney in the landlord's name, but may be made in the name of the maker as agent or attorney. Clark v. Smith, 142 Ga. 200 , 82 S.E. 563 (1914).

Affidavit by attorney. - When an affidavit to obtain a dispossessory warrant is made by an attorney at law or an attorney in fact for the owner, the affidavit shall contain a recital of the employment and be signed by the attorney in the attorney's individual name, and the word "Atty." following a person's name is merely descriptio personae and, consequently, not sufficient. Heath v. Costello, 76 Ga. App. 94 , 44 S.E.2d 919 (1947).

No need to disclose which permissible affiant signed. - Dispossessory warrant was not fatally flawed as O.C.G.A. § 44-7-50(a) did not require the warrant to state which of the permissible affiants had signed it and the mortgagee's attorney had validly signed the warrant. Mackey v. Fed. Nat'l Mortg., 294 Ga. App. 495 , 669 S.E.2d 397 (2008).

Defenses

Answer asserting tenant's title. - Counteraffidavit to a dispossessory proceeding under this statute which sets up title in the alleged tenant is good. Griffeth v. Wilmore, 46 Ga. App. 96 , 166 S.E. 673 (1932) (see O.C.G.A. § 44-7-50 ).

Evidence of superior title inadmissible. - In dispossessory warrant proceeding, brought by tenant against subtenant for nonpayment of rent, subtenant could not set up a superior title in the owner of the premises, who had leased the premises to the subtenant's lessor, since the owner had not elected to treat the subtenant as the owner's tenant, or to release the original tenant, the subtenant's lessor. Veazey v. Sinclair Ref. Co., 66 Ga. App. 730 , 19 S.E.2d 53 (1942).

Defects in landlord's title cannot be raised as defense to proceeding for possession. McKinney v. South Boston Sav. Bank, 156 Ga. App. 114 , 274 S.E.2d 34 (1980).

Claimed defects in the landlord's title to premises cannot be raised as a defense to a proceeding for possession. The defendants' claim that the defendants owned the premises was relevant only to the extent that it challenged the allegations that the plaintiff owned the premises and that the defendants were tenants at sufferance, i.e., that the plaintiff was a landlord with right of immediate possession. Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592 , 409 S.E.2d 71 (1991), cert. denied, 200 Ga. App. 897 , 409 S.E.2d 71 (1991); Hague v. Kennedy, 205 Ga. App. 586 , 423 S.E.2d 283 , cert. denied, 205 Ga. App. 900 , 423 S.E.2d 283 (1992).

Although the defense of lack of a landlord-tenant relationship is a proper defense to a dispossessory action, claimed defects in the landlord's title to the premises cannot be raised as a defense to a proceeding for possession. Bridges v. City of Moultrie, 210 Ga. App. 697 , 437 S.E.2d 368 (1993).

A tenant's allegation of a defect in the landlord's title to the leased premises could not be raised as a defense to a proceeding for possession under O.C.G.A. § 44-7-50 et seq., although the tenant could raise the claimed defect in a separate proceeding. Sanders v. Daniel, 302 Ga. App. 350 , 691 S.E.2d 244 (2010).

Void sale no defense. - Defense that sale of premises under power of sale in loan deed in favor of plaintiff was void on account of its improper exercise or because loan was not mature, could not be set up as a defense to a dispossessory proceeding. Ryals v. Atlantic Life Ins. Co., 53 Ga. App. 469 , 186 S.E. 197 (1936).

Because two borrowers' allegation of wrongful foreclosure of their home was not a valid defense to a dispossessory action brought by the purchaser of their home at a nonjudicial foreclosure sale, pursuant to O.C.G.A. §§ 44-7-50 and 44-7-53 , the trial court's order issuing a writ of dispossession was affirmed. Vines v. LaSalle Bank Nat'l Ass'n, 302 Ga. App. 353 , 691 S.E.2d 242 (2010).

Extraneous contract inadmissible. - In proceeding by dispossessory warrant brought by a purchaser of land from the original landlord, a contention by the tenants that plaintiff's vendor had violated an oral option given the tenants to purchase the land before selling the land to any other purchaser did not present a valid defense, and evidence tending to show such a contract should have been excluded on the timely motion of the plaintiff. Minor v. Sutton, 73 Ga. App. 253 , 36 S.E.2d 158 (1945).

In a dispossessory action by purchasers at a foreclosure sale, answer by former owners that the purchase was void because the foreclosure was not authorized was not germane to the proceeding because the purchasers were owners of the property unless and until the foreclosure was set aside. Womack v. Columbus Rentals, Inc., 223 Ga. App. 501 , 478 S.E.2d 611 (1996).

Purchaser at foreclosure sale can lawfully institute dispossessory proceedings against the defaulting mortgagor, who may not assert that the advertisement of the property was invalid, because such an assertion is an attack on the purchaser's title to the premises. Partin v. Southern Disct. Co., 167 Ga. App. 798 , 307 S.E.2d 697 (1983).

Foreclosure sale cannot be asserted as a defense in dispossessory proceeding. - Tenant could not assert errors related to a foreclosure sale because challenges to a foreclosure sale could not be asserted as a defense in a subsequent dispossessory proceeding. Lingo v. Smith, 316 Ga. App. 164 , 729 S.E.2d 18 (2012).

Tort Liability of Landlord

Liability for non-compliance with this section. - Landlord who forcibly ejects a tenant without complying with the provisions of this statute is liable to the tenant in trespass, though the latter be at the time holding over beyond the tenant's term, in arrears for rent, and in receipt of due notice to quit. Clifford v. Gressiner, 96 Ga. 789 , 22 S.E. 399 (1895); Entelman v. Hagood, 95 Ga. 390 , 22 S.E. 545 (1895); Ray v. Boyd, 96 Ga. 808 , 22 S.E. 916 (1895); Broxton v. Ennis, 96 Ga. 792 , 22 S.E. 945 (1895); Rape v. Gunn, 96 Ga. 791 , 22 S.E. 962 (1895); Blitch & Newton v. Edwards, 96 Ga. 606 , 24 S.E. 147 (1895); Lanier v. Kelly, 6 Ga. App. 738 , 65 S.E. 692 (1909); Collins v. Baker, 51 Ga. App. 669 , 181 S.E. 425 (1935); Teston v. Teston, 135 Ga. App. 321 , 217 S.E.2d 498 (1975) (see O.C.G.A. § 44-7-50 ).

Liability of landlord for trespass in absence of breach by tenant. - When a tenant has not breached the contract of rental, but is entitled to possession of the rented premises, and this is known to the landlord, the act of the landlord in maliciously causing a warrant to issue to dispossess the tenant constitutes a trespass by the landlord against the tenant's right of possession for which the tenant has a cause of action in tort against the landlord. Yopp v. Johnson, 51 Ga. App. 925 , 181 S.E. 596 (1935).

Liability of landlord to evicted tenant for trespass. - Summary judgment under O.C.G.A. § 9-11-56 for an owner, a manager, and a lessor of an apartment was properly entered in a tenant's action for trespass arising out of the tenant's eviction; the entry of the writ of possession was proper, on the writ's face, under O.C.G.A. § 44-7-50 . Vickers v. Merry Land & Inv. Co., 263 Ga. App. 316 , 587 S.E.2d 816 (2003).

Owner did not owe duty to an intruder to follow summary disposition proceedings. - A buyer who purchased a homeowner's home at a foreclosure sale was not required to obtain a writ of possession prior to changing the locks on the upstairs unit of the home because the homeowner, who allegedly moved from the downstairs unit to the upstairs unit of the home after the sale, was not a tenant at sufferance but an intruder. Steed v. Fed. Nat'l Mortg. Corp., 301 Ga. App. 801 , 689 S.E.2d 843 (2009).

Malicious use of process by landlord. - Use of the dispossessory warrant procedure provided by statute by a landlord to obtain possession of the landlord's premises is not such a perversion or unintended use of the process as amounts to a malicious abuse of legal process, but the proceeding may amount to a malicious use of legal process if the facts so warrant. McSwain v. Edge, 6 Ga. App. 9 , 64 S.E. 116 (1909); Crawford v. Theo, 112 Ga. App. 83 , 143 S.E.2d 750 (1965) (see O.C.G.A. § 44-7-50 ).

When the evidence showed that a landlord harassed the landlord's tenant and that the tenant was intimidated by the landlord, a jury could find that the tenant reasonably believed that the tenant had been evicted when the landlord ordered the tenant off the premises and later locked the doors against the tenant, that this action was an attempt to convert the tenant's personal property which remained inside, and that suing the tenant for unpaid rent which accrued after the tenant was locked out was malicious. Swift Loan & Fin. Co. v. Duncan, 195 Ga. App. 556 , 394 S.E.2d 356 (1990).

Liability of landlord for illegal warrant. - In dispossessing under an illegal warrant, the officers are nothing more than mere agents of the defendant and the defendant would be liable for any damage proximately flowing from the original wrong of prosecuting the dispossessory warrant. Tapley v. Youmans, 95 Ga. App. 161 , 97 S.E.2d 365 (1957).

Liability not avoided by use of independent contractor. - While a landlord may accomplish the duties required by O.C.G.A. § 44-7-50 for dispossession of a tenant through an agent or attorney, the landlord cannot avoid liability for a wrongful eviction by delegating these duties to an independent contractor. Owens v. Barclays American/Mortgage Corp., 218 Ga. App. 160 , 460 S.E.2d 835 (1995).

Procedural Matters

Filing in justice court. - If the landlord chooses to file a dispossessory action in the justice court, the landlord does so with the risk that the tenant will answer, causing the justice court to lose jurisdiction. Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

What constitutes an "answer" in a dispossessory action is to be liberally construed. Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

Tenant's answer to a dispossessory complaint need not be verified. Henry v. Wild Pines Apts., 177 Ga. App. 576 , 340 S.E.2d 233 (1986).

Effect of filing counteraffidavit. - Filing of the counteraffidavit by the tenant to the proceedings to dispossess, regardless of the ground therefor, converts the case into one of law, with all the rights the parties would have if the suit were on open account or contract. Shehane v. Eberhart, 30 Ga. App. 265 , 117 S.E. 675 (1923), rev'd on other grounds, 158 Ga. 743 , 124 S.E. 527 , answer conformed to, 33 Ga. App. 23 , 125 S.E. 506 (1924).

Transfer to court of record. - When a tenant answers a dispossessory affidavit either orally or in writing within the time prescribed by law or within the time during which the tenant may open a default as of right, the justice of the peace loses jurisdiction over the dispossessory matter. The tenant having answered, the case must be transmitted to the clerk of the superior court along with any fees required by law for filing in superior court. Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

How transfer effected. - Transfer of the case from the justice court to the superior court is not initiated by the tenant; rather, the transfer takes place by operation of the law. The tenant has merely answered the complaint and formed issues which must be tried in another court. Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

Removal to superior court was proper. - Superior court's order vacating justice of peace's order in contested dispossessory action for lack of jurisdiction and removing case to superior court for a proceeding on merits was proper. Young v. Hinton, 163 Ga. App. 692 , 295 S.E.2d 150 (1982).

Costs on transfer. - When a dispossessory case is transmitted to the superior court unaccompanied by required advance costs or a proper pauper's affidavit, the clerk shall not be required to docket such case. The payment of advance costs and fees required by law shall be the responsibility of the plaintiff in the dispossessory action. In the event that the case is not docketed because of failure to pay costs or present a pauper's affidavit, the case must be dismissed for want of prosecution. Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

Proper parties. - Only proper parties to an issue arising under a warrant sued out to dispossess a tenant holding over are the alleged landlord and the tenant, and it is error to allow other persons, under whom the tenant claimed possession, to be made parties defendant to the proceeding. Fitzgerald Trust Co. v. Shepard, 60 Ga. App. 674 , 4 S.E.2d 689 (1939).

Undenied allegations deemed admitted. - Allegations of fact as the basis for the issuance of a warrant to dispossess a tenant, contained in the landlord's affidavit upon which the warrant issued, which were not denied by the tenant in the tenant's counteraffidavit, are treated as admitted; since the landlord's affidavit contained an allegation that the landlord demanded possession of the premises, and the tenant's counteraffidavit denied only that the rent was due and did not deny that demand was made for possession of the premises, such demand would be treated as an admitted fact. Carson v. Adair, 76 Ga. App. 418 , 46 S.E.2d 166 (1948); Battles v. Anchor Rome Mills, Inc., 80 Ga. App. 47 , 55 S.E.2d 156 (1949).

No equitable relief. - Absent special circumstances, such as, insolvency of the landlord, or inadequacy of any legal defense which could be interposed thereto, equity will not interfere with a dispossessory proceeding to enjoin the same, since whatever defenses the tenant may have to such proceeding may be interposed in the dispossessory proceeding as readily as in a court of equity. Imperial Hotel Co. v. Martin, 199 Ga. 801 , 35 S.E.2d 502 (1945); Shippen v. Folsom, 200 Ga. 58 , 35 S.E.2d 915 (1945); Dumas v. Burleigh, 209 Ga. 241 , 71 S.E.2d 545 (1952); Lee v. Peck, 228 Ga. 448 , 186 S.E.2d 94 (1971).

Evidence failing to show tenancy. - When dispossessory warrant was based on the sole ground that the defendant had "rented" the premises and failed to "pay the rent as per agreement," and the defendant contended that under the evidence the defendant was in possession as a purchaser, and not as a tenant under the alleged agreement to pay rent, or as a tenant at will or sufferance, and the evidence wholly failed to show any meeting of the minds of the parties upon such an agreement, a verdict for the defendant on the only expressed ground for the issuance of the dispossessory warrant was demanded. Thrift v. Schurr, 52 Ga. App. 314 , 183 S.E. 195 (1935).

Pending proceeding under § 9-10-30 . - Proceeding instituted under former Civil Code 1895, § 4813 (see O.C.G.A. § 44-7-50 ) was until disposed of a pending proceeding within the meaning of former Civil Code 1895, § 4950 (see O.C.G.A. § 9-10-30 ). Townsend v. Brinson, 117 Ga. 375 , 43 S.E. 748 (1903); Ellis v. Stewart, 123 Ga. 242 , 51 S.E. 321 (1905); Bedgood v. Carlton, 145 Ga. 54 , 88 S.E. 568 (1916).

Failure to grant tenant trial. - Trial court erred in granting a writ of possession to the owner because, inter alia, the trial court failed to follow the procedures required for a dispossessory action. The trial court did not adhere to the requirements of the dispossessory statute as the tenant was entitled to, but was not granted, a trial on the issues, which would have included taking the testimony of witnesses orally in open court and proper notice of a trial. Metro Atlanta Task Force for the Homeless, Inc. v. Premium Funding Solutions, LLC, 321 Ga. App. 100 , 741 S.E.2d 225 (2013).

Directed verdict for landlord improper. - Since there was insufficient evidence to require a finding that a demand upon a tenant to deliver possession to the landlord was made prior to the commencement of the dispossession action, a directed verdict in favor of the plaintiff was not proper. Terrell v. Griffith, 129 Ga. App. 675 , 200 S.E.2d 485 (1973).

Summary judgment not warranted. - Claim that the Federal National Mortgage Association violated O.C.G.A. § 44-7-50 survived because the evidence created a genuine dispute as to whether the plaintiff abandoned the property or the plaintiff's possessions or whether the plaintiff ceded possession of the property entirely. Mwangi v. Fannie Mae, 162 F. Supp. 3d 1315 (N.D. Ga. 2016).

Instruction. - It is also error to fail to limit the jury's inquiry, leaving the jury to find what the jury may from the evidence. Jones v. Blackwelder, 146 Ga. 238 , 91 S.E. 45 (1916).

In a case under this statute involving a tenancy at will or sufferance, it is error for the court to fail to explain fully these terms to the jury, notwithstanding a quotation of this statute is made. Salios v. Swift, 25 Ga. App. 96 , 102 S.E. 869 (1920) (see O.C.G.A. § 44-7-50 ).

Res judicata. - One dispossessory proceeding alone is sufficient to determine whether the lessors are entitled to possession of the premises, since lessees and sublessees of the same premises may be made parties defendant in such a single proceeding. Lee v. Peck, 228 Ga. 448 , 186 S.E.2d 94 (1971).

Jurisdiction on appeal. - When the statutory affidavit provided for in this statute seeking to evict one alleged to be tenant holding over beyond the tenant's term is resisted by the filing of a counteraffidavit denying tenancy and asserting ownership as a defense, the issue presented is not a case respecting title to land, so as to come within the jurisdiction of the Supreme Court, as defined by the Constitution. Arnold v. Water Power & Mining Co., 147 Ga. 91 , 92 S.E. 889 (1917); Anderson v. Watkins, 170 Ga. 483 , 153 S.E. 8 (1930) (see O.C.G.A. § 44-7-50 ).

Appeal from civil court. - An action filed in the Civil Court of Fulton County in which the only relief sought is possession of real estate by the owner thereof is not subject to direct appeal to the Court of Appeals; an appeal to the appellate division of the civil court must first be filed. Courtney v. Ihlanfeldt, 130 Ga. App. 637 , 204 S.E.2d 312 (1974).

Miscellaneous Considerations

Derivation of title. - One who seeks to dispossess a person as tenant of premises, on the ground that the relation of landlord and tenant arose by virtue of title to the property acquired by the plaintiff at a sale of the property had under a power of sale in a deed to secure debt, made by the defendant or one under whom the defendant claims right of possession, must show title derived from the grantor in the security deed. Harold v. Modern Homes Constr. Co., 104 Ga. App. 415 , 121 S.E.2d 809 (1961).

Notice to tenant at will. - When a tenancy at will had been created, the defendant was entitled to two month's notice as a tenant at will before the tenancy could be terminated so as to support an action under the provisions of this statute. Carruth v. Carruth, 77 Ga. App. 131 , 48 S.E.2d 387 (1948) (see O.C.G.A. § 44-7-50 ).

Waiver by prior conduct. - Landlord is not entitled to a dispossessory warrant for failure to pay rent on the day named since a strict adherence to the terms of the lease contract have been waived by the landlord by prior conduct of the parties, and no demand has been made for the rent on the day named, or at any other time, and the rent is tendered to the landlord before the commencement of a dispossessory warrant proceeding. Arnold v. Selman, 83 Ga. App. 145 , 62 S.E.2d 915 (1951).

Lessor holding rent. - When lessor received the rent check covering the payment for the month and held the check for five days before notifying the lessee that the lessor considered the lease terminated for nonpayment of rent and continued to so hold such check without ever presenting the check for payment at the bank, and since the record showed that all subsequent rent payments due between such time and the time of the trial were tendered in accordance with the lease agreement, the evidence demanded a verdict for the lessees. Yates v. Farmer, 102 Ga. App. 570 , 117 S.E.2d 211 (1960).

Rent paid into court. - Lessee was not in default in the payment of rent after the lessee paid the rent into court under a garnishment summons. Deaton v. Johnson, 72 Ga. App. 573 , 34 S.E.2d 560 (1945).

Mother as tenant. - When demand for possession of the premises was given, defendant mother had ceased to be a tenant in common with her children, fee simple owners, and occupied the relationship to them of landlord and tenant. Roberts v. Graham, 98 Ga. App. 309 , 105 S.E.2d 801 (1958).

Fixtures attached to realty. - Although two owners of an aircraft hangar had no formal agreement with the city entitling the owners to extend their stay on city property, and the city could therefore elect to remove the owners at any time as tenants at will, the owners were obligated to remove any trade fixtures from the landlord's property, specifically, the hangar, despite the hangar's size, and at the owners' own expense, upon notification by the city of the expiration of the lease term; moreover, the hangar was such that although the hangar was bolted to the ground, it was done so in such a way that the hangar could be disassembled and rebuilt elsewhere. S.S. Air, Inc. v. City of Vidalia, 278 Ga. App. 149 , 628 S.E.2d 117 (2006).

When an arrestee refused to allow a guest back into the arrestee's home and removed the guest's things, officers were not entitled to qualified immunity as to the arrestee's civil rights claims because the officers did not show that the officers had probable cause to arrest the arrestee for criminal damage to property under O.C.G.A. § 16-7-23 ; the parties' arguments regarding the exclusive method that a landlord may use to evict a tenant under O.C.G.A. § 44-7-50 et seq. were irrelevant. Gray v. City of Roswell, F.3d (11th Cir. Aug. 13, 2012)(Unpublished).

OPINIONS OF THE ATTORNEY GENERAL

Magistrate court has jurisdiction to try cases and issue writs and judgments in dispossessory and distress warrant proceedings when the amount in controversy exceeds $3,000.00. 1988 Op. Att'y Gen. No. U88-18.

Location of property irrelevant. - Landlord may institute dispossessory proceedings against a tenant by filing an affidavit with a judge of superior court or any justice of the peace demanding possession of the landlord's land and setting forth the facts which entitle the landlord thereto. This affidavit can be given before any justice of the peace regardless of the location of the property which is the subject of the affidavit. 1979 Op. Att'y Gen. No. U79-7.

Financial burden of physically removing a tenant's property may be properly cast upon the landlord. 1985 Op. Att'y Gen. No. U85-36.

RESEARCH REFERENCES

16A Am. Jur. Pleading and Practice Forms, Landlord and Tenant, § 105.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1373 et seq.

ALR. - Right of tenant holding over after termination of definite term of notice to quit, 19 A.L.R. 1405 ; 156 A.L.R. 1310 .

Landlord's consent to holding over by tenant as essential to tenancy from year to year, 55 A.L.R. 286 .

When landlord deemed to have assented to renewal by holding over, 64 A.L.R. 309 .

Liability for rent accruing after landlord's institution of action or proceedings against tenant to recover possession, 93 A.L.R. 1474 .

Dispossession without legal process by one entitled to possession of real property as ground of action, other than for recovery of possession or damage to his person, by person dispossessed, 101 A.L.R. 476 .

Rent period as criterion of term implied by holding over after expiration of lease for a fixed term, 108 A.L.R. 1464 .

Tenant's liability in damages for holding over after expiration of term as affected by reason or excuse for so doing, 122 A.L.R. 280 .

Doctrine of breach by anticipatory repudiation of contract as applicable to lease, 137 A.L.R. 432 .

Constitutionality, construction, and application of statutes as to the effect of holding over by lessee, or as to automatic renewal clauses in leases, 152 A.L.R. 1395 .

Requisites and sufficiency of notice to quit as condition of summary proceeding to evict tenant, 169 A.L.R. 913 .

Effect of tender of past-due rent after period prescribed by statutory provision for termination of lease for default in payment, 170 A.L.R. 1156 .

Demand of rent due as prerequisite of enforcement of forfeiture or termination of lease providing for termination for nonpayment, 28 A.L.R.2d 803; 31 A.L.R.4th 1254.

Relief against forfeiture of lease for nonpayment of rent, 31 A.L.R.2d 321.

Right of landlord legally entitled to possession to dispossess tenant without legal process, 6 A.L.R.3d 177.

Waiver of statutory demand-for-rent due or of notice-to-quit prerequisite of summary eviction of lessee for nonpayment of rent - modern cases, 31 A.L.R.4th 1254.

Retaliatory eviction of tenant for reporting landlord's violation of law, 23 A.L.R.5th 140.

44-7-51. Issuance of summons; service; time for answer; defenses and counterclaims.

  1. When the affidavit provided for in Code Section 44-7-50 is made, the judge of the superior court, the state court, or any other court with jurisdiction over the subject matter or the judge, clerk, or deputy clerk of the magistrate court shall grant and issue a summons to the sheriff or his deputy or to any lawful constable of the county where the land is located. A copy of the summons and a copy of the affidavit shall be personally served upon the defendant. If the sheriff is unable to serve the defendant personally, service may be had by delivering the summons and the affidavit to any person who is sui juris residing on the premises or, if after reasonable effort no such person is found residing on the premises, by posting a copy of the summons and the affidavit on the door of the premises and, on the same day of such posting, by enclosing, directing, stamping, and mailing by first-class mail a copy of the summons and the affidavit to the defendant at his last known address, if any, and making an entry of this action on the affidavit filed in the case.
  2. The summons served on the defendant pursuant to subsection (a) of this Code section shall command and require the tenant to answer either orally or in writing within seven days from the date of the actual service unless the seventh day is a Saturday, a Sunday, or a legal holiday, in which case the answer may be made on the next day which is not a Saturday, a Sunday, or a legal holiday. If the answer is oral, the substance thereof shall be endorsed on the dispossessory affidavit. The answer may contain any legal or equitable defense or counterclaim. The landlord need not appear on the date of the tenant's response. The last possible date to answer shall be stated on the summons.
  3. If service is by posting a copy of the summons and the affidavit on the door of the premises and mailing a copy of the summons and the affidavit to the defendant, as provided in subsection (a) of this Code section, the court shall have jurisdiction to enter a default judgment for possession of the premises in the absence of an answer being filed, but in such instance a default judgment for money owed may not be entered unless the defendant files an answer or otherwise makes an appearance in the case.

    (Laws 1827, Cobb's 1851 Digest, p. 902; Code 1863, § 3984; Ga. L. 1865-66, p. 34, § 1; Ga. L. 1866, p. 25, § 1; Code 1868, § 4006; Code 1873, § 4078; Code 1882, § 4078; Civil Code 1895, § 4814; Civil Code 1910, § 5386; Code 1933, § 61-302; Ga. L. 1970, p. 968, § 1; Ga. L. 1971, p. 536, § 1; Ga. L. 1976, p. 1372, § 4; Ga. L. 1978, p. 938, § 1; Ga. L. 1982, p. 1228, § 2; Ga. L. 1983, p. 884, § 4-1; Ga. L. 1991, p. 94, § 44; Ga. L. 1991, p. 968, § 1; Ga. L. 2006, p. 656, § 1.2/HB 1273.)

Law reviews. - For survey of Georgia cases in the area of trial practice and procedure from June 1977 through May 1978, see 30 Mercer L. Rev. 239 (1978). For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Constitutionality. - See Pelletier v. Northbrook Garden Apts., 233 Ga. 208 , 210 S.E.2d 722 (1974).

Legislative intent. - Purpose of subsection (b) of former Code 1933, §§ 61-302 and 61-303 (see O.C.G.A. §§ 44-7-51 and 44-7-53 ) was to give tenants who were unrepresented by counsel and who were unschooled in the law an opportunity to state their defenses orally to the court as best they can and to have the substance of their defenses endorsed on the dispossessory warrant, thereby making a record upon which the case may proceed in the trial and appellate courts. Hill v. Hill, 241 Ga. 218 , 244 S.E.2d 862 (1978); Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525 , 258 S.E.2d 139 (1979); Denson v. Housing Auth., 150 Ga. App. 493 , 258 S.E.2d 183 (1979).

Purpose of section. - It is the purpose of this statute to afford the parties a speedy trial on the merits. Queen v. Harrell, 126 Ga. App. 122 , 190 S.E.2d 160 (1972) (see O.C.G.A. § 44-7-51 ).

Strict construction. - Dispossessory proceeding is statutory and must be strictly construed and observed. Young v. Cowles, 128 Ga. App. 770 , 197 S.E.2d 864 (1973).

Transfer to court of record. - When a tenant answers a dispossessory affidavit either orally or in writing within the time prescribed by law or within the time during which the tenant may open a default as of right, the justice of the peace loses jurisdiction over the dispossessory matter. The tenant having answered, the case must be transmitted to the clerk of the superior court along with any fees required by law for filing in superior court. Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

How transfer effected. - Transfer of the case from the justice court to the superior court is not initiated by the tenant; rather, the transfer takes place by operation of law. The tenant has merely answered the complaint and formed issues which, according to O.C.G.A. Art. 3, Ch. 7, T. 44, must be tried in another court. Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

Payment of costs on transfer. - When a dispossessory case is transmitted to the superior court unaccompanied by required advance costs or a proper pauper's affidavit, the clerk shall not be required to docket such case. The payment of advance costs and fees required by law shall be the responsibility of the plaintiff in the dispossessory action. In the event that the case is not docketed because of failure to pay costs or present a pauper's affidavit, the case must be dismissed for want of prosecution. Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

Transfer denied. - Because the commercial tenants did not assert a counterclaim in a landowner's dispossessory action, as the tenants were permitted to do under O.C.G.A. § 44-7-51(b) , and the relief the tenants sought under O.C.G.A. § 44-7-53(b) , to enjoin the landowner from pursuing the dispossessory action in the state court, was within the court's inherent jurisdiction to simply deny relief in the dispossessory action, there was no cause to grant the tenants' motion to transfer the matter to a superior court. Davita, Inc. v. Othman, 270 Ga. App. 93 , 606 S.E.2d 112 (2004).

Dispossessory warrant as abuse of process. - Use of a dispossessory warrant not to obtain possession of the premises for a failure to pay the rent allowed by law, but to compel the tenant to give up in money $6.00 per month in excess of the maximum amount which was allowed by law under an administrative order for freezing rents in the area in question, and to prevent the tenant from making a just demand for reimbursement for repairs, is an abuse of legal process. Defnall v. Schoen, 73 Ga. App. 25 , 35 S.E.2d 564 (1945).

When demand for possession unnecessary. - Demand for possession is not necessary when it would be futile to make the demand and the demand would be refused. RCH Corp. v. Southland Inv. Corp., 122 Ga. App. 815 , 178 S.E.2d 766 (1970).

Right to file defense or counterclaim. - Trial court properly awarded a mortgage company a writ of possession in an action against a debtor; the debtor was not deprived of the debtor's right to file a defense pursuant to O.C.G.A. § 44-7-51(b) as a bankruptcy court lifted a bankruptcy stay to allow this action to proceed. Agber v. DLJ Mortg. Capital, Inc., 263 Ga. App. 53 , 587 S.E.2d 210 (2003).

Effect of failure to answer. - When the record showed that the defendants accepted service of a dispossessory action and did not answer within the requisite time, the defendants waived the right to challenge their liability or assert other defenses. Tauber v. Community Ctrs. Two, 235 Ga. App. 705 , 509 S.E.2d 662 (1998), recons. denied, overruled on other grounds by Bowen v. Savoy, 2020 Ga. LEXIS 133 (Ga. 2020).

Failure to assert counterclaim in dispossessor action. - Trial court correctly disallowed evidence of emblements or emoluments in a dispossessory action after the defendant failed to assert any such claim in the defendant's answer or as a counterclaim, to proffer evidence of details of the alleged specific improvements that might be the basis for such a claim, or to proffer evidence as to an agreement between the parties for reimbursement of the cost of any improvements. Gentry v. Chateau Properties, 236 Ga. App. 371 , 511 S.E.2d 892 (1999).

Removal to federal court proper. - Even though Georgia courts have held that dispossessory actions were not civil actions, a dispossessory action filed by the Federal Home Loan Mortgage Corporation was properly removed to federal court under a Weems analysis since: (1) dispossessory actions were tried before a magistrate court, which was a regular judicial tribunal; (2) dispossessory actions required notice and service under O.C.G.A. § 44-7-51 ; (3) a dispossessory action was comparable to a civil trial if the tenant answered; and (4) rent was an issue of pecuniary value in a dispossessory action. Fed. Home Loan Mortg. Corp. v. Matassino, 911 F. Supp. 2d 1276 (N.D. Ga. 2012).

Jurisdiction to enter money judgment. - If the defendant answers in a proceeding brought under former Code 1933, § 61-301 et seq. (see O.C.G.A. § 44-7-51 ), notice was not an issue, and the trial court had jurisdiction over the defendant's person as to both the dispossessory proceeding and to enter a money judgment against the defendant. Housing Auth. v. Sterlin, 250 Ga. 95 , 296 S.E.2d 564 (1982); Housing Auth. v. Hudson, 250 Ga. 109 , 296 S.E.2d 558 (1982).

When the defendant is served by "nail and mail" in a dispossessory proceeding and does not answer, the trial court has jurisdiction over defendant's person for the purposes of the dispossessory proceeding but may not enter a judgment for rent due upon default. Housing Auth. v. Sterlin, 250 Ga. 95 , 296 S.E.2d 564 (1982); Housing Auth. v. Hudson, 250 Ga. 109 , 296 S.E.2d 558 (1982).

In a dispossessory proceeding, a judgment for rent allegedly due cannot be rendered upon default if service was by nail and mail. Housing Auth. v. Hudson, 250 Ga. 109 , 296 S.E.2d 558 (1982).

Fixtures attached to realty. - Although two owners of an aircraft hangar had no formal agreement with the city entitling the owners to extend their stay on city property, and the city could therefore elect to remove the owners at any time as tenants at will, the owners were obligated to remove any trade fixtures from the landlord's property, specifically, the hangar, despite the hangar's size, and at the owners' own expense, upon notification by the city of the expiration of the lease term; moreover, the hangar was such that although the hangar was bolted to the ground, it was done so in such a way that the hangar could be disassembled and rebuilt elsewhere. S.S. Air, Inc. v. City of Vidalia, 278 Ga. App. 149 , 628 S.E.2d 117 (2006).

Cited in Crawford v. Crawford, 139 Ga. 394 , 77 S.E. 557 (1913); Hall v. John Hancock Mut. Life Ins. Co., 50 Ga. App. 625 , 179 S.E. 183 (1935); Ford v. Eskridge, 53 Ga. App. 466 , 186 S.E. 204 (1936); Sinclair Ref. Co. v. Giddens, 54 Ga. App. 69 , 187 S.E. 201 (1936); Ward v. Walker, 222 Ga. 451 , 151 S.E.2d 228 (1966); RCH Corp. v. Southland Inv. Corp., 122 Ga. App. 815 , 178 S.E.2d 766 (1970); Stephens v. Cogdell, 227 Ga. 121 , 179 S.E.2d 45 (1971); Sanks v. Georgia, 401 U.S. 144, 91 S. Ct. 593 , 27 L. Ed. 2 d 741 (1971); Terrell v. Griffith, 129 Ga. App. 675 , 200 S.E.2d 485 (1973); Daniel v. Federal Nat'l Mtg. Ass'n, 231 Ga. 385 , 202 S.E.2d 388 (1973); Browning v. F.E. Fortenberry & Sons, 131 Ga. App. 498 , 206 S.E.2d 101 (1974); Lopez v. Dlearo, 232 Ga. 339 , 206 S.E.2d 454 (1974); Vlahos v. DeLong, 132 Ga. App. 722 , 209 S.E.2d 12 (1974); Warrick v. Mid-State Homes, Inc., 139 Ga. App. 301 , 228 S.E.2d 234 (1976); Jordan v. Ford Motor Credit Co., 141 Ga. App. 280 , 233 S.E.2d 256 (1977); Perimeter Billjohn, Inc. v. Perimeter Mall, Inc., 141 Ga. App. 343 , 233 S.E.2d 470 (1977); Hill v. Hill, 143 Ga. App. 549 , 239 S.E.2d 154 (1977); Lipshutz v. Shantha, 144 Ga. App. 196 , 240 S.E.2d 738 (1977); King v. Ellis, 146 Ga. App. 157 , 246 S.E.2d 1 (1978); Davis v. State, 147 Ga. App. 107 , 248 S.E.2d 181 (1978); Adams v. Wright, 242 Ga. 330 , 249 S.E.2d 15 (1978); Howington v. W.H. Ferguson & Sons, 147 Ga. App. 636 , 249 S.E.2d 687 (1978); Lamb v. Sims, 153 Ga. App. 556 , 265 S.E.2d 879 (1980); Proffitt v. Housing Sys., 154 Ga. App. 114 , 267 S.E.2d 650 (1980); Crump v. Jordan, 154 Ga. App. 503 , 268 S.E.2d 787 (1980); C & A Land Co. v. Rudolf Inv. Corp., 163 Ga. App. 832 , 296 S.E.2d 149 (1982); Jones v. Cooke, 169 Ga. App. 516 , 313 S.E.2d 773 (1984); A.G. Spanos Dev., Inc. v. Caras, 170 Ga. App. 243 , 316 S.E.2d 793 (1984); Moran v. Mid-State Homes, Inc., 171 Ga. App. 618 , 320 S.E.2d 625 (1984); Solomon v. Norwest Mortg. Corp., 245 Ga. App. 875 , 538 S.E.2d 783 (2000).

Service of Process

Applicability of Civil Practice Act. - Since former Code 1933, § 61-302 (see O.C.G.A. § 44-7-51 ) did not expressly prescribe that the cumulative service provisions of Ga. L. 1972, p. 689, §§ 1-3 (see O.C.G.A. § 9-11-4 (i) ) were unavailable, Ga. L. 1968, p. 1104, § 12 (see O.C.G.A. § 9-11-81 ), providing for exceptions to the applicability of the Civil Practice Act, was inoperable. Navaho Corp. v. Stuckey, 141 Ga. App. 271 , 233 S.E.2d 217 (1977).

Service calculated to give notice. - Statute does not allow any service which is not reasonably calculated, under the circumstances, to afford notice. Davis v. Hybrid Indus., Inc., 142 Ga. App. 722 , 236 S.E.2d 854 (1977) (see O.C.G.A. § 44-7-51 ).

Tacking not sufficient if tenants not in residence. - Service by tacking affidavit and summons in a dispossessory action was not service reasonably calculated, under the circumstances, to afford notice since the tenants did not reside at the premises. Davis v. Hybrid Indus., Inc., 142 Ga. App. 722 , 236 S.E.2d 854 (1977).

Tacking where personal service possible. - Court cannot construe this statute to allow tacking when personal service is possible. Davis v. Hybrid Indus., Inc., 142 Ga. App. 722 , 236 S.E.2d 854 (1977) (see O.C.G.A. § 44-7-51 ).

Tacking permitted. - To nail the process to the very door of the disputed premises where the tenant claims to be living is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford the parties an opportunity to present their objections. Pelletier v. Northbrook Garden Apts., 233 Ga. 208 , 210 S.E.2d 722 (1974).

Right to notice and hearing violated. - When return of service only reasonably informed defendant that after the lapse of seven days the marshal would execute the warrant by evicting the defendant; since there was no command to appear at a hearing on a day certain, and since the defendant was given no notice of a hearing on the issue of past due rent which was required by the statute, the defendant's right to notice and a hearing have been violated. Van Schallern v. Stanco, 132 Ga. App. 794 , 209 S.E.2d 243 (1974).

Return of service sufficient. - When a hold-over tenant failed to answer a summons issued under former Code 1933, § 61-302 (see O.C.G.A. § 44-7-51 ) and a default judgment was rendered against the tenant, the marshal's return of service reciting that "default may be opened not later than 8-17-78" which was given to the tenant was sufficient under former Code 1933, § 61-303 (see O.C.G.A. § 44-7-53 ). Bannister v. Airport Assocs., 149 Ga. App. 501 , 254 S.E.2d 742 (1979).

"Nail and mail" method of service in dispossessory proceeding conferred upon trial court jurisdiction over person of defendant as to both the dispossessory proceeding and to enter a money judgment against the defendant for past-due rent after defendant filed a timely answer. Housing Auth. v. Sterlin, 250 Ga. 95 , 296 S.E.2d 564 (1982); Housing Auth. v. Hudson, 250 Ga. 109 , 296 S.E.2d 558 (1982).

Posting a copy of the summons and dispossessory warrant on the door of the tenant's residence, the leased apartment, and mailing a copy of the documents to the same address was adequate service. Sandifer v. Long Investors, Inc., 211 Ga. App. 757 , 440 S.E.2d 479 (1994).

Because a dispossessory court never ruled upon or resolved a landlord's claims for past due rent and other damages, and because the dispossessory court lacked jurisdiction over the defaulting tenants, who were served by "nail and mail" service under O.C.G.A. § 44-7-51(a) , the landlord's claims were not barred by the doctrine of res judicata under O.C.G.A. § 9-12-40 or subject to a plea of abatement under O.C.G.A. §§ 9-2-5(a) and 9-2-44(a) . Bhindi Bros. v. Patel, 275 Ga. App. 143 , 619 S.E.2d 814 (2005).

Actual knowledge by defendant of pending proceeding irrelevant. - When the requirement of mailing a copy of the summons and affidavit to the defendant's last known address is not satisfied because the plaintiff had instead mailed defendant the service copy of an action against another tenant, the fact that the defendant may have had actual knowledge of the pendency of the proceeding is irrelevant. Spring Branch Apts. v. Epps, 160 Ga. App. 142 , 286 S.E.2d 490 (1981).

Amended summons. - Amendment to a summons in a dispossessory action which changed the time for the defendant's answer was required to be served with the same formalities required for the original summons. Tampa Pipeline Corp. v. City Mills Co., 216 Ga. App. 783 , 456 S.E.2d 270 (1995).

Answer

What constitutes "answer" in a dispossessory action is to be liberally construed. Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

Formalities not required. - Tenant's attempt to contest a dispossessory proceeding is not to be ignored or dismissed because of a failure to meet the formalities required for other judicial proceedings but not expressly required for a dispossessory proceeding. Lamb v. Housing Auth., 146 Ga. App. 786 , 247 S.E.2d 597 (1978).

Unsigned answer is sufficient. - Written but unsigned answer is sufficient to create a contested dispossessory proceeding and thus to open a default to a dispossessory summary. Lamb v. Housing Auth., 146 Ga. App. 786 , 247 S.E.2d 597 (1978).

Tenant's answer to a dispossessory complaint need not be verified. Henry v. Wild Pines Apts., 177 Ga. App. 576 , 340 S.E.2d 233 (1986).

Personal appearance not answer. - Personal appearance before the court was not an "answer" within the meaning of former Code 1933, § 61-302 (see O.C.G.A. § 44-7-51 ), nor did the appearance waive the right to open the default in accordance with former Code 1933, § 61-303 (see O.C.G.A. § 44-7-53 ). Denson v. Housing Auth., 150 Ga. App. 493 , 258 S.E.2d 183 (1979).

Opening default. - Former Code 1933, § 61-303 (see O.C.G.A. § 44-7-53 ), in conjunction with subsection (b) of former Code 1933, § 61-302 (see O.C.G.A. § 44-7-51 ), provided that if the tenant failed to answer within seven days from the date of service, the tenant may open the default as a matter of right by making an answer within seven days after the date of the default. Burnett v. Pace, 151 Ga. App. 111 , 258 S.E.2d 916 (1979).

Court unauthorized to open default when no answer within statutorily prescribed time. - When appellee-tenant failed to answer dispossessory action within the statutorily prescribed time, the trial court was without authority to grant appellee's motion to open default, and appellants were entitled to an immediate writ of possession and to other items sought in the complaint. Avery v. Warrick, 172 Ga. App. 674 , 324 S.E.2d 532 (1984).

Tenant failed to show the type of defect in the dispossession action filed against the tenant that would afford the tenant a basis for a collateral attack as the tenant failed to answer the dispossession writ within seven days as required by O.C.G.A. § 44-7-51(b) since the sheriff delivering the summons knocked before resorting to the tack and mail approach, and a demand for payment was properly made. Vickers v. Merry Land & Inv. Co., 263 Ga. App. 316 , 587 S.E.2d 816 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Sufficiency of oral answer. - An oral answer by the tenant is sufficient to prevent issuance of a writ of possession. 1983 Op. Att'y Gen. No. U83-69.

RESEARCH REFERENCES

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1373 et seq.

ALR. - Dispossession without legal process by one entitled to possession of real property as ground of action, other than for recovery of possession or damage to his person, by person dispossessed, 101 A.L.R. 476 .

44-7-52. When tender of payment by tenant serves as complete defense.

  1. Except as provided in subsection (c) of this Code section, in an action for nonpayment of rent, the tenant shall be allowed to tender to the landlord, within seven days of the day the tenant was served with the summons pursuant to Code Section 44-7-51, all rents allegedly owed plus the cost of the dispossessory warrant. Such a tender shall be a complete defense to the action; provided, however, that a landlord is required to accept such a tender from any individual tenant after the issuance of a dispossessory summons only once in any 12 month period.
  2. If the court finds that the tenant is entitled to prevail on the defense provided in subsection (a) of this Code section and the landlord refused the tender as provided under subsection (a) of this Code section, the court shall issue an order requiring the tenant to pay to the landlord all rents which are owed by the tenant and the costs of the dispossessory warrant within three days of said order. Upon failure of the tenant to pay such sum, a writ of possession shall issue. Such payment shall not count as a tender pursuant to subsection (a) of this Code section.
  3. For a tenant who is not a tenant under a residential rental agreement as defined in Code Section 44-7-30, tender and acceptance of less than all rents allegedly owed plus the cost of the dispossessory warrant shall not be a bar nor a defense to an action brought under Code Section 44-7-50 but shall, upon proof of same, be considered by the trial court when awarding damages.

    (Code 1933, § 61-309, enacted by Ga. L. 1970, p. 968, § 6; Ga. L. 1998, p. 1380, § 1.)

JUDICIAL DECISIONS

Rent means money. - General Assembly in giving tenants the right to remain in possession during the pendency of a dispossessory proceeding by tendering the payment of rent into court intended "rent" to mean "money." Lipshutz v. Shantha, 144 Ga. App. 196 , 240 S.E.2d 738 (1977).

Even though Georgia courts have held that dispossessory actions were not civil actions, a dispossessory action filed by the Federal Home Loan Mortgage Corporation was properly removed to federal court under a Weems analysis since: (1) dispossessory actions were tried before a magistrate court, which was a regular judicial tribunal and required notice and service; (2) a dispossessory action was comparable to a civil trial if the tenant answered under O.C.G.A. § 44-7-53(b) : and (3) rent was an issue of pecuniary value in a dispossessory action under O.C.G.A. §§ 44-7-52(a) , 44-7-53(b) , and 44-7-54 . Fed. Home Loan Mortg. Corp. v. Matassino, 911 F. Supp. 2d 1276 (N.D. Ga. 2012).

Failure to tender costs. - Although the defendant tenant tendered all rent due within seven days after service, but failed to tender the amount of the cost of the dispossessory warrant, the defendant did not have a complete defense so as to bar the action. Terrell v. Griffith, 129 Ga. App. 675 , 200 S.E.2d 485 (1973).

Second tender in 12-month period no defense. - Housing authority was not required to accept a tenant's tender of rent and the cost of dispossessory warrant made in response to the authority's second dispossessory warrant issued within a 12-month period. Housing Auth. v. Jackson, 216 Ga. App. 51 , 453 S.E.2d 60 (1994).

Acceptance of late rent not estoppel. - Fact that the tenant had been delinquent in rental payments during two prior months, which failures to pay had generated termination notices not followed through by the landlord, who accepted late rental payments on those occasions, did not constitute an estoppel which would require the landlord to accept late rent after termination notices on subsequent occasions. Baker v. Housing Auth., 152 Ga. App. 64 , 262 S.E.2d 183 (1979).

Reliance on terms of agreement. - Termination notice obviously indicates an intention to rely on the exact terms of the agreement. Baker v. Housing Auth., 152 Ga. App. 644 , 262 S.E.2d 183 (1979).

Waiver of defenses when lease concerns commercial property. - Landlord was entitled to rely on default provisions of lease of residence for commercial purposes in refusing tender of past due rent and in taking action to dispossess appellant, and appellant was not entitled to defenses of O.C.G.A. § 44-7-50 et seq., having waived those provisions in the lease. Eason Publications, Inc. v. Monson, 163 Ga. App. 370 , 294 S.E.2d 585 (1982).

New trial on grounds of payment of rent not available remedy. - Fact that the appellant had made out an affirmative defense as to payment of rent, and that the evidence showed the rent was paid, avails the appellant nothing when the issue was not raised at trial as a defense and no disposition, verdict, or judgment was sought on its account. A motion for a new trial on the grounds of payment of rent is not an available remedy to a dispossessory action since the plea of "complete defense" as a matter of law goes to the judgment only and not the verdict. Able-Craft, Inc. v. Bradshaw, 167 Ga. App. 725 , 307 S.E.2d 671 (1983).

Cited in West Court Square v. Assayag, 131 Ga. App. 690 , 206 S.E.2d 579 (1974); Minit Chek Food Stores, Inc. v. Plaza Capital, Inc., 135 Ga. App. 110 , 217 S.E.2d 415 (1975); C & A Land Co. v. Rudolf Inv. Corp., 163 Ga. App. 832 , 296 S.E.2d 149 (1982); Greenhill v. Allen, 181 Ga. App. 532 , 352 S.E.2d 845 (1987).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 950.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1376 et seq.

ALR. - Power of equity to relieve against forfeiture of lease for nonpayment of rent, 16 A.L.R. 437 .

Demand of rent due as prerequisite of enforcement of forfeiture or termination of lease providing for termination for nonpayment, 28 A.L.R.2d 803; 31 A.L.R.4th 1254.

Relief against forfeiture of lease for nonpayment of rent, 31 A.L.R.2d 321.

44-7-53. When writ of possession issued; trial of issues; possession pending trial.

  1. If the tenant fails to answer as provided in subsection (b) of Code Section 44-7-51, the court shall issue a writ of possession instanter notwithstanding Code Section 9-11-55 or Code Section 9-11-62. The court, without the intervention of a jury, shall not require any further evidence nor hold any hearings and the plaintiff shall be entitled to a verdict and judgment by default for all rents due as if every item and paragraph of the affidavit provided for in Code Section 44-7-50 were supported by proper evidence.
  2. If the tenant answers, a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record except that if the action is tried in the magistrate court the trial shall be had in accordance with the procedures prescribed for that court. Every effort should be made by the trial court to expedite a trial of the issues. The defendant shall be allowed to remain in possession of the premises pending the final outcome of the litigation; provided, however, that, at the time of his answer, the tenant must pay rent into the registry of the court pursuant to Code Section 44-7-54.

    (Laws 1827, Cobb's 1851 Digest, p. 902; Code 1863, § 3985; Ga. L. 1866, p. 25, § 1; Code 1868, § 4007; Code 1873, § 4079; Code 1882, § 4079; Civil Code 1895, § 4815; Civil Code 1910, § 5387; Code 1933, § 61-303; Ga. L. 1970, p. 968, § 2; Ga. L. 1971, p. 536, § 2; Ga. L. 1976, p. 1372, § 5; Ga. L. 1982, p. 3, § 44; Ga. L. 1982, p. 1134, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1983, p. 884, § 3-28.1; Ga. L. 1994, p. 1150, § 1; Ga. L. 2007, p. 498, § 2/SB 94.)

Cross references. - Trial calendar, Uniform State Court Rules, Rule 8.3.

Law reviews. - For article, "The Endangered Right of Jury Trials in Dispossessories," see 24 Ga. St. B.J. 126 (1988).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Constitutionality. - See Rush v. Southern Property Mgt., Inc., 121 Ga. App. 360 , 173 S.E.2d 744 (1970).

Purpose of section. - It is the purpose of this statute to afford the parties a speedy trial on the merits. Queen v. Harrell, 126 Ga. App. 122 , 190 S.E.2d 160 (1972) (see O.C.G.A. § 44-7-53 ).

Purpose in enacting this statute was to give defendants who are unrepresented by counsel and who are unschooled in the law an opportunity to state their defenses orally to the court as best they can and to have the substance of their defenses endorsed on the dispossessory warrant, thereby making a record upon which the case may proceed in the trial and appellate courts. Hill v. Hill, 241 Ga. 218 , 244 S.E.2d 862 (1978); Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525 , 258 S.E.2d 139 (1979); Denson v. Housing Auth., 150 Ga. App. 493 , 258 S.E.2d 183 (1979) (see O.C.G.A. § 44-7-53 ).

Section not in conflict with Uniform State Court Rule 8.3. - Distinction made under Uniform State Court Rule 8.3 between dispossessory cases (one-day notice of trial) and other cases (20-day notice of trial) is not in conflict with the mandate of subsection (b) of O.C.G.A. § 44-7-53 that a trial of the issues in a dispossessory shall be had in accordance with the procedure prescribed for civil actions in courts of record. Favors v. Arnold, 181 Ga. App. 286 , 351 S.E.2d 641 (1986).

Tenant's possession pending litigation. - Failure to pay the rent as required will result in dispossession of the tenant pending final outcome of the litigation; the requirement of rent payments into the court registry is mentioned only in connection with the tenant's right of continued possession pending the litigation. Jelks v. World of Realty, Inc., 153 Ga. App. 720 , 266 S.E.2d 357 (1980).

Money judgment held improper. - Nothing in former Code 1933, § 61-303 or § 61-304 (see O.C.G.A. § 44-7-53 or § 44-7-54 ) provided for, or was consistent with, the entry of a money judgment against the defendant upon the defendant's failure to pay rent into the registry of the court. Jelks v. World of Realty, Inc., 153 Ga. App. 720 , 266 S.E.2d 357 (1980).

Defects in title no defense. - Claimed defects in landlord's title to premises cannot be raised as defense to proceeding for possession under former Code 1933, § 61-301 et seq. (see O.C.G.A. § 44-7-50 et seq.). McKinney v. South Boston Sav. Bank, 156 Ga. App. 114 , 274 S.E.2d 34 (1980); Roberts v. Collins, 199 Ga. App. 614 , 405 S.E.2d 508 (1991); Hague v. Kennedy, 205 Ga. App. 586 , 423 S.E.2d 283 (1992), cert. denied, 205 Ga. App. 900 , 423 S.E.2d 283 (1992).

Void sale no defense. - Because two borrowers' allegation of wrongful foreclosure of their home was not a valid defense to a dispossessory action brought by the purchaser of their home at a nonjudicial foreclosure sale, pursuant to O.C.G.A. §§ 44-7-50 and 44-7-53 , the trial court's order issuing a writ of dispossession was affirmed. Vines v. LaSalle Bank Nat'l Ass'n, 302 Ga. App. 353 , 691 S.E.2d 242 (2010).

Return of service sufficient. - When a hold-over tenant failed to answer a summons issued under former Code 1933, § 61-302 (see O.C.G.A. § 44-7-51 ) and a default judgment was rendered against the tenant, the marshal's return of service reciting that "default may be opened not later than 8-17-78" which was given to the tenant was sufficient under former Code 1933, § 61-303 (see O.C.G.A. § 44-7-53 ). Bannister v. Airport Assocs., 149 Ga. App. 501 , 254 S.E.2d 742 (1979).

Date on back of summons. - While better practice would be to include the statement required by this statute within the main paragraph of the summons, the placing of the date on the back does not constitute a failure to comply with this statute so as to void the summons. Woodruff v. B-X Corp., 154 Ga. App. 197 , 267 S.E.2d 757 (1980) (see O.C.G.A. § 44-7-53 ).

Magistrate court had jurisdiction over dispossessory proceedings involving a property owner who, by remaining in possession of the premises after a lawful foreclosure of one's deed to secure debt, became a tenant at sufferance and subject to summary dispossession by the purchaser at the foreclosure sale. California Fed. Sav. & Loan Ass'n v. Day, 193 Ga. App. 690 , 388 S.E.2d 727 (1989).

Removal to federal court. - Even though Georgia courts have held that dispossessory actions were not civil actions, a dispossessory action filed by the Federal Home Loan Mortgage Corporation was properly removed to federal court under a Weems analysis since: (1) dispossessory actions were tried before a magistrate court, which was a regular judicial tribunal and required notice and service; (2) a dispossessory action was comparable to a civil trial if the tenant answered under O.C.G.A. § 44-7-53(b) : and (3) rent was an issue of pecuniary value in a dispossessory action under O.C.G.A. §§ 44-7-52(a) , 44-7-53(b) , and 44-7-54 . Fed. Home Loan Mortg. Corp. v. Matassino, 911 F. Supp. 2d 1276 (N.D. Ga. 2012).

Subsection (a) of O.C.G.A. § 44-7-53 prohibits opening defaults in dispossessory actions in magistrate court. Johnson v. Housing Auth., 198 Ga. App. 816 , 403 S.E.2d 97 (1991).

Grantor remaining in possession. - When the grantor, or the grantor's privy, in a security deed remain in possession of the premises after lawful foreclosure of the deed, the grantor is a tenant at sufferance and is subject to being summarily dispossessed by the purchaser at the foreclosure sale, or by the purchaser's privy. Collins v. Administrator of Veterans Affairs, 156 Ga. App. 374 , 274 S.E.2d 760 (1980).

Sale pursuant to power of sale. - When all right, title, and interest of an owner has been divested by a sale made pursuant to a power of sale given by the owner in a deed to land to secure a debt, and the owner thereafter remains in possession, the owner is a tenant at sufferance of the purchaser and, as such, may be summarily dispossessed. Swindell v. Walker, 71 Ga. App. 603 , 31 S.E.2d 670 (1944).

Proper parties. - Only proper parties to an issue arising under a warrant sued out to dispossess a tenant holding over are the alleged landlord and the tenant, and it is error to allow other persons under whom the tenant claimed possession to be made parties defendant to the proceeding. Fitzgerald Trust Co. v. Shepard, 60 Ga. App. 674 , 4 S.E.2d 689 (1939).

Discharge in bankruptcy not payment of rent. - Discharge in bankruptcy of a debt existing on account of overdue rent is not payment of the rent within the meaning of this statute. Carter v. Sutton, 147 Ga. 496 , 94 S.E. 760 (1917). See Hamilton v. McCroskey, 112 Ga. 651 , 37 S.E. 859 (1901) (see O.C.G.A. § 44-7-53 ).

Issuance of writ of possession at initial hearing is error. - Trial court errs in granting an immediate writ of possession at the initial hearing stage of the dispossessory proceedings. The purpose of that hearing is not to decide the substantive issues involved, but rather to determine the amount of money that the tenant has to pay into the registry of the court in order to remain in possession of the premises pending the ultimate resolution of the litigation. Bradshaw v. Jackson Hills Apts., 169 Ga. App. 447 , 313 S.E.2d 734 (1984).

Landlord not estopped from dispossessing tenant by accepting rent after proceedings instituted. - When a tenant's check is tendered and accepted at a time when the tenant is in continued possession of the premises, but after dispossessory proceedings have been instituted on the basis that the tenant is a tenant holding over, the acceptance of the rent, accruing after the dispossessory proceedings have been instituted, does not estop the landlord from pressing to dispossess the tenant. Cheeves v. Horne, 167 Ga. App. 786 , 307 S.E.2d 687 (1983).

There is no right to trial by jury in summary dispossessory action. West v. VA, 182 Ga. App. 767 , 357 S.E.2d 121 (1987).

Cited in Sanks v. Georgia, 401 U.S. 144, 91 S. Ct. 593 , 27 L. Ed. 2 d 741 (1971); Dampier v. Bank of Alapaha, 124 Ga. App. 618 , 184 S.E.2d 693 (1971); Blocker v. Blackburn, 228 Ga. 285 , 185 S.E.2d 56 (1971); Vlahos v. DeLong, 132 Ga. App. 722 , 209 S.E.2d 12 (1974); Gainesville Liquidation, Inc. v. Hanley, 134 Ga. App. 472 , 214 S.E.2d 723 (1975); Houston Gen. Ins. Co. v. Stein Steel & Supply Co., 134 Ga. App. 624 , 215 S.E.2d 511 (1975); Speir v. Davis, 235 Ga. 788 , 221 S.E.2d 575 (1976); Hodkinson v. Maloof, 137 Ga. App. 602 , 224 S.E.2d 524 (1976); Smith v. Hudgens, 140 Ga. App. 562 , 231 S.E.2d 530 (1976); Powers v. Simmerson, 142 Ga. App. 335 , 235 S.E.2d 769 (1977); King v. Ellis, 146 Ga. App. 157 , 246 S.E.2d 1 (1978); Crymes v. Crymes, 148 Ga. App. 299 , 251 S.E.2d 155 (1978); Marshall v. U.S. Mgt. Corp., 149 Ga. App. 141 , 253 S.E.2d 818 (1979); Leverette v. Moran, 153 Ga. App. 825 , 266 S.E.2d 574 (1980); Crump v. Jordan, 154 Ga. App. 503 , 268 S.E.2d 787 (1980); Peter E. Blum & Co. v. First Bank Bldg. Corp., 156 Ga. App. 680 , 275 S.E.2d 751 (1980); King v. Chrisler, 160 Ga. App. 784 , 287 S.E.2d 124 (1982); Smith v. Mack, 161 Ga. App. 95 , 289 S.E.2d 299 (1982); Housing Auth. v. Hudson, 250 Ga. 109 , 296 S.E.2d 558 (1982); Jordan v. Atlanta Neighborhood Hous. Servs., Inc., 169 Ga. App. 600 , 313 S.E.2d 787 (1984); Taylor v. Carver State Bank, 177 Ga. App. 856 , 341 S.E.2d 502 (1986); Kelley v. Daugherty, 201 Ga. App. 291 , 410 S.E.2d 759 (1991); Browning v. Federal Home Loan Mtg. Corp., 210 Ga. App. 115 , 435 S.E.2d 450 (1993).

Transfer to Court of Record

In general. - When an affidavit is made before a justice of the peace, and the tenant contests the dispossessory proceeding, the trial of the issue shall be in a court of record, and the justice of the peace shall transfer the proceedings to such court. Lopez v. Dlearo, 232 Ga. 339 , 206 S.E.2d 454 (1974); Lamb v. Sims, 153 Ga. App. 556 , 265 S.E.2d 879 (1980); Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

No automatic transfer. - There is no automatic transfer of a dispossessory action from the state court to the superior court upon the defendant's timely answer in the state court. Rowe v. Fleet Mtg. Corp., 226 Ga. App. 593 , 487 S.E.2d 133 (1997).

Defendant in a dispossessory action was not entitled to an automatic transfer to superior court when the state court was the court of record with jurisdiction over the action. Gentry v. Chateau Properties, 236 Ga. App. 371 , 511 S.E.2d 892 (1999).

State Court of DeKalb County is a "court of record," and thus is authorized to adjudicate a contested dispossessory action. Napper v. National Mtg. Group, Inc., 194 Ga. App. 148 , 390 S.E.2d 70 (1990).

Filing in justice court. - If the landlord chooses to file a dispossessory action in the justice court, the landlord does so with the risk that the tenant will answer, causing the justice court to lose jurisdiction. Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

How transfer effected. - Transfer of the case from the justice court to the superior court is not initiated by the tenant; rather, the transfer takes place by operation of the law. The tenant has merely answered the complaint and formed issues which must be tried in another court. Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

Payment of costs upon transfer. - When a dispossessory case is transmitted to the superior court unaccompanied by required advance costs or a proper pauper's affidavit, the clerk shall not be required to docket such case. The payment of advance costs and fees required by law shall be the responsibility of the plaintiff in the dispossessory action. In the event that the case is not docketed because of failure to pay costs or present a pauper's affidavit, the case must be dismissed for want of prosecution. Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

Transfer denied. - Because the commercial tenants did not assert a counterclaim in a landowner's dispossessory action, as the tenants were permitted to do under O.C.G.A. § 44-7-51(b) , and the relief the tenants sought under O.C.G.A. § 44-7-53(b) , to enjoin the landowner from pursuing the dispossessory action in the state court, was within the court's inherent jurisdiction to simply deny relief in the dispossessory action, there was no cause to grant the tenants' motion to transfer the matter to a superior court. Davita, Inc. v. Othman, 270 Ga. App. 93 , 606 S.E.2d 112 (2004).

Removal to superior court was proper. - Superior court's order vacating justice of peace's order in contested dispossessory action for lack of jurisdiction and removing case to superior court for a proceeding on merits was proper. Young v. Hinton, 163 Ga. App. 692 , 295 S.E.2d 150 (1982).

Transfer improper when defendant does not answer. - If the defendant never files an answer to a dispossessory proceeding in the justice of the peace court, that court retains jurisdiction over the case and the justice of the peace court's attempt to transfer the case to the state court is without foundation in law. Jones v. Cooke, 169 Ga. App. 516 , 313 S.E.2d 773 (1984).

Dispossessory action held not transferable. - In a dispossessory action filed in state court, there was no evidence of the lack of a landlord-tenant relationship, and no evidence justifying a challenge to the ownership of the land so as to require transfer of the case to the superior court. Bread of Life Baptist Church v. Price, 194 Ga. App. 693 , 392 S.E.2d 15 (1990).

After a credit corporation filed a dispossessory warrant in state court and alleged that it was the owner of a house and that the defendants were tenants at sufferance, and after the defendants denied that they were tenants at sufferance and alleged that they owned the premises, the defendants' contention that the case should have been transferred to the superior court because the case involved a dispute over title to the premises was without merit. Claimed defects in the landlord's title to premises cannot be raised as a defense to a proceeding for possession. Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592 , 409 S.E.2d 71 , cert. denied, 200 Ga. App. 897 , 409 S.E.2d 71 (1991).

Because the state court is a court of record with jurisdiction over a dispossessory action, the trial court did not err in denying the defendant's motion to transfer. Solomon v. Norwest Mortg. Corp., 245 Ga. App. 875 , 538 S.E.2d 783 (2000).

Answer

Unqualified right to answer and counterclaim. - Statute gives a tenant an unqualified right to answer and counterclaim in all dispossessory proceedings; it is unnecessary that this answer and counterclaim be accompanied by any bond or rent payment. Mountain Hardwoods & Pine, Inc. v. Coosa River Sawmill Co., 233 Ga. 414 , 211 S.E.2d 712 (1975); Seagraves v. Mount Zion Village, Inc., 134 Ga. App. 719 , 215 S.E.2d 688 (1975); McKisic v. College Park Hous. Auth., 134 Ga. App. 813 , 216 S.E.2d 369 (1975) (see O.C.G.A. § 44-7-53 ).

Defendant in a dispossessory proceeding has an unqualified right to answer and counterclaim. Stroup v. Robbie Jon Dev. Corp., 159 Ga. App. 652 , 284 S.E.2d 667 (1981).

Opening of default judgment improper. - Intent of the 1982 amendment to O.C.G.A. § 44-7-53 was to deny the tenant the opportunity to contest the dispossessory action if the tenant failed to answer the summons within the seven days prescribed, and thus the trial court had no authority to grant a motion to open a default judgment. A.G. Spanos Dev., Inc. v. Caras, 170 Ga. App. 243 , 316 S.E.2d 793 (1984).

The 1982 amendment of subsection (a) of O.C.G.A. § 44-7-53 , which deleted language pertaining to opening of default, indicates the legislative intent to deny a tenant an opportunity to contest a dispossessory action if the tenant fails to answer the summons within the prescribed time. Avery v. Warrick, 172 Ga. App. 674 , 324 S.E.2d 532 (1984).

What constitutes an "answer" in a dispossessory action is to be liberally construed. Rucker v. Fuller, 247 Ga. 423 , 276 S.E.2d 600 (1981).

Formalities not required. - Tenant's attempt to contest a dispossessory proceeding is not to be ignored, or dismissed, because of a failure to meet the formalities required for other judicial proceedings but not expressly required for a dispossessory proceeding. Lamb v. Housing Auth., 146 Ga. App. 786 , 247 S.E.2d 597 (1978).

Answer not conditioned on rent payment. - Failure to make a rent payment does not render defective the answer and counterclaim so that no issue remains to be tried. Seagraves v. Mount Zion Village, Inc., 134 Ga. App. 719 , 215 S.E.2d 688 (1975); Jelks v. World of Realty, Inc., 153 Ga. App. 720 , 266 S.E.2d 357 (1980).

Motion for dismissal treated as answer. - In a dispossessory action against the former owners of property by purchasers at a foreclosure sale, the former owners' pro se motion for dismissal was legally sufficient since it created a triable issue as to the existence of a landlord-tenant relationship. Womack v. Columbus Rentals, Inc., 223 Ga. App. 501 , 478 S.E.2d 611 (1996).

Oral or written answer. - "Answer" which is sufficient to open the default may be oral or in writing. Hill v. Hill, 241 Ga. 218 , 244 S.E.2d 862 (1978).

Unsigned answer. - Written but unsigned answer is sufficient to create a contested dispossessory proceeding and thus to open a default to a dispossessory summary. Lamb v. Housing Auth., 146 Ga. App. 786 , 247 S.E.2d 597 (1978).

Effect of failure to answer. - Language "If the tenant fails to answer" is construed to mean and refer to the time of the hearing. If the tenant fails to so answer, the court shall issue a writ of possession; and the plaintiff shall be entitled to a verdict and judgment by default for all rents due, in open court or chambers, as if every item and paragraph of the affidavit were supported by proper evidence without the intervention of the jury. West Court Square v. Assayag, 129 Ga. App. 59 , 198 S.E.2d 510 (1973).

Tenant waived any argument that the manager filing a dispossession action against the tenant lacked authority to bring the action as it ceased to exist under O.C.G.A. § 14-3-1105 due to a merger; the tenant failed to raise the issue in the dispossession proceedings, or to answer the dispossession affidavit at all under O.C.G.A. § 44-7-53 , making all of the allegations in the complaint admitted, and the tenant was barred from relitigating the matter in a suit for wrongful possession by collateral estoppel. Vickers v. Merry Land & Inv. Co., 263 Ga. App. 316 , 587 S.E.2d 816 (2003).

Answer raised issue of fact as to landlord-tenant relationship. - Since the defendants in a dispossessory action denied that a landlord-tenant relationship existed, and there was no evidence or admission that the plaintiff was the owner of the premises or that the defendants were on the premises without the landlord's consent, genuine issues of material fact remained as to the plaintiff's allegations that it was the owner of the premises and that the defendants were tenants at sufferance. The trial court therefor erred in striking the defendants' answer, granting a judgment on the pleadings, and entering an immediate writ of possession. Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592 , 409 S.E.2d 71 , cert. denied, 200 Ga. App. 897 , 409 S.E.2d 71 (1991).

Case on trial calendar. - Under the provisions of this statute, a tenant who has filed the tenant's answer in a dispossessory proceeding is entitled to have the case placed upon the trial calendar so that a trial of the issues may be had in accordance with the procedure prescribed for civil actions in courts of record. Whipper v. Kirk, 156 Ga. App. 218 , 274 S.E.2d 662 (1980) (see O.C.G.A. § 44-7-53 ).

OPINIONS OF THE ATTORNEY GENERAL

Trial in magistrate court. - If a tenant answers, a trial of the issues may be had in the magistrate court. 1983 Op. Att'y Gen. No. U83-69.

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 960.

C.J.S. - 52A C.J.S., Landlord and Tenant, §§ 1384, 1392.

ALR. - Tenant's liability in damages for holding over after expiration of term as affected by reason or excuse for so doing, 122 A.L.R. 280 .

Retaliatory eviction of tenant for reporting landlord's violation of law, 23 A.L.R.5th 140.

44-7-54. Payment of rent and utility payments into court; issuance of writ upon failure to pay; disposition of funds.

  1. In any case where the issue of the right of possession cannot be finally determined within two weeks from the date of service of the copy of the summons and the copy of the affidavit, the tenant shall be required to pay into the registry of the trial court:
    1. All rent and utility payments which are the responsibility of the tenant payable to the landlord under terms of the lease which become due after the issuance of the dispossessory warrant, said rent and utility payments to be paid as such become due. If the landlord and the tenant disagree as to the amount of rent, either or both of them may submit to the court any written rental contract for the purpose of establishing the amount of rent to be paid into the registry of the court. If the amount of rent is in controversy and no written rental agreement exists between the tenant and landlord, the court shall require the amount of rent to be a sum equal to the last previous rental payment made by the tenant and accepted by the landlord without written objection; and
    2. All rent and utility payments which are the responsibility of the tenant payable to the landlord under terms of the lease allegedly owed prior to the issuance of the dispossessory warrant; provided, however, that, in lieu of such payment, the tenant shall be allowed to submit to the court a receipt indicating that payment has been made to the landlord. In the event that the amount of rent is in controversy, the court shall determine the amount of rent to be paid into court in the same manner as provided in paragraph (1) of this subsection.
  2. If the tenant should fail to make any payment as it becomes due pursuant to paragraph (1) or (2) of subsection (a) of this Code section, the court shall issue a writ of possession and the landlord shall be placed in full possession of the premises by the sheriff, the deputy, or the constable.
  3. The court shall order the clerk of the court to pay to the landlord the payments claimed under the rental contracts paid into the registry of the court as said payments are made; provided, however, that, if the tenant claims that he or she is entitled to all or any part of the funds and such claim is an issue of controversy in the litigation, the court shall order the clerk to pay to the landlord without delay only that portion of the funds to which the tenant has made no claim in the proceedings or may make such other order as is appropriate under the circumstances. That part of the funds which is a matter of controversy in the litigation shall remain in the registry of the court until a determination of the issues by the trial court. If either party appeals the decision of the trial court, that part of the funds equal to any sums found by the trial court to be due from the landlord to the tenant shall remain in the registry of the court until a final determination of the issues. The court shall order the clerk to pay to the landlord without delay the remaining funds in court and all payments of future rent made into court pursuant to paragraph (1) of subsection (a) of this Code section unless the tenant can show good cause that some or all of such payments should remain in court pending a final determination of the issues.

    (Code 1933, § 61-304, enacted by Ga. L. 1970, p. 968, § 3; Ga. L. 1982, p. 3, § 44; Ga. L. 1982, p. 1134, § 2; Ga. L. 1983, p. 513, § 1; Ga. L. 1988, p. 923, § 2; Ga. L. 1998, p. 1380, § 2.)

JUDICIAL DECISIONS

Rent means money. - General Assembly in giving tenants the right to remain in possession during the pendency of a dispossessory proceeding by tendering the payment of rent into court intended "rent" to mean "money." Lipshutz v. Shantha, 144 Ga. App. 196 , 240 S.E.2d 738 (1977).

Repair receipts as rent. - While valid receipts for repairs are a defense to the merits of a dispossessory action, repair receipts do not constitute payment of rent within the contemplation of this statute. Lipshutz v. Shantha, 144 Ga. App. 196 , 240 S.E.2d 738 (1977) (see O.C.G.A. § 44-7-54 ).

Order of court. - No bond or payment of rent need accompany the defendant's answer, although the alleged tenant may be required to pay rent into the registry of the court by order of the court. Cloud v. Groves, 135 Ga. App. 50 , 217 S.E.2d 381 (1975).

Removal to federal court. - Even though Georgia courts have held that dispossessory actions were not civil actions, a dispossessory action filed by the Federal Home Loan Mortgage Corporation was properly removed to federal court under a Weems analysis since: (1) dispossessory actions were tried before a magistrate court, which was a regular judicial tribunal and required notice and service; (2) a dispossessory action was comparable to a civil trial if the tenant answered under O.C.G.A. § 44-7-53(b) : and (3) rent was an issue of pecuniary value in a dispossessory action under O.C.G.A. §§ 44-7-52(a) , 44-7-53(b) , and 44-7-54 . Fed. Home Loan Mortg. Corp. v. Matassino, 911 F. Supp. 2d 1276 (N.D. Ga. 2012).

Tenant in possession pending litigation. - Tenant may be allowed to remain in possession of the premises pending the final outcome of the litigation provided that at the time of the tenant's answer the tenant pays rent into the registry of the court. Marshall v. U.S. Mgt. Corp., 149 Ga. App. 141 , 253 S.E.2d 818 (1979).

After the magistrate court ruled against the tenant and the tenant appealed the decision to the superior court and, without order, paid all rent due into the registry of that court, the tenant was entitled, under the provisions of O.C.G.A. §§ 44-7-54 and 44-7-56 , to remain in possession of the premises until the litigation was concluded. Green v. Barton, 237 Ga. App. 553 , 515 S.E.2d 864 (1999).

Under O.C.G.A. § 9-11-60(h) , the law of the case had been abolished and did not bind the trial court to the court's interim ruling ordering the wife of a mortgagor to pay rent into the registry of the court pursuant to O.C.G.A. § 44-7-54(a)(1) during a continuance of the lender's dispossessory action. Harper v. JP Morgan Chase Bank Nat'l Ass'n, 305 Ga. App. 536 , 699 S.E.2d 854 (2010).

Answer not conditioned on payment. - Filing of a bond or payment of rent into court is not a condition precedent to filing an answer and counterclaim. McKisic v. College Park Hous. Auth., 134 Ga. App. 813 , 216 S.E.2d 369 (1975).

Effect of failure to pay into registry. - If a tenant fails to pay into court the rent and failed to post supersedeas bond as required by the order of a lower court, the court properly entered an order giving landlords immediate possession. Mitchell v. Excelsior Sales & Imports, Inc., 243 Ga. 813 , 256 S.E.2d 785 (1979); Mitcham v. Reese, 190 Ga. App. 689 , 379 S.E.2d 637 (1989).

Generally, a tenant's failure to pay into the registry determines only the tenant's right to remain on the premises pending determination of the other issues. Leverette v. Moran, 153 Ga. App. 825 , 266 S.E.2d 574 (1980).

While the trial court, in dispossessory proceedings, did not err in awarding possession to the landlord upon the tenants' failure to make a payment of purported arrearages into the registry of the court, the court did err in dismissing the tenants' counterclaim, which the tenants had an unqualified right to submit. Moran v. Mid-State Homes, Inc., 171 Ga. App. 618 , 320 S.E.2d 625 (1984).

There was no error in granting a writ of possession to a landlord in an action between the landlord and tenant over a disputed lease with an option to purchase since the tenant had been ordered to make the lease payments into the court registry and the tenant had defaulted on making two timely payments, pursuant to O.C.G.A. § 44-7-54(b) . Burnett v. Reeves, 258 Ga. App. 846 , 575 S.E.2d 747 (2002).

Tenant, who was sued by a landlord and was making the tenant's rental payments to the court, breached a commercial lease when the tenant failed to pay the full amount of an additional payment that was due at the end of the year, and the appellate court held that the trial court was required, pursuant to O.C.G.A. § 44-7-54(b) , to grant the landlord's request for a writ of possession while the case was still pending because the tenant breached the lease. Vinings Jubilee Partners, Ltd. v. Vinings Dining, Inc., 266 Ga. App. 34 , 596 S.E.2d 209 (2004).

Money judgment improper. - Nothing in § 44-7-53 or this section provides for, or was consistent with, the entry of a money judgment against the defendant upon the defendant's failure to pay rent into the registry of the court. Jelks v. World of Realty, Inc., 153 Ga. App. 720 , 266 S.E.2d 357 (1980).

Lessee estopped from denying existence of valid contract. - Defendant lessee was estopped, given the lessee's prior representations, from denying the existence of a valid contract with the plaintiff lessor and that the rent money the lessee paid into the court's registry was a matter of controversy for purposes of O.C.G.A. § 44-7-54(c) . The lessee's obligation to pay rent existed wholly apart from any right to damages arising from the lessor's alleged breach. McDonald Georgia Commerce Ctr. 400, LLC v. F & C Logistics, Inc., F. Supp. 2d (S.D. Ga. Feb. 19, 2013).

No payment to landlord of sums received. - Court declined to order payment to a landlord of any of the sums received from the defendants, a tenant and the tenant's parent company, under O.C.G.A. § 44-7-54(c) , because all of the sums the landlord requested were in controversy because the defendants asserted counterclaims for breach of contract and fraud against the landlord for allegedly failing to deliver on promises of railroad access for the property in question and, as a result of the alleged breach, the defendants denied that the defendants owed the landlord rent for two months. McDonald Ga. Commerce Ctr. 400, LLC v. F & C Logistics, Inc., F. Supp. 2d (S.D. Ga. Jan. 2, 2013).

Effect of interim order on terms of lease. - Trial court's interim order, which required payment of rent into the registry of the court on the first business day of each month, did not materially alter the terms of the lease, which specified that the tenant would not be considered in default of the tenant's obligation to pay rent until 30 days after receiving notice that rent was past due. The lease provision in question clearly did not extend the date on which rent was to be considered due but merely qualified the landlord's right to institute dispossessory proceedings against the tenant based on a failure to pay rent. Diplomat Restaurant, Inc. v. Anthony, 180 Ga. App. 431 , 349 S.E.2d 284 (1986).

Payment to court required. - O.C.G.A. § 44-7-54(a) required the defendants, a tenant and the tenant's parent company, to pay to the court all rent and utility payments payable to the landlord under terms of the lease allegedly owed prior to the issuance of the dispossessory warrant because more than two weeks had passed since the date of service, and the court had not decided yet the right of possession issue. McDonald Ga. Commerce Ctr. 400, LLC v. F & C Logistics, Inc., F. Supp. 2d (S.D. Ga. Jan. 2, 2013).

Final judgment. - Issuance of a writ of possession in a dispossessory action, based on a tenant's failure to comply with the terms of an interim order requiring the payment of rent into the registry of the court, constitutes a final judgment in the case when no claim for damages remains to be tried. Diplomat Restaurant, Inc. v. Anthony, 180 Ga. App. 431 , 349 S.E.2d 284 (1986).

Appellate procedure. - Amount of rents in a dispossessory proceeding do not control the appellate procedure. Vlahos v. DeLong, 132 Ga. App. 722 , 209 S.E.2d 12 (1974).

Appellate court assumed evidence supported mortgagee's entitlement to deposited funds. - Mortgagee was entitled to funds deposited into a state court's registry pursuant to O.C.G.A. § 44-7-54(c) in a dispossessory proceeding because the mortgagors appealed the state court's ruling granting the mortgagee a writ of possession and failed to provide a transcript of the bench trial, requiring the appellate court to assume that the evidence presented supported the state court's decision. Mackey v. Fed. Nat'l Mortg., 294 Ga. App. 495 , 669 S.E.2d 397 (2008).

Cited in Sanks v. Georgia, 401 U.S. 144, 91 S. Ct. 593 , 27 L. Ed. 2 d 741 (1971); Brown v. Hemperley, 125 Ga. App. 828 , 189 S.E.2d 131 (1972); Browning v. F.E. Fortenberry & Sons, 131 Ga. App. 498 , 206 S.E.2d 101 (1974); Lopez v. Dlearo, 232 Ga. 339 , 206 S.E.2d 454 (1974); First Fed. Sav. & Loan Ass'n v. Shepherd, 131 Ga. App. 692 , 206 S.E.2d 571 (1974); Mountain Hardwoods & Pine, Inc. v. Coosa River Sawmill Co., 233 Ga. 414 , 211 S.E.2d 712 (1975); Seagraves v. Mount Zion Village, Inc., 134 Ga. App. 719 , 215 S.E.2d 688 (1975); Minit Chek Food Stores, Inc. v. Plaza Capital, Inc., 135 Ga. App. 110 , 217 S.E.2d 415 (1975); Golden Key Restaurant & Lounge, Inc. v. Key Mgt. Corp., 137 Ga. App. 251 , 223 S.E.2d 284 (1976); Smith v. Hudgens, 140 Ga. App. 562 , 231 S.E.2d 530 (1976); Powers v. Simmerson, 142 Ga. App. 335 , 235 S.E.2d 769 (1977); Filsoof v. Chatham, 144 Ga. App. 464 , 241 S.E.2d 582 (1978); Lamb v. Housing Auth., 146 Ga. App. 786 , 247 S.E.2d 597 (1978); Howington v. W.H. Ferguson & Sons, 147 Ga. App. 636 , 249 S.E.2d 687 (1978); Mathews v. Fidelcor Mtg. Corp., 148 Ga. App. 292 , 251 S.E.2d 68 (1978); Yeomans v. American Nat'l Ins. Co., 150 Ga. App. 334 , 258 S.E.2d 1 (1979); Johnson v. Gwinnett County Bank, 156 Ga. App. 597 , 275 S.E.2d 157 (1980); Peter E. Blum & Co. v. First Bank Bldg. Corp., 156 Ga. App. 680 , 275 S.E.2d 751 (1980); Community Educ. Ctr., Inc. v. Cohen, 158 Ga. App. 456 , 280 S.E.2d 839 (1981); Officenters Int'l Corp. v. Interstate N. Assocs., 166 Ga. App. 93 , 303 S.E.2d 292 (1983); Cheeves v. Horne, 167 Ga. App. 786 , 307 S.E.2d 687 (1983); Hall v. VNB Mtg. Corp., 170 Ga. App. 867 , 318 S.E.2d 674 (1984); Carter v. Landel/Arundel, Inc., 172 Ga. App. 115 , 322 S.E.2d 108 (1984); Baker v. G.T., Ltd., 194 Ga. App. 450 , 391 S.E.2d 1 (1990); Kelley v. Daugherty, 201 Ga. App. 291 , 410 S.E.2d 759 (1991); T.J. Brooklyne, Inc. v. Sullivan 75, L.P., 239 Ga. App. 588 , 521 S.E.2d 644 (1999).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 956.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1361 et seq.

ALR. - Liability for rent accruing after landlord's institution of action or proceedings against tenant to recover possession, 93 A.L.R. 1474 .

44-7-55. Judgment; writ of possession; landlord's liability for wrongful conduct; distribution of funds paid into court; personal property.

  1. If, on the trial of the case, the judgment is against the tenant, judgment shall be entered against the tenant for all rents due and for any other claim relating to the dispute. The court shall issue a writ of possession, both of execution for the judgment amount and a writ to be effective at the expiration of seven days after the date such judgment was entered, except as otherwise provided in Code Section 44-7-56.
  2. If the judgment is for the tenant, he shall be entitled to remain in the premises and the landlord shall be liable for all foreseeable damages shown to have been caused by his wrongful conduct. Any funds remaining in the registry of the court shall be distributed to the parties in accordance with the judgment of the court.
  3. Any writ of possession issued pursuant to this article shall authorize the removal of the tenant or his or her personal property or both from the premises and permit the placement of such personal property on some portion of the landlord's property or on other property as may be designated by the landlord and as may be approved by the executing officer; provided, however, that the landlord shall not be a bailee of such personal property and shall owe no duty to the tenant regarding such personal property. After execution of the writ, such property shall be regarded as abandoned.
  4. Subject to subsection (a) of this Code section and Code Section 44-7-59, applications for execution of a writ of possession shall be made within 30 days of issuance of the writ of possession unless such application for said writ is accompanied by an affidavit showing good cause for the delay in applying for execution of the writ. The failure to execute a writ in conformity with this Code section shall require the applicant to apply for a new writ.
  5. Nothing in this Code section shall require a sheriff, constable, or marshal to execute a writ of possession within 30 days from the issuance of any order granting a writ of possession, or the issuance, application, or request for the execution of the writ of possession.

    (Code 1933, § 61-305, enacted by Ga. L. 1970, p. 968, § 4; Ga. L. 1994, p. 1150, § 2; Ga. L. 1998, p. 1380, § 3; Ga. L. 2004, p. 151, § 1; Ga. L. 2019, p. 682, § 2/HB 492.)

The 2019 amendment, effective July 1, 2019, added subsections (d) and (e).

Law reviews. - For article, "2019 Legislative Review," see 24 Ga. St. B.J. 28 (June 2019).

JUDICIAL DECISIONS

Constitutionality of former section, see Rush v. Southern Property Mgt., Inc., 121 Ga. App. 360 , 173 S.E.2d 744 (1970).

Construction of subsection (c). - While O.C.G.A. § 44-7-55(c) provides that the landlord shall not be a bailee and shall owe no duty to the tenant with regard to the tenant's personal property, a Georgia appellate court interprets that provision as being contingent upon the landlord first placing the tenant's property on some portion of the landlord's property or on other specific property designated by the landlord and approved by the executing officer. Washington v. Harrison, 299 Ga. App. 335 , 682 S.E.2d 679 (2009), cert. denied, No. S09C2052, 2010 Ga. LEXIS 45 (Ga. 2010).

Collection of notes for back lease payments and associated costs may be tried with dispossessory action. - When corporate tenant executed a demand promissory note to landlord for attorney fees paid by landlord for collecting rent due prior to the date thereof, later executed another demand promissory note to landlord to defer lease payments for the months of June through September, and subsequently defaulted on its lease payments to landlord and also defaulted on its payments on the demand notes, since the promissory notes were clearly claims "relating to the dispute" between the parties, the trial court erred in ruling that the collection of the notes could not be tried with the dispossessory action, and the trial court also erred in excluding the notes and letters demanding payment thereof from evidence. Twin Tower Joint Venture v. American Mktg. & Communications Corp., 166 Ga. App. 364 , 304 S.E.2d 493 (1983).

Authority of magistrate in dispossessory action. - Magistrate had the power to enter a judgment in a dispossessory action directing the landlord to perform repairs to the tenant's apartment; thus, the landlord's argument that the magistrate lacked subject matter jurisdiction to enter such an order was rejected. H. J. Russell & Co. v. Manuel, 264 Ga. App. 273 , 590 S.E.2d 250 (2003).

Improper disposal of personal property. - Trial court properly found a couple liable for converting personal property belonging to an owner with whom the couple were involved in a dispute over certain real property since the couple wrongfully had a salvage company dispose of the personal property instead of complying with O.C.G.A. § 44-7-55(c) by placing the property at the front of the lot. However, the damages award of $192,487.13 in favor of the owner was vacated as the owner's opinion testimony as to the value of the owner's property was insufficient for valuation purposes. Washington v. Harrison, 299 Ga. App. 335 , 682 S.E.2d 679 (2009), cert. denied, No. S09C2052, 2010 Ga. LEXIS 45 (Ga. 2010).

Trial court erred in dismissing the complaint for failure to state a claim as the complaint alleged facts sufficient to establish the framework for the grant of relief after the mortgagor alleged that the bank's agents destroyed or stole the former owner's personal property, thereby failing to follow the statutory procedure. Cleveland v. MidFirst Bank, 335 Ga. App. 465 , 781 S.E.2d 577 (2016).

No independent legal duty imposed upon independent contractors. - Trial court correctly granted limited liability companies (LLC) summary judgment on the mortgagors' wrongful eviction and trespass claims given the absence of an independent legal duty imposed upon the companies; because a mortgagee was the legal title holder of foreclosed property, the duty to comply with the statutory dispossessory procedures provided in O.C.G.A. § 44-7-50 et seq. was imposed upon the mortgagee and could not be delegated to a third party, and since there was no evidence that the mortgagee ever sought to accomplish the mortgagee's statutory duties through an agent by contracting with either company to file a dispossessory action against the mortgagors on the mortgagee's behalf. The independent contractors had no separate legal duty to file a dispossessory action and then comply with the statutory procedures. Ikomoni v. Exec. Asset Mgmt., LLC, 309 Ga. App. 81 , 709 S.E.2d 282 (2011).

Writ upheld. - Appellate court upheld the trial court's grant to a landowner of a writ of possession against the commercial tenants as there was evidence that supported the finding that the landowner had given adequate and repeated notices to the tenants, and any possible risks to the tenants' patients was caused by their own delays in responding to the landowner's notice and proposed extensions of the lease term; no proof that the landowner breached a non-compete covenant in the lease was offered, and the trial court's determination that the tenants failed to show misconduct by the landowner was supported by the evidence. Davita, Inc. v. Othman, 270 Ga. App. 93 , 606 S.E.2d 112 (2004).

Tenant's tort claims barred. - When an eviction was carried out under a writ of possession, in compliance with statutory requirements, the writ was lawful until the writ was vacated, and an eviction that occurred before the writ was vacated was not wrongful. The landlord complied with O.C.G.A. § 44-7-55(c) by placing the tenant's property on the driveway of the home for 24 hours. Fennelly v. Lyons, 333 Ga. App. 96 , 775 S.E.2d 587 (2015).

Cited in Sanks v. Georgia, 401 U.S. 144, 91 S. Ct. 593 , 27 L. Ed. 2 d 741 (1971); Blocker v. Blackburn, 228 Ga. 285 , 185 S.E.2d 56 (1971); Browning v. F.E. Fortenberry & Sons, 131 Ga. App. 498 , 206 S.E.2d 101 (1974); Lopez v. Dlearo, 232 Ga. 339 , 206 S.E.2d 454 (1974); First Fed. Sav. & Loan Ass'n v. Shepherd, 131 Ga. App. 692 , 206 S.E.2d 571 (1974); Vlahos v. DeLong, 132 Ga. App. 722 , 209 S.E.2d 12 (1974); Burger King Corp. v. Garrick, 149 Ga. App. 186 , 253 S.E.2d 852 (1979); Lantz v. White, 152 Ga. App. 389 , 262 S.E.2d 640 (1979); Leverette v. Moran, 153 Ga. App. 825 , 266 S.E.2d 574 (1980); Housing Auth. v. Hudson, 250 Ga. 109 , 296 S.E.2d 558 (1982); America Net, Inc. v. U.S. Cover, Inc., 243 Ga. App. 204 , 532 S.E.2d 756 (2000).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 960.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1392.

ALR. - Liability for damage to person or goods during execution of eviction process, 56 A.L.R. 1039 .

Measure of damages for tenant's failure to surrender possession of rented premises, 32 A.L.R.2d 582.

Right of landlord legally entitled to possession to dispossess tenant without legal process, 6 A.L.R.3d 177.

Landlord and tenant: respective rights in excess rent when landlord relets at higher rent during lessee's term, 50 A.L.R.4th 403.

44-7-56. Appeal; possession and payment of rent pending appeal.

Any judgment by the trial court shall be appealable pursuant to Chapters 2, 3, 6, and 7 of Title 5, provided that any such appeal shall be filed within seven days of the date such judgment was entered and provided, further, that, after the notice of appeal is filed with the clerk of the trial court, the clerk shall immediately notify the trial judge of the notice of appeal and the trial judge may, within 15 days, supplement the record with findings of fact and conclusions of law which will be considered as a part of the order of the judge in that case. If the judgment of the trial court is against the tenant and the tenant appeals this judgment, the tenant shall be required to pay into the registry of the court all sums found by the trial court to be due for rent in order to remain in possession of the premises. The tenant shall also be required to pay all future rent as it becomes due into the registry of the trial court pursuant to paragraph (1) of subsection (a) of Code Section 44-7-54 until the issue has been finally determined on appeal.

(Code 1933, § 61-306, enacted by Ga. L. 1970, p. 968, § 5; Ga. L. 1984, p. 859, § 1; Ga. L. 1985, p. 149, § 44; Ga. L. 1994, p. 1150, § 3; Ga. L. 1998, p. 1380, § 4; Ga. L. 2006, p. 656, § 1.3/HB 1273.)

Law reviews. - For annual survey of appellate practice and procedure, see 43 Mercer L. Rev. 73 (1991). For annual survey of trial practice and procedure, see 58 Mercer L. Rev. 405 (2006).

JUDICIAL DECISIONS

Effect of failure to pay rent or bond. - After a tenant failed to pay into court the rent and failed to post supersedeas bond as required by the order of a lower court, the court properly entered an order giving landlords immediate possession. Mitchell v. Excelsior Sales & Imports, Inc., 243 Ga. 813 , 256 S.E.2d 785 (1979).

Payment of rent into registry required. - When the plaintiff filed a dispossessory warrant, judgment was entered against the defendants, and the defendants appealed, the trial court did not err in requiring the defendants to pay rent into the registry of the court as a condition of the defendants remaining on the premises. Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592 , 409 S.E.2d 71 , cert. denied, 200 Ga. App. 897 , 409 S.E.2d 71 (1991).

Pending an appeal, the trial court may require payment of rent into the registry of the court, even if the relationship as tenants at sufferance has not been decided by the court. Bellamy v. FDIC, 236 Ga. App. 747 , 512 S.E.2d 671 (1999).

Unless the landlord moves the court to require payment of rent into the registry of the court, the tenant could remain in possession without such payment, pending appeal. Green v. Barton, 237 Ga. App. 553 , 515 S.E.2d 864 (1999).

When the magistrate court ruled against the tenant and the tenant appealed the decision to the superior court and, without order, paid all rent due into the registry of that court, the tenant was entitled, under the provisions of O.C.G.A. §§ 44-7-54 and 44-7-56 , to remain in possession of the premises until the litigation was concluded. Green v. Barton, 237 Ga. App. 553 , 515 S.E.2d 864 (1999).

In a dispossessory action brought by the buyer at a foreclosure sale against the occupant of the property that had been foreclosed upon, the occupant could not assert the alleged invalidity of the foreclosure sale as a defense. Thus, the court affirmed the order requiring the occupant to pay rent into court pending the occupant's appeal. Jackman v. Lasalle Bank, N.A., 299 Ga. App. 894 , 683 S.E.2d 925 (2009).

Trial findings not entered absent request. - Requirement that notice of appeal be sent from the clerk to the trial judge does not impose a burden on the judge, when notice is not sent, to enter findings and conclusions in the absence of a request by one of the parties. Such entry is permissive, not mandatory. Poor v. Leader Fed. Bank for Savs., 221 Ga. App. 889 , 473 S.E.2d 563 (1996).

In a dispossessory proceeding, as the mortgagors did not request the state court to enter findings of fact and conclusions of law until after a ruling had been entered, the state court was not required to include that information pursuant to O.C.G.A. § 9-11-52(a) as to each of the mortgagors' defenses and counterclaims; O.C.G.A. § 44-7-56 , which provided a mechanism for trial courts to enter findings of fact and conclusions of law in dispossessory cases being appealed, was permissive, not mandatory. Mackey v. Fed. Nat'l Mortg., 294 Ga. App. 495 , 669 S.E.2d 397 (2008).

Appellate procedure. - Amount of rents in a dispossessory proceeding do not control the appellate procedure. Vlahos v. DeLong, 132 Ga. App. 722 , 209 S.E.2d 12 (1974).

O.C.G.A. § 44-7-56 does not provide any special right of direct appeal, rather that section expressly makes any appeal taken in regard to dispossessory proceedings subject to the provisions of "Chapters 2, 3, 6, and 7 of Title 5" as applicable. Whiddon v. Stargell, 192 Ga. App. 826 , 386 S.E.2d 884 (1989).

O.C.G.A. § 44-7-56 applied to require dismissal of an appeal based on untimely notice because, even though an arbitration award settled the dispute, the action was begun as a dispossessory proceeding. Ray M. Wright, Inc. v. Jones, 239 Ga. App. 521 , 521 S.E.2d 456 (1999).

Seven-day time limitation of O.C.G.A. § 44-7-56 for filing an appeal did not apply when in an action begun as a dispossessory proceeding, the issue of possession was resolved by agreement and the payment of rent into court was suspended, leaving only the issues of unpaid rent and breach of the lease contract. America Net, Inc. v. U.S. Cover, Inc., 243 Ga. App. 204 , 532 S.E.2d 756 (2000).

After trial court had initially granted partial summary judgment to a landlord, upholding the landlord's position that the tenant was not entitled to a credit for reconditioning expenses, but the court reserved ruling on whether a writ of possession should be granted, and after the tenant appealed that judgment pursuant to O.C.G.A. § 9-11-56(h) but the court dismissed that appeal for failure to comply with O.C.G.A. § 44-7-56 , the landlord's subsequent appeal from the final order granting a writ of possession to the landlord was dismissed to the extent that the appeal sought to relitigate the identical issues that the tenant attempted to litigate in the first appeal under O.C.G.A. § 9-11-56(h) , and the prior appellate ruling was binding on the court under the law of the case rule, O.C.G.A. § 9-11-60(h) . Eckerd Corp. v. Alterman Real Estate, Ltd., 266 Ga. App. 860 , 598 S.E.2d 510 (2004).

Similar to a postjudgment order requiring the posting of a supersedeas bond, a postjudgment order requiring the payment of rent pending appeal under O.C.G.A. § 44-7-56 is subject to direct appeal, as there is nothing left to be decided in the trial court. Owens v. Green Tree Servicing LLC, 300 Ga. App. 22 , 684 S.E.2d 99 (2009).

Time limitations. - Trial court erred in denying the landlord's motion for a new trial as the landlord filed the motion within 30 days of the dismissal of the complaint pursuant to O.C.G.A. § 5-5-40(a) . SBP Mgmt., LLC v. Price, 277 Ga. App. 130 , 625 S.E.2d 523 (2006).

Cited in Sanks v. Georgia, 401 U.S. 144, 91 S. Ct. 593 , 27 L. Ed. 2 d 741 (1971); Lopez v. Dlearo, 232 Ga. 339 , 206 S.E.2d 454 (1974); Howington v. W.H. Ferguson & Sons, 147 Ga. App. 636 , 249 S.E.2d 687 (1978); Jeffries v. Georgia Residential Fin. Auth., 503 F. Supp. 610 (N.D. Ga. 1980); Skelton v. Hill Aircraft & Leasing Corp., 180 Ga. App. 814 , 351 S.E.2d 98 (1986); Browning v. Federal Home Loan Mtg. Corp., 210 Ga. App. 115 , 435 S.E.2d 450 (1993); Lewis v. Countrywide Funding Corp., 225 Ga. App. 440 , 484 S.E.2d 66 (1997).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 960.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1399 et seq.

44-7-57. Application of article to croppers and servants.

This article shall apply to croppers and servants who continue to hold possession of lands and tenements after their employment as croppers or servants has terminated and in the same manner as it relates to tenants.

(Code 1933, § 61-308, enacted by Ga. L. 1941, p. 319, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 960.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1381.

ALR. - Benefit to landlord from sowing of crops or other acts of tenant after his wrongful failure to surrender possession as basis of claim or allowance against landlord or one claiming under him, 113 A.L.R. 1059 .

44-7-58. False statements in affidavit or answer; penalty.

Anyone who, under oath or affirmation, knowingly and willingly makes a false statement in an affidavit signed pursuant to Code Section 44-7-50 or in an answer filed pursuant to Code Section 44-7-51 shall be guilty of a misdemeanor.

(Code 1933, § 61-9905, enacted by Ga. L. 1976, p. 1372, § 7.)

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, § 79 et seq.

C.J.S. - 53 C.J.S., Liens, §§ 46, 50.

44-7-59. Removal of transportable housing from lands subject to writ of possession.

If the court issues a writ of possession to property upon which the tenant has placed a manufactured home, mobile home, trailer, or other type of transportable housing and the tenant does not move the same within ten days after a final order is entered, the landlord shall be entitled to have such transportable housing moved from the property at the expense of the tenant by a motor common carrier licensed by the Department of Public Safety for the transportation of manufactured housing. There shall be a lien upon such transportable housing to the extent of moving fees and storage expenses in favor of the person performing such services. Such lien may be claimed and foreclosed in the same manner as special liens on personalty by mechanics under Code Sections 44-14-363 and 44-14-550, except that storage fees not to exceed $4.00 per day shall be expressly allowed.

(Code 1981, § 44-7-59 , enacted by Ga. L. 1987, p. 842, § 1; Ga. L. 2012, p. 580, § 13/HB 865.)

The 2012 amendment, effective July 1, 2012, substituted "Department of Public Safety" for "Public Service Commission" near the end of the first sentence.

JUDICIAL DECISIONS

Cited in Coweta County Impound & Storage, Inc. v. Security Pacific Fin. Servs., 216 Ga. App. 664 , 455 S.E.2d 370 (1995); GMC Group, Inc. v. Harsco Corp., 293 Ga. App. 707 , 667 S.E.2d 916 (2008).

ARTICLE 4 DISTRESS WARRANTS

Law reviews. - For comment discussing due process problems with Georgia's distress warrant proceedings prior to the adoption of the 1975 Acts, see 9 Ga. St. B.J. 336 (1973).

JUDICIAL DECISIONS

Remedy strictly construed. - Remedy of distraint is purely a creature of statute, and is subject to strict rules of construction. D. Jack Davis Corp. v. Karp, 175 Ga. App. 482 , 333 S.E.2d 685 (1985).

Contracting to avoid statutory requirements. - Landlord may not avoid in any lease "for the use or rental of real property as a dwelling place" any of the requirements set forth in former Code 1933, § 61-401 et seq. (see O.C.G.A. Art. 4, Ch. 7, T. 44); however, a landlord may contract to avoid these statutory requirements when renting property which was not to be used as a dwelling place. Colonial Self Storage of S.E., Inc. v. Concord Properties, Inc., 147 Ga. App. 493 , 249 S.E.2d 310 (1978); Wilkerson v. Chattahoochee Parks, 244 Ga. 472 , 260 S.E.2d 867 (1979).

Cited in Chatham v. World Arts & Crafts Ctr., Inc., 147 Ga. App. 421 , 249 S.E.2d 139 (1978).

RESEARCH REFERENCES

ALR. - Subject matter covered by landlord's statutory lien for rent, 9 A.L.R. 300 ; 96 A.L.R. 249 .

Goods owned by stranger or subject to an encumbrance in his favor as subject to distraint for rent, 62 A.L.R. 1106 .

44-7-70. Power of landlord to distrain for rent.

The landlord shall have power to distrain for rent as soon as the same is due if the tenant is seeking to remove his property from the premises.

(Laws 1811, Cobb's 1851 Digest, p. 901; Code 1863, § 2267; Code 1868, § 2259; Code 1873, § 2285; Code 1882, § 2285; Civil Code 1895, § 3124; Civil Code 1910, § 3700; Code 1933, § 61-401; Ga. L. 1975, p. 1514, § 2.)

JUDICIAL DECISIONS

Contents of affidavit. - Former Code 1933, § 61-402 (see O.C.G.A. § 44-7-71 ) did not require that the affidavit used in applying for a distress warrant aver both nonpayment of rent and removal of goods from the premises; this construction avoids a conflict between former Code 1933, §§ 61-401 and 61-402 (see O.C.G.A. §§ 44-7-70 and 44-7-71 ) was in keeping with the historical role of the distress warrant, and permits both sections to be read in accordance with their plain meaning. Cobb v. McCrary, 152 Ga. App. 212 , 262 S.E.2d 538 (1979).

Strict construction. - Law governing proceedings for distraint for rent must be strictly construed. Williams v. Stancil, 119 Ga. App. 800 , 168 S.E.2d 643 (1969).

Tenancy required. - Relationship of landlord and tenant, either by express contract or by legal implication, is an essential basis of a distress warrant. Hearn v. Huff, 6 Ga. App. 56 , 64 S.E. 298 (1909).

Landlord relationship a prerequisite. - Existence of the relationship of landlord and cropper is a prerequisite to enforcing such a lien. South Cent. Farm Credit v. V.T. Properties, Inc., 208 Ga. App. 296 , 430 S.E.2d 645 (1993).

Equitable estoppel. - Although the doctrine of equitable estoppel cannot create or convey title, the doctrine may be used to establish the existence of a landlord-tenant relationship. Touch Indus., Inc. v. 75 Canton Bus. Park Ltd. Partnership, 202 Ga. App. 548 , 415 S.E.2d 40 (1992).

Tenant at sufferance is liable for the reasonable rental value of the premises, and may be distrained for rent. Bible v. Allday, 93 Ga. App. 231 , 91 S.E.2d 306 (1956).

Liability of subtenant to tenant. - One who rents land and sublets the land to a third person stands in the relation of landlord to the subtenant and may have a distress warrant for the landlord's rent. Harrison v. Guill, 46 Ga. 427 (1872).

Effect of subletting. - Landlord has the right to sue out a distress warrant against a tenant for rent due and unpaid, although the landlord may have permitted another party to use and occupy the premises. Willingham v. Faircloth, 52 Ga. 126 (1874).

Rent payable in specifics. - Landlord may collect the landlord's rent by a distress warrant, even though the rent be payable in specifics, the value of which is not fixed by the contract. Toler v. Seabrook, 39 Ga. 14 (1869).

Intent of agricultural tenant as to crops. - Intent and purpose of an agricultural tenant in removing crops grown on the rented premises is immaterial. Wheeler v. Mote, 37 Ga. App. 547 , 140 S.E. 904 (1927).

Demand of payment. - Landlord may distrain for rent without any previous demand for payment from tenant or without the allegation thereof in affidavit. Buffington v. Hilley, 55 Ga. 655 (1876); Hill v. Reeves, 57 Ga. 31 (1876); McDougal v. Sanders, 75 Ga. 140 (1885).

Merchant selling goods. - Merchant may sell and dispose of a considerable amount of the merchant's stock, including all of a certain class, at a reduced rate and with the intention of not replacing these goods, even though the value of the stock is thereby greatly reduced, without being subject to a distress for rent under the part of this statute relative to tenants seeking to remove their goods from the premises. Estill v. Savannah Bank & Trust Co., 138 Ga. 607 , 75 S.E. 659 (1912) (see O.C.G.A. § 44-7-71 ).

Cited in Davis v. State, 147 Ga. App. 107 , 248 S.E.2d 181 (1978); D. Jack Davis Corp. v. Karp, 175 Ga. App. 482 , 333 S.E.2d 685 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 591.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1275 et seq.

ALR. - Landlord's lien or right of distress on property sold to tenant on conditional sale, 45 A.L.R. 949 .

Validity and effect of acceleration clause in lease or bailment, 58 A.L.R. 300 ; 128 A.L.R. 750 .

Right of distraint for taxes which tenant has agreed to pay, 88 A.L.R. 884 .

Doctrine of breach by anticipatory repudiation of contract as applicable to lease, 137 A.L.R. 432 .

Landlord's remedy by way of distress or lien on defaulting tenant's property on leased premises as including right to collect for all unpaid utility expenses, 99 A.L.R.3d 1100.

44-7-71. Application for distress warrant.

When rent is due or the tenant is seeking to remove his property, the landlord, his agent, his attorney in fact, or his attorney at law may, upon a statement of the facts under oath, apply for a distress warrant before the judge of the superior court, the state court, the civil court, or the magistrate court within the county where the tenant may reside or where his property may be found.

(Laws 1811, Cobb's 1851 Digest, p. 900; Code 1863, §§ 4011, 5101, 5102; Code 1868, § 4010; Ga. L. 1869, p. 14, § 1; Code 1873, § 4082; Ga. L. 1875, p. 23, § 1; Code 1882, § 4082; Civil Code 1895, § 4818; Civil Code 1910, § 5390; Code 1933, § 61-402; Ga. L. 1975, p. 1514, § 2; Ga. L. 1983, p. 884, § 3-29.)

JUDICIAL DECISIONS

Construction. - Statute is phrased in the disjunctive and must be so construed absent a clear indication that a disjunctive construction is contrary to the legislative intent. Cobb v. McCrary, 152 Ga. App. 212 , 262 S.E.2d 538 (1979) (see O.C.G.A. § 44-7-71 ).

Authority is conferred by statute. - Authority to issue dispossessory or distress warrants does not exist unless expressly conferred by statute. White v. Johnson, 151 Ga. App. 345 , 259 S.E.2d 731 (1979).

Contents of affidavit. - Former Code 1933, § 61-402 (see O.C.G.A. § 44-7-71 ) did not require that the affidavit used in applying for a distress warrant aver both nonpayment of rent and removal of goods from the premises; this construction avoided a conflict between former Code 1933, §§ 61-401 and 61-402 (see O.C.G.A. §§ 44-7-70 and 44-7-71 ), was in keeping with the historical role of the distress warrant, and permitted both sections to be read in accordance with the statutes' plain meaning. Cobb v. McCrary, 152 Ga. App. 212 , 262 S.E.2d 538 (1979).

Defective summons and affidavit. - If the summons and affidavit are defective, a trial court was not authorized to dismiss them for failure to state a claim upon which relief can be granted; the deficiency was in the nature of the defense of "insufficiency of process" as described in Ga. L. 1972, p. 689, §§ 4 and 5 (see O.C.G.A. § 9-11-12(b)(4)), and failure to raise this defense specifically in a defensive pleading waived the defense. White v. Johnson, 151 Ga. App. 345 , 259 S.E.2d 731 (1979).

Failure to verify affidavit. - Party's failure to have the affidavit provided for in this statute verified before a state court judge does not change the fact that a state court is empowered to issue a distress warrant. Cobb v. McCrary, 152 Ga. App. 212 , 262 S.E.2d 538 (1979) (see O.C.G.A. § 44-7-71 ).

Warrant issued by clerk. - If the clerk and deputy clerks have been granted the power to perform all purely ministerial duties which, under the laws of this state, are performable by a justice of the peace, a distress warrant issued by the clerk or deputy clerk is valid. White v. Johnson, 151 Ga. App. 345 , 259 S.E.2d 731 (1979).

Agents, attorneys-in-fact, or attorneys-at-law may proceed for and in behalf of landlords against tenants to collect rent past due or to recover possession of the premises. Jackson v. Oliphant, 88 Ga. App. 313 , 76 S.E.2d 625 (1953).

Demand unnecessary. - Landlord may distrain for rent without a previous demand and refusal to pay, and without the allegation thereof in the landlord's affidavit. Hill v. Reeves, 57 Ga. 31 (1876). See also Buffington v. Hilley, 55 Ga. 655 (1876); McDougal v. Sanders, 75 Ga. 140 (1885).

Amendment. - An affidavit for a distress warrant is amendable. Bryant v. Mercier, 82 Ga. 409 , 9 S.E. 166 (1889). See also Beach v. Averett, 106 Ga. 73 , 31 S.E. 806 (1898).

Time for answer. - Timely answer to an application for a distress warrant is made if the tenant files the tenant's answer before the date of a rescheduled hearing, regardless of the length of time between the date of service of the summons for the tenant to appear and the date of filing of the answer. Daniel v. Wells Oil Co., 205 Ga. App. 331 , 422 S.E.2d 55 (1992).

Rent on premises in another state. - One who has rent due one for premises which are in another state, or upon a contract of rental made in another state may proceed to collect one's rent by distress warrant in this state. Davis v. DeVaughn, 7 Ga. App. 324 , 66 S.E. 956 (1910).

Trustees of an unincorporated religious society, holding title in themselves to the society's real property, may bring a distress warrant for rent through their secretary and agent against a tenant in possession of the property who is holding over and beyond the tenant's term and who refuses to pay rent. Jackson v. Oliphant, 88 Ga. App. 313 , 76 S.E.2d 625 (1953).

Insane tenant. - When tenant was sane when rent contract was entered into and during period when rent accrued, fact that tenant was adjudged insane prior to the time the distress warrant was issued and had no guardian at that time would not render a distress warrant void. Miller v. West, 83 Ga. App. 297 , 63 S.E.2d 426 (1951).

Cited in D. Jack Davis Corp. v. Karp, 175 Ga. App. 482 , 333 S.E.2d 685 (1985).

OPINIONS OF THE ATTORNEY GENERAL

Magistrate court has jurisdiction to try cases and issue writs and judgments in dispossessory and distress warrant proceedings when the amount in controversy exceeds $3,000.00. 1988 Op. Att'y Gen. No. U88-18.

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 591.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1274.

ALR. - Landlord's remedy by way of distress or lien on defaulting tenant's property on leased premises as including right to collect for all unpaid utility expenses, 99 A.L.R.3d 1100.

44-7-72. Issuance of summons; service on defendant; time for hearing.

When the affidavit provided for in Code Section 44-7-71 is made, the judge of the superior court, the state court, the civil court, or the magistrate court before whom it was made shall grant and issue a summons to the marshal or the sheriff or his deputy of the county where the tenant resides or where his property may be found. A copy of the summons and the affidavit shall be personally served upon the defendant. If an officer is unable to serve the defendant personally, service may be given by delivering the summons and affidavit to any person who is sui juris residing on the premises. The summons served on the defendant pursuant to this Code section shall command and require the tenant to appear at a hearing on a day certain not less than five nor more than seven days from the date of actual service.

(Code 1933, § 61-403, enacted by Ga. L. 1975, p. 1514, § 2; Ga. L. 1982, p. 1134, § 3; Ga. L. 1983, p. 884, § 3-30.)

JUDICIAL DECISIONS

Authority conferred by statute. - Authority to issue dispossessory or distress warrants does not exist unless expressly conferred by statute. White v. Johnson, 151 Ga. App. 345 , 259 S.E.2d 731 (1979).

Defective summons and affidavit. - When the summons and affidavit are defective, a trial court was not authorized to dismiss them for failure to state a claim upon which relief can be granted; the deficiency was in the nature of the defense of "insufficiency of process" as described in Ga. L. 1972, p. 689, §§ 4 and 5 (see O.C.G.A. § 9-11-12(b)(4)), and failure to raise this defense specifically in a defensive pleading waived the defense. White v. Johnson, 151 Ga. App. 345 , 259 S.E.2d 731 (1979).

Warrant issued by clerk. - If the clerk and deputy clerks have been granted the power to perform all purely ministerial duties which, under the laws of this state, are performable by a justice of the peace, a distress warrant issued by the clerk or deputy clerk is valid. White v. Johnson, 151 Ga. App. 345 , 259 S.E.2d 731 (1979).

Time for answer. - Timely answer to an application for a distress warrant is made if the tenant filed the tenant's answer before the date of a rescheduled hearing, regardless of the length of time between the date of service of the summons for the tenant to appear and the date of filing of the answer. Daniel v. Wells Oil Co., 205 Ga. App. 331 , 422 S.E.2d 55 (1992).

Cited in Don Pepe, Inc. v. JMAPCO, Inc., 157 Ga. App. 216 , 276 S.E.2d 886 (1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 615 et seq.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1303.

44-7-73. When tender of payment by tenant serves as complete defense.

In an action for nonpayment of rent, the tenant shall be allowed to tender to the landlord, within seven days of the day the tenant was served with the summons pursuant to Code Section 44-7-72, all rents allegedly owed plus the cost of the distress warrant. Such a tender shall be a complete defense to the action.

(Code 1933, § 61-408, enacted by Ga. L. 1975, p. 1514, § 2.)

JUDICIAL DECISIONS

Cited in D. Jack Davis Corp. v. Karp, 175 Ga. App. 482 , 333 S.E.2d 685 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 596 et seq.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1301.

ALR. - Relief against forfeiture of lease for nonpayment of rent, 31 A.L.R.2d 321.

44-7-74. Answer; grant of distress warrant on failure to answer; trial; possession pending final outcome.

  1. At or before the time of the hearing, the defendant may answer in writing. The defendant may answer orally at the time of the hearing. If the answer is oral, the substance thereof shall be endorsed upon the affidavit. The answer may contain any legal or equitable defense or counterclaim.
  2. If the tenant fails to answer, the court shall grant a distress warrant; and the plaintiff shall be entitled to a verdict and judgment by default for all rents due as if every item and paragraph of the affidavit provided for in Code Section 44-7-71 were supported by proper evidence, which verdict shall be in open court or chambers and without the intervention of a jury.
  3. If the tenant answers, a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record except that if the action is tried in the magistrate court the trial shall be had in accordance with the procedures prescribed for that court. Every effort shall be made by the trial court to expedite a trial of the issues. The defendant shall be allowed to remain in possession of the premises and his property pending the final outcome of the litigation, provided that he complies with Code Section 44-7-75.

    (Ga. L. 1920, p. 147, § 1; Code 1933, § 61-406; Code 1933, § 61-404, enacted by Ga. L. 1975, p. 1514, § 2; Ga. L. 1982, p. 3, § 44; Ga. L. 1983, p. 884, § 3-30.1.)

JUDICIAL DECISIONS

Time for answer. - Timely answer to an application for a distress warrant is made if the tenant files the tenant's answer before the date of a rescheduled hearing, regardless of the length of time between the date of service of the summons for the tenant to appear and the date of filing of the answer. Daniel v. Wells Oil Co., 205 Ga. App. 331 , 422 S.E.2d 55 (1992).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 615 et seq.

C.J.S. - 52A C.J.S., Landlord and Tenant, §§ 1301, 1305 et seq.

44-7-75. Payment of rent into court; transfer and possession of property pending trial; seizure; disposition of funds.

  1. At the time the tenant answers, the tenant shall pay into the registry of the trial court all rent admittedly owed prior to the issuance of the summons; provided, however, that, in lieu of such payment, the tenant shall be allowed to submit to the court a receipt indicating that the payment has been made to the landlord. In the event that the amount of rent is in controversy, the court shall determine the amount of rent to be paid into court in the same manner as provided in subsection (b) of this Code section.
  2. The tenant shall pay into the registry of the trial court all rent which becomes due after the issuance of the summons and shall pay said rent as it becomes due. If the landlord and tenant disagree as to the amount of rent, either or both of them may submit to the court any written rental contract for the purpose of establishing the amount of the rent to be paid into the registry of the court. If the amount of rent is in controversy and no written rental agreement exists between the tenant and the landlord, the court shall require the amount of rent to be a sum equal to the last previous rental payment made by the tenant and accepted by the landlord without written objection.
  3. If the landlord is also seeking a dispossessory warrant against the tenant pursuant to Article 3 of this chapter, money paid into court under Code Section 44-7-54 shall fully satisfy the requirements under subsections (a) and (b) of this Code section.
  4. After the date of the service of the summons as provided in Code Section 44-7-72, the tenant shall not transfer, convey, remove, or conceal his property without either posting bond as provided in Code Section 44-7-76 or complying with subsections (a) and (b) of this Code section.
  5. If the tenant shall fail to comply with any of the provisions of this Code section, the tenant shall not be entitled to retain possession of his property pending a trial on the merits as provided by Code Section 44-7-74 unless he posts bond as provided by Code Section 44-7-76. Failure to comply with any provision of this Code section shall in no way affect the tenant's ability to litigate the issues raised in his answer but shall only affect the possession of the property pendente lite. If judgment is against the tenant, the property involved shall be seized by the marshal, the sheriff, or the deputy, as the case may be, and held thereby for levy and sale after judgment as provided by Code Section 44-7-79.
  6. The court shall order the clerk of the court to pay to the landlord the amounts paid into the registry of the court as such payments are made; provided, however, that, if the tenant claims that he is entitled to all or a part of the funds and such claim is an issue of controversy in the litigation, the court shall order the clerk to pay to the landlord without delay only that portion of the funds to which the tenant has made no claim in the proceedings. That part of the funds which is a matter of controversy in the litigation shall remain in the registry of the court until a final determination of the issues.

    (Code 1933, § 61-405, enacted by Ga. L. 1975, p. 1514, § 2; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Cited in D. Jack Davis Corp. v. Karp, 175 Ga. App. 482 , 333 S.E.2d 685 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 615 et seq.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1376 et seq.

ALR. - Right to withdraw tender after money deposited or paid in court to keep tender good, 73 A.L.R. 1281 .

44-7-76. Bond; determination of amount; effect of approval on alienability of property.

In all cases where the tenant may desire to transfer, remove, or convey any of his property after the service of summons, the tenant shall post bond with good security for a sum equal to the value of the property or the amount of the rent alleged to be due, whichever is less, to be estimated by the judge, for the delivery of the property at the time and place of sale if the property shall be found subject to such rent. Upon the approval of the bond by the judge, the tenant may convey, transfer, or remove his property without restriction.

(Laws 1811, Cobb's 1851 Digest, p. 900; Code 1863, § 5103; Code 1868, § 4012; Code 1873, § 4083; Code 1882, § 4083; Ga. L. 1894, p. 51, § 1; Civil Code 1895, § 4819; Civil Code 1910, § 5391; Code 1933, § 61-404; Code 1933, § 61-411, enacted by Ga. L. 1975, p. 1514, § 2.)

JUDICIAL DECISIONS

Purpose of the bond is to insure the delivery of the property at the time and place of sale by the officer of the court in case the landlord obtains a judgment in the action. D. Jack Davis Corp. v. Karp, 175 Ga. App. 482 , 333 S.E.2d 685 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 615 et seq.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1273.

44-7-77. Judgment and satisfaction; landlord's liability; distribution of funds; return of property.

  1. If, on the trial of the case, the judgment is against the tenant, the judgment shall be entered against the tenant for all rent due and for any other claim relating to the dispute and the distress warrant shall be granted.
  2. If the judgment is for the tenant, he shall be entitled to remain in the premises and in possession of his property and the landlord shall be liable for all foreseeable damages shown to have been caused by his wrongful conduct. Any funds remaining in the registry of the court shall be distributed to the parties in accordance with the judgment of the court. If the tenant has been deprived of the possession of his property pendente lite pursuant to subsection (e) of Code Section 44-7-75, the court shall order that the property be returned immediately to the tenant.

    (Code 1933, § 61-406, enacted by Ga. L. 1975, p. 1514, § 2; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Damages in addition to rent. - Distress proceeding may be used to recover damages in addition to rent if the damages are somehow related to the lease; thus, the trial court did not err in admitting evidence regarding physical damages to the property at the time the property was vacated. Powell v. Estate of Austin, 218 Ga. App. 446 , 462 S.E.2d 378 (1995).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 615 et seq.

C.J.S. - 52A C.J.S., Landlord and Tenant, §§ 1311, 1312.

ALR. - Landlord and tenant: respective rights in excess rent when landlord relets at higher rent during lessee's term, 50 A.L.R.4th 403.

44-7-78. Appeal; possession pending appeal.

Any judgment by the trial court shall be appealable to the appellate court pursuant to Chapters 2, 3, 6, and 7 of Title 5. If the judgment of the trial court is against the tenant and the tenant appeals this judgment, the tenant shall remain in the premises and in possession of his property; provided, however, that the tenant shall comply with all provisions of Code Section 44-7-75 or 44-7-76 until the issue has been finally determined on appeal.

(Code 1933, § 61-407, enacted by Ga. L. 1975, p. 1514, § 2.)

RESEARCH REFERENCES

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1313.

44-7-79. Execution and levy of distress warrant; sale.

Whenever a distress warrant is granted pursuant to this article, the distress warrant may be levied by the marshal, the sheriff, or the deputy on any property belonging to said tenant whether found on the premises or elsewhere; and the marshal, the sheriff, or the deputy shall advertise and sell the property in the same manner as in the case of levy and sale under execution.

(Laws 1811, Cobb's 1851 Digest, p. 900; Code 1863, §§ 4011, 5101, 5102; Code 1868, § 4010; Ga. L. 1869, p. 14, § 1; Code 1873, § 4082; Ga. L. 1875, p. 23, § 1; Code 1882, § 4082; Civil Code 1895, § 4818; Civil Code 1910, § 5390; Code 1933, § 61-402; Code 1933, § 61-409, enacted by Ga. L. 1975, p. 1514, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 604 et seq.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1312.

44-7-80. Time for attachment of landlord's lien; priorities.

The landlord's lien for his rent shall attach from the time that the affidavit is made pursuant to Code Section 44-7-71; but it shall take precedence over no lien of older date except as to the crop raised on the premises.

(Orig. Code 1863, § 2268; Code 1868, § 2260; Code 1873, § 2286; Code 1882, § 2286; Civil Code 1895, § 3125; Civil Code 1910, § 3701; Code 1933, § 61-403; Code 1933, § 61-410, enacted by Ga. L. 1975, p. 1514, § 2.)

Law reviews. - For article, "The New Documentary Concerns Associated With Intelligent Buildings," see 22 Ga. St. B.J. 16 (1985).

JUDICIAL DECISIONS

Cited in D. Jack Davis Corp. v. Karp, 175 Ga. App. 482 , 333 S.E.2d 685 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 557, 583, 584.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1273.

ALR. - Landlord's remedy by way of distress or lien on defaulting tenant's property on leased premises as including right to collect for all unpaid utility expenses, 99 A.L.R.3d 1100.

44-7-81. Claims by third persons; oath and bond; method of trial.

A third person may make a claim to the distrained property by giving the oath and the bond as is required in cases of other claims. Such a claim shall be returned and tried as is provided by law for the trial of the right of property levied upon by execution.

(Orig. Code 1863, § 5104; Code 1868, § 4013; Code 1873, § 4084; Code 1882, § 4084; Civil Code 1895, § 4820; Civil Code 1910, § 5392; Code 1933, § 61-407; Code 1933, § 61-412, enacted by Ga. L. 1975, p. 1514, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 607 et seq.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1283.

44-7-82. Application of article to tenant's mobile home.

  1. As used in this Code section, the term "mobile home" means a movable or portable dwelling over 32 feet in length and over eight feet wide which is constructed to be towed on its own chassis and to be connected to utilities and is designed without a permanent foundation for year-round occupancy. A mobile home may consist of one or more components that can be retracted for towing purposes and subsequently expanded for additional capacity or may consist of two or more units separately towable but designed to be joined into one integral unit.
  2. A tenant's mobile home, as defined in subsection (a) of this Code section, shall be considered "property," as that term is used in this article.

    (Code 1933, § 61-413, enacted by Ga. L. 1978, p. 938, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 604 et seq.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1281.

ARTICLE 5 CROPPERS

RESEARCH REFERENCES

Sharecropper Status, 20 POF2d 713.

ALR. - Sharecropper's share in crop wholly or partly unharvested as subject to garnishment, 82 A.L.R.2d 858.

Judicial or execution sale of realty as affecting debtor's share in crops grown by tenant or cropper, 13 A.L.R. 1425 ; 113 A.L.R. 1355 .

Necessity of filing lease or contract which reserves title to crops in lessor, 14 A.L.R. 1362 .

Survivability and assignability of cropping contract, or lease with cropping features, 64 A.L.R. 1418 .

Farmland cultivation arrangement as creating status of landlord-tenant or landowner-cropper, 95 A.L.R.3d 1013.

44-7-100. Nature of relationship between owner and cropper.

Where a person is employed to work for part of the crop, the relationship of landlord and tenant does not arise. The title to the crop, subject to the interest of the cropper therein, and the possession of the land remain in the owner of the land.

(Civil Code 1895, § 3131; Civil Code 1910, § 3707; Code 1933, § 61-501.)

History of section. - This Code section is derived from the decision in Appling v. Odom, 46 Ga. 583 (1872).

JUDICIAL DECISIONS

Distinction between tenant and cropper. - Fundamental distinction between the relationships of landlord and cropper and landlord and tenant is that the status of cropper is that of a laborer who has agreed to work for and under the landlord for a certain proportion of the crop as wages, but who does not thereby acquire any dominion or control over the premises upon which such labor is to be performed, the cropper having the right merely to enter and remain thereupon for the purpose of performing the cropper's engagement. A tenant does not occupy the status of a laborer, but under such a contract acquires possession, dominion, and control over the premises for the term covered by the agreement, usually paying therefor a fixed amount either in money or specifics, and in making the crop performs the labor for the tenant and not for the landlord. Souter v. Cravy, 29 Ga. App. 557 , 116 S.E. 231 (1923); Shepard v. State, 45 Ga. App. 519 , 165 S.E. 320 (1932).

Distinction between cropper and contractor. - If the agreement is not that one shall perform services personally, but shall procure and furnish labor, one is not a servant but a contractor. Barron v. Collins, 49 Ga. 580 (1873); Duncan v. Anderson, 56 Ga. 398 (1876); Vinson v. State, 124 Ga. 19 , 52 S.E. 79 (1905).

Items furnished by landlord. - When the owner was to furnish the land, stock, tools, and supplies to make a crop, and the other person was to do the work and receive a part of the crop so made, the legal relation which existed between them was that of landlord and cropper. Hackney v. State, 101 Ga. 512 , 28 S.E. 1007 (1897); Hancock v. Boggus, 111 Ga. 884 , 36 S.E. 970 (1900); Williams v. Mitchem, 151 Ga. 227 , 106 S.E. 284 (1921); Shepard v. State, 45 Ga. App. 519 , 165 S.E. 320 (1932).

Interpretation of contract. - Legal relation of the parties is to be determined not by the statement that the land was "rented," or that the owner was to receive a part of the crop "as rent," but by the entire contract. Kiker v. Jones, 20 Ga. App. 704 , 93 S.E. 253 (1917).

No partnership created. - If one furnishes land or material and another does the labor necessary to produce the thing to be sold, and the latter receives a part of the profits as compensation for one's services, no partnership is created. Cherry v. Strong, 96 Ga. 183 , 22 S.E. 707 (1895); Thornton v. McDonald, 108 Ga. 3 , 33 S.E. 680 (1899); Thornton v. George, 108 Ga. 9 , 33 S.E. 633 (1899); Jordan v. Jones, 110 Ga. 47 , 35 S.E. 151 (1900); Padgett v. Ford, 117 Ga. 508 , 43 S.E. 1002 (1903); Smart v. Hill, 29 Ga. App. 400 , 116 S.E. 66 (1923).

Violation of duty as contract and tort. - Contract of landlord and cropper, when performance of it has been entered upon, creates a status between the parties from which reciprocal rights and duties spring; a tort, as well as a breach of contract, may arise from the violation of one of these duties. Tapley v. Youmans, 95 Ga. App. 161 , 97 S.E.2d 365 (1957).

Landlord has no lien for supplies. - When the relationship of landlord and cropper exists under this statute, there is no lien on the crop in favor of the landlord for supplies furnished to the cropper, for the landlord has title. Fields v. Argo, 103 Ga. 387 , 30 S.E. 29 (1898) (see O.C.G.A. § 44-7-100 ).

Laborer's lien. - When title to the subject matter of the trover action was in the landlord, the remedy of the cropper was to assert a laborer's lien on the crops. Wells v. Aldridge, 75 Ga. App. 702 , 44 S.E.2d 183 (1947).

Cropper's damages for landlord's wrongful refusal to perform. - If the landlord wrongfully refuses to perform the landlord's part of the contract, the cropper may sue immediately for the cropper's special injuries, if any, including the value of services rendered, or the cropper may wait until the expiration of the harvest season and sue for the full value of the cropper's share of the crop or what the cropper's share would reasonably have been under a faithful performance of the contract by both parties. Surrency v. O'Quinn, 45 Ga. App. 455 , 165 S.E. 171 (1932).

Eviction of cropper not available remedy. - Proceeding to evict one in possession of lands cannot be maintained unless the relation of landlord and tenant exists between the parties; if the relation of landlord and cropper exists, the cropper cannot be dispossessed under a summary warrant. Tapley v. Youmans, 95 Ga. App. 161 , 97 S.E.2d 365 (1957).

Cropper's right of action against third party. - Cropper had such an interest in crops, even though not all had matured and the cropper's contract had not been fully completed by the cropper, as would support an action against one who wrongfully destroyed the crops, which right of action was joint and several with that of the landlord who likewise had an interest in the crops. Thombley v. Hightower, 52 Ga. App. 716 , 184 S.E. 331 (1936).

Cited in Borders v. Herrington, 45 Ga. App. 449 , 165 S.E. 148 (1932); George v. Cox, 46 Ga. App. 125 , 166 S.E. 868 (1932); Herndon v. Sheats, 176 Ga. 199 , 167 S.E. 506 (1933); Overstreet v. Dees, 52 Ga. App. 689 , 184 S.E. 368 (1936); Flynt v. Barrett, 73 Ga. App. 396 , 36 S.E.2d 868 (1946); Bexley v. State, 85 Ga. App. 888 , 70 S.E.2d 602 (1952).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 549.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 1 et seq. 52A C.J.S., Landlord and Tenant, § 1500 et seq.

ALR. - Recovery for failure of cropper or one leasing land on shares for failure to plant or cultivate crop, 39 A.L.R. 1357 .

Right to crops sown or grown by one wrongfully in possession of land, 57 A.L.R. 584 .

44-7-101. Title to crops.

Whenever the relationship of landlord and cropper exists, the title to and right to control and possess the crops grown and raised upon the lands of the landlord by the cropper shall be vested in the landlord until the landlord has received his part of the crops so raised and has been fully paid for all advances made to the cropper in the year the crops were raised for the purpose of raising the crops.

(Ga. L. 1889, p. 113, § 1; Civil Code 1895, § 3129; Civil Code 1910, § 3705; Code 1933, § 61-502.)

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Certainty of meaning of section. - Statute in no uncertain terms declares "the title to and right to control and process" the crop is in the landlord and until the landlord has received the landlord's share of the crop and been paid for all advances made to aid in making the crop. This law may be harsh and inequitable, but it is not ambiguous. Goodson v. Watson, 125 Ga. 413 , 54 S.E. 84 (1906) (see O.C.G.A. § 44-7-101 ).

Cropper and tenant distinguished. - If the owners of land employ one to work on the land, and agree to give one a part of the crop for making the crop, then the title would be in the landowners, and the landowners could take it and give one off one's part; but when the landowners turn over the land to one who is to farm thereon, and from the crop one is to pay the landowners sixteen hundred pounds of lint cotton, this creates the relation of landlord and tenant; the title to the cotton is in the tenant, and the landlords have only a lien thereon, and cannot take the cotton without the consent of the tenant. Wadley v. Williams, 75 Ga. 272 (1885).

Stock as crop. - Crops are the product of the soil and do not include the increase of livestock; when a landlord furnishes to a cropper livestock, the increase of which is to be raised by the latter on shares and to be divided equally between the parties, their relation with reference thereto is that of owners or tenants in common, and not that of landlord and cropper. Ellis, McKinnon & Brown v. Hopps, 30 Ga. App. 453 , 118 S.E. 583 (1923).

Cropper is laborer. - Cropper has the status of a laborer. DeLoach v. Delk, 119 Ga. 884 , 47 S.E. 204 (1904).

Cropper not partner. - That the cropper furnishes the labor necessary to the making of the crop, and is to receive a portion thereof as compensation for the cropper's services, does not place the cropper in the situation of a partner having an undivided interest in the product of the cropper's labor. Padgett v. Ford, 117 Ga. 508 , 43 S.E. 1002 (1903).

Crops are wages. - Part of the crop to which the cropper is entitled is in the nature of wages. McElmurray v. Turner, 86 Ga. 215 , 12 S.E. 359 (1890); DeLoach v. Delk, 119 Ga. 884 , 47 S.E. 204 (1904); Vinson v. State, 124 Ga. 19 , 52 S.E. 79 (1905). See also Taylor v. Coney, Lovejoy & Co., 101 Ga. 655 , 28 S.E. 974 (1897); Betts v. State, 6 Ga. App. 773 , 65 S.E. 841 (1909).

Landlord and cropper as tenants in common. - When, after a full settlement between a landlord and cropper in which the landlord is paid for all advances made to the cropper to aid in making the crops, it is found that a number of bales of cotton are subject to equal division between the parties, but in lieu of such division the cropper, at the direction of the landlord, deposits the cotton in a warehouse and obtains a receipt therefor issued by the warehouseman jointly to the landlord and the cropper as bailors, which receipt is delivered to and accepted by the landlord with the understanding that the cotton will not be sold until such time as the landlord and the cropper shall both agree upon, the relation of tenants in common as to such cotton results as between the parties to whom the warehouse receipt is issued, and the landlord will hold the receipt as a symbol of the property for the use of the landlord and the cropper as a cotenant, they being tenants in common as to the property represented thereby. George v. Bullard, 178 Ga. 589 , 173 S.E. 920 (1934).

Laborer's lien. - Cropper is one who works for wages payable in part of the crop produced; cropper is a laborer and may maintain a laborer's lien upon the crop as the property of the cropper's employer. McElmurray v. Turner, 86 Ga. 215 , 12 S.E. 359 (1890); Lewis v. Owens, 124 Ga. 228 , 52 S.E. 333 (1905); Vinson v. State, 124 Ga. 19 , 52 S.E. 79 (1905); Faircloth v. Webb, 125 Ga. 230 , 53 S.E. 592 (1906); Garrick v. Jones, 2 Ga. App. 382 , 58 S.E. 543 (1907); Howard v. Franklin, 32 Ga. App. 737 , 124 S.E. 554 (1924).

Enforcement of laborer's lien. - Cropper is not ordinarily entitled to enforce a lien against a landlord without showing full compliance on the cropper's part with the terms of the agreement. Harvey v. Lewis, 19 Ga. App. 655 , 91 S.E. 1052 (1917).

Trover against landlord improper. - Cropper cannot maintain against the landlord an action of trover, the title to the crops being in the latter. Bryant v. Pugh, 86 Ga. 525 , 12 S.E. 927 (1891); DeLoach v. Delk, 119 Ga. 884 , 47 S.E. 204 (1904); Smart v. Hill, 29 Ga. App. 400 , 116 S.E. 66 (1923).

Cropper's damages. - If the landlord wrongfully refuses to perform the landlord's part of the contract, the cropper may sue immediately for the cropper's special injuries, if any, including the value of services rendered, or the cropper may wait until the expiration of the harvest season and sue for the full value of the cropper's share of the crop or what the cropper's share would reasonably have been under a faithful performance of the contract by both parties. Surrency v. O'Quinn, 45 Ga. App. 455 , 165 S.E. 171 (1932).

Nonperformance caused by landlord. - Lack of full performance by the cropper will not defeat the foreclosure of such a lien when, without fault on the cropper's part, such failure to fully comply with the cropper's contractual obligation is caused by the unauthorized acts and conduct of the landlord. Lewis v. Owens, 124 Ga. 228 , 52 S.E. 333 (1905); Haralson v. Speer, 1 Ga. App. 573 , 58 S.E. 142 (1907); Ballard v. Daniel, 18 Ga. App. 449 , 89 S.E. 603 (1916); Payne v. Trammell, 29 Ga. App. 475 , 115 S.E. 923 (1923).

Mortgageable interest. - While the cropper has a "mortgageable interest" in the crops, such interest cannot be subjected to the mortgage debt until the cropper has acquired title; and this the cropper cannot do before a division between oneself and the landlord. Jordan v. Jones, 110 Ga. 47 , 35 S.E. 151 (1900); Fountain v. Fountain, 10 Ga. App. 758 , 73 S.E. 1096 (1912).

Interest of landlord. - Landlord's interest in the title to crops grown by the landlord's cropper is only to the extent of the value of the landlord's portion of the crops, as well as of any indebtedness for advances made to the cropper. Way v. Bailey, 18 Ga. App. 57 , 88 S.E. 799 (1916); Franklin v. Tanner, 34 Ga. App. 254 , 129 S.E. 114 (1925).

Landlord's cause of action. - If the relation of landlord and cropper existed, and there was not an actual division and settlement between the landlord and cropper according to the terms of the contract, the landlord could bring against the cropper an action of trover to recover the share of the crop belonging to the landlord and of which the cropper was in possession. Harley v. Davis, 7 Ga. App. 386 , 66 S.E. 1102 (1910); DeLoach v. Delk, 119 Ga. 884 , 47 S.E. 204 (1904); Welch v. Lindsey, 27 Ga. App. 164 , 107 S.E. 891 (1921).

Possession of land. - If the relationship is one of the landlord and cropper, then the possession of the land remains in the owner. Taylor v. Coney, Lovejoy & Co., 101 Ga. 655 , 28 S.E. 974 (1897); Betts v. State, 6 Ga. App. 773 , 65 S.E. 841 (1909); Parks v. Langley, 17 Ga. App. 761 , 88 S.E. 695 (1916); Kiker v. Jones, 20 Ga. App. 704 , 93 S.E. 253 (1917); Cullars v. State, 28 Ga. App. 113 , 110 S.E. 330 (1922).

Control of crop by landlord. - See Almand v. Scott, 80 Ga. 95 , 4 S.E. 892 , 12 Am. St. R. 241 (1887); Parks v. Langley, 17 Ga. App. 761 , 88 S.E. 695 (1916).

Landlord's recovery for loss of labor. - Landowner cannot recover for the loss of time by cropper and family on account of sickness although the cropper is only hired to raise the crop. Central Ga. Power Co. v. Parker, 144 Ga. 135 , 86 S.E. 324 (1915).

Conversion by cropper. - It is a conversion for a cropper, without consent of the landlord, to gather and sell a part of the crop and apply the proceeds to the cropper's own use. Williams v. Mitchem, 151 Ga. 227 , 106 S.E. 284 (1921); Payne v. Trammell, 29 Ga. App. 475 , 115 S.E. 923 (1923).

Landlord's recovery from third person. - Landlord, until the landlord has received the landlord's part of the crops and has been fully paid for all advances made to the cropper, ordinarily has such possession of the crops as will authorize the issuance of a possessory warrant at the landlord's instance to recover possession of the crops from a third person who takes possession thereof without the landlord's consent and without other lawful warrant or authority. Whitworth v. Carter, 39 Ga. App. 625 , 147 S.E. 904 (1929).

Waiver of landlord's lien. - Even if the relationship of landlord and cropper is shown, an executed waiver of the landlord's lien on the crops is an agreement that would alter the landlord's rights. Trapnell v. Swainsboro Prod. Credit Ass'n, 208 Ga. 89 , 65 S.E.2d 179 (1951).

Variation by agreement. - While it is ordinarily true that under the relation of landlord and cropper the landlord has the right to control and possess the crops until the landlord has received the landlord's portion and is fully paid for all advances made by the landlord to aid in their production, the right may be varied by special agreement. Hanson v. Fletcher, 183 Ga. 858 , 190 S.E. 29 (1937).

Collusion to defeat creditor. - If by collusion the landlord and the cropper attempt to defeat the creditor by refusing to make a division or otherwise, undoubtedly equity would afford relief. Fountain v. Fountain, 10 Ga. App. 758 , 73 S.E. 1096 (1912).

Indictment for stealing. - In an accusation of stealing or attempting to steal a portion of the growing crop, the ownership should be alleged to be in the landlord, and not in the cropper. Betts v. State, 6 Ga. App. 773 , 65 S.E. 841 (1909).

Instructions. - Court erred in failing to charge that title did not pass to tenant until advances are paid when it appears that the landlord had made advances for which the landlord had not been paid. Smith v. Anglin, 14 Ga. App. 311 , 80 S.E. 693 (1914).

Cited in Rhodes v. Verdery, 157 Ga. 162 , 121 S.E. 221 (1924); Folds v. Harris, 34 Ga. App. 445 , 129 S.E. 664 (1925); Youngblood v. Duncan, 49 Ga. App. 300 , 175 S.E. 411 (1934); Crews v. Roberson, 62 Ga. App. 855 , 10 S.E.2d 114 (1940); Flynt v. Barrett, 73 Ga. App. 396 , 36 S.E.2d 868 (1946).

Advances to Cropper

Suretyship by landlord insufficient. - That the title to the crops will vest in the landlord until paid for all advances means that the landlord must actually furnish the advances and not merely stand surety for the cropper to some other person who furnishes them. Rhodes v. Verdery, 157 Ga. 162 , 121 S.E. 221 (1924).

Third party making advances. - If the landlord is unable to make advances and requests another to do so, the person making the advances has a claim against the crops that will prevail over the landlord's claims or interest therein. Trapnell v. Swainsboro Prod. Credit Ass'n, 208 Ga. 89 , 65 S.E.2d 179 (1951).

Remedy of third party lienholder. - When after signing a waiver of all liens upon the crops grown by one's tenant in favor of a lien of a third party for advances to aid in making crops, the landlord receives the proceeds from the crops, which are sufficient to satisfy the lien for advances, and converts the same to the landlord's own use, a petition of the holder of the lien for such advances against the landlord and the tenant, seeking judgment against them as trustees ex maleficio for the full amount of such advances, states a cause of action against both the owner and tenant. Trapnell v. Swainsboro Prod. Credit Ass'n, 208 Ga. 89 , 65 S.E.2d 179 (1951).

Division and Settlement

Title before settlement and division. - When the relation of landlord and cropper is created, the title to all crops grown on the land remains in the landlord until there has been an actual division and settlement whereby one receives in full one's share of the produce. Wadley v. Williams, 75 Ga. 272 (1885); Almand v. Scott, 80 Ga. 95 , 4 S.E. 892 , 12 Am. St. R. 241 (1887); Taylor v. Coney, Lovejoy & Co., 101 Ga. 655 , 28 S.E. 974 (1897); Smart v. Hill, 29 Ga. App. 400 , 116 S.E. 66 (1923); Cavin v. McWhorter, 37 Ga. App. 477 , 140 S.E. 778 (1927); Courson v. Land, 54 Ga. App. 534 , 188 S.E. 360 (1936).

Title after settlement and before division. - When there has been no division of the crop between the landlord and the cropper and when the cropper's portion of the crop has not been set aside, no title to the crop passes into the cropper, although the cropper may have settled with the landlord for all advances made. Atlanta Trust Co. v. Oliver-McDonald Co., 36 Ga. App. 360 , 136 S.E. 824 (1927).

What amounts to division. - When a cropper has settled with the cropper's landlord for all advances made and has delivered to the landlord the latter's part of all the crops raised except certain cotton in the possession of the cropper which, under the terms of the contract, is to be divided between the landlord and the cropper, a transformation by the cropper of such remaining cotton into two bales of different weights, one weight representing the amount of cotton that belongs to the landlord and the other weight representing the amount of cotton belonging to the cropper, amounts to a division of the cotton, since each man's portion is identified by the different weights; and, upon delivery by the cropper to the landlord of the bale representing the landlord's portion of the cotton, the landlord's title to the other bale is immediately divested from the landlord and vested in the cropper. Thompson v. Price, 30 Ga. App. 653 , 118 S.E. 598 (1923).

Interest of cropper before settlement. - Before there has been a settlement paying the landlord in full for advances and rent, the tenant has such an interest as will sustain an allegation of joint ownership with the landlord. Randolph v. State, 16 Ga. App. 328 , 85 S.E. 258 (1915); Parker v. State, 23 Ga. App. 591 , 99 S.E. 220 (1919).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 545.

C.J.S. - 51C C.J.S., Landlord and Tenant, § 2.

ALR. - Cropper's right to thresher's lien or lien for other work on share of owner, 35 A.L.R. 450 .

Right to crops sown or grown by one wrongfully in possession of land, 57 A.L.R. 584 .

44-7-102. Recovery of crops sold or disposed of without landlord's consent.

In all cases where a cropper unlawfully sells or otherwise disposes of any part of a crop or where the cropper seeks to take possession of such crops or to exclude the landlord from the possession thereof while the title thereto remains in the landlord, the landlord shall have the right to repossess the crops by any process of law by which the owner of the property can recover it under the laws of this state.

(Ga. L. 1889, p. 113, § 3; Civil Code 1895, § 3130; Civil Code 1910, § 3706; Code 1933, § 61-503.)

JUDICIAL DECISIONS

In general. - When the relationship of landlord and cropper exists, this gives to the landlord the right to repossess the crops not only when the cropper unlawfully sells or disposes of any part of the crops or seeks to take possession of the crops, but also when the cropper seeks "to exclude the landlord from the possession" of the crops. Peacock v. American Plant Co., 49 Ga. App. 267 , 175 S.E. 262 (1934).

Livestock as crops. - Statute defines the relations and rights of landlord and cropper only as to crops; crops are the product of the soil and do not include the increase of livestock. Ellis, McKinnon & Brown v. Hopps, 30 Ga. App. 453 , 118 S.E. 583 (1923) (see O.C.G.A. § 44-7-102 ).

Landlord's remedy. - When the relationship of landlord and cropper exists, the landlord may assert the landlord's title to the crops by trover. Cowart v. Dees, 7 Ga. App. 601 , 67 S.E. 705 (1910).

Withholding all of crop until gathered. - Even if the contract provided that the cropper should gather, gin, and hold, the cropper has some discretion in this and may wait until all the crop is gathered before the cropper gins and sells the crop, without laying the cropper liable in trover. Forehand v. Jones, 84 Ga. 508 , 10 S.E. 1090 (1890).

Prior payments of debts due cropper. - Landlord may be subjected to the prior payment of an indebtedness the landlord owes the cropper before the landlord recovers possession. Cowart v. Dees, 7 Ga. App. 601 , 67 S.E. 705 (1910).

Cropper not removing crop. - When the crop had been divided and put in separate houses on the land, but it did not appear that the cropper was seeking to remove the crop, there was no cause of action. Visage v. Bowers, 122 Ga. 760 , 50 S.E. 952 (1905).

Bona fide purchaser. - Since the title to the crops remains in the landlord until actual division and settlement, a bona fide purchaser of such a severed crop will not be protected in an action of trover brought against the purchaser by the landlord. Kirkland v. Wallace, 29 Ga. App. 238 , 114 S.E. 649 (1922).

Cited in George v. Cox, 46 Ga. App. 125 , 166 S.E. 868 (1932); J.L. Stifel & Sons v. McCormick, 59 Ga. App. 449 , 1 S.E.2d 220 (1939); Crews v. Roberson, 62 Ga. App. 855 , 10 S.E.2d 114 (1940).

RESEARCH REFERENCES

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1500 et seq.

ALR. - Cropper's right to thresher's lien or lien for other work on share of owner, 35 A.L.R. 450 .

Recovery for failure of cropper or one leasing land on shares for failure to plant or cultivate crop, 39 A.L.R. 1357 .

Right to crops sown or grown by one wrongfully in possession of land, 57 A.L.R. 584 .

44-7-103. Illegal sale by cropper; refusal of landlord to deliver cropper's share; penalties.

  1. Any cropper who sells or otherwise disposes of any part of the crop grown by him without the consent of the landlord before the landlord has received his part of the crop and payment in full for all advances made to the cropper in the year the crop was raised for the purpose of raising such crop shall be guilty of a misdemeanor.
  2. Any landlord who fails or refuses, on demand, to deliver to the cropper the part of the crop or its value to which the cropper is entitled after payment for all advances made to him as provided in subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1889, p. 113, § 2; Ga. L. 1892, p. 115, § 1; Penal Code 1895, § 680; Penal Code 1910, § 729; Code 1933, § 61-9904.)

JUDICIAL DECISIONS

Applicability. - Statute does not apply to tenants. Hackney v. State, 101 Ga. 512 , 28 S.E. 1007 (1897) (see O.C.G.A. § 44-7-103 ).

Statute applies only to debts created by advances to croppers. Brown v. State, 2 Ga. App. 657 , 58 S.E. 1070 (1907) (see O.C.G.A. § 44-7-103 ).

Essence of the offense is the sale of the crop before settling in full with the landlord and before the landlord received the landlord's part of the crop, and without the landlord's consent. McGarr v. State, 13 Ga. App. 80 , 78 S.E. 776 (1913).

Relationship required. - Person cannot be convicted under this statute unless the evidence shows that the relationship of landlord and cropper existed between the person and the person's landlord. Shepard v. State, 45 Ga. App. 519 , 165 S.E. 320 (1932) (see O.C.G.A. § 44-7-103 ).

Landlord's ownership. - Landlord need not own land in fee simple. Freeman v. State, 30 Ga. App. 133 , 116 S.E. 920 (1923).

Indictment. - All that was necessary in an indictment for selling crops without the landlord's consent was to charge that the accused sold a quantity of bales of cotton grown on the rented land, the sale being without the landlord's consent, and before paying the agreed rent for the premises, and with the intent to defraud the landlord, and thereby causing a loss to the landlord. Barbour v. State, 66 Ga. App. 498 , 18 S.E.2d 40 (1941).

Description of crops. - In an indictment for the offense of selling crops without the landlord's consent, it is sufficient to describe the crops sold in the most general terms, and a more particular description is mere surplusage and need not be proved. Barbour v. State, 66 Ga. App. 498 , 18 S.E.2d 40 (1941).

Element of crime omitted from instruction. - Before a cropper can be legally convicted of selling a part of the crop grown by the cropper, it is necessary to show that the sale was "without the consent of the landlord"; and when the judge, in charging the jury, leaves out this essential ingredient of the crime, the charge is not complete, and the error requires the grant of a new trial. Moon v. State, 42 Ga. App. 467 , 156 S.E. 640 (1931).

Cited in Scott v. State, 6 Ga. App. 332 , 64 S.E. 1005 (1909); Smith v. State, 7 Ga. App. 468 , 67 S.E. 202 (1910); Curry v. State, 17 Ga. App. 272 , 86 S.E. 533 (1915); Veal v. State, 40 Ga. App. 256 , 149 S.E. 328 (1929); Knight v. State, 80 Ga. App. 373 , 56 S.E.2d 128 (1949).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 549.

C.J.S. - 52A C.J.S., Landlord and Tenant, § 1246.

ALR. - Judicial or execution sale of realty as affecting debtor's share in crops grown by tenant or cropper, 13 A.L.R. 1425 ; 113 A.L.R. 1355 .

ARTICLE 6 ABANDONED MOBILE HOME

Effective date. - This article became effective May 1, 2019.

44-7-110. Short title.

This article shall be known and may be cited as the "Abandoned Mobile Home Act."

(Code 1981, § 44-7-110 , enacted by Ga. L. 2018, p. 666, § 1/HB 381.)

Law reviews. - For annual survey on real property law, see 70 Mercer L. Rev. 209 (2018).

44-7-111. Legislative findings and intent.

The General Assembly finds that abandoned mobile homes are a nuisance that cause blight and depress property values. This article is intended to provide local governing authorities with the authority to appoint an agent to determine the condition of mobile homes in order for landowners to remove or restore abandoned mobile homes left on their property. It is the further purpose of this article to provide landowners with the guidance necessary to efficiently and properly identify and dispose of abandoned mobile homes in this state while protecting the rights of any owner, lienholder, or other interested parties by performing a due diligence search, notification, and hearing process.

(Code 1981, § 44-7-111 , enacted by Ga. L. 2018, p. 666, § 1/HB 381.)

44-7-112. Definitions.

As used in this article, the term:

  1. "Abandoned mobile home" means a mobile home that has been left vacant by all tenants for at least 90 days without notice to the landowner and when there is evidence of one or more of the following:
    1. A tenant's failure to pay rent or fees for 90 days;
    2. Removal of most or all personal belongings from such mobile home;
    3. Cancellation of insurance for such mobile home;
    4. Termination of utility services to such mobile home; or
    5. A risk to public health, safety, welfare, or the environment due to such mobile home.
  2. "Derelict" means an abandoned mobile home which is in need of extensive repair and is uninhabitable and unsafe due to the presence of one or more of the following conditions:
    1. Inadequate provisions for ventilation, light, air, or sanitation; or
    2. Damage caused by fire, flood, hurricane, tornado, earthquake, storm, or other natural catastrophe.
  3. "Dispose" means to destroy, recycle, or repurpose for use not as living quarters.
  4. "Intact" means an abandoned mobile home which is in livable condition under applicable state law and the building and health codes of a local governing authority.
  5. "Landowner" means the owner of real property upon which a mobile home is located.
  6. "Local government agent" means a person appointed by a local governing authority who is qualified to inspect an abandoned mobile home by demonstrating that he or she is qualified to determine if the abandoned mobile home is derelict or intact.
  7. "Manufactured home" shall have the same meaning as set forth in Code Section 8-2-160.
  8. "Mobile home" shall have the same meaning as set forth in Code Section 8-2-160 and shall include a manufactured home.
  9. "Responsible party" means any person with an ownership interest in an abandoned mobile home as evidenced by the last payor of record as identified by a search of deeds or instruments of title, and shall include any holder of a recorded lien or the holder of any type of secured interest in such abandoned mobile home or a local government with a claim for unpaid taxes. (Code 1981, § 44-7-112 , enacted by Ga. L. 2018, p. 666, § 1/HB 381.)

44-7-113. Government agent to assess abandoned mobile home; lien on intact mobile home; derelict mobile homes; notice; governmental immunity.

  1. At the request of a landowner, a local government agent shall be authorized to assess the condition of such abandoned mobile home. Upon inspection, the local government agent shall classify such abandoned mobile home as either intact or derelict and provide documentation citing such determination to the requesting landowner within 20 days of such request.
  2. If a local government agent determines an abandoned mobile home to be intact, a landowner shall have a right to file a lien on such abandoned mobile home in the superior court for the circuit where such abandoned mobile home is located and in the amount of any unpaid rent as of the date on which such lien is filed and accrued fees. Such lien may be foreclosed pursuant to the procedure set forth in Code Section 44-7-115.
  3. If a local government agent determines an abandoned mobile home to be derelict, such agent shall post notice of such determination in a conspicuous location on such abandoned mobile home. Such notice shall include a date of issuance and shall be in substantially the following form:
    1. Upon receipt of a determination that an abandoned mobile home is derelict by a local government agent, and on the same date the notice required by subsection (c) of this Code section is posted, a landowner shall send notice, which notice shall include a listing of all responsible parties and last known addresses, to all responsible parties by registered or certified mail or statutory overnight delivery. Such notice shall contain a description of the abandoned mobile home, including the make of the mobile home, the location of such mobile home, and the fact that such abandoned mobile home has been deemed derelict. Such notice shall include a statement that such responsible party is entitled to request a hearing in magistrate court within 90 days from the date that appears on such notice to contest the determination that such abandoned mobile home is derelict and that failure to request such hearing within 90 days of receipt of such notice shall entitle such landowner to dispose of the derelict mobile home.
    2. If no responsible party can be ascertained, the landowner shall place an advertisement in a newspaper of general circulation in the county where such mobile home is located; if there is no newspaper in such county, shall post such advertisement at the county courthouse in such place where other public notices are posted. Such advertisement shall run in the newspaper once a week for two consecutive weeks or shall remain posted at the courthouse for two consecutive weeks. The advertisement shall contain a description of the mobile home, including the make of the mobile home, the location of such mobile home, and the fact that such mobile home has been deemed derelict. Such advertisement shall include a statement that such responsible party is entitled to request a hearing in magistrate court by a date certain and the advertisement shall state the specific end date to contest the determination that such abandoned mobile home is derelict and that failure to request such hearing by such date shall entitle such landowner to dispose of the derelict mobile home.
  5. Neither the local governing authority nor the local government agent shall bear any liability with respect to any lawful actions taken to make a determination that a mobile home is abandoned or derelict. (Code 1981, § 44-7-113 , enacted by Ga. L. 2018, p. 666, § 1/HB 381; Ga. L. 2020, p. 493, § 44/SB 429.)

"You are hereby notified that this mobile home (describe make, model, and color, if known) located at (address or description of location) has been deemed abandoned and derelict. You are entitled to a hearing in magistrate court to contest this determination. If you fail to request a hearing within 90 days from the date that appears on this notice or if it is confirmed by a court that this abandoned mobile home is derelict, the owner of the land upon which this mobile home sits shall be entitled to dispose of the mobile home."

The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, in subsection (c), in the form, substituted " (describe make, model, and color, if known ) located at (address or description of location) " for "( describe make, model, and color, if known ) located at ( address or description of location )".

44-7-114. Hearing on findings of derelict mobile homes.

  1. Within the 90 day period described in Code Section 44-7-113, a responsible party, or after the expiration of such 90 day period, a landowner shall petition a magistrate court to hold a hearing to confirm or deny the decision of a local government agent that an abandoned mobile home is derelict. If a petition is filed pursuant to this Code section, a hearing on such issue shall be held within ten days of the filing of such petition.
  2. The court shall hear evidence of the condition of the abandoned mobile home, which may include introduction of a copy of the determination from the local government agent, and whether the notice provisions set forth have been met.
  3. If, after a full hearing, the court determines the abandoned mobile home to be derelict, the court shall issue an order finding such mobile home to be derelict and authorizing the landowner to dispose of such derelict mobile home. A landowner issued such order shall dispose of such derelict mobile home within 180 days of the date of such order. Within 30 days of disposal of a derelict mobile home, the landowner shall notify the Department of Revenue and local tag agent of such disposal and such department shall cancel the certificate of title for such derelict mobile home, if such certificate exists. (Code 1981, § 44-7-114 , enacted by Ga. L. 2018, p. 666, § 1/HB 381.)

44-7-115. Foreclosure of liens on abandoned or intact mobile homes.

Notwithstanding any conflicting provisions in Code Section 44-14-349, all liens acquired upon an abandoned mobile home or intact mobile home under Code Section 44-7-113 shall be foreclosed as follows:

  1. Any proceeding to foreclose a lien on an abandoned mobile home determined to be intact by a local government agent shall be instituted in the magistrate court of the county where such mobile home is located within one year from the time the lien is recorded;
  2. The person desiring to foreclose a lien on an abandoned mobile home determined to be intact by a local government agent shall, by certified or registered mail or statutory overnight delivery, make a demand upon the responsible party in the amount of the lien and for the payment of rent and fees accrued after the filing of the lien; provided that the amount of such rent shall not exceed $3.00 per day. If the responsible party cannot be located, notice shall be published in a newspaper of general circulation for two consecutive weeks;
    1. If, within 30 days of delivery to the appropriate address of the written demand required by paragraph (2) of this Code section or within 30 days after the last publication in a newspaper, the responsible party fails to respond to such demand or refuses to pay, or if the responsible party cannot be ascertained, the landowner may move to foreclose such lien. The person asserting such lien may move to foreclose by making an affidavit to a magistrate court showing all facts necessary to constitute such lien and the amount claimed to be due. Such affidavit shall aver that the notice requirements of Code Section 44-7-113 have been complied with, and such affidavit shall also aver that a demand for payment has been made and refused or that the identity of the responsible party cannot be ascertained. The landowner shall verify the statement by oath or affirmation with a signature affixed thereto.
    2. In addition to the filing fees required by Code Section 15-10-80, the fee for filing such affidavit shall be $5.00 per abandoned mobile home upon which a lien is asserted;
    1. Upon the filing of such affidavit, the person asserting such lien shall give the clerk or judge of the court the address, if known, of all responsible parties and the clerk or judge of the court shall serve notice informing such responsible parties of a right to a hearing to determine if reasonable cause exists to believe that a valid debt exists; that such hearing shall be petitioned for within 30 days of receipt of such notice; and that, if no petition for such hearing is filed within the time allowed, the lien shall conclusively be deemed a valid one, foreclosure thereof allowed, and a public sale pursuant to Code Section 44-7-116 shall be authorized.
    2. Any notice required by this paragraph shall be by certified mail or statutory overnight delivery or, if the responsible party is unknown, by posting such notice at the county courthouse in such place where other public notices are posted;
  5. If a petition for a hearing is filed within the time allowed pursuant to paragraph (4) of this Code section, the magistrate court shall set such a hearing within ten days of filing of the petition. Upon the filing of such petition by a party defendant, neither the prosecuting lienholder nor the court may sell the mobile home. If, at the hearing, the magistrate court determines there is reasonable cause to believe that a valid debt exists, then the person asserting the lien shall retain possession of the mobile home or the court shall obtain possession of the mobile home, as ordered by the court;
  6. If no petition for a hearing is filed, or if, after a full hearing, the magistrate court determines that a valid debt exists, the court shall authorize foreclosure upon and sale of the mobile home subject to the lien to satisfy the debt if such debt is not otherwise immediately paid. The holder of a security interest in or a lien on the mobile home, other than the holder of a lien created by Code Section 44-7-113, shall have the right, in the order of priority of such security interest or lien, to pay the debt and court costs no later than 15 days after a magistrate court's order to authorize the foreclosure. If the holder of a security interest or lien does so pay the debt and court costs, such person shall have the right to possession of the mobile home, and that person's security interest in or lien on such mobile home shall be increased by the amount so paid. A magistrate court order shall be issued to this effect, and in this instance there shall not be a sale of the mobile home. If the debt owed is not timely paid by the holder of a security interest or an appeal of the magistrate court decision has not been timely filed pursuant to paragraph (8) of this Code section, the court shall issue an order authorizing the sale of such mobile home;
  7. If the magistrate court finds the actions of the person asserting the lien in retaining possession of the mobile home were not taken in good faith, then the court, in its discretion, may award damages to the mobile home owner and to any party which has been deprived of the rightful use of the mobile home; and
  8. Any order issued by the magistrate court shall be appealable pursuant to Article 2 of Chapter 3 of Title 5, provided that any such appeal shall be filed within seven days of the date such order was entered and provided, further, that, after the notice of appeal is filed with the clerk of the trial court, the clerk shall immediately notify the magistrate court of the notice of appeal. If the order of the magistrate court is against the responsible party and the responsible party appeals such order, the responsible party shall be required to pay into the registry of the court all sums found by the magistrate court to be due in order to remain in possession of the mobile home. The responsible party shall also be required to pay all future rent into the registry of the court as it becomes due in such amounts specified in paragraph (2) of this Code section until the issue has been finally determined on appeal. (Code 1981, § 44-7-115 , enacted by Ga. L. 2018, p. 666, § 1/HB 381.)

44-7-116. "Public sale" defined; procedure; penalty for noncompliance.

    1. As used in this subsection, the term "public sale" means a sale:
      1. Held at a place reasonably available to persons who might desire to attend and submit bids;
      2. At which those attending shall be given the opportunity to bid on a competitive basis;
      3. At which the sale, if made, shall be made to the highest and best bidder; and
      4. Except as otherwise provided in Title 11 for advertising or dispensing with the advertising of public sales, of which notice is given by advertisement once a week for two weeks in the newspaper in which the sheriff's advertisements are published in the county where the sale is to be held, and which notice shall state the day and hour, between 10:00 A.M. and 4:00 P.M., and the place of sale and shall briefly identify the goods to be sold.
    2. Upon order of the magistrate court, the person holding the lien on the abandoned mobile home shall be authorized to sell such mobile home at public sale.
  2. After satisfaction of the lien, the person selling such mobile home shall, not later than 30 days after the date of such sale, provide the clerk of the court with a copy of the bill of sale as provided to the purchaser and remit the remaining proceeds of such sale, if any, to the clerk of the court. Any person who fails to comply with the requirements of this subsection shall be guilty of a misdemeanor. (Code 1981, § 44-7-116 , enacted by Ga. L. 2018, p. 666, § 1/HB 381.)

44-7-117. Clerk's role in management of proceeds.

The clerk of the magistrate court shall retain the remaining balance of the proceeds of a sale under Code Section 44-7-116, after satisfaction of liens, security interests, and debts, for a period of 12 months; and, if no claim has been filed against such proceeds by the owner of the abandoned mobile home or any interested party, then the clerk shall pay such remaining balance into the general fund of the municipality or county that employs the local government agent that made the determination that such mobile home was intact pursuant to Code Section 44-7-113.

(Code 1981, § 44-7-117 , enacted by Ga. L. 2018, p. 666, § 1/HB 381.)

44-7-118. Documentation for purchaser.

The purchaser at a sale as authorized by this article shall receive a certified copy of the court order authorizing such sale. Any such purchaser may obtain a certificate of title to such mobile home by filing the required application, paying the required fees, and filing a certified copy of the order of the court with the Department of Revenue. The Department of Revenue shall then issue a certificate of title, which shall be free and clear of all liens and encumbrances.

(Code 1981, § 44-7-118 , enacted by Ga. L. 2018, p. 666, § 1/HB 381.)

44-7-119. Appointment of local government agent not required.

Nothing in this article shall be construed to require a local governing authority to appoint a local government agent.

(Code 1981, § 44-7-119 , enacted by Ga. L. 2018, p. 666, § 1/HB 381.)

CHAPTER 8 WATER RIGHTS

Sec.

Cross references. - Control of water pollution and surface water use generally, § 12-5-20 et seq.

Law reviews. - For article, "Riparian Rights in Georgia," see 18 Ga. B.J. 401 (1956). For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978). For comment, "The Right to Rainwater: An Unlikely Fairy Tale," see 69 Mercer L. Rev. 575 (2018).

JUDICIAL DECISIONS

Georgia's law of riparian rights is a natural flow theory modified by reasonable use provision. Pyle v. Gilbert, 245 Ga. 403 , 265 S.E.2d 584 (1980), overruled on other grounds, Tunison v. Harper, 286 Ga. 687 , 690 S.E.2d 819 (2010).

Cited in Hicks v. Seaboard Coast Line R.R., 123 Ga. App. 95 , 179 S.E.2d 532 (1970).

OPINIONS OF THE ATTORNEY GENERAL

For discussion of fishing and public passage rights on non-tidal rivers of the state, see 1985 Op. Att'y Gen. No. U85-8.

RESEARCH REFERENCES

Unreasonable Alteration of Surface Drainage, 6 POF2d 301.

Interference with Use of Senior Well - Withdrawal from Common Aquifer, 8 POF2d 515.

Citizens' Suits under the Safe Drinking Water Act, 67 POF3d 95.

Proof of Accretion or Avulsion in Title and Boundary Disputes over Additions to Riparian Land, 73 POF3d 167.

ALR. - Right of property owner to repel or remove flood water from building, 4 A.L.R. 1104 .

Right to follow accretions across division line previously submerged by action of water, 8 A.L.R. 640 ; 41 A.L.R. 395 .

Right to hasten the flow and increase the volume of water in a stream by alterations or improvements in the bed, 9 A.L.R. 1211 .

Transfer of riparian right to use water to nonriparian land, 14 A.L.R. 330 ; 54 A.L.R. 1411 .

Duty to refrain from improving or using one's property in anticipation of flooding of the property by another's wrong, 19 A.L.R. 423 ; 38 A.L.R. 90 ; 48 A.L.R. 479 ; 56 A.L.R. 207 ; 62 A.L.R. 738 .

Right of grantor of railroad right of way or his privy to recover damages for interference with surface water by construction of road, 19 A.L.R. 487 ; 67 A.L.R. 1511 .

Respective rights of insured and beneficiary in endowment, accumulation, and tontine policies, 19 A.L.R. 654 ; 72 A.L.R.2d 1311.

Right of riparian owner to embank against flood or overflow water from stream, 22 A.L.R. 956 ; 53 A.L.R. 1180 ; 23 A.L.R.2d 750.

Title to beds of natural lakes or ponds, 23 A.L.R. 757 ; 112 A.L.R. 1108 .

Liability of owner of flowage rights for draining off water to the damage of property overflowed, 29 A.L.R. 1325 .

Periodical, seasonal, or intermittent stream as a watercourse, 40 A.L.R. 839 .

Precipitation of rainwater or snow from a building upon adjoining premises, 48 A.L.R. 1248 .

Prescriptive right of lower as against upper owner to flow of stream, 53 A.L.R. 201 .

Rights, privileges, or easements of public, its grantees or licensees, on land bordering on navigable water, 53 A.L.R. 1191 .

Subterranean and percolating waters, springs, wells, 55 A.L.R. 1385 ; 109 A.L.R. 395 .

Constitutionality of statutes affecting riparian rights, 56 A.L.R. 277 .

Duty of lower land to receive surface water diverted to upper land by artificial conditions outside of both tracts, 72 A.L.R. 344 .

Right to injunction to protect water rights as affected by fact that party seeking injunction contemplates no immediate use of rights, or by doctrine of comparative injury, 106 A.L.R. 687 .

Appropriation of water as creating right, as against subsequent appropriator, to continue method or means of diversion, 121 A.L.R. 1044 .

Assignability and divisibility of easement in gross or license in respect of land or water, 130 A.L.R. 1253 .

Waters: rights in respect of changes by accretion or reliction due to artificial conditions, 134 A.L.R. 467 .

Rights and duties of owners inter se with respect to upkeep and repair of water easement, 169 A.L.R. 1147 .

Liability, as regards surface waters, for raising surface level of land, 12 A.L.R.2d 1338.

Rights of fishing, boating, bathing, or the like in inland lakes, 57 A.L.R.2d 569.

Easements: way by necessity where property is accessible by navigable water, 9 A.L.R.3d 600.

Res ipsa loquitur as applicable in actions for damage to property by the overflow or escape of water, 91 A.L.R.3d 186.

Extinguishment by prescription of natural servitude for drainage of surface waters, 42 A.L.R.4th 462.

Liability for diversion of surface water by raising surface level of land, 88 A.L.R.4th 891.

44-8-1. Ownership of running water; right to divert or adulterate water.

Running water belongs to the owner of the land on which it runs; but the landowner has no right to divert the water from its usual channel nor may he so use or adulterate it as to interfere with the enjoyment of it by the next owner.

(Ga. L. 1855-56, p. 12, § 1; Code 1863, § 2206; Code 1868, § 2201; Code 1873, § 2227; Code 1882, § 2227; Civil Code 1895, § 3057; Civil Code 1910, § 3629; Code 1933, § 85-1301.)

Law reviews. - For article, "Georgia Water Law, Use and Control Factors," see 19 Ga. B.J. 119 (1956). For article discussing federal liability for pollution abatement in condemnation actions, see 17 Mercer L. Rev. 364 (1966). For article discussing legal questions relating to interbasin transfer of water supply, see 13 Ga. St. B.J. 48 (1976). For article, "Hazardous Waste Issues in Real Estate Transactions," see 38 Mercer L. Rev. 581 (1987). For article, "Water Rights, Public Resources, and Private Commodities: Examining the Current and Future Law Governing the Allocation of Georgia Water," see 38 Ga. L. Rev. 1009 (2004). For article, "Special Challenges to Water Markets in Riparian States," see 21 Ga. St. U. L. Rev. 305 (2004).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

O.C.G.A. § 44-8-1 does not speak to the landlord-tenant relationship, but only to the relations between adjoining proprietors. Uniroyal, Inc. v. Hood, 588 F.2d 454 (5th Cir. 1979).

Cited in Anneberg v. Kurtz, 197 Ga. 188 , 28 S.E.2d 769 (1944); Roughton v. Thiele Kaolin Co., 209 Ga. 577 , 74 S.E.2d 844 (1953); Piedmont Cotton Mills, Inc. v. General Whse. No. Two, Inc., 222 Ga. 164 , 149 S.E.2d 72 (1966); First Kingston Corp. v. Thompson, 222 Ga. 6 , 152 S.E.2d 837 (1967); Wright v. Lovett, 132 Ga. App. 729 , 209 S.E.2d 15 (1974); Uniroyal, Inc. v. Hood, 588 F.2d 454 (5th Cir. 1979).

Diversion of Water

No change in common law. - Construing together O.C.G.A. § 44-8-1 , 44-8-3 , and 51-9-7 , there is no change in the common law. Pool v. Lewis, 41 Ga. 162 , 5 Am. R. 526 (1870); White v. East Lake Land Co., 96 Ga. 415 , 23 S.E. 393 , 51 Am. St. R. 141 (1895); Price v. High Shoals Mfg. Co., 132 Ga. 246 , 64 S.E. 87 (1909).

Section allows propelling machinery on water without diversion. - O.C.G.A. § 44-8-1 and 51-9-7 secure to the owner of land over which a stream passes the legal use of it, for the purpose of propelling such machinery as is suited to the size and capacity of the stream; provided, the water is not obstructed for an unreasonable time, and is not diverted from its natural channel when it passes to the lands of the next proprietor. Pool v. Lewis, 41 Ga. 162 , 5 Am. R. 526 (1870).

Riparian landowner rights to ditch land not altered. - O.C.G.A. § 44-8-1 made no substantial change in the common-law rights of landowners, with respect to ditching out and protecting their property. Grant v. Kuglar, 81 Ga. 637 , 8 S.E. 878 , 12 Am. St. R. 348 , 3 L.R.A. 606 (1889); Price v. High Shoals Mfg. Co., 132 Ga. 246 , 64 S.E. 87 , 22 L.R.A. (n.s.) 684 (1909).

Riparian owners entitled to reasonable use. - Under a proper construction of O.C.G.A. §§ 13-6-5 , 44-8-1 , 51-9-7 , and 51-12-11 , every riparian owner is entitled to a reasonable use of the water in the stream. If the general rule that each riparian owner could not in any way interrupt or diminish the flow of the stream were strictly followed, the water would be of little practical use to any proprietor, and the enforcement of such rule would deny, rather than grant, the use thereof. Price v. High Shoals Mfg. Co., 132 Ga. 246 , 64 S.E. 87 , 22 L.R.A. (n.s.) 684 (1909).

Including right to irrigate. - Irrigation is not per se a diversion of water prohibited by law. Pyle v. Gilbert, 245 Ga. 403 , 265 S.E.2d 584 (1980), overruled on other grounds, Tunison v. Harper, 286 Ga. 687 , 690 S.E.2d 819 (2010).

If reasonable amount used for home or farm. - A reasonable amount of water may be diverted for irrigation, under the general right of use for domestic and agricultural purposes. Pyle v. Gilbert, 245 Ga. 403 , 265 S.E.2d 584 (1980), overruled on other grounds, Tunison v. Harper, 286 Ga. 687 , 690 S.E.2d 819 (2010).

Upper riparian owner has right to pass water along unobstructed by lower riparian owner, and lower riparian owner has duty to receive water unobstructed by upper riparian owner. Brown v. Tomlinson, 246 Ga. 513 , 272 S.E.2d 258 (1980).

If upper owner does not increase flow. - Where two lots adjoin, lower lot owes servitude to the higher, to receive water naturally running from it, provided owner of the latter has done nothing to increase flow by artificial means. Brown v. Tomlinson, 246 Ga. 513 , 272 S.E.2d 258 (1980).

Lower riparian owners also have riparian rights to natural flow of stream running through upper riparian owners' property. Brown v. Tomlinson, 246 Ga. 513 , 272 S.E.2d 258 (1980).

Landowner may not damage neighbor by diverting runoff. - A landowner has no right incident to ownership of land to divert surface water runoff so as to damage an adjoining proprietor. Uniroyal, Inc. v. Hood, 588 F.2d 454 (5th Cir. 1979).

Landowner may not use water on nonriparian land. - Riparian rights are appurtenant only to lands which actually touch on the water course, or through which it flows, and a riparian owner or proprietor cannot lawfully use, or convey to another the right to use water flowing along or through property, upon nonriparian land or lands physically separated from the lands bordering upon the stream. Hendrix v. Roberts Marble Co., 175 Ga. 389 , 165 S.E. 223 (1932).

Riparian owners have only usufruct to use water. - No riparian proprietor has the right to use the water to the prejudice of other proprietors above or below the riparian proprietor, as the riparian proprietor has no property in the water itself, but a simple usufruct while it passes along. Robertson v. Arnold, 182 Ga. 664 , 186 S.E. 806 (1936).

Injunction justified to prevent diversion. - Where a lower riparian proprietor petitions for an interlocutory injunction against an upper proprietor, who is threatening to interfere with petitioner's rights in a nonnavigable stream flowing through land, by diverting part of the water above the lands of the petitioner, and returning it to the stream below such lands, and where it appears from the record that the defendant, a nonresident, admits the contemplated trespass, and defends solely upon the ground that the diversion of the water will not damage the petitioner to any material extent, it is error to refuse the injunction prayed because (1) the diversion of the water would be an injury to the petitioner's property and property rights; (2) the injunction would prevent a multiplicity of suits; and (3) the injunction would restrain acts of the defendant which might, with the lapse of time, become the foundation of an adverse right. Robertson v. Arnold, 182 Ga. 664 , 186 S.E. 806 (1936).

Use of more water than proportionate share grounds for damages. - For other than domestic purposes, the right of each proprietor in the use of the water is limited by the rights of the other proprietors; and consequently, if an upper proprietor appropriates to own use more of the water than the proportionate share to which the owner is entitled, a lower proprietor may maintain an action for the recovery of damages therefor. White v. East Lake Land Co., 96 Ga. 415 , 23 S.E. 393 , 51 Am. St. R. 141 (1895).

Damages amount based on complete or partial diversion. - If diversion of water is complete, the lower proprietor is entitled to full damages; if partial, the damages should be apportioned. White v. East Lake Land Co., 96 Ga. 415 , 23 S.E. 393 , 51 Am. St. R. 141 (1895).

The damaged proprietor is under no legal obligation to exercise ordinary care to avoid or lessen such damages. Satterfield v. Rowan, 83 Ga. 187 , 9 S.E. 677 (1889); Price v. High Shoals Mfg. Co., 132 Ga. 246 , 64 S.E. 87 , 22 L.R.A. (n.s.) 684 (1909).

Whether use reasonable is question for jury. - The question as to whether or not the use of the water by the first proprietor is reasonable is one of fact for determination by jury. White v. East Lake Land Co., 96 Ga. 415 , 23 S.E. 393 , 51 Am. St. R. 141 (1895); Price v. High Shoals Mfg. Co., 132 Ga. 246 , 64 S.E. 87 , 22 L.R.A. (n.s.) 684 (1909).

No relief if 20 years of prescriptive use passed. - Where dam on lower riparian owner's property creating pond on upper riparian owner's property was in existence for more than 20 years, lower riparian owner lost right to receive natural flow of water from upper riparian owner and the latter acquired right to maintain accumulated water on land. Brown v. Tomlinson, 246 Ga. 513 , 272 S.E.2d 258 (1980).

No relief if upper landowner failed to complain before pond drainage began. - Even though appellant, upper riparian landowner, had acquired prescriptive right to maintain accumulated water on land, the upper riparian owner was not entitled to permanent injunction preventing lower riparian owner from draining the pond by breaking dam on lower riparian property where appellant failed to attend meetings where draining of the pond was discussed and did not bring action until one month after appellent became aware that pond was being drained, and where appellee testified in court that the plan was to refill and restock the pond. Brown v. Tomlinson, 246 Ga. 513 , 272 S.E.2d 258 (1980).

If landowner not riparian proprietor. - Where the petition disclosed that the plaintiff was not a riparian owner at the time the action was filed, the petition did not state a cause of action either for legal or equitable relief on account of the erection by the defendants of a dam across a nonnavigable stream flowing through the property of the defendants and across land occupied by the plaintiff with the consent of the owner. Moulton v. Bunting McWilliams Post No. 658, Veterans of Foreign Wars, 213 Ga. 859 , 102 S.E.2d 593 (1958).

Pollution

A lower riparian owner is entitled to have water flow upon land in its natural state free from adulteration. Kingsley Mill Corp. v. Edmonds, 208 Ga. 374 , 67 S.E.2d 111 (1951).

An upper riparian owner cannot lawfully pollute the water of a stream so as to render it unfit for use by a lower owner. Satterfield v. Rowan, 83 Ga. 187 , 9 S.E. 677 (1889); Horton v. Fulton, 130 Ga. 466 , 60 S.E. 1059 (1908).

Several owners may petition to restrain pollution of nonnavigable stream. - The owner of land is entitled to the use of water of a nonnavigable stream flowing through land. Several lower riparian landowners have such a community of interest that they may join in a petition to restrain an upper proprietor or stranger from adulterating the water. Horton v. Fulton, 130 Ga. 465 , 60 S.E. 1059 (1908); Cairo Pickle Co. v. Muggridge, 206 Ga. 80 , 55 S.E.2d 562 (1949).

Through an injunction. - Injuring "a fishing privilege," or rendering land less valuable for pasture purposes, by polluting the water of a nonnavigable stream, gives rise to a cause of action. Injunction will lie to prevent continuing trespasses. Cairo Pickle Co. v. Muggridge, 206 Ga. 80 , 55 S.E.2d 562 (1949).

Petition showing damage not subject to dismissal. - A petition of a lower riparian owner showing an adulteration, by an upper-riparian owner, of water flowing through their properties with resultant damage to such lower owner, in violation of O.C.G.A. § 44-8-1 and 51-9-7 , is not demurrable (now motion to dismiss) as stating no cause of action. Vickers v. City of Fitzgerald, 216 Ga. 476 , 117 S.E.2d 316 (1960), overruled on other grounds, City of Chamblee v. Maxwell, 264 Ga. 635 , 452 S.E.2d 488 (1994).

Grounds for injunction to restrain sewage disposal on dairy. - Where no question of prescriptive rights was involved in suit by a dairy farmer seeking to enjoin a manufacturing company from polluting a stream, and where there was evidence, though conflicting, that the stream was being polluted, and that the petitioner had not acquiesced or consented for the water from the defendants' sewerage disposal plant to be discharged upon defendant's land, the trial court did not abuse its discretion in granting an interlocutory injunction. Kingsley Mill Corp. v. Edmonds, 208 Ga. 374 , 67 S.E.2d 111 (1951).

OPINIONS OF THE ATTORNEY GENERAL

Riparian owner may prohibit fishing on part of navigable river. - A property owner may bar public fishing in a fresh water stream on that portion of the stream that runs through land held by the property owner, although the stream is navigable. 1960-61 Op. Att'y Gen. p. 237.

RESEARCH REFERENCES

Am. Jur. 2d. - 78 Am. Jur. 2d, Waters, §§ 1, 5-31, 230, 253.

24B Am. Jur. Pleading and Practice Forms, Waters, § 6.

C.J.S. - 65 C.J.S., Navigable Waters, §§ 64, 85. 93 C.J.S., Waters, §§ 9 et seq., 20 et seq., 134 et seq., 199 et seq.

ALR. - Right to hasten by improvement of street or highway the flow of surface water along natural drainways, 5 A.L.R. 1530 ; 36 A.L.R. 1463 .

Liability for damages to riparian owner by means adopted to protect bridge or other structure in or across stream at time of flood, 7 A.L.R. 116 .

Right of owner of upland to make a use, not connected with navigation, of the shore between high and low water mark, which excludes the general public, 10 A.L.R. 1053 ; 107 A.L.R. 1347 .

Liability of one who diverts stream into new channel for overflow, 12 A.L.R. 187 .

Right to damages for the destruction of riparian owner's access to navigability by improvement of navigation, 21 A.L.R. 206 .

Constitutionality of statutes affecting riparian rights, 56 A.L.R. 277 .

Extent of detention or retardation of water incident to riparian rights, 70 A.L.R. 220 .

What constitutes natural drainway or watercourse for flow of surface water, 81 A.L.R. 262 .

Right of riparian landowners to continuance of artificial conditions established above or below their land, 88 A.L.R. 130 .

Right of riparian owner on navigable water to access to water, 89 A.L.R. 1156 .

Appropriation of water as creating right, as against subsequent appropriator, to continue method or means of diversion, 121 A.L.R. 1044 .

Agreement in respect of water rights in stream as creating a mere personal obligation, covenant running with the land, or an easement, 127 A.L.R. 835 .

Right of riparian owner to continuation of periodic and seasonal overflows from stream, 20 A.L.R.2d 656.

Landowner's right to relief against pollution of his water supply by industrial or commercial waste, 39 A.L.R.3d 910.

Propriety of injunctive relief against diversion of water by municipal corporation or public utility, 42 A.L.R.3d 426.

Liability of oil and gas lessee or operator for injuries to or death of livestock, 51 A.L.R.3d 304.

Modern status of rules governing interference with drainage of surface waters, 93 A.L.R.3d 1193.

Exemption from sales or use tax of water, oil, gas, other fuel, or electricity provided for residential purposes, 15 A.L.R.4th 269.

Liability for diversion of surface water by raising surface level of land, 88 A.L.R.4th 891.

44-8-2. Nonnavigable streams - Rights of adjoining owners; principles when stream is boundary; accretions.

The beds of nonnavigable streams belong to the owner of the adjacent land. If the stream is a dividing line between two parcels of land, each owner's boundary shall extend to the thread or the center of the main current of the water. If the current changes gradually, the boundary line follows the current. If from any cause the stream takes a new channel, the original line, if identifiable, remains the boundary. Gradual accretions of land on either side accrue to the owner of that side.

(Orig. Code 1863, § 2207; Code 1868, § 2202; Code 1873, § 2228; Code 1882, § 2228; Civil Code 1895, § 3058; Civil Code 1910, § 3630; Code 1933, § 85-1302.)

Cross references. - Jurisdiction of county over stream of water which forms boundary of county, § 36-1-2 .

Diversion, obstruction, or pollution of nonnavigable watercourses as constituting trespass, § 51-9-7 .

Law reviews. - For article on principles of water law in the southeast, see 13 Mercer L. Rev. 344 (1962).

JUDICIAL DECISIONS

Section follows common law. - O.C.G.A. § 44-8-2 declares that where land is bounded by a nonnavigable stream the boundary extends to the center or thread of the stream. This rule has been part of the common law even before the section was passed. Jones v. Water Lot Co., 18 Ga. 539 (1855); Boardman v. Scott, 102 Ga. 404 , 30 S.E. 982 , 51 L.R.A. 178 (1897); State v. Georgia Ry. & Power Co., 141 Ga. 153 , 80 S.E. 657 (1913).

Where land is bounded by a nonnavigable stream the boundary extends to the center or thread of the stream. Outlaw v. Outlaw, 225 Ga. 100 , 165 S.E.2d 845 (1969).

Land grants bounded on river. - Under O.C.G.A. § 44-8-2 where a plot calls for a nonnavigable river as a boundary, the line is to determine at it, and the land embraced in the grant will extend to the middle thread of the stream. Stanford v. Mangin, 30 Ga. 355 (1860); State v. Georgia Ry. & Power Co., 141 Ga. 153 , 80 S.E. 657 (1913).

Extension of property to midstream applies in condemnation proceedings. - In a notice to acquire an easement of flowage on certain described land bounded by a nonnavigable stream, where the easement sought to be acquired is to overflow the land, which is specifically described, and also to raise and flow-back the water in the stream to a certain depth, the description of the property sought to be impressed with the easement of flowage is sufficiently comprehensive and definite to include flowage rights over both the land described and also the bed of the stream on which it abuts to the center of the stream. Central Ga. Power Co. v. Maddox, 135 Ga. 246 , 69 S.E. 109 (1910).

Boundary line running to stream presumed to run to center. - Where a boundary line is described as running to the stream, language which describes it as thereafter running "with," "along," "by," "on," "up," or "down" the stream will be construed to carry the title to the center unless contrary intention appears from the instrument. Westmoreland v. Beutell, 153 Ga. App. 558 , 266 S.E.2d 260 (1980).

Ownership of artificial pond shores only to low-water mark. - Under a deed bounding land conveyed by an artificial pond, the lien of the land conveyed did not extend to the thread of the stream from whose waters the pond was formed, but only to the low-water mark of the pond. Boardman v. Scott, 102 Ga. 404 , 30 S.E. 982 , 51 L.R.A. 178 (1897).

Owner of bed of nontidal stream has exclusive fishing rights. - Where tidal waters are not involved, the ownership of the fee in the bed of the stream generally carries with it the exclusive right of fishery in the stream. West v. Baumgartner, 124 Ga. App. 318 , 184 S.E.2d 213 (1971), rev'd on other grounds, 228 Ga. 671 , 187 S.E.2d 665 (1972).

Under common law. - By the common law the right to take fish belongs essentially to the right of soil in streams where the tide does not ebb and flow. Bosworth v. Nelson, 170 Ga. 279 , 152 S.E. 575 (1930).

If the riparian owner owns both sides of the stream, no one but the owner may come within the limits of land and take fish. The same right applies so far as land extends to the thread of the stream, where the owner owns upon one side only. Within these limits, by the common law, the owner's rights of fishery are sole and exclusive. Bosworth v. Nelson, 170 Ga. 279 , 152 S.E. 575 (1930).

Milling privileges do not give fishing rights. - As the owner of land adjoining a nonnavigable stream, is, under O.C.G.A. § 44-8-2 , the owner of the soil to the center of the stream, it follows that if one proprietor owns the land on both sides of a stream the proprietor has the exclusive right of fishing therein, and a grant of mill privileges in the stream does not carry the fishing privileges. Thompson v. Tennyson, 148 Ga. 701 , 98 S.E. 353 (1919).

So upper owner may use water above mill. - Riparian owners are each entitled to the center of the stream, and where there was a dam in the stream forming a mill pond in which the lower riparian owner was entitled to milling privileges, the upper riparian owner had, nevertheless, the right to a reasonable use of the water to the center of the stream, provided such use did not interfere with the milling privileges. Rome Ry. & Light Co. v. Loeb, 141 Ga. 202 , 80 S.E. 785 , 1915C Ann. Cas. 1023 (1914).

Right to reasonable use of water in nonnavigable watercourse on nonriparian land can be acquired by grant from a riparian owner. Pyle v. Gilbert, 245 Ga. 403 , 265 S.E.2d 584 (1980), overruled on other grounds, Tunison v. Harper, 286 Ga. 687 , 690 S.E.2d 819 (2010).

Cited in Johnson v. Watson, 157 Ga. 349 , 121 S.E. 229 (1924); Russell v. Radford, 76 Ga. App. 302 , 45 S.E.2d 705 (1947); Parker v. Adamson, 109 Ga. App. 172 , 135 S.E.2d 487 (1964); Maddox v. Threatt, 225 Ga. 730 , 171 S.E.2d 284 (1969).

OPINIONS OF THE ATTORNEY GENERAL

The consent of the riparian owner must be obtained before removing floating logs from nonnavigable streams. 1958-59 Op. Att'y Gen. p. 220.

For discussion of the scope of riparian rights and the "right of access" to a nonnavigable, freshwater impoundment, see 1980 Op. Att'y Gen. No. 80-130.

RESEARCH REFERENCES

Am. Jur. 2d. - 78 Am. Jur. 2d, Waters, §§ 230, 260-280, 282, 283, 383, 384, 406, 407, 411, 413.

C.J.S. - 65 C.J.S., Navigable Waters, § 94 et seq. 93 C.J.S., Waters, §§ 11 et seq., 91 et seq., 170 et seq.

ALR. - Right to hasten the flow and increase the volume of water in a stream by alterations or improvements in the bed, 9 A.L.R. 1211 .

Right of owner of upland to make a use, not connected with navigation, of the shore between high and low water mark, which excludes the general public, 10 A.L.R. 1053 ; 107 A.L.R. 1347 .

Right of riparian owner to embank against flood or overflow water from stream, 22 A.L.R. 956 ; 53 A.L.R. 1180 ; 23 A.L.R.2d 750.

Right to place bathhouse or similar structure on shore in front of riparian owner, 24 A.L.R. 1273 .

Right of riparian owner on navigable water to access to water, 89 A.L.R. 1156 .

Waters: rights in respect of changes by accretion or reliction due to artificial conditions, 134 A.L.R. 467 .

Right of riparian owner to continuation of periodic and seasonal overflows from stream, 20 A.L.R.2d 656.

Right of riparian owner to construct dikes, embankments, or other structures necessary to maintain or restore bank of stream or to prevent flood, 23 A.L.R.2d 750.

Applicability of rules of accretion and reliction so as to confer upon owner of island or bar in navigable stream title to additions, 54 A.L.R.2d 643.

Apportionment and division of area of river as between riparian tracts fronting on same bank, in absence of agreement or specification, 65 A.L.R.2d 143.

Rights to land created at water's edge by filling or dredging, 91 A.L.R.2d 857.

Right to accretion built up from one tract of land and extending laterally in front of adjoining tract without being contiguous thereto, 61 A.L.R.3d 1173.

Riparian owner's right to new land created by reliction or by accretion influenced by artificial condition not produced by such owner, 63 A.L.R.3d 249.

Deeds: description of land conveyed by reference to river or stream as carrying to thread or center or only to bank thereof - modern status, 78 A.L.R.3d 604.

Modern status of rules governing interference with drainage of surface waters, 93 A.L.R.3d 1193.

44-8-3. Nonnavigable streams - Exclusive possession by owner; interference by legislature with lawful use of stream.

The owner of a nonnavigable stream is entitled to the same exclusive possession of the stream as he has of any other part of his land. The legislature has no power to compel or interfere with the owner's lawful use of the stream, for the benefit of those above or below him on the stream, except to restrain nuisances.

(Orig. Code 1863, § 2210; Code 1868, § 2205; Code 1873, § 2231; Code 1882, § 2231; Civil Code 1895, § 3061; Civil Code 1910, § 3633; Code 1933, § 85-1305.)

Law reviews. - For article on principles of water law in the southeast, see 13 Mercer L. Rev. 344 (1962).

JUDICIAL DECISIONS

Section deals with owners, not state. - O.C.G.A. § 44-8-3 was not intended to deprive the state of its power of eminent domain, but rather it was definitive of the rights of one riparian owner as against the other. Nolan v. Central Ga. Power Co., 134 Ga. 201 , 67 S.E. 656 (1910); Whitney v. Central Ga. Power Co., 134 Ga. 213 , 67 S.E. 197 , 19 Ann. Cas. 982 (1910).

O.C.G.A. § 44-8-3 does not apply to tidal waters. West v. Baumgartner, 124 Ga. App. 318 , 184 S.E.2d 213 (1971), rev'd on other grounds, 228 Ga. 671 , 187 S.E.2d 665 (1972).

Landowner of nontidal stream bed has exclusive fishing rights. - Where tidal waters are not involved, the ownership of the fee in the bed of the stream generally carries with it the exclusive right of fishery in the stream. West v. Baumgartner, 124 Ga. App. 318 , 184 S.E.2d 213 (1971), rev'd on other grounds, 228 Ga. 671 , 187 S.E.2d 665 (1972).

By the common law the right to take fish belongs essentially to the right of soil in streams where the tide does not ebb and flow. Bosworth v. Nelson, 170 Ga. 279 , 152 S.E. 575 (1930).

With extent of rights dependent on whether one or both shores owned. - If the riparian owner owns both sides of the stream, no one but the owner may come within the limits of land and take fish. The same right applies so far as the owner's land extends to the thread of the stream, where the owner upon one side only. Within these limits, by common law, the owner's rights of fishery are sole and exclusive. Bosworth v. Nelson, 170 Ga. 279 , 152 S.E. 575 (1930).

Summary judgment appropriate. - Because there was no admissible evidence demonstrating the navigability of a stream, the trial court correctly granted summary judgment on that question. Givens v. Ichauway, Inc., 268 Ga. 710 , 493 S.E.2d 148 (1997).

Cited in Seaboard Air Line Ry. v. Sikes, 4 Ga. App. 7 , 60 S.E. 868 (1908); Groover v. Hightower, 59 Ga. App. 491 , 1 S.E.2d 446 (1939); Payne v. Whiting, 140 Ga. App. 390 , 231 S.E.2d 796 (1976).

OPINIONS OF THE ATTORNEY GENERAL

Owner of nonnavigable streams who owns land on both sides of the stream has exclusive fishing rights in that stream. 1962 Op. Att'y Gen. p. 249.

Person owns rights to nonnavigable stream's center if owns one bank. - The Supreme Court of Georgia has held that "the owner of land adjoining a nonnavigable stream is the owner of the soil to the center of the thread of the stream, and of the fishing rights to the center of the thread on his side of the stream; if one proprietor owns the land on both sides of the stream, he has the exclusive right of fishing therein." 1960-61 Op. Att'y Gen. p. 235.

Consent of riparian owner must be obtained before removing floating logs from nonnavigable streams. 1958-59 Op. Att'y Gen. p. 220.

The owner of land adjacent to a navigable stream owns to the low-water mark of that stream, and there is no question but that the owner of the land may prevent fishing from upon lands and could well have exclusive fishing rights to the low-water mark thereof. 1962 Op. Att'y Gen. p. 249.

Landowner around lake can prohibit fishing up to navigable stream's low-water mark. - Where the river is navigable at the point where the lake comes into the stream, and the same person owns the land on both sides of the lake and the land on both sides of the mouth of the lake, the owner would have the exclusive fishing rights to the low-water mark of navigable stream; assuming the conditions above, the lake and the lands could be posted by the owner notwithstanding the fact that the lake and lands might be posted by operation of law. 1962 Op. Att'y Gen. p. 249.

RESEARCH REFERENCES

Am. Jur. 2d. - 78 Am. Jur. 2d, Waters, §§ 10, 229-232, 274-276, 382, 383.

C.J.S. - T93 C.J.S., Waters, §§ 39, 40.

ALR. - Right of owner of upland to make a use, not connected with navigation, of the shore between high and low water mark, which excludes the general public, 10 A.L.R. 1053 ; 107 A.L.R. 1347 .

Specific description with reference to water, in conveyance of riparian land, as marking the extent of grantee's ownership of the submerged land and the shore, 74 A.L.R. 597 .

Apportionment and division of area of river as between riparian tracts fronting on same bank, in absence of agreement or specification, 65 A.L.R.2d 143.

44-8-4. Nonnavigable streams - Construction of dams, canals, and appurtent works; liability for resultant damages.

It shall be lawful for all corporations and individuals owning or controlling lands on both sides of any nonnavigable stream to construct and maintain a dam or dams, together with canals and appurtenances thereof, across the stream for the development of water power and for other purposes; provided, however, this Code section shall not be construed to release individuals or corporations constructing such dam or dams and appurtenant works from liability to private property owners for damages resulting from the construction and operation thereof either by overflow or otherwise.

(Ga. L. 1908, p. 78, § 1; Civil Code 1910, § 3634; Code 1933, § 85-1306.)

Cross references. - Inspection, permitting, etc., of dams and other artificial barriers, § 12-5-370 et seq.

Law reviews. - For note, "Regulation of Artificial Lakes and Recreational Subdivisions in Georgia," recommending methods for future regulation, see 8 Ga. St. B.J. 580 (1972).

JUDICIAL DECISIONS

Obstruction of nonnavigable stream is trespass. - The obstruction of a nonnavigable stream so as to impede its course or cause it to overflow or injure the land of another is a trespass upon property. Groover v. Hightower, 59 Ga. App. 491 , 1 S.E.2d 446 (1939).

Railroad must clean drainage ditch to prevent backup on neighbor. - Where a railroad company constructs a fill or embankment which obstructs the natural drainage and flow of water from adjacent land belonging to another, and the railroad constructs a ditch or drain to carry off the water and prevent backup, the railroad owes a duty to the landowner of the land not to permit the ditch to fill up and become obstructed so as to turn the water back upon the adjacent land, and where the ditch has become so obstructed, the railroad has a duty to clean out the ditch so that it can carry off the water, and railroad must not pond the water and back it up upon the adjacent land. Southern Ry. v. Thacker, 50 Ga. App. 706 , 179 S.E. 225 (1935).

Section does not permit dam injurious to health. - O.C.G.A. § 44-8-4 deals generally with the right of an owner of land on both sides of a nonnavigable stream to construct and maintain a dam or dams across such stream "for the development of water-power and other purposes." It is not confined to companies or persons furnishing heat, light, or power to the public. It was hardly intended to declare broadly that any owner of land might build a dam and be free from all damages resulting therefrom, if it created a nuisance injurious to health. Central Ga. Power Co. v. Nolen, 143 Ga. 776 , 85 S.E. 945 (1915).

Nuisance action justified for damage from dangerous dam. - The right of a company to build a dam does not include a right to build or maintain it in such negligent or improper manner as to cause a nuisance injurious to the health of the adjacent community. For damages arising from such things, an action will lie. Central Ga. Power Co. v. Nolen, 143 Ga. 776 , 85 S.E. 945 (1915).

Action for damages. - If the erection of a dam for a grist mill should create a continuing nuisance, it may be abated or damages to those whose property may be damaged are recoverable under the terms of O.C.G.A. § 44-8-4 . Gray v. Chason, 158 Ga. 313 , 123 S.E. 290 (1924).

Judge may refuse injunction until jury trial. - It is within the discretion of a judge to refuse an injunction against erecting a dam which might cause injury to the health of a community, until all the issues of fact could be passed on by a jury. Gray v. Chason, 158 Ga. 313 , 123 S.E. 290 (1924).

Lawful hydroelectric dam not nuisance. - Where a dam is lawfully and properly constructed and maintained by a public utility company for the production of electricity, the defendant cannot be held liable for creating or maintaining an abatable nuisance. Georgia Power Co. v. Moore, 47 Ga. App. 411 , 170 S.E. 520 (1933).

Cited in Smith v. Dallas Util. Co., 27 Ga. App. 22 , 107 S.E. 381 , cert. denied, 27 Ga. App. 836 (1921).

RESEARCH REFERENCES

Am. Jur. 2d. - 78 Am. Jur. 2d, Waters, §§ 18-22, 26, 27, 29, 30, 41, 79, 200-205, 211-220.

C.J.S. - 65 C.J.S., Navigable Waters, §§ 23 et seq., 55 et seq., 64. 93 C.J.S., Waters, §§ 11, 18 et seq., 38 et seq., 146, 311 et seq.

ALR. - Power of Legislature to relieve one authorized to construct a dam from liability for damages to adjoining property, 6 A.L.R. 1326 .

Right of owner of upland to make a use, not connected with navigation, of the shore between high and low water mark, which excludes the general public, 10 A.L.R. 1053 ; 107 A.L.R. 1347 .

Applicability of rule of strict or absolute liability to overflow or escape of water caused by dam failure, 51 A.L.R.3d 965.

Res ipsa loquitur as applicable in actions for damage to property by the overflow or escape of water, 91 A.L.R.3d 186.

Liability for overflow of water confined or diverted for public power purposes, 91 A.L.R.3d 1065.

44-8-5. Rights of adjoining landowners in navigable streams.

  1. As used in this chapter, the term "navigable stream" means a stream which is capable of transporting boats loaded with freight in the regular course of trade either for the whole or a part of the year. The mere rafting of timber or the transporting of wood in small boats shall not make a stream navigable.
  2. The rights of the owner of lands which are adjacent to navigable streams extend to the low-water mark in the bed of the stream.

    (Orig. Code 1863, §§ 2208, 2209; Code 1868, §§ 2203, 2204; Code 1873, §§ 2229, 2230; Code 1882, §§ 2229, 2230; Civil Code 1895, §§ 3059, 3060; Civil Code 1910, §§ 3631, 3632; Code 1933, §§ 85-1303, 85-1304; Ga. L. 1982, p. 3, § 44.)

Law reviews. - For article, "Some Legal Problems Involved in Saving Georgia's Marshlands," see 7 Ga. St. B.J. 27 (1970). For article, "Public Rights in Georgia's Tidelands," see 9 Ga. L. Rev. 79 (1974). For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998).

JUDICIAL DECISIONS

The common law is in force as regards tide waters except as affected by O.C.G.A. § 44-8-5 . Shively v. Bowlby, 152 U.S. 1, 14 S. Ct. 548 , 38 L. Ed. 331 (1894).

Section merely gives riparian proprietors right to river bottoms. - The intention of O.C.G.A. § 44-8-5 was not to change the common law with reference to the boundaries of landowners abutting on the sea or any of its inlets, but rather to insure to riparian proprietors the right to the river bottoms upon their lands for agricultural purposes. Johnson v. State, 114 Ga. 790 , 40 S.E. 807 (1902); State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Navigability for federal regulatory purposes is governed by federal law and state law is not authoritative in such cases. United States v. Lewis, 355 F. Supp. 1132 (S.D. Ga. 1973).

Federal consent needed for construction of bridge. - O.C.G.A. § 44-8-5 determines whether a stream is navigable and requires the consent of the United States War Department (now Department of Defense) to the construction of a bridge over it. Brantley v. Lee, 139 Ga. 600 , 77 S.E. 788 (1913).

Section provides definite test of river's navigability. - O.C.G.A. § 44-8-5 gives a clear and explicit definition, and the test by which to determine the navigability of a particular river in this state is found in the navigable capacity measured by the essentials of this definition. Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7 , 60 S.E. 868 (1908).

Ogeechee and Canoochee rivers are not navigable waters. Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7 , 60 S.E. 868 (1908); Brantley v. Lee, 139 Ga. 600 , 77 S.E. 788 (1913).

Knoxboro creek, a stream running into the Savannah river, is navigable under O.C.G.A. § 44-8-5 . Charleston & S. Ry. v. Johnson, 73 Ga. 306 (1884).

O.C.G.A. § 44-8-5 is not applicable to tidal waters. West v. Baumgartner, 124 Ga. App. 318 , 184 S.E.2d 213 (1971), rev'd on other grounds, 228 Ga. 671 , 187 S.E.2d 665 (1972); State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

O.C.G.A. §§ 44-8-5 and 44-8-7 did not give a couple a superior right over their neighbor to construct a dock over the marshland opposite their property. O.C.G.A. § 44-8-5 did not apply to tidewaters, such as the marshland at issue here, and under O.C.G.A. § 44-8-7 , the state retained fee simple title to the foreshore in all navigable tidewaters. Kelso v. Baxter, 292 Ga. App. 663 , 665 S.E.2d 381 (2008), cert. denied, No. S08C1918, 2008 Ga. LEXIS 917 (Ga. 2008).

O.C.G.A. § 44-8-5 not applicable to parts of the sea. - O.C.G.A. § 44-8-5 is not applicable to a bay, estuary, or arm of the sea. Johnson v. State, 114 Ga. 790 , 40 S.E. 807 (1902).

O.C.G.A. § 44-8-5 not applicable to non-navigable streams. - There is nothing in case law that imposes a servitude of common passage on a stream that is not navigable as defined in O.C.G.A. § 44-8-5 . Givens v. Ichauway, Inc., 268 Ga. 710 , 493 S.E.2d 148 (1997).

Deed conveying property bounded by river conveyed title to riverbed. - Deed conveying title to property bounded on three sides by a river, conveyed title to the riverbed, in the absence of a reservation of title by the grantor. Kal-O-Mine Indus., Inc. v. Camp (In re Lumpkin Sand & Gravel, Inc.), 104 Bankr. 529 (Bankr. M.D. Ga. 1989), aff'd, 111 Bankr. 370 (M.D. Ga. 1990).

Summary judgment appropriate. - Because there was no admissible evidence demonstrating the navigability of a stream, the trial court correctly granted summary judgment on that question. Givens v. Ichauway, Inc., 268 Ga. 710 , 493 S.E.2d 148 (1997).

Cited in Maddox v. Threatt, 225 Ga. 730 , 171 S.E.2d 284 (1969); Parker v. Durham, 258 Ga. 140 , 365 S.E.2d 411 (1988); Georgia Canoeing Ass'n v. Henry, 267 Ga. 814 , 482 S.E.2d 298 (1997).

OPINIONS OF THE ATTORNEY GENERAL

The law does not allow a dock or pier to be constructed in a nonnavigable body of water by virtue of a "right of access" reserved by a riparian owner-grantor. 1980 Op. Att'y Gen. No. 80-130.

Owner of both banks of navigable stream has sole fishing rights. - The owner of nonnavigable streams, if that individual owns the land on both sides of the stream, is entitled to exclusive fishing rights in that stream. 1962 Op. Att'y Gen. p. 249.

As owner of navigable stream bank does to low-water mark. - The owner of land adjacent to a navigable stream owns to the low-water mark of that stream, and there is no question but that the owner of the land may prevent fishing from upon lands and could well have exclusive fishing rights to the low-water mark thereof. 1962 Op. Att'y Gen. p. 249.

Owner of land around lake up to navigable stream's low-water mark. - Where the river is navigable at the point where the lake comes into the stream, and the same person owns the land on both sides of the lake and the land on both sides of the mouth of the lake, that individual should have the exclusive fishing rights to the low-water mark of a navigable stream; assuming the conditions above, the lake and the lands could be posted by the owner notwithstanding the fact that the lake and lands might be posted by operation of law. 1962 Op. Att'y Gen. p. 249.

Beds and sunken timber in navigable stream are state property. - Because title to the beds of navigable streams is in the state, legislative authorization would be necessary to remove sunken timber from the rivers of the state. 1958-59 Op. Att'y Gen. p. 220.

RESEARCH REFERENCES

Am. Jur. 2d. - 78 Am. Jur. 2d, Waters, §§ 59-116, 261-265, 274-276, 381, 382, 386, 387, 395-397.

C.J.S. - 65 C.J.S., Navigable Waters, §§ 1 et seq., 82 et seq., 105.

ALR. - Right of owner of upland to make a use, not connected with navigation, of the shore between high and low water mark, which excludes the general public, 10 A.L.R. 1053 ; 107 A.L.R. 1347 .

Right to damages for the destruction of riparian owner's access to navigability by improvement of navigation, 21 A.L.R. 206 .

Right to place bathhouse or similar structure on shore in front of riparian owner, 24 A.L.R. 1273 .

Periodical, seasonal, or intermittent stream as a watercourse, 40 A.L.R. 839 .

Riparian or littoral owner's right of view over navigable water, 52 A.L.R. 1186 .

Specific description with reference to water, in conveyance of riparian land, as marking the extent of grantee's ownership of the submerged land and the shore, 74 A.L.R. 597 .

Right of riparian owner on navigable water to access to water, 89 A.L.R. 1156 .

Waters: rights in respect to changes by accretion or reliction due to artificial conditions, 134 A.L.R. 467 .

Right of riparian owner to continuation of periodic and seasonal overflows from stream, 20 A.L.R.2d 656.

Apportionment and division of area of river as between riparian tracts fronting on same bank, in absence of agreement of specification, 65 A.L.R.2d 143.

Right of public in shore of inland navigable lake between high- and low-water marks, 40 A.L.R.3d 776.

44-8-6. Nonnavigable tidewaters; title; rights of adjoining landowners; principles when tidewaters are boundaries; accretions.

The title to the beds of all nonnavigable tidewaters where the tide regularly ebbs and flows shall vest in the owner of the adjacent land for all purposes, including, among others, the exclusive right to the oysters, clams, and other shellfish therein or thereon. If the water is the dividing line between two parcels of land, each owner's boundary shall extend to the main thread or channel of the water. If the main thread or channel of the water changes gradually, the boundary line shall follow the same according to the change. If for any cause the water takes a new channel, the original line, if identifiable, remains the boundary. Gradual accretions of land on either side accrue to the owner of that side.

(Ga. L. 1902, p. 108, § 1; Civil Code 1910, § 3635; Code 1933, § 85-1307.)

Law reviews. - For article, "Public Rights in Georgia's Tidelands," see 9 Ga. L. Rev. 79 (1974). For article discussing State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976) and Lines v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 (1976), see 12 Ga. St. B.J. 201 (1976). For note, "Regulation and Ownership of the Marshlands: The Georgia Marshlands Act," see 5 Ga. L. Rev. 563 (1971). For a note discussing the historical aspects and current law concerning the state's ownership rights in tidelands, see 17 Ga. L. Rev. 851 (1983). For comment on State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334 (1976), see 10 Ga. L. Rev. 1051 (1976). For comment on State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334, (1976), see 27 Mercer L. Rev. 1229 (1976).

JUDICIAL DECISIONS

Section is constitutional. - The constitutional ratification in 1945 of O.C.G.A. § 44-8-6 through 44-8-8 which had been in effect since its enactment and had not been held to be unconstitutional, was effective and immunized these sections from a later successful constitutional attack. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

O.C.G.A. § 44-8-6 deals with title to the beds of nonnavigable tidewaters. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Classification of tidewaters as navigable or not. - O.C.G.A. § 44-8-6 through 44-8-8 contemplate only two categories, nonnavigable and navigable tidewaters. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Individual rights to foreshore. - Whatever rights individual parties may have in the foreshore must be determined under O.C.G.A. § 44-8-6 through 44-8-8 . State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Oystermen have exclusive rights in tidal beds. - The purpose of O.C.G.A. § 44-8-6 through and 44-8-8 was to overcome the decision that land underlying tidal waters was public land and to give "oystermen" a property right in oyster beds, particularly oyster beds they had planted. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Shellfishing. - O.C.G.A. § 44-8-6 insofar as the exclusive right of fishery is concerned, conveys only the exclusive rights to oysters, clams and other shellfish. West v. Baumgartner, 124 Ga. App. 318 , 184 S.E.2d 213 (1971), rev'd on other grounds, 228 Ga. 671 , 187 S.E.2d 665 (1972).

Ownership of tidal waters is in the state. West v. Baumgartner, 124 Ga. App. 318 , 184 S.E.2d 213 (1971), rev'd on other grounds, 228 Ga. 671 , 187 S.E.2d 665 (1972).

Public may otherwise fish tidal waters. - The right to the soil under navigable tidal waters is in the state and the public has a right of common fishery in all tidal waters, whether actually navigable or nonnavigable. West v. Baumgartner, 124 Ga. App. 318 , 184 S.E.2d 213 (1971), rev'd on other grounds, 228 Ga. 671 , 187 S.E.2d 665 (1972).

Cited in West v. Baumgartner, 228 Ga. 671 , 187 S.E.2d 665 (1972).

OPINIONS OF THE ATTORNEY GENERAL

The boundaries of tidewater lands owned by the state extend to the low-water mark in contrast to either the point of high water or mean water. 1965-66 Op. Att'y Gen. No. 66-49.

State owns three miles out to sea as political sovereign. - If the state is classed with all of the other owners of tidewater land, the boundaries of its property clearly extend to the low-water mark or encompass generally the entire tidewater bed; on the other hand, when the state's unique position as local political sovereign is taken into consideration, its rights of ownership extend far beyond this point for an additional three miles out to sea. 1965-66 Op. Att'y Gen. No. 66-49.

Person with nonexclusive title to marshland may not impede public enjoyment. - In the unlikely event that one should establish a title to marshland, such person could not use the property in such a way as to impede the public right of enjoyment thereof unless the grant to the marshland expresses a full relinquishment of all public rights. 1970 Op. Att'y Gen., Position Paper, 3-23-70.

Ownership of harvesting rights. - Where shellfish harvesting is proposed for the subtidal (below low water mark) areas of tidal creeks and rivers which are inlets of the ocean, sounds, or navigable rivers, such areas are not "nonnavigable tidewaters" within the meaning of the 1902 Act, and, as a result, the beds of such tidewaters continue to be owned by the state. 1985 Op. Att'y Gen. No. 85-16.

The state owns the harvesting rights to shellfish occurring in intertidal areas of marsh islands which contain no high ground since there must be adjacent high ground for O.C.G.A. §§ 44-8-6 through 44-8-8 to have any effect. 1985 Op. Att'y Gen. No. 85-16.

The owner of the adjacent property owns the harvesting rights to shellfish occurring in intertidal areas adjacent to high ground. 1985 Op. Att'y Gen. No. 85-16.

RESEARCH REFERENCES

Am. Jur. 2d. - 78 Am. Jur. 2d, Waters, §§ 274, 275, 375, 380, 381, 386, 387, 391, 398, 411, 424.

C.J.S. - 65 C.J.S., Navigable Waters, § 94 et seq.

ALR. - Applicability of rules of accretion and reliction so as to confer upon owner of island or bar in navigable stream title to additions, 54 A.L.R.2d 643.

Apportionment and division of area of river as between riparian tracts fronting on same bank, in absence of agreement or specification, 65 A.L.R.2d 143.

Rights to land created at water's edge by filling or dredging, 91 A.L.R.2d 857.

Right to accretion built up from one tract of land and extending laterally in front of adjoining tract without being contiguous thereto, 61 A.L.R.3d 1173.

44-8-7. Rights of owners of land adjacent to or covered by navigable tidewaters.

  1. A navigable tidewater is any tidewater, the sea or any inlet thereof, or any other bed of water where the tide regularly ebbs and flows which is in fact used for the purposes of navigation or is capable of transporting at mean low tide boats loaded with freight in the regular course of trade. The mere rafting of timber thereon or the passage of small boats thereover, whether for the transportation of persons or freight, shall not be deemed navigation within the meaning of this Code section and shall not make tidewaters navigable.
  2. For all purposes, including, among others, the exclusive right to the oysters and clams but not other fish therein or thereon, the boundaries and rights of the owners of land adjacent to or covered in whole or in part by navigable tidewaters shall extend to the low-water mark in the bed of the water.

    (Ga. L. 1902, p. 108, §§ 2, 3; Civil Code 1910, §§ 3636, 3637; Code 1933, §§ 85-1308, 85-1309; Ga. L. 1982, p. 3, § 44.)

Cross references. - Confirmation of tidewater titles, Ga. Const. 1983, Art. I, Sec. III, Para. III.

Law reviews. - For article, "Public Rights in Georgia's Tidelands," see 9 Ga. L. Rev. 79 (1974). For article discussing State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976) and Lines v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 (1976), see 12 Ga. St. B.J. 201 (1976). For note, "Regulation and Ownership of the Marshlands: The Georgia Marshlands Act," see 5 Ga. L. Rev. 563 (1971). For a note discussing the historical aspects and current law concerning the state's ownership rights in tidelands, see 17 Ga. L. Rev. 851 (1983). For comment on State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334 (1976), see 10 Ga. L. Rev. 1051 (1976). For comment on State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334, cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976), see 27 Mercer L. Rev. 1229 (1976).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

O.C.G.A. § 44-8-7 is constitutional. - The constitutional ratification in 1945 of O.C.G.A. §§ 44-8-6 through 44-8-8 , which had been in effect since its enactment and had not been held to be unconstitutional, was effective and immunized these sections from a later successful constitutional attack. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Confirmed by constitutional amendment. - O.C.G.A. § 44-8-7 conveying title to the lands in the bed of the navigable and nonnavigable tidal streams has been ratified and affirmed by the people in a constitutional amendment, Ga. Const. 1976, Art. I, Sec. III, Para. II (see Ga. Const. 1983, Art. I, Sec. III, Para. III). West v. Baumgartner, 124 Ga. App. 318 , 184 S.E.2d 213 (1971), rev'd on other grounds, 228 Ga. 671 , 187 S.E.2d 665 (1972).

Purpose of section to prevent considering tidal waters public. - The purpose of O.C.G.A §§ 44-8-6 through 44-8-8 was to overcome the decision that land underlying tidal waters was public land and to give "oystermen" a property right in oyster beds, particularly oyster beds they had planted. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Authority of Department of Natural Resources. - O.C.G.A. § 44-8-7 does not establish the method that the state must follow in allocating use of state-owned water bottoms; instead, as the state agency designated to manage the tidelands, the Department of Natural Resources may determine the appropriate method by which to apportion use of the state's property. Dorroh v. McCarthy, 265 Ga. 750 , 462 S.E.2d 708 (1995).

Cited in West v. Baumgartner, 228 Ga. 671 , 187 S.E.2d 665 (1972).

Rights to Tidal Waters

Oystermen have exclusive license to tidal shellfish. - The oystermen under O.C.G.A. § 44-8-7 have the exclusive right to the oysters in the tidal waters next to their land. That right is a privilege or a license. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Planting or harvesting shellfish adjoining their land. - The intention of O.C.G.A. § 44-8-7 was to insure to riparian owners the right to the tidewaters for all purposes relating to the planting and cultivation of oysters and clams, and an exclusive right to harvest those crops as well as oysters and clams growing there naturally. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Limited exclusive right to tidal beds. - The Legislature in O.C.G.A. § 44-8-7 was granting nothing but the right to plant, cultivate and harvest oysters and clams. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Section deals only with rights. - The Legislature interpreted O.C.G.A. § 44-8-7 as dealing only with "rights." State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Individual rights in foreshore. - Whatever rights individual parties may have in the foreshore must be determined under O.C.G.A. §§ 44-8-6 through 44-8-8 . State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

O.C.G.A. § 44-8-7 did not undertake to take the title to land from one person and confer it upon another. Aiken v. Wallace, 134 Ga. 873 , 68 S.E. 937 (1910).

Since state owns foreshore of navigable tidalwaters. - The extension of boundaries referred to in O.C.G.A. § 44-8-7 does no more than establish the extent of the rights. It conveys no title to the underlying land; the state has fee simple title to the foreshore in all navigable tidewaters. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Must be served as adjoining landowner when neighbor registers. - Whichever line, low tide or high tide, correctly divides private property sought to be registered from the state's property, the state is still an adjoining landowner and should be so named in the petition and served other than by the advertisement "To Whom it May Concern," and a land registration judgment, if granted, would not be binding upon the state or any adjoining landowner who was not named and served. State v. Bruce, 231 Ga. 783 , 204 S.E.2d 106 (1974).

Statute did not provide right to construct dock over marshland. - O.C.G.A. §§ 44-8-5 and 44-8-7 did not give a couple a superior right over their neighbor to construct a dock over the marshland opposite their property. Section 44-8-5 did not apply to tidewaters, such as the marshland at issue here, and under § 44-8-7 , the state retained fee simple title to the foreshore in all navigable tidewaters. Kelso v. Baxter, 292 Ga. App. 663 , 665 S.E.2d 381 (2008), cert. denied, No. S08C1918, 2008 Ga. LEXIS 917 (Ga. 2008).

State gives public right to fish tidal waters. - The right to the soil under navigable tidal waters is in the state and the public has a right of common fishery in all tidal waters, whether actually navigable or nonnavigable. West v. Baumgartner, 124 Ga. App. 318 , 184 S.E.2d 213 (1971), rev'd on other grounds, 228 Ga. 671 , 187 S.E.2d 665 (1972).

If state grants individuals land under tidewaters, no exclusive fishing rights presumed. - Where the state owns the soil under navigable tidal waters, it may convey merely the soil without an exclusive right of fishery; in such a case, the grantee takes the soil subject to the piscatory rights of the public. A grant of the soil will ordinarily not be construed to convey the fishing rights unless the intention to do so is so clearly and fully expressed that the grant is incapable of any other reasonable construction. West v. Baumgartner, 124 Ga. App. 318 , 184 S.E.2d 213 (1971), rev'd on other grounds, 228 Ga. 671 , 187 S.E.2d 665 (1972).

Navigability of Tidal Waters

Section classifies tidewaters only as navigable and nonnavigable. - O.C.G.A. §§ 44-8-6 through 44-8-8 contemplate only two categories, nonnavigable and navigable tidewaters. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Definition of navigable inlet. - Under O.C.G.A. § 44-8-7 , a navigable tidewater includes any inlet of the sea where the tide regularly ebbs and flows, which is in fact used for purposes of navigation, or is of such a character as to be capable of bearing upon its bosom, at mean low tide, boats loaded with freight in the regular course of trade. With respect to the latter classification it is not essential that there be a public terminus at both ends of the inlet, but the navigability of the inlet is determined by the capability of the water to bear boats of the character described in that section at mean low tide. Rauers v. Persons, 144 Ga. 23 , 86 S.E. 244 (1915).

Gradual accretions of land from navigable tidewaters accrue to the adjacent land owner in fee simple. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Navigability for federal regulatory purposes is governed by federal law and state law is not authoritative in such cases. United States v. Lewis, 355 F. Supp. 1132 (S.D. Ga. 1973).

OPINIONS OF THE ATTORNEY GENERAL

The boundaries of tidewater lands owned by the state extend to the low-water mark in contrast to either the point of high water or mean water. 1965-66 Op. Att'y Gen. No. 66-49.

Boundaries extend three miles when state not compared with tidewater landowners. - If the state is classed with all of the other owners of tidewater land, the boundaries of its property clearly extend to the low-water mark or encompass generally the entire tidewater bed; on the other hand, when the state's unique position as local political sovereign is taken into consideration, its rights of ownership extend far beyond this point for an additional three miles out to sea. 1965-66 Op. Att'y Gen. No. 66-49.

Person with nonexclusive title to marsh may not impede public enjoyment. - In the unlikely event that one should establish a title to marshland, such person could not use the property in such a way as to impede the public right of enjoyment thereof unless the grant to the marshland expresses a full relinquishment of all public rights. 1970 Op. Att'y Gen., Position Paper, 3-23-70.

Ownership of harvesting rights. - Where shellfish harvesting is proposed for the subtidal (below low water mark) areas of tidal creeks and rivers which are inlets of the ocean, sounds, or navigable rivers, such areas are not "nonnavigable tidewaters" within the meaning of the 1902 Act, and, as a result, the beds of such tidewaters continue to be owned by the state. 1985 Op. Att'y Gen. No. 85-16.

The state owns the harvesting rights to shellfish occurring in intertidal areas of marsh islands which contain no high ground since there must be adjacent high ground for O.C.G.A. §§ 44-8-6 through 44-8-8 to have any effect. 1985 Op. Att'y Gen. No. 85-16.

The owner of the adjacent property owns the harvesting rights to shellfish occurring in intertidal areas adjacent to high ground. 1985 Op. Att'y Gen. No. 85-16.

RESEARCH REFERENCES

Am. Jur. 2d. - 78 Am. Jur. 2d, Waters, §§ 60, 269, 274, 275, 375, 381, 386, 387, 391, 398.

C.J.S. - 65 C.J.S., Navigable Waters, §§ 1 et seq., 88, 103, 105.

ALR. - Right of owner of upland to make a use, not connected with navigation, of the shore between high and low water mark, which excludes the general public, 10 A.L.R. 1053 ; 107 A.L.R. 1347 .

Right of grantor of railroad right of way or his privy to recover damages for interference with surface water by construction of road, 19 A.L.R. 487 .

Right to drain surface water into natural watercourse, 28 A.L.R. 1262 .

Periodical, seasonal, or intermittent stream as a watercourse, 40 A.L.R. 839 .

Riparian or littoral owner's right of view over navigable water, 52 A.L.R. 1186 .

Right of riparian owner on navigable water to access to water, 89 A.L.R. 1156 .

Right of riparian owner to continuation of periodic and seasonal overflows from stream, 20 A.L.R.2d 656.

Right of public to fish in stream notwithstanding objection by riparian owner, 47 A.L.R.2d 381.

Right of public in shore of inland navigable lake between high- and low-water marks, 40 A.L.R.3d 776.

Riparian owner's right to new land created by reliction or by accretion influenced by artificial condition not produced by such owner, 63 A.L.R.3d 249.

44-8-8. Exclusive appropriation of tidewaters.

Nothing in Code Sections 44-8-6 and 44-8-7 shall be so construed as to authorize such an exclusive appropriation of any tidewater, navigable or nonnavigable, by any person as will prevent the free use of the same by other persons for the purposes of passage and for the transportation of such freights as may be capable of being carried thereon.

(Ga. L. 1902, p. 108, § 3; Civil Code 1910, § 3637; Code 1933, § 85-1309.)

Law reviews. - For article, "Public Rights in Georgia's Tidelands," see 9 Ga. L. Rev. 79 (1974). For article discussing State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976), and Lines v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 (1976), see 12 Ga. St. B.J. 201 (1976). For note, "Regulation and Ownership of the Marshlands: The Georgia Marshlands Act," see 5 Ga. L. Rev. 563 (1971). For a note discussing the historical aspects and current law concerning the state's ownership rights in tidelands, see 17 Ga. L. Rev. 851 (1983). For comment on State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334 (1976), see 10 Ga. L. Rev. 1051 (1976). For comment on State v. Ashmore, 236 Ga. 401, 224 S.E.2d 334, cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976), see 27 Mercer L. Rev. 1229 (1976).

JUDICIAL DECISIONS

Section is constitutional. - The constitutional ratification in 1945 of O.C.G.A. §§ 44-8-6 through 44-8-8 , which had been in effect since its enactment and had not been held to be unconstitutional, was effective and immunized these sections from a later successful constitutional attack. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Confirmed by constitutional amendment. - O.C.G.A. § 44-8-8 conveying title to the lands in the bed of the navigable and nonnavigable tidal streams has been ratified and affirmed by the people in a constitutional amendment, Ga. Const. 1976, Art. I, Sec. III, Para. II (see, now, Ga. Const. 1983, Art. I, Sec. III, Para. III). West v. Baumgartner, 124 Ga. App. 318 , 184 S.E.2d 213 (1971), rev'd on other grounds, 228 Ga. 671 , 187 S.E.2d 665 (1972).

Purpose to deny tidal beds public. - The purpose of O.C.G.A. §§ 44-8-6 through 44-8-8 was to overcome the decision that land underlying tidal waters was public land and to give "oystermen" a property right in oyster beds, particularly oyster beds they had planted. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Ooystermen have exclusive license to tidal shellfish. - The oystermen under O.C.G.A. § 44-8-8 have the exclusive right to the oysters in the tidal waters next to their land. That right is a privilege or a license. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Planting or harvesting shellfish adjoining land. - The intention of O.C.G.A. § 44-8-8 was to insure to riparian owners the right to the tidewaters for all purposes relating to the planting and cultivation of oysters and clams, and an exclusive right to harvest those crops as well as oysters and claims growing there naturally. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Section grants no other exclusive right to tidal beds. - The legislature in O.C.G.A. § 44-8-8 was granting nothing but the right to plant, cultivate and harvest oysters and clams. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Section deals only with rights. - The Legislature interpreted O.C.G.A. § 44-8-8 as dealing only with "rights." State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Rights in the foreshore. - Whatever rights individual parties may have in the foreshore must be determined under O.C.G.A. §§ 44-8-6 through 44-8-8 . State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Navigability of tidewaters only classification under section. - O.C.G.A. §§ 44-8-6 through 44-8-8 contemplate only two categories: nonnavigable and navigable tidewaters. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

O.C.G.A. § 44-8-8 did not undertake to take the title to land from one person and confer if upon another. Aiken v. Wallace, 134 Ga. 873 , 68 S.E. 937 (1910).

State owns foreshore of tidal waters. - The extension of boundaries referred to in O.C.G.A. § 44-8-8 does no more than establish the extent of the rights. It conveys no title to the underlying land; the state has fee simple title to the foreshore in all navigable tidewaters. State v. Ashmore, 236 Ga. 401 , 224 S.E.2d 334 , cert. denied, 429 U.S. 830, 97 S. Ct. 90 , 50 L. Ed. 2 d 93 (1976).

Must be served as adjoining landowner when neighbor registers. - Whichever line, low tide or high tide, correctly divides private property sought to be registered from the state's property, the state is still an adjoining landowner and should be so named in the petition and served other than by the advertisement "To Whom it May Concern," and a land registration judgment, if granted, would not be binding upon the state or any adjoining landowner who was not named and served. State v. Bruce, 231 Ga. 783 , 204 S.E.2d 106 (1974).

Cited in West v. Baumgartner, 228 Ga. 671 , 187 S.E.2d 665 (1972).

OPINIONS OF THE ATTORNEY GENERAL

The boundaries of tidewater lands owned by the state extend to the low-water mark in contrast to either the point of high water or mean water. 1965-66 Op. Att'y Gen. No. 66-49.

Boundaries extend three miles when state not compared with tidewater landowners. - If the state is classed with all of the other owners of tidewater land, the boundaries of its property clearly extend to the low-water mark or encompass generally the entire tidewater bed; on the other hand, when the state's unique position as local political sovereign is taken into consideration, its rights of ownership extend far beyond this point for an additional three miles out to sea. 1965-66 Op. Att'y Gen. No. 66-49.

Person with nonexclusive title to marshland may not impede public enjoyment. - In the unlikely event that one should establish a title to marshland, such person could not use the property in such a way as to impede the public right of enjoyment thereof unless the grant to the marshland expresses a full relinquishment of all public rights. 1970 Op. Att'y Gen., Position Paper, 3-23-70.

Ownership of harvesting rights. - Where shellfish harvesting is proposed for the subtidal (below low water mark) areas of tidal creeks and rivers which are inlets of the ocean, sounds, or navigable rivers, such areas are not "nonnavigable tidewaters " within the meaning of the 1902 Act, and, as a result, the beds of such tidewaters continue to be owned by the state. 1985 Op. Att'y Gen. No. 85-16.

The state owns the harvesting rights to shellfish occurring in intertidal areas of marsh islands which contain no high ground since there must be adjacent high ground for O.C.G.A. §§ 44-8-6 through 44-8-8 to have any effect. 1985 Op. Att'y Gen. No. 85-16.

The owner of the adjacent property owns the harvesting rights to shellfish occurring in intertidal areas adjacent to high ground. 1985 Op. Att'y Gen. No. 85-16.

RESEARCH REFERENCES

Am. Jur. 2d. - 78 Am. Jur. 2d, Waters, §§ 60, 269, 274, 275, 375, 381, 386, 387, 391, 398.

C.J.S. - 65 C.J.S., Navigable Waters, §§ 1 et seq., 88, 103, 105.

ALR. - Right of owner of upland to make a use, not connected with navigation, of the shore between high and low water mark, which excludes the general public, 10 A.L.R. 1053 ; 107 A.L.R. 1347 .

Right of grantor of railroad right of way or his privy to recover damages for interference with surface water by construction of road, 19 A.L.R. 487 .

Right to drain surface water into natural watercourse, 28 A.L.R. 1262 .

Riparian or littoral owner's right of view over navigable water, 52 A.L.R. 1186 .

Right of riparian owner on navigable water to access to water, 89 A.L.R. 1156 .

Right of riparian owner to continuation of periodic and seasonal overflows from stream, 20 A.L.R.2d 656.

Right of public to fish in stream notwithstanding objection by riparian owner, 47 A.L.R.2d 381.

Right of public in shore of inland navigable lake between high- and low-water marks, 40 A.L.R.3d 776.

Riparian owner's right to new land created by reliction or by accretion influenced by artificial conditions not produced by such owner, 63 A.L.R.3d 249.

44-8-9. Construction of levees and ditches; diversion of watercourses.

All persons owning lands on any watercourses are authorized to ditch and embank their lands in order to protect the lands from freshets and overflows in the watercourses, provided that the ditching and embanking does not divert the watercourse from its ordinary channel; but nothing in this Code section shall be so construed as to prevent the owners of lands from diverting nonnavigable watercourses through their own lands.

(Laws 1793, Cobb's 1851 Digest, p. 26; Ga. L. 1855-56, p. 12, §§ 1, 2; Code 1863, § 2211; Code 1868, § 2206; Code 1873, § 2232; Code 1882, § 2232; Civil Code 1895, § 3062; Civil Code 1910, § 3638; Code 1933, § 85-1310.)

JUDICIAL DECISIONS

Section subordinate to United States Constitution regarding commerce. - O.C.G.A. § 44-8-9 was passed after the adoption by the state of the Constitution of the United States, and is of course subordinate to the provision in the latter instrument relating to the control of commerce, and as a consequence, of the navigable waters by congress. Mills v. United States, 46 F. 738, 12 L.R.A. 673 (S.D. Ga. 1891).

Legislature cannot allow harmful ditching or diversion of water. - The construction long ago and repeatedly put by the Georgia Supreme Court on the last part of O.C.G.A. § 44-8-9 , which says "nothing shall be so construed as to prevent the owners of land, etc.," necessitates the conclusion that this whole statute is not alternative but only declaratory of the common law. The legislature did not intend to give riparian owners the privilege of ditching or embanking their lands, or of diverting unnavigable watercourses, so as to injure neighboring proprietors without liability therefor. Persons v. Hill, 33 Ga. 141 (1864); Cheeves v. Danielly, 80 Ga. 114 , 4 S.E. 902 (1887); Grant v. Kuglar, 81 Ga. 637 , 8 S.E. 878 (1889); O'Connell v. East Tenn. V. & Ga. Ry., 87 Ga. 246 , 13 S.E. 489 , 27 Am. St. R. 246 , 13 L.R.A. 394 (1891).

O.C.G.A. § 44-8-9 applies to municipal corporations. Collins v. Mayor of Macon, 69 Ga. 542 (1882).

RESEARCH REFERENCES

Am. Jur. 2d. - 50 Am. Jur. 2d, Levees and Flood Control, § 13 et seq. 78 Am. Jur. 2d, Waters, §§ 11, 26, 85, 220.

C.J.S. - 93 C.J.S., Waters, §§ 18 et seq., 43 et seq., 297 et seq.

ALR. - Right to hasten by improvement of street or highway the flow of surface water along natural drainways, 5 A.L.R. 1530 ; 36 A.L.R. 1463 .

Right of owner of upland to make a use, not connected with navigation, of the shore between high and low water mark, which excludes the general public, 10 A.L.R. 1053 ; 107 A.L.R. 1347 .

Liability of one who diverts stream into new channel for overflow, 12 A.L.R. 187 .

Right to compensation for damages to land left outside of levee, 20 A.L.R. 302 .

Right of riparian owner to embank against flood or overflow water from stream, 22 A.L.R. 956 ; 53 A.L.R. 1180 ; 23 A.L.R.2d 750.

Right to drain surface water into natural watercourse, 28 A.L.R. 1262 .

What constitutes natural drainway or watercourse for flow of surface water, 81 A.L.R. 262 .

Right of riparian owner to continuation of periodic and seasonal overflows from stream, 20 A.L.R.2d 656.

Right of riparian owner to construct dikes, embankments, or other structures necessary to maintain or restore bank of stream or to prevent flood, 23 A.L.R.2d 750.

Modern status of rules governing interference with drainage of surface waters, 93 A.L.R.3d 1193.

44-8-10. Construction or establishment of private bridge or ferry; grant of franchise to construct or operate public bridge or ferry; compensation to landowner for interference with possession; when franchise exclusive generally; exclusive franchises pertaining to streets or sidewalks.

The right to construct a bridge or to establish a ferry for private use across a watercourse within or adjoining one's lands is appurtenant to the ownership of the land; but the right to establish and operate a public bridge or ferry is a franchise to be granted by the state. Where the grant of such a franchise interferes with an owner's right of exclusive possession, just compensation must first be paid to the landowner. No such franchise granted by this state shall be held to be exclusive unless it is plainly and expressly declared to be exclusive in the grant; except, however, that any municipality of this state having a population of more than 200,000 according to the United States decennial census of 1930 or any future such census is authorized to grant an exclusive franchise pertaining to streets or sidewalks for a period of three years, but not subject to renewal, to any person, firm, or corporation under this authority to grant such a franchise whether or not it is plainly or expressly stated in the charter of the municipality.

(Orig. Code 1863, §§ 2212, 2213; Code 1868, §§ 2207, 2208; Code 1873, §§ 2233, 2234; Code 1882, §§ 2233, 2234; Civil Code 1895, §§ 3063, 3064; Civil Code 1910, §§ 3639, 3640; Code 1933, §§ 85-1311, 85-1312; Ga. L. 1937, p. 502, § 1; Ga. L. 1982, p. 2107, § 47.)

Cross references. - Licenses for toll roads and bridges issued by county or municipality, § 36-60-21 .

JUDICIAL DECISIONS

Strict construction of franchise grants. - Grants of exclusive privileges to a corporation or an individual are to be strictly construed. McLeod v. Burroughs, 9 Ga. 213 (1851).

No constitutional right to ferry monopoly if not in contract. - Where the holder of a franchise has no contract with the state for a monopoly, the exclusive privilege which the holder had been fortunate enough to enjoy before a rival is chartered is not property in the constitutional sense; and the owner is not entitled to compensation when such privilege is taken away. State Hwy. Bd. v. Willcox, 168 Ga. 883 , 149 S.E. 182 (1929).

Legislature may give second franchise. - When the state grants a franchise that is not in its terms exclusive, it may subsequently grant a competing franchise that may utterly destroy the value of the first franchise, without incurring any obligation to make compensation. State Hwy. Bd. v. Willcox, 168 Ga. 883 , 149 S.E. 182 (1929).

Without unconstitutional impairment of contract obligations. - A grant of a ferry franchise to meet the public convenience is not an exclusive grant that will, on account of the prohibition against impairing the obligations of contracts, preclude the legislature from granting a bridge franchise detracting from its value. State Hwy. Bd. v. Willcox, 168 Ga. 883 , 149 S.E. 182 (1929).

No damages for loss of profits. - Where a franchise has been granted solely for public convenience, there can be no damages for its depreciating in value from the subsequent grant of a similar franchise. State Hwy. Bd. v. Willcox, 168 Ga. 883 , 149 S.E. 182 (1929).

State can condemn land for toll bridges or ferry. - The state can grant franchises to individuals or corporations to build toll bridges over streams, or to operate ferries over the same for toll. The grant of a franchise to do either is not exclusive and does not prevent the legislature from granting another franchise for either purpose. The legislature can condemn land for either purpose; and, if the taking of land does not prevent the exercise of the prior franchise, the same is not such taking of the property of the holder of the prior franchise as will entitle the holder to compensation. State Hwy. Bd. v. Willcox, 168 Ga. 883 , 149 S.E. 182 (1929).

Without paying first franchise for lost profits. - Loss of profits in operating public ferry, resulting from condemnation of land for bridge on public highway, not recoverable. State Hwy. Bd. v. Willcox, 168 Ga. 883 , 149 S.E. 182 (1929).

Cited in Woodruff v. Bowers, 165 Ga. 408 , 140 S.E. 844 (1927).

RESEARCH REFERENCES

Am. Jur. 2d. - 35 Am. Jur. 2d, Ferries, §§ 1-9, 13 et seq., 28, 32, 33. 36 Am. Jur. 2d, Franchises for Public Entities, § 27 et seq. 39 Am. Jur. 2d, Highways, Streets, and Bridges, §§ 46 et seq., 61, 110, 153. 40 Am. Jur. 2d, Highways, Streets, and Bridges, § 619. 78 Am. Jur. 2d, Waters, §§ 28, 41, 113 et seq.

12 Am. Jur. Pleading and Practice Forms, Ferries, § 3.

C.J.S. - 37 C.J.S., Franchises, § 1 et seq. 65 C.J.S., Navigable Waters, §§ 25 et seq., 51 et seq. 93 C.J.S., Waters, § 20 et seq.

ALR. - Power of public service commission to increase franchise rates, 3 A.L.R. 730 ; 9 A.L.R. 1165 ; 28 A.L.R. 587 ; 29 A.L.R. 356 .

May paramount right of public to improve navigability of stream without compensating riparian owner for resulting damage be extended to improvements for purposes not in aid of navigation, 18 A.L.R. 403 .

Right in respect of navigable waters as franchise subject to taxation, 36 A.L.R. 1523 .

Competition by grantor of nonexclusive franchise, or provision therefor, as violation of constitutional rights of franchise holder, 114 A.L.R. 192 .

Validity and construction of restrictive covenant not to compete ancillary to franchise agreement, 50 A.L.R.3d 746.

Validity, construction, and effect of clause in franchise contract prohibiting transfer of franchise or contract, 59 A.L.R.3d 244.

Liability for interference with franchise, 97 A.L.R.3d 890.

CHAPTER 9 EASEMENTS

Article 1

In General.

Article 2

Solar Easements.

Article 3

Private Ways.

Article 4

Rights of Way for Mining, Quarrying,

and Other Businesses.

Article 5

Timber Tramways.

Cross references. - Obtaining of scenic easements for scenic river system, § 12-5-353 .

Acquisition of property for transportation purposes generally, Ch. 3, T. 32.

RESEARCH REFERENCES

Abandonment of Easement, 3 POF2d 647.

Intent to Create Negative Easement, 5 POF2d 621.

Wrongful Interference with Right of Way, 32 POF2d 389.

Extent of Easement over Servient Estate, 33 POF2d 669.

Establishment of Private Prescriptive Easement, 2 POF3d 125, 197.

Easements - Existence of Way of Necessity, 11 POF3d 601.

Proof of Intent to Abandon Easements, 53 POF3d 519.

Grantor's Intent to Create Reciprocal Negative Easement by Common Development Scheme of Subdivision, 62 POF3d 1.

Permissive Possession or Use of Land as Defeating Claim of Adverse Possession or Prescriptive Easement, 68 POF3d 239.

Proof of Adjoining Landowner's Malicious or Unreasonable Construction of Fence, 73 POF3d 1.

Proof of Extent of Easement of Way Created by Express Grant or Reservation, 81 POF3d 199.

ARTICLE 1 IN GENERAL

Law reviews. - For article surveying Georgia cases in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).

JUDICIAL DECISIONS

Cited in Howell Gas of Athens, Inc. v. Coile, 112 Ga. App. 732 , 146 S.E.2d 145 (1965).

RESEARCH REFERENCES

ALR. - Respective rights of adjoining owners as to pumping oil, 5 A.L.R. 421 .

Respective rights of owners of different parcels into which land subject to an oil and gas lease has been subdivided, 5 A.L.R. 1162 ; 16 A.L.R. 588 ; 64 A.L.R. 634 .

Right to remove or rebuild fence separating one's land from his neighbor's land, 8 A.L.R. 1644 .

Property rights of abutting owners in trees cut or removed from street or highway, 9 A.L.R. 1269 .

Right of co-owner of a party or division wall to remove or demolish his own building, 9 A.L.R. 1329 .

Duty of one removing mineral under highway to support surface, 9 A.L.R. 1333 .

Implied easement of light and air over private alley or right of way, 9 A.L.R. 1634 .

Interference with easement of light, air, or view by structure in street or highway as ground for injunction at instance of abutting owner, 40 A.L.R. 1321 .

Precipitation of rainwater or snow from a building upon adjoining premises, 48 A.L.R. 1248 .

Reservation by grantor of the right to require payment for existing party wall when used, 52 A.L.R. 494 .

Liability of abutting owner or occupant for condition of part of private driveway which is within street, 59 A.L.R. 441 .

Right of abutting owner to complain of misuse of public park or violation of rights or easements appurtenant thereto, 60 A.L.R. 770 .

Liability for damage to person or property by fall of tree, 72 A.L.R. 615 .

Right and remedy of owner whose land is drained of oil or gas which runs to waste through well on land of another, 85 A.L.R. 1154 .

Rights in respect of street number or street name, 98 A.L.R. 1213 .

What amounts to use of party wall which will impose obligation to contribute to cost thereof, 113 A.L.R. 471 .

Spite fences and other spite structures, 133 A.L.R. 691 .

Duty and liability of owner in respect of lateral or surface support as affected by excavation, or other conditions, created by his predecessor in title, 139 A.L.R. 1267 .

Adjoining owner's use of wall standing on or near dividing line as imposing obligation to contribute to cost, where he was not party to oral agreement or unrecorded written agreement under which it was erected, 140 A.L.R. 1424 .

Visible easement rule as applicable to reciprocal or cross easements resulting from common development and use of adjoining properties in different ownership, 155 A.L.R. 543 .

Liability for overflow or escape of water from reservoir, ditch, or artificial pond, 169 A.L.R. 517 .

Use of party wall for nonstructural purposes, 2 A.L.R.2d 1135.

Right to increase height of party wall, 24 A.L.R.2d 1053.

Liability of employer for injury to adjoining realty resulting from excavation work by independent contractor on his premises, 33 A.L.R.2d 111.

Encroachment of structure on or over adjoining property or way as rendering title unmarketable, 47 A.L.R.2d 331.

Easements: way by necessity where property is accessible by navigable water, 9 A.L.R.3d 600.

Rights and liabilities of adjoining landowners as to trees, shrubbery, or similar plants growing on boundary line, 26 A.L.R.3d 1372.

Locating easement of way created by necessity, 36 A.L.R.4th 769.

Encroachment of trees, shrubbery, or other vegetation across boundary line, 65 A.L.R.4th 603.

Liability for spread of fire intentionally set for legitimate purpose, 25 A.L.R.5th 391.

44-9-1. Methods of acquiring private ways.

The right of private way over another's land may arise from an express grant, from prescription by seven years' uninterrupted use through improved lands or by 20 years' use through wild lands, by implication of law when the right is necessary to the enjoyment of lands granted by the same owner, or by compulsory purchase and sale through the superior court in the manner prescribed by Article 3 of this chapter.

(Orig. Code 1863, § 2214; Code 1868, § 2209; Code 1873, § 2235; Code 1882, § 2235; Civil Code 1895, § 3065; Civil Code 1910, § 3641; Code 1933, § 85-1401; Ga. L. 1982, p. 3, § 44.)

Cross references. - Acquisition of title to land through adverse possession generally, § 44-5-160 et seq.

Law reviews. - For article, "Some Aspects of the Law of Easements," see 9 Ga. St. B.J. 287 (1973). For annual survey of real property law, see 56 Mercer L. Rev. 395 (2004). For annual survey of zoning and land use law, see 58 Mercer L. Rev. 477 (2006). For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016). For annual survey on real property law, see 70 Mercer L. Rev. 209 (2018). For note distinguishing easement from conditional limitation, see 10 Ga. B.J. 335 (1948).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

O.C.G.A. § 44-9-1 is general section in reference to the modes of acquiring right of private way over the lands of another. Watkins v. Country Club, 120 Ga. 45 , 47 S.E. 538 (1904).

Section inapplicable when owner receives adequate compensation. - The principles of O.C.G.A. § 44-9-1 are not to be confounded with the principles of sections regulating the establishment of a new or necessary way in any of those cases wherein adequate compensation to the landowner is provided. Hendricks v. Carter, 21 Ga. App. 527 , 94 S.E. 807 (1918).

Right of way over land of another may be acquired by one of four methods: (1) by express grant; (2) by prescription, seven years' uninterrupted use through improved lands, or 20 years' use over wild lands; (3) by implication of law, when such right is necessary to the enjoyment of lands granted by the same owner; and (4) by compulsory purchase and sale in the manner prescribed by law. Jones v. Mauldin, 208 Ga. 14 , 64 S.E.2d 452 (1951).

Way of necessity by implication of law. - Right of private way over another's land may arise by implication of law when the right is necessary to the enjoyment of lands granted by the same owner; thus, a way of necessity arises in Georgia by implication of law under O.C.G.A. § 44-9-1 when the common owner sells the dominant estate first and retains the servient estate. DeNapoli v. Owen, 341 Ga. App. 517 , 801 S.E.2d 314 (2017).

Absent an adequate remedy at law, equity will protect right to use a private way. Phinizy v. Gardner, 159 Ga. 136 , 125 S.E. 195 (1924).

Elements for prescriptive easement not met. - Trial court properly determined that the neighbors did not possess a prescriptive easement across the property since the property was wild and, consequently, the landowner had the right to exclude the neighbors from the property as the neighbors' continued use of the driveway constituted a trespass. Floyd v. Chapman, 353 Ga. App. 434 , 838 S.E.2d 99 (2020).

Injunctive relief against the infringement of a private right is well established. Stone Mt. Scenic R.R. v. Stone Mt. Mem. Ass'n, 230 Ga. 800 , 199 S.E.2d 216 (1973).

Cited in Neal v. Neal, 122 Ga. 804 , 50 S.E. 929 (1905); Hill v. Miller, 144 Ga. 404 , 87 S.E. 385 (1915); Tift v. Golden Hwde. Co., 204 Ga. 654 , 51 S.E.2d 435 (1949); Wheelus v. Trammell, 204 Ga. 883 , 52 S.E.2d 471 (1949); Burton v. Atlanta & W.P.R.R., 206 Ga. 698 , 58 S.E.2d 424 (1950); Atlantic Coast Line Ry. v. Sweatman, 81 Ga. App. 269 , 58 S.E.2d 553 (1950); Nassar v. Salter, 213 Ga. 253 , 98 S.E.2d 557 (1957); Croker v. Lewis, 217 Ga. 762 , 125 S.E.2d 50 (1962); Wagnon v. Keith, 222 Ga. 859 , 152 S.E.2d 865 (1967); Southern Ry. v. Shealey, 382 F.2d 752 (5th Cir. 1967); Waldrep v. Hall County, 227 Ga. 554 , 181 S.E.2d 833 (1971); Swygert v. Roberts, 136 Ga. App. 700 , 222 S.E.2d 75 (1975); Riggenbach v. Smith, 144 Ga. App. 24 , 240 S.E.2d 299 (1977); Jackson v. Stone, 210 Ga. App. 465 , 436 S.E.2d 673 (1993); Howard v. Rivers, 266 Ga. 185 , 465 S.E.2d 666 (1996); Mitchell v. Mitchell, 220 Ga. App. 682 , 469 S.E.2d 540 (1996); Khamis Enterprises, Inc. v. Boone, 224 Ga. App. 348 , 480 S.E.2d 364 (1997); Lanier v. Burnette, 245 Ga. App. 566 , 538 S.E.2d 476 (2000); MacGibbon v. Akins, 245 Ga. App. 871 , 538 S.E.2d 793 (2000); BMH Real Estate Pshp. v. Montgomery, 246 Ga. App. 301 , 540 S.E.2d 256 (2000); Thompson v. McDougal, 248 Ga. App. 270 , 545 S.E.2d 701 (2001); Trammell v. Whetstone, 250 Ga. App. 503 , 552 S.E.2d 485 (2001); Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437 , 711 S.E.2d 709 (2011).

Grant

Crucial test to determine whether deed creates easement in land is intention of the parties, which is determined by looking to the whole deed, and not merely upon disjointed parts of it; the recitals in the deed, the contract, the subject matter, the object, purpose, and the nature of restrictions or limitations, and the attendant facts and circumstances of the parties at the time of making the deed are to be considered. Rogers v. Pitchford, 181 Ga. 845 , 184 S.E. 623 (1936).

There is no implied reservation of an easement by a grantor of land, and O.C.G.A. § 44-9-1 implies that a way of necessity is available only to a grantee and not to a grantor. Farris Constr. Co. v. 3032 Briarcliff Rd. Assocs., 247 Ga. 578 , 277 S.E.2d 673 (1981).

Doctrine of implied reservation of an easement by a grantor of land does not seem to have been adopted in this state; but in other states where the doctrine has been applied, the weight of authority seems to be that, in order to imply such reservation in the grantor, the easement in question must be one of necessity as distinguished from convenience. Farris Constr. Co. v. 3032 Briarcliff Rd. Assocs., 247 Ga. 578 , 277 S.E.2d 673 (1981).

Nothing passes as incident to granted easement but what is requisite to its fair enjoyment. Notwithstanding such a grant, there remains in the grantor the right of full dominion and use of the land, except so far as a limitation thereof is essential to the reasonable enjoyment of the easement granted. Folk v. Meyerhardt Lodge No. 314, 218 Ga. 248 , 127 S.E.2d 298 (1962).

Agreement did not constitute a grant of easement where it was neither a deed nor in a form that could be recorded, did not use language of the grant of an easement, was conditional on the occurrence of certain acts that never occurred, had no legal description to identify the property or easement, and was not performed. Central of Ga. R.R. v. DEC Assocs., 231 Ga. App. 787 , 501 S.E.2d 6 (1998).

Easement by prescription not acquired where O.C.G.A. § 44-9-1 not complied with. - Defendant landowner, which had conveyed parcel to plaintiff landowner's predecessor in title without reserving any easement in deed, did not acquire an easement by prescription where adverse use could not begin until after the severance of the two estates and where the strip of land over which the easement is claimed was owned by the claimant until a time less than seven years prior to bringing of action by the plaintiff landowner seeking to enjoin defendant landowner from the continued use of the strip of land in question. Farris Constr. Co. v. 3032 Briarcliff Rd. Assocs., 247 Ga. 578 , 277 S.E.2d 673 (1981).

Creation of easement. - While notice may subject a purchaser of land to an existing easement even where the easement is not referenced in the deed of conveyance, notice that there is a driveway across purchased property cannot create an easement where none exists. Deas v. Hughes, 264 Ga. 9 , 440 S.E.2d 458 (1994).

A conveyance of land accompanied by a plat showing the existence of a rail line on adjacent property did not create an express or implied easement over the rail lines. Macon-Bibb County Indus. Auth. v. Central of Ga. R.R., 266 Ga. 281 , 466 S.E.2d 855 (1996).

Where written statement giving permission to go on land contained no legal description, it was, at best, a revocable license which never ripened into an easement because defendant did not expend money preceding use of the road. Lovell v. Anderson, 242 Ga. App. 537 , 530 S.E.2d 233 (2000).

Trial court erred in ordering the neighbors to remove the utility lines or obtain an easement to keep the lines in place because the landowner's deed from the predecessor stated that the landowner took the land subject to all easements for roads and utilities in use or of record and the easement for utilities was filed on August 16, 2006, years before the landowner's purchase of the property in 2017. Floyd v. Chapman, 353 Ga. App. 434 , 838 S.E.2d 99 (2020).

Adequate description of easement found. - Partial summary judgment in favor of the lot owners was affirmed as, although the record did not contain a plat showing property designated as "Area #6," the description in a conveyance to a homeowners' association as "located between Lot No. 77, Lake George, and Pine Avenue, including causeway to the creek, near the railroad bridge, known as the headwaters of the Gress River" disclosed with sufficient certainty the location of the lot owners' easement; moreover, all the parties described the 1.542 acres eventually conveyed to the property owner contesting the easement as "Area # 6." Wynns v. White, 273 Ga. App. 209 , 614 S.E.2d 830 (2005).

Because the deed of certain landowners incorporated a recorded plat's reservation of a 1.32 acre strip of the landowners' property to be used for access to the neighbor's property, and because the plat was recorded, the landowners were deemed to have been on notice of that reservation and took title subject to the easement described therein; since there was nothing ambiguous or unclear about the location or the nature of the use of the 1.32 acre strip of land, the trial court did not err by declaring a judgment in favor of the neighboring property owner. Hernandez v. Whittemore, 287 Ga. App. 251 , 651 S.E.2d 180 (2007).

No authority to obtain express easement by abandonment. - Grant of partial summary judgment in favor of the plaintiff on the defendant's abandonment counterclaim was upheld because Georgia law does not recognize partial abandonment of an express easement. Sorrow v. 380 Properties, LLC, 354 Ga. App. 118 , 840 S.E.2d 470 (2020).

Claim of easement of necessity invalid. - Where defendant's property borders on a public street but the only way to the rear of their building is through a neighbor's property, there can be no claim of an easement of necessity. Greer v. Piedmont Realty Invs., Inc., 248 Ga. 821 , 286 S.E.2d 712 (1982).

Necessity based. - Private way by implication is based on necessity and not convenience; moreover, a reasonable necessity for a way must exist at the time of the severance to support the implication of a way of necessity. DeNapoli v. Owen, 341 Ga. App. 517 , 801 S.E.2d 314 (2017).

Word "appurtenances" in a deed only carries easements already existing, and appurtenant to estate granted; it will not include an inchoate prescriptive right over the land of another. Olsen v. Noble, 209 Ga. 899 , 76 S.E.2d 775 (1953).

Way appurtenant cannot be created without a dominant, as well as a servient, estate. Olsen v. Noble, 209 Ga. 899 , 76 S.E.2d 775 (1953).

Prescription
1. Definitions

Improved lands comprehends the entire tract, though only a part thereof is in actual cultivation; the woodland on such a tract is not wild land, but, in connection with that portion which is cultivated, constitutes a single tract of "improved land." Hopkins v. Roach, 127 Ga. 153 , 56 S.E. 303 (1906).

Railroad tracks "improved land." - If a railroad was constructed and the tracks were made to cross a private way by means of a trestle, the land of the railroad company at such a point of intersection was "improved land" within the meaning of O.C.G.A. § 44-9-1 , and the period of prescription would be seven years. Carlton v. Seaboard Air-Line Ry., 143 Ga. 516 , 85 S.E. 863 , 1917A Ann. Cas. 497 (1915).

"Wild lands" used in contradistinction to "improved lands." - "Wild lands," as used in O.C.G.A. § 44-9-1 , is evidently used in contradistinction to the descriptive words "improved lands." Watkins v. Country Club, 120 Ga. 45 , 47 S.E. 538 (1904).

"Wild" land located separate and apart from cultivated lands. - The land which O.C.G.A. § 44-9-1 designates as "wild" is that which is located separate and apart from lands which are partly in cultivation. Smith v. E.B. Burney Constr. Co., 231 Ga. 772 , 204 S.E.2d 93 (1974).

"Wild land" is segregated tract of land remaining, as it were, in state of nature, unenclosed, and with no indicia pointing to use by the owner. Smith v. E.B. Burney Constr. Co., 231 Ga. 772 , 204 S.E.2d 93 (1974).

2. Requirements

Party setting up prescription claim required to strictly follow law. - While a right of private way over another's land may arise by prescription from seven years' uninterrupted use through improved lands, where a private way is claimed by prescription, the party setting up such a claim must be strictly within the requirements of the law. Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967).

Use may originate in permission, yet ripen by prescription. - Possession must be adverse in order to form the basis for prescription. A notable exception exists, however, in the case of private ways. The use may originate in permission, and yet may ripen by prescription. Burnum v. Thomas, 71 Ga. App. 690 , 31 S.E.2d 925 (1944); Ponder v. Williams, 80 Ga. App. 145 , 55 S.E.2d 668 (1949).

Tenant cannot originate adverse user in landlord's favor where easement not included in lease. - A tenant cannot originate an adverse user in landlord's favor where the lease does not expressly or impliedly include the easement; use by the tenant inures to the landlord's benefit if it expressly or impliedly includes the easement. Olsen v. Noble, 209 Ga. 899 , 76 S.E.2d 775 (1953).

Tenant in common may acquire prescriptive rights. - A limited partner, as a tenant in common of the real estate of the partners, may acquire prescriptive rights even though one of the other tenants in common might be barred from acquiring such prescriptive rights because of that tenant's purported permissive possession. Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967).

One tenant cannot deprive other tenants from prescribing adversely. - One tenant in common who is in possession of jointly owned property cannot deprive the other tenants in common who are also in possession thereof from prescribing adversely against a third party. Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967).

Prescriber acquires private way by continuous use for statutory period. - If a private way was less than 15 (now 20) feet in width, and the prescriber kept it in repair and used it as such continuously for the statutory period required by O.C.G.A. § 44-9-1 , the prescriber would acquire a private way by prescription. Carlton v. Seaboard Air-Line Ry., 143 Ga. 516 , 85 S.E. 863 , 1917A Ann. Cas. 497 (1915).

One of the prime requisites to title by prescription of a private way is that the same private way be used the entire period necessary to establish the prescriptive right. Fulford v. Fulford, 228 Ga. 772 , 187 S.E.2d 867 (1972).

Use, to constitute prescriptive right, must be uninterrupted. - The use of a private way through the improved lands of another for a period of seven years, to constitute a prescriptive right, must be shown to have been uninterrupted to come within the terms of O.C.G.A. § 44-9-1 . Puryear v. Clements, 53 Ga. 232 (1874).

Prescription arises notwithstanding fact prescriber knows land is another's property. - A prescription under O.C.G.A. § 44-9-1 may arise notwithstanding the fact that the prescriber may know that the land over which the individual undertakes to prescribe is the property of another. Carlton v. Seaboard Air-Line Ry., 143 Ga. 516 , 85 S.E. 863 , 1917A Ann. Cas. 497 (1915).

Prescriber must give notice. - It is fundamental that prescription is to be strictly construed, and that the prescriber must give some notice, actual or constructive, to the one against whom the prescriber intends to prescribe. Burnum v. Thomas, 71 Ga. App. 690 , 31 S.E.2d 925 (1944); Ponder v. Williams, 80 Ga. App. 145 , 55 S.E.2d 668 (1949).

Use alone is insufficient to acquire prescriptive title under O.C.G.A. § 44-9-1 . An owner's acquiescence in the mere use of the owner's road establishes, at most, a revocable license. To establish a prescriptive easement over the private property of another pursuant to O.C.G.A. § 44-9-1 , it is necessary to show that the owner was given notice that the user intended to appropriate it as the user's own. Eileen B. White & Assocs. v. Gunnells, 263 Ga. 360 , 434 S.E.2d 477 (1993).

Easement and right of way. - In a dispute over a landowners' patio built on a neighbor's land and use of a roadway over the neighbor's land, the patio did not create a prescriptive right of way as the patio was not a road or path and the bottom part of the road was not taken by adverse possession as mere use was not notice of an adverse claim; however, as the landowner might have met the time and notice requirements to obtain a right of way by prescription for the top part of the road, summary judgment was not proper on that point. Moody v. Degges, 258 Ga. App. 135 , 573 S.E.2d 93 (2002).

When use originates by permission, prescription runs upon notification of changed position. - When the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that the user has changed position from that of a mere licensee to that of a prescriber. Burnum v. Thomas, 71 Ga. App. 690 , 31 S.E.2d 925 (1944); Ponder v. Williams, 80 Ga. App. 145 , 55 S.E.2d 668 (1949).

One who seeks to ripen an absolute right to the use of a private way by prescription, instead of obtaining it by express grant, must, when that individual enters with the consent of the owner, bring some affirmative notice to the owner, by making repairs or otherwise, of intention to prescribe through seven years' use. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

Use of a trail. - Where neighbor's use of a trail across private property was permissive, and there was no showing of any adverse use, a private way by prescription was not established. Douglas v. Knox, 232 Ga. App. 551 , 502 S.E.2d 490 (1998).

Use by members of the public alone is insufficient to acquire prescriptive title. It must be kept open and in repair. Tribble v. Mayor of Forsyth, 225 Ga. 204 , 167 S.E.2d 142 (1969).

Notice by repair requirement. - The crux of the requirement for repairs lies not in the actual effectuation of repairs by the prescriber but in the notice of adverse use the performance of such repairs would give to the property owner. The importance of this "notice by repair" requirement is best illustrated in situations where the initial use of the private way was permissive. Georgia Pac. Corp. v. Johns, 204 Ga. App. 594 , 420 S.E.2d 39 (1992).

Showing repairs is required in order to give notice to the landowner that the prescriber's use of a road is adverse and not permissive. Chota, Inc. v. Woodley, 251 Ga. 678 , 309 S.E.2d 132 (1983).

Prescriber must show that way kept open and in repair during statutory period. - In order to set up a prescriptive right of way, it is essential that the prescriber show not only that the prescriber has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the prescriber has kept it open and in repair during this period. Rogers v. Wilson, 171 Ga. 802 , 156 S.E. 817 (1931).

The right of a private way over another's land may arise by prescription from seven years' uninterrupted use through improved lands, but in order to set up this prescriptive right of way, it is essential that the prescriber show not only that the prescriber has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the prescriber has kept it open and in repair during this period. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

In order for one to take or keep another's land as a road for that person's private use, the person should be compelled to keep it open and in repair. Keeping it open and working it would be the best evidence of that person's intention to appropriate it for a road, and would put the owner upon notice that the person did intend to appropriate it. Burnum v. Thomas, 71 Ga. App. 690 , 31 S.E.2d 925 (1944); Ponder v. Williams, 80 Ga. App. 145 , 55 S.E.2d 668 (1949).

In order to set up a prescriptive right of way, it is essential that the prescriber show not only that the prescriber has been in the uninterrupted use thereof for seven years or more, that it does not exceed 20 feet in width, and that it is the same number of feet originally appropriated, but also that the prescriber has kept it open and in repair during this period. Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967).

Passive keeping in repair is notice, but inaction will not suffice; the expression "keeping in repair" originated in an age when private ways were unpaved and of necessity had to be repaired in order that the use thereof might be continued, and was then the equivalent of action and affirmative notice of an intention to prescribe, even where the use originated in consent. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

If repairs made by landowner's permission, no prescriptive right acquired. - Where the landowner was merely passive and made no objection to the use of and repairing the road, then such use and repairs thereon would be the proper basis for obtaining a prescriptive right to the road. But, if the use of and the repairs made on the road were by the permission of the landowner, then the plaintiff would not acquire a prescriptive right or title to the road. Burnum v. Thomas, 71 Ga. App. 690 , 31 S.E.2d 925 (1944).

Evidence of use by previous owners. - Where plaintiff filed a petition in the probate court to remove an obstruction from a private way, the mere fact that the property may not have been used at the time defendant purchased it did not render it "wild land" since evidence of use by the previous owners remained. Henderson v. Cam Dev. Co., 190 Ga. App. 199 , 378 S.E.2d 495 (1989).

Use of driveway and railroad crossing. - Trial court properly awarded a property owner compensatory damages in an inverse condemnation suit against the Georgia Department of Transportation (DOT) because the property owner established the acquisition of a prescriptive easement over the driveway and railroad crossing at issue and, thus, had a compensable property interest as a result of DOT closing the driveway. Ga. Dep't of Transp. v. Jackson, 322 Ga. App. 212 , 744 S.E.2d 389 (2013).

Failure to establish prescriptive rights. - Trial court properly granted summary judgment to a neighbor in a trespass action that involved use of a roadway to gain access to a marsh area as the defending neighbors failed to show prescriptive rights to the roadway were obtained since there was no evidence in the record indicating that the defending neighbors maintained the roadway during any seven year period in any manner; the record established that the roadway was too wide to function as a private right of way; and even if the defending neighbors had obtained a parol license to use the roadway, such license was still revocable. Warner v. Brown, 290 Ga. App. 510 , 659 S.E.2d 885 (2008).

In a declaratory judgment action brought by adjoining landowners seeking rights to access an undeveloped lot in a subdivision for use as a soccer field, the trial court properly granted summary judgment to the property owners who had terminated the access and use of the adjoining landowners to the field. There existed no express easement to grant the adjoining landowners access, no dedication of the field was established for public use, the treatment of the field for fire ants was merely maintenance, and since the adjoining landowners had previously used the lot with permission, no prescriptive rights were established. De Castro v. Durrell, 295 Ga. App. 194 , 671 S.E.2d 244 (2008).

Plaintiff did not have a prescriptive easement over a road because the plaintiff's use of the road, at the very least, was by acquiescence; many others used the road beside the plaintiff; the plaintiff admitted that the plaintiff did very little maintenance on the road during the time the hunters used the road as the hunters were maintaining the road for the hunters' own use, and, prior to that, the plaintiff maintained the road for the plaintiff as well as others; and the plaintiff did not show that the plaintiff's use of the road was adverse as the plaintiff's inaction when the defendant's predecessor-in-interest installed locked gates on the road did not evidence an intention to appropriate the land as the plaintiff's own. Wilkes 581 Farms, LLC v. McAvoy, 356 Ga. App. 732 , 848 S.E.2d 905 (2020).

Evidence of easement must be shown. - Grant of a declaratory judgment and injunctions to the sellers was reversed because at the time that the buyers purchased Lot 2 from the sellers, the sellers failed to expressly retain an easement over Lot 2 and no way of necessity existed at the time of the sale to the buyers; thus, there was no easement by implication. DeNapoli v. Owen, 341 Ga. App. 517 , 801 S.E.2d 314 (2017).

3. Results

When way legally obtained and continued for statutory period, right becomes absolute. - When the use of a private way has been legally obtained and is continued as long as seven years, of which the owner has had six months' knowledge without moving for damages, the right of use becomes absolute, and the owner is barred from claiming damages. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

Landowner acquires right to accumulated water where dam creating pond exists more than 20 years. - Where a dam on a lower riparian owner's property creating a pond on the upper riparian owner's property was in existence for more than 20 years, the lower riparian owner lost his right to receive the natural flow of water from the upper riparian owner and the latter acquired the right to maintain accumulated water on his land. Brown v. Tomlinson, 246 Ga. 513 , 272 S.E.2d 258 (1980).

Prescriptive easement abandoned. - Defendants were entitled to summary judgment on the plaintiff's claim for a prescriptive easement because the undisputed evidence showed that the plaintiff abandoned any prescriptive easement as the plaintiff's own evidence was that the plaintiff and the plaintiff's family had not used the defendants' tract to access the plaintiff's property at all since July 13, 1994, which was well beyond the seven-year period that would generally raise a presumption of abandonment; and the plaintiff pointed to nothing to show that the presumption of abandonment should be rebutted. Albenberg v. Szalay, 332 Ga. App. 665 , 774 S.E.2d 730 (2015).

4. Interference and Obstructions

Obstruction of private right of way after right to use way is acquired is unlawful. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

Prescriptive rights-of-way awarded. - Where the evidence showed that defendant's predecessor-in-title never prevented the public from using the roads, and that plaintiffs never sought permission to do so, the repairs were extensive enough to put the owner on notice that others were using the road. Therefore, the landowners were required to remove obstructions from the private road and the plaintiffs were awarded prescriptive rights-of-way. Georgia Pac. Corp. v. Johns, 204 Ga. App. 594 , 420 S.E.2d 39 (1992).

Showing required to sustain application for removal of obstructions from private way based upon prescription. - To sustain an application for the removal of obstructions from an alleged private way, the right to which is based upon prescription by seven years' use, it is essential that the applicant show not only that the applicant has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the applicant has kept it open and in repair during this period. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

In a proceeding for the removal of an obstruction from a private way, a prescriptive right to use which the applicant claims to have acquired under O.C.G.A. § 44-9-1 , it is necessary, to sustain this application, to show not only that the applicant has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20 ) feet in width, and that it is the same number of feet originally appropriated, but that the applicant has kept it open and in repair during this period. Scarboro v. Edenfield, 58 Ga. App. 619 , 199 S.E. 325 (1938).

Because the record contained no evidence that a neighboring landowner's predecessor in interest, or its agents, used the road continuously for at least 20 years, the predecessor did not acquire a private way by prescription and, hence, the neighbor lacked any private way by prescription over a landowner's property to clear timber and remove barbed wire from that roadway without committing a trespass. Norton v. Holcomb, 285 Ga. App. 78 , 646 S.E.2d 94 (2007), cert. denied, No. S07C1221, 2007 Ga. LEXIS 654 (Ga. 2007).

Implication

Private way created by necessary implication is wholly distinct from "compulsory purchase and sale." Calhoun v. Ozburn, 186 Ga. 569 , 198 S.E. 706 (1938).

Right of a private way over another's land is based on necessity and not convenience. Miller v. Slater, 182 Ga. 552 , 186 S.E. 413 (1936).

Every essential requisite must appear. - Before one can assert a way of necessity over the land of another, every essential requisite to such a right must affirmatively appear. Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967).

Need must exist at time of sale. - A reasonable necessity for a way must exist at the time of the severance to support the implication of a way of necessity. Bruno v. Evans, 200 Ga. App. 437 , 408 S.E.2d 458 , cert. denied, 200 Ga. App. 895 , 408 S.E.2d 458 (1991).

Implication that grantor conveys means of access to otherwise inaccessible land. - At common law, where the grantor conveyed land otherwise inaccessible, there was of necessity an implication that the grantor had unintentionally omitted to convey a means of access thereto. This necessary implication entitled the land-locked grantee to a way out to whatever public or private roads furnished access to the original tract, in the laying out of which due regard, of course, had to be had to the convenience of the grantor. Such ways by implication are still recognized in this state by O.C.G.A. § 44-9-1 . Gaines v. Lunsford, 120 Ga. 370 , 47 S.E. 967 , 102 Am. St. R. 109 (1904).

Where A owns a tract of land and conveys by deed to B a portion of the land, and the only means of ingress and egress that B has to the public road is a private way then in existence over the land of A, though no mention is made in the deed as to the right of B to use the way, an implication arises that A had inadvertently omitted to convey a means of access, and entitles the land-locked grantee to use the private way across the land of the vendor. Such a way is necessary for the use and enjoyment of the granted land enclosed by other lands of the grantor, and is an implied easement which runs with the granted land. Burk v. Tyrrell, 212 Ga. 239 , 91 S.E.2d 744 (1956).

Claim not allowed when one has way of own. - One is not allowed to claim a road over another's land as a way of necessity when one has, or can have, such a way over own land. Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967).

Property accessible only through easement. - In a dispute over a driveway easement between a landowner and a couple, the trial court properly granted the landowner an interlocutory injunction. Even if the landowner's deed had not incorporated by reference a plat that showed the easement, it was critical that the landowner's property could be accessed only through the easement, which gave rise to an easement by implication. Haygood v. Tilley, 295 Ga. App. 90 , 670 S.E.2d 800 (2008), cert. denied, No. S09C0581, 2009 Ga. LEXIS 187 (Ga. 2009); cert. denied, 558 U.S. 1123, 130 S. Ct. 1077 , 175 L. Ed. 2 d 903 (2010).

Way of necessity arises when common owner sells dominant estate first and retains servient estate. The common owner is impliedly deemed to have granted an easement to pass over the subservient estate. Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967).

If the common owner sells the servient estate first, the common owner has deeded everything within power to deed and retains no easement in the servient estate. Therefore, when the common grantor subsequently deeds the dominant estate to a third party, the third party can obtain no higher interest than that of the grantor and receives no easement over the servient estate. Bruno v. Evans, 200 Ga. App. 437 , 408 S.E.2d 458 , cert. denied, 200 Ga. App. 895 , 408 S.E.2d 458 (1991).

Where owner with plat sells subdivided lots, purchasers acquire easement shown on plat. - Where the owner of property has it surveyed, marked off, and subdivided into streets, lots, and alleys, has a plat drawn showing the location of the same, records the plat and thereafter sells the lots to various purchasers, giving deeds thereto which refer to the plat and, in describing the location of the lots sold, refer to the streets and alleys shown on the plat as part of the boundaries thereof, the purchasers acquire a perpetual and indefeasible easement over such streets and alleys as a means of ingress and egress to their lots, which cannot be forfeited or abandoned by a mere nonuser or failure for a long period of time to open and improve such streets or alleys, and this is true whether such streets and alleys are ever formally dedicated or accepted by public authority as public streets or alleys or not. Barnes v. Cheek, 84 Ga. App. 653 , 67 S.E.2d 145 (1951).

When a developer sells lots according to a subdivision plat, which has a lake area designated on it, the purchasers acquire an irrevocable easement in that park, with which the developer may not interfere. Higgins v. Odom, 246 Ga. 309 , 271 S.E.2d 211 (1980).

Way necessary runs with granted land. - A way necessary for the use and enjoyment of granted land enclosed by other land of the grantor is an implied easement which runs with the granted land, and passes not only to the immediate but subsequent grantees. Calhoun v. Ozburn, 186 Ga. 569 , 198 S.E. 706 (1938); Jones v. Mauldin, 208 Ga. 14 , 64 S.E.2d 452 (1951).

Whether an easement is created by express grant or by implication, once the location becomes fixed, the same rule controls relocation issues, so long as the grant contains no conditions or reservations. Herren v. Pettengill, 273 Ga. 122 , 538 S.E.2d 735 (2000).

Proof inadequate for determination. - Trial court erred in granting summary judgment, pursuant to O.C.G.A. § 9-11-56 , to a property owner who sought an easement by implication of law pursuant to O.C.G.A. § 44-9-1 over adjoining property owners' land, as the record was insufficient to support such a determination; the parties' accounts of how the land was divided upon foreclosure from the original grantor differed greatly and there were no deeds, deed assignments, dates, or foreclosure information provided in the record in order to properly determine if such an easement was created. Boyer v. Whiddon, 264 Ga. App. 137 , 589 S.E.2d 709 (2003).

Implied easement not established. - Implied easement for a driveway leading to an owner's home across the neighbors' property was not established because access to the owner's home across the neighbors' property was unnecessary, but merely convenient, and because the owner's deed made no mention of a plat allegedly relied on by the owner or a right of way bordering the property, and the plat itself was not recorded. Eardley v. McGreevy, 279 Ga. 562 , 615 S.E.2d 744 (2005).

In determining when a common owner had conveyed land to the defendants and to another landowner, the trial court erred in using the date of recording, not the date of the conveyance; thus, no implied easement of necessity could exist across the defendants' property for the benefit of the other landowner, and when the common owners sold the property to the other landowner they no longer owned the land now belonging to the defendants, and thus could not convey an easement across land in which they owned no interest. Burnette v. Caplan, 287 Ga. App. 142 , 650 S.E.2d 798 (2007).

Owner of property adjacent to a bankruptcy debtor's private airport did not have an implied easement of necessity to use the airport since the owner had ingress and egress to the owner's property by use of driveways and roads not owned by the debtor. Flyboy Aviation Props., LLC v. Franck, 501 Bankr. 808 (Bankr. N.D. Ga. 2013).

Trial court erred in finding that the appellee was entitled to implied easements over and across the appellant's property because the appellee's property was not landlocked, and there was no necessity nor unity of title as there was no common owner of the entire development from the outset as title to the development was divided among separate corporate entities. Emson Investment Properties, LLC v. JHJ Jodeco 65, LLC, 349 Ga. App. 644 , 824 S.E.2d 113 (2019).

OPINIONS OF THE ATTORNEY GENERAL

Easement over state property may be granted only by the General Assembly. 1957 Op. Att'y Gen. p. 252; 1958-59 Op. Att'y Gen. p. 285.

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, § 13 et seq.

C.J.S. - 28A C.J.S., Easements, §§ 1, 21, 15, 39 et seq., 52 et seq., 145 et seq., 160 et seq. 37 C.J.S., Frauds, Statute of, § 63.

ALR. - Implied easement upon severance of tract where building is near or encroaches upon the dividing line, 9 A.L.R. 488 ; 41 A.L.R. 1210 ; 53 A.L.R. 910 .

Nature and extent of right granted by contract for use of wall or roof for advertising purposes, 10 A.L.R. 1108 ; 119 A.L.R. 1523 .

Permission or license from owner of servient estate as extinguishing an existing easement, 50 A.L.R. 1295 .

Rule of visible easements as applied to easement of light or air, 56 A.L.R. 1138 .

Implied easement in respect of drains, pipes, or sewers upon severance of tract, 58 A.L.R. 824 .

Easement by prescription for use of land near boundary line, 58 A.L.R. 1037 .

May right of way be appurtenant where the servient tenement is not adjacent to the dominant, 76 A.L.R. 597 .

Change from street cars to motorbuses as affecting rights as between street railway companies and abutting owners or owners across whose property the company has a right of way, 102 A.L.R. 391 .

Locating easement of way created by a grant which does not definitely describe its location, 110 A.L.R. 174 .

Enlargement of easement by use for purpose or in a manner other than that specified in the grant, 110 A.L.R. 915 .

Adoption as period of prescription for easement the period prescribed by statute of limitations with reference to adverse possession as including condition of color of title or right or other conditions imposed by that statute, 112 A.L.R. 545 .

Right of owner of easement of way to make improvements or repairs thereon, 112 A.L.R. 1303 .

Agreement in respect of water rights in stream as creating a mere personal obligation, covenant running with the land, or an easement, 127 A.L.R. 835 .

Implied easement, upon division of tract, in respect of railroad spur or branch or siding, 138 A.L.R. 779 .

Private easement in way vacated, abandoned, or closed by public, 150 A.L.R. 644 .

Acquisition of easement or other property right by prescription, predicated upon acts amounting to a private nuisance, 152 A.L.R. 343 .

Type of vehicle or mode of travel permissible on express easement of way created in limited terms, 156 A.L.R. 1050 .

Roadway or pathway used at time of severance of tract as visible or apparent easement, 164 A.L.R. 1001 .

Easement by prescription: presumption and burden of proof as to adverse character of use, 170 A.L.R. 776 .

Right of owner of easement to alter its use in such a way as to deprive servient estate of an incidental benefit, 172 A.L.R. 193 .

Easements or privileges of tenant of part of building as to other parts not included in lease, 24 A.L.R.2d 123.

Maintenance, use, or grant of right of way over restricted property as violation or restrictive covenant, 25 A.L.R.2d 904.

Necessary parties defendant to suit to prevent or remove obstruction or interference with easement of way, 28 A.L.R.2d 409.

Power of executor to create easements, 44 A.L.R.2d 573.

Conveyance of land as bounded by road, street, or other way as giving grantee rights in or to such way, 46 A.L.R.2d 461.

Foreclosure of mortgage or trust deed as affecting easement claimed in, over, or under property, 46 A.L.R.2d 1197.

Easement by prescription in artificial drains, pipes, or sewers, 55 A.L.R.2d 1146.

Extent and reasonableness of use of private way in exercise of easement granted in general terms, 3 A.L.R.3d 1256.

Easements: way by necessity where property is accessible by navigable water, 9 A.L.R.3d 600.

Right to maintain gate or fence across right of way, 52 A.L.R.3d 9.

Tacking as applied to prescriptive easements, 72 A.L.R.3d 648.

What constitutes unity of title or ownership sufficient for creation of an easement by implication or way of necessity, 94 A.L.R.3d 502.

Way of necessity over another's land, where a means of access does exist, but is claimed to be inadequate, inconvenient, difficult, or costly, 10 A.L.R.4th 447.

Way of necessity where only part of land is inaccessible, 10 A.L.R.4th 500.

Location of easement of way created by grant which does not specify location, 24 A.L.R.4th 1053.

Locating easement of way created by necessity, 36 A.L.R.4th 769.

Scope of prescriptive easement for access (easement of way), 79 A.L.R.4th 604.

What constitutes, and remedies for, misuse of easement, 111 A.L.R.5th 313.

44-9-2. Acquisition of easement of light and air.

A right to an easement of light and air passing over another's land through existing lights or windows may not be acquired by prescription; but, when a person sells a house and the light necessary for the reasonable enjoyment thereof is derived from and across adjoining land belonging to such person, the easement of light and air over such vacant lot shall pass as an incident to the house sold as being necessary to the enjoyment thereof.

(Civil Code 1895, § 3046; Civil Code 1910, § 3618; Code 1933, § 85-1201.)

History of section. - This section is derived from the decisions in Turner v. Thompson, 58 Ga. 268 (1876) and Thompson v. Turner, 69 Ga. 219 (1881).

Law reviews. - For comment on Hornsby v. Smith, 191 Ga. 491 , 13 S.E.2d 20 (1941), see 3 Ga. B.J. 61 (1941).

JUDICIAL DECISIONS

Easement is acquired by implied grant and is based upon necessity, and when the necessity ceases, the easement ceases. S.A. Lynch Corp. v. Stone, 211 Ga. 516 , 87 S.E.2d 57 (1955).

Section applicable to lease of adjoining lot. - The principle O.C.G.A. § 44-9-2 states is equally applicable to a case where the owner of two adjoining lots leases one upon which there is a dwelling house dependable upon a window overlooking the adjoining lot for light and air. Indeed, the reason for the rule is more cogent in a case of tenancy than of purchase. Darnell v. Columbus Show-Case Co., 129 Ga. 62 , 58 S.E. 631 , 121 Am. St. R. 206 , 13 L.R.A. (n.s.) 333 (1907).

One who subsequently rends adjoining land is invested with no greater privileges than landlord, and is liable to neighbor tenant in damages resulting from interference with the latter's implied easement. Darnell v. Columbus Show-Case Co., 129 Ga. 62 , 58 S.E. 631 , 121 Am. St. R. 206 , 13 L.R.A. (n.s.) 333 (1907).

Damages recoverable for obstruction. - Ordinarily the damage recoverable is the depreciated rental value of the tenement; but if the instrumentality which obstructs the light and air is so constructed as to project rain through the window of the tenement to the injury of the tenant's bedroom furnishings and to personal discomfort, and this is done with the view of causing the tenant to abandon lease, punitive damages may be allowed. Darnell v. Columbus Show-Case Co., 129 Ga. 62 , 58 S.E. 631 , 121 Am. St. R. 206 , 13 L.R.A. (n.s.) 333 (1907).

It is error to enjoin the building of a house or a lot because the building would obstruct the light and air from a church. Smyth v. Nelson, 135 Ga. 96 , 68 S.E. 1032 (1910).

Cited in Houser v. Morris, 518 F. Supp. 873 (N.D. Ga. 1981); Goddard v. Irby, 255 Ga. 47 , 335 S.E.2d 286 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Adjoining Landowners, § 90 et seq.

C.J.S. - 2 C.J.S., Adjoining Landowners, §§ 68-74. 28A C.J.S., Easements, §§ 51, 85, 87, 111, 121, 151.

ALR. - Implied easement of light and air over private alley or right of way, 9 A.L.R. 1634 .

Interference with easement of light, air, or view by structure in street or highway as ground for injunction at instance of abutting owner, 40 A.L.R. 1321 .

Permission or license from owner of servient estate as extinguishing an existing easement, 50 A.L.R. 1295 .

Easement of view from public street, 90 A.L.R. 793 .

Right to injunction to protect easement of light and air, 93 A.L.R. 1180 .

Location of easement of way created by grant which does not specify location, 24 A.L.R.4th 1053.

44-9-3. Right of lateral support from adjoining land; right to make excavations up to boundary line; notice to adjoining landowner; standard of care.

  1. Owners of adjoining lands owe to each other the lateral support of the soil of each to that of the other in its natural state. If they derive title from a common grantor, the lateral support shall include the weight of walls and other burdens that may be on it. If, at the time of the sale by such common grantor, there are buildings adjoining each other, the right shall extend to the lateral support which each adjacent wall gives to the other.
  2. On giving reasonable notice of his intention to the adjoining landowner, the owner of land has the right to make proper and needful excavations up to the boundary line for purposes of construction, provided that he uses ordinary care and takes reasonable precautions to sustain the land of the other.

    (Civil Code 1895, §§ 3047, 3048; Civil Code 1910, §§ 3619, 3620; Code 1933, §§ 85-1202, 85-1203.)

History of section. - This section is derived from the decisions in Montgomery v. Trustees of Masonic Hall, 70 Ga. 38 (1883) and Harrison v. Kiser, 79 Ga. 588 , 4 S.E. 320 (1887).

Law reviews. - For comment on Levison v. Goode, 164 Ga. 361 , 138 S.E. 583 (1927), see 1 Ga. L. Rev. No. 2, p. 47 (1927).

JUDICIAL DECISIONS

Owner not prevented from agreeing to removal of lateral support. - Under O.C.G.A. § 44-9-3 , owners of adjoining land owe to each other the lateral support of the soil. But there is nothing in law which prevents an owner from agreeing to a removal of lateral support. And the successor in title of a landowner who grants a right of way to a railroad has no cause of action against a second railroad, a purchaser from the first, because the successor's land, unless supported would be washed into the cut constructed by the railroad to whom was granted the right of way. Seaboard Air-Line Ry. v. McMurrain, 132 Ga. 181 , 63 S.E. 1098 (1909).

Each adjoining owner owns part of party wall, with corresponding easement of support. - In the absence of any contractual or statutory provision to the contrary, the owners of adjoining premises are not tenants in common of a party wall erected partly on the land of each, but each owns in severalty the part thereof which rests upon that person's side of the line, with an easement of support from the other. Wilensky v. Robinson, 203 Ga. 423 , 47 S.E.2d 270 (1948).

Extent of easement acquired by prescription to use wall of adjoining owner for supporting building is the enjoyment of the use of the wall for the support of the house as it existed during the period of prescription. Levinson v. Goode, 164 Ga. 361 , 138 S.E. 583 , for comment, see 1 Ga. L. Rev. No. 2, p. 47 (1927).

Where deprivation of lateral support alleged, cause of action laid. - Where damage accruing out of the lowering of the grade of adjoining property so as to deprive a plaintiff of lateral support for a lot is alleged, a cause of action is laid. Seal v. Aldredge, 100 Ga. App. 458 , 111 S.E.2d 769 (1959).

Liability attaches to act of going through and beyond property line. - Where, in excavating, the owner of land goes through and beyond owner's line and undermines the soil of an adjoining landowner, liability attaches to the act, not on the ground of a lack of the proper care in doing the work, but on the ground that the act is a trespass. Bass v. West, 110 Ga. 698 , 36 S.E. 244 (1900).

Adjoining landowner may maintain ejectment against encroacher. - The right of the owner of land extends downward indefinitely; therefore, if one party, building upon own land, encroaches upon the adjoining land of neighbor, no question should arise as to the right of the latter to maintain ejectment against the former, and it is immaterial whether the encroachment is upon the surface of the soil or below it. Wachstein v. Christopher, 128 Ga. 229 , 57 S.E. 511 , 119 Am. St. R. 381 , 11 L.R.A. (n.s.) 917 (1907).

Landowner may excavate up to boundary line, but must avoid unnecessary injury to adjoining property. - Under the provisions of O.C.G.A. § 44-9-3 , a landowner is not denied the right to the full use of this property, including the right to make excavations upon property up to the boundary line of the adjoining landowner, but in making such excavations, the landowner must avoid unnecessary injury to the property of the adjoining landowner. Paul v. Bailey, 109 Ga. App. 712 , 137 S.E.2d 337 (1964).

Where excavation contemplated, reasonable notice should be given to adjoining landowner. - Where an excavation is contemplated, the owner of the premises on which the excavating is to be done should, as manifesting that degree of care and precaution required of the owner, give reasonable notice to the adjoining landowner of the owner's intention to excavate, so that an opportunity may be afforded the adjacent owner to take steps necessary to protect buildings and other structures. Montgomery v. Trustees of Masonic Hall, 70 Ga. 38 (1883); Bass v. West, 110 Ga. 698 , 36 S.E. 244 (1900).

Where a proprietor desires to make a necessary excavation up to the line of a lot for the purpose of constructing a building, and the adjacent proprietor has an existing building, the wall of which extends along the property line, so that the work of excavating will withdraw the lateral support of the wall and tend to render it unsafe, it is the duty of the party desiring to make the excavation to give the adjoining proprietor reasonable notice of intention to make the excavation, and also to exercise ordinary care and take reasonable precautions to sustain the land of the other, so as to avoid injury to the land, including the building thereon. Massell Realty Imp. Co. v. MacMillan Co., 168 Ga. 164 , 147 S.E. 38 (1929).

Person causing injury to adjoining property liable for damages. - It is the person who makes the excavation which later causes injury to the adjoining property, and not the person in possession at the time of the injury, who is liable for the damages caused. Paul v. Bailey, 109 Ga. App. 712 , 137 S.E.2d 337 (1964).

Owner liable for injury resulting from negligent contractor's excavation. - The owner of land on which an excavation is negligently and carelessly made by a contractor, who acts under the direction and control of the owner, is liable for any injury resulting therefrom to buildings and other structures on the adjoining property, although the contractor undertook to protect the adjoining buildings under a contract requiring such an undertaking. Bass v. West, 110 Ga. 698 , 36 S.E. 244 (1900).

Injury not sustained until land suffers actual physical disturbance. - An injury for which damages may be recoverable is not sustained by the adjoining landowner unless and until the excavation and resulting withdrawal of lateral support causes the owner's land to crack, slide, fall in, or otherwise suffer actual physical disturbance, for the actionable wrong is not the excavation, but the act of allowing injury to the other land through the failure to exercise ordinary care to sustain the land. Paul v. Bailey, 109 Ga. App. 712 , 137 S.E.2d 337 (1964).

If irreparable injury probable result, equity affords relief by injunction. - If irreparable injury to the property of the adjacent proprietor will probably result from the failure by the excavator to exercise ordinary care and reasonable precaution to sustain the land with the buildings thereon, equity will afford relief by an injunction. Massell Realty Imp. Co. v. MacMillan Co., 168 Ga. 164 , 147 S.E. 38 (1929).

Summary judgment on duty of lateral support not authorized. - Because the appellees held prescriptive title by adverse possession to that part of the alleyway located between the parties' properties and were not required to remove the terraces and construction debris from the alleyway, the appellants were not entitled to summary judgment on the appellants claim seeking a declaration that the appellants would have no duty of lateral support once the terraces and debris were removed. Kelley v. Randolph, 295 Ga. 721 , 763 S.E.2d 858 (2014).

Applicability. - Appellate court failed to discern how O.C.G.A. § 44-9-3(a) had anything to do with the maintenance of a dam to preserve a lake, and declined the landowners' invitation to extend the statutory interpretation. Bishop Eddie Long Ministries, Inc. v. Dillard, 272 Ga. App. 894 , 613 S.E.2d 673 (2005).

Cited in Wilkins v. Grant, 118 Ga. 522 , 45 S.E. 415 (1903); Kolodkin v. Griffin, 87 Ga. App. 725 , 75 S.E.2d 197 (1953); Associated Lerner Shops of Am., Inc. v. Thibadeau, Shaw & Co., 396 F.2d 768 (5th Cir. 1968); Jillson v. Barton, 139 Ga. App. 767 , 229 S.E.2d 476 (1975); Garner v. Blair, 214 Ga. App. 357 , 448 S.E.2d 24 (1994).

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Adjoining Landowners, §§ 26, 40 et seq.

19A Am. Jur. Pleading and Practice Forms, Party Walls, § 3.

C.J.S. - 2 C.J.S., Adjoining Landowners, §§ 2-5, 7, 9-14, 15-38, 58, 59, 62-64, 66. 28A C.J.S., Easements, §§ 63, 66 et seq., 75 et seq., 81. 66 C.J.S., Nuisances, §§ 42 et seq., 62.

ALR. - Right of co-owner of a party or division wall to remove or demolish his own building, 9 A.L.R. 1329 .

Liability of adjoining landowner for using neighbor's wall to support fill, 10 A.L.R. 1321 .

Implied easement upon severance of tract where building is near or encroaches upon the dividing line, 41 A.L.R. 1210 ; 53 A.L.R. 910 .

Physical conditions which will charge purchaser of servient estate with notice of easement, 41 A.L.R. 1442 ; 74 A.L.R. 1250 .

Liability of municipality for injury to lateral support in grading street, 44 A.L.R. 1494 .

Liability of one excavating on his own premises for resulting injury to adjoining building, 50 A.L.R. 486 ; 59 A.L.R. 1252 .

Validity of statute or ordinance relating to protection of adjoining property in making excavations, 55 A.L.R. 464 .

Damages recoverable by owner or occupier of surface on account of subsidence due to mining operations, 56 A.L.R. 310 .

Change in conditions as terminating party-wall agreement or easement, 85 A.L.R. 288 .

Right of excavating landowner to recover from adjoining owner amount expended by former to prevent subsidence of soil or collapse of building upon latter's land, or to recover damages caused by such subsidence or collapse, 129 A.L.R. 623 .

Duty and liability of owner in respect of lateral or surface support as affected by excavation, or other conditions, created by his predecessor in title, 139 A.L.R. 1267 .

Adjoining owner's use of wall standing on or near dividing line as imposing obligation to contribute to cost, where he was not party to oral agreement or unrecorded written agreement under which it was erected, 140 A.L.R. 1424 .

Use of party wall for nonstructural purposes, 2 A.L.R.2d 1135.

Right to increase height of party wall, 24 A.L.R.2d 1053.

Measure of damages for loss of or interference with lateral support, 36 A.L.R.2d 1253.

Revocability of parol license with respect to use of wall, 41 A.L.R.2d 558.

Party walls and party-wall agreements as affecting marketability of title, 81 A.L.R.2d 1020.

Liability of excavators for damages to noncoterminous tract from removal of lateral support, 87 A.L.R.2d 710.

Liability for damages to adjacent land or building caused by dredging, 62 A.L.R.3d 526.

Liability of landowner withdrawing ground water from own land for subsidence of adjoining owner's land, 5 A.L.R.4th 614.

44-9-4. Parol license; when revocable; when easement running with land.

A parol license to use another's land is revocable at any time if its revocation does no harm to the person to whom it has been granted. A parol license is not revocable when the licensee has acted pursuant thereto and in so doing has incurred expense; in such case, it becomes an easement running with the land.

(Civil Code 1895, § 3069; Civil Code 1910, § 3645; Code 1933, § 85-1404.)

History of section. - This section is derived from the decisions in Sheffield v. Collier, 3 Ga. 82 (1847); Mitchell v. Mayor of Rome, 49 Ga. 19 (1872); Baker v. McGuire, 53 Ga. 245 (1874); Southwestern R.R. v. Mitchell, 69 Ga. 114 (1882), and City Council v. Burum & Co., 93 Ga. 68 , 19 S.E. 820 (1893).

Law reviews. - For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998). For annual survey article on real property law, see 52 Mercer L. Rev. 383 (2000). For annual survey of zoning and land use law, see 57 Mercer L. Rev. 447 (2005). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For annual survey on zoning and land use law, see 61 Mercer L. Rev. 427 (2009). For comment on Grant v. Haymes, 164 Ga. 371 , 138 S.E. 892 (1927), see 1 Ga. L. Rev. No. 2, p. 45 (1927).

JUDICIAL DECISIONS

License is a mere permissive use, generally in parol and revocable, while an easement created by agreement constitutes an interest in land requiring a writing within the statute of frauds, and subject to the rules governing the construction of deeds. Barton v. Gammell, 143 Ga. App. 291 , 238 S.E.2d 445 (1977).

Terms of the license must be strictly followed and cannot be extended or varied by the licensee. Mayor of Athens v. Gregory, 231 Ga. 710 , 203 S.E.2d 507 (1974).

O.C.G.A. § 44-9-4 enunciates a principle which would appear to be based on equitable estoppel in order to protect a party from loss. Jordan v. Coalson, 235 Ga. 326 , 219 S.E.2d 439 (1975).

O.C.G.A. § 44-9-4 is operative only where there is an express oral license. Jordan v. Coalson, 235 Ga. 326 , 219 S.E.2d 439 (1975).

O.C.G.A. § 44-9-4 is operative only where there is an express oral license. It does not apply to implied licenses nor is it susceptible to such an interpretation, and it will not be extended beyond its plain terms so as to establish irrevocable property rights in another's land under an implied license. Berolzheimer v. Taylor, 230 Ga. 595 , 198 S.E.2d 301 (1973).

It was error to hold that the defendant had an irrevocable license to use a curb cut under O.C.G.A. § 44-9-4 ; it was undisputed that the trustees of the trust that owned the land in question never granted the defendant an express oral license to use the curb cut, and at most the defendant had an implied license, to which O.C.G.A. § 44-9-4 did not apply. Postnieks v. Chick-fil-A, Inc., 285 Ga. App. 724 , 647 S.E.2d 281 (2007).

License not made irrevocable by mere expenditures upon improvements to enjoy license. - Where the licensee merely improves own property in the expectation of enjoying the license, it was not such an expenditure as would make the license irrevocable, since it cannot be said that the license became an agreement for a valuable consideration and the licensee a purchaser for value. Miller v. Slater, 187 Ga. 552 , 186 S.E. 413 (1936).

Trial court properly granted summary judgment to a neighbor in a trespass action that involved use of a roadway to gain access to a marsh area as the defending neighbors failed to show prescriptive rights to the roadway were obtained since there was no evidence in the record indicating that the defending neighbors maintained the roadway during any seven year period in any manner; the record established that the roadway was too wide to function as a private right of way; and even if the defending neighbors had obtained a parol license to use the roadway, such license was still revocable despite the expenditure of funds to build a dock. Warner v. Brown, 290 Ga. App. 510 , 659 S.E.2d 885 (2008).

The mere fact that a licensee erects improvements upon the person's own land and thereby incurs expense in the expectation of enjoying the license would not be such an expenditure as would make the licensee a purchaser for value and the license irrevocable. Tift v. Golden Hwde. Co., 204 Ga. 654 , 51 S.E.2d 435 (1949).

The mere fact that a licensee erects improvements upon own land and thereby incurs expense in the expectation of enjoying the license would not be such an expenditure as would make the licensee a purchaser for value and the license irrevocable. Cox v. Zucker, 214 Ga. 44 , 102 S.E.2d 580 (1958).

License becomes irrevocable when licensee erects necessary valuable improvements. - A parol license becomes irrevocable when the licensee, on the faith of the license, expends money and erects valuable improvements necessary to enjoy the license. Miller v. Slater, 182 Ga. 552 , 186 S.E. 413 (1936).

Because a lessee had a license concerning a sign on its leased property, made improvements in reliance of the lease, and a second lessee took ownership of the property with actual notice of the sign, the trial court abused its discretion in denying the lessee an interlocutory injunction barring the second lessee from interfering with the sign, as the license became irrevocable; moreover, the fact that the lessee did not own the land in which the sign was located was irrelevant. Lowe's Home Ctrs., Inc. v. Garrison Ridge Shopping Ctr. Marietta, GA, L.P., 283 Ga. App. 854 , 643 S.E.2d 288 (2007).

Executed parol license, where expenses have been incurred, ripens into easement running with the land. Berolzheimer v. Taylor, 230 Ga. 595 , 198 S.E.2d 301 (1973) See Hopkins v. Virginia Highland Assocs., 247 Ga. App. 243 , 541 S.E.2d 386 (2000).

As between private persons, a parol license, though primarily revocable, is not so when the licensee has executed it, and in so doing has incurred expense. A mere license without consideration is determinable at the pleasure of the licensor, yet if the enjoyment of a license must necessarily be and is preceded by the expenditure of money, such a license then becomes an agreement on a valuable consideration, and is irrevocable. Tanner-Brice Co. v. Sims, 174 Ga. 13 , 161 S.E. 819 (1931).

The principle embodied in O.C.G.A. § 44-9-4 is that, if the enjoyment of the license must necessarily be preceded by the expenditure of money and the licensee has incurred expense in executing it, the license becomes an agreement for a valuable consideration and the licensee becomes a purchaser for value. Miller v. Slater, 182 Ga. 552 , 186 S.E. 413 (1936).

To give a verbal agreement the same dignity and binding effect as a writing under seal, duly recorded, it must appear that it has been executed by one of the parties and in so doing that one has incurred expense. It must also appear that subsequent grantees took with notice of the agreement. Such a verbal agreement is enforceable to the same extent as if written. Meadows v. Page, 187 Ga. 686 , 1 S.E.2d 656 (1939).

One having executed an oral agreement or license, and having incurred expense in so doing, the oral license, which would otherwise be revocable on the death of the licensor, is taken out of the statute of frauds and becomes irrevocable. Smith v. Fischer, 59 Ga. App. 791 , 1 S.E.2d 684 (1939).

If the enjoyment of the parol license must be preceded necessarily by the expenditure of money, and the grantee incurred expense in executing it, it becomes an agreement for a valuable consideration, and the licensee a purchaser for value. Mathis v. Holcomb, 215 Ga. 488 , 111 S.E.2d 50 (1959); Waters v. Pervis, 153 Ga. App. 71 , 264 S.E.2d 551 (1980).

Trial court properly granted a corporation's summary judgment motion and awarded a corporation injunctive relief, barring an owner from interfering with the corporation's right of access to a highway, as the corporation's predecessor improved property on which it held a parol license, which created an easement that ran with the land under O.C.G.A. § 44-9-4 , and which passed to the corporation. Blake v. RGL Assocs., Inc., 267 Ga. App. 709 , 600 S.E.2d 765 (2004).

Parol license could be revoked. - A parol license to use neighboring property for ingress, egress, and parking could be revoked where the licensee's enjoyment of the license was not preceded necessarily by the expenditure of money. McCorkle v. Morgan, 268 Ga. 730 , 492 S.E.2d 891 (1997).

Evidence supported a finding that a lot owner had abandoned any interest the lot owner had in an unused alley: the alley was unused since the 1970s, a neighboring owner improved the alley and blocked the alley's use in 1991, the owner consented to the improvements and supported a re-zoning plan that included fencing, and did not object until 2001. Even if an oral license was granted, such a license was revocable at any time. Donald Azar, Inc. v. Muche, 326 Ga. App. 726 , 755 S.E.2d 266 (2014).

Instruction in an action seeking an easement that tracked the language of O.C.G.A. § 44-9-4 , given without a further clarifying instruction as to what type of "harm" would make a parol license irrevocable, was not harmful error. Carroll v. Pierce, 221 Ga. App. 805 , 472 S.E.2d 560 (1996).

Easement found to be acquired. - Where an owner of land, by a written instrument under seal, conveys to another the privilege of building a storehouse on the land, and agrees in the instrument that the grantee shall have "the use of the said property, free of rent, so long as he desires to use it," and that when the grantee and successors fail to use it as a business then the grantee shall have the privilege of selling the house or removing it, and where the grantee, upon the faith of this conveyance, incurs expense in erecting such a house upon a lot designated by the owner for the purposes contemplated by the parties, the grantee thereby acquires an easement under O.C.G.A. § 44-9-4 and such an interest in the property conveyed as is assignable by the grantee and cannot be revoked by the grantor. Ainslie v. Eason & Waters, 107 Ga. 747 , 33 S.E. 711 (1899).

Under O.C.G.A. § 44-9-4 , a license to prospect gold could not be revoked after the licensee, by much labor and at considerable expense, located and developed gold. Brown v. Bowman, 119 Ga. 153 , 46 S.E. 410 (1903).

Under O.C.G.A. § 44-9-4 , a telegraph company, which with the consent of a railroad company built its lines upon the latter's right of way, and maintained, renewed, and operated the same for 40 or 50 years, acquired a perpetual easement. Western Union Tel. Co. v. Georgia R.R. & Banking Co., 227 F. 276 (S.D. Ga. 1915).

The right to cut and remove timber, not being a mere license resting in parol, but being in writing and for a value, the licensee stands upon the footing of a purchaser for value, and the right or license is not revocable at the will of the grantor. Harrell v. Williams & Sons, 159 Ga. 230 , 125 S.E. 452 (1924).

Where a parol license is granted for the opening and use of a ditch on the land of the licensor for the purpose of draining a pond on the land occupied by the licensee as a tenant, the fact that the licensee is a tenant, and not the owner of the land on which the pond is located, does not prevent the license from becoming irrevocable upon the licensee executing the license and incurring expense in so doing, at least so long as the licensee continues to exercise the license granted; and whether or not the license granted in is only personal to the licensee, or is appurtenant to the land, if the licensee subsequently purchases the land, the license in either event remains irrevocable for the licensee's benefit. Dickey v. Yarbrough, 186 Ga. 120 , 197 S.E. 234 (1938).

In an action by the owners of a lot against the corporate owner of an adjoining lot and a contractor, to prevent the corporation from encroachment by inserting girders of its new building into a wall on the plaintiffs' lot, and to eject the corporation from occupation of any part of the wall, the evidence demanded a finding that the wall in question was subject to an easement in favor of the corporation, giving the latter a right of a user in the wall for support of its building. Joel v. Publix-Lucas Theater, Inc., 193 Ga. 531 , 19 S.E.2d 730 (1942).

Where a purchaser of land was allowed the right to build a private way at purchaser's own expense, which was used as a means of ingress and egress to the rear of the property and which was kept in repair during the six or eight years the purchasers occupied the house that the purchaser built on the property, the purchaser obtained an easement running with the land, and the easement passed with the dominant estate to each of successors in title, unless it could be proved that the easement was forfeited or abandoned or that the successors in title to the grantor of the easement took title to the servient estate with no notice, actual or constructive, of the existence of the easement. Mathis v. Holcomb, 215 Ga. 488 , 111 S.E.2d 50 (1959).

Where, by parol license, the petitioner permitted a company to dispose of its industrial waste by means of a pipe which extended for some distance on the land of the petitioner, the company thereafter discharged waste water on the land of the petitioner, and the company expended money on the faith of this parol license, the petitioner could not revoke the license, and it became an easement running with the land. It was such an easement as could be claimed by a subsequent owner of the manufacturing plant. Bell Indus., Inc. v. Jones, 220 Ga. 684 , 141 S.E.2d 533 (1965).

Trial court erred by granting a guitar store summary judgment in a suit brought by a diving store to enforce an easement because there was no genuine issue of fact that the guitar store's predecessor in interest had granted the diving store a license to maintain the sign at issue on the guitar store's property in writing and money was paid, thus, the license created thereby ran with the land. Aquanaut Diving & Eng'g, Inc. v. Guitar Ctr. Stores, Inc., 324 Ga. App. 570 , 751 S.E.2d 175 (2013).

Easement by estoppel. - There was no merit to the argument that Georgia law did not recognize the concept of easement by estoppel. The ripening of a license under O.C.G.A. § 44-9-4 into an easement because of the expenditure of funds in reliance thereon had often been described as an application of the doctrine of equitable estoppel. Waters v. Ellzey, 290 Ga. App. 693 , 660 S.E.2d 392 (2008).

Easement not acquired. - Where written statement giving permission to go on land contained no legal description, it was, at best, a revocable license which never ripened into an easement because defendant did not expend money preceding use of the road. Lovell v. Anderson, 242 Ga. App. 537 , 530 S.E.2d 233 (2000).

Under O.C.G.A. § 44-9-4 , a car wash owner did not show that a parol license to use a gas station's property for ingress and egress had ripened into an easement running with the land; there was no evidence that the car wash's lessor built any structure on the gas station's land or invested a substantial amount in improving the gas station's land, and there was no evidence of an express license granted to the car wash by the gas station. Decker Car Wash, Inc. v. BP Prods. N. Am., Inc., 286 Ga. App. 263 , 649 S.E.2d 317 (2007), cert. denied, No. S07C1692, 2007 Ga. LEXIS 767 (Ga. 2007).

Marina did not acquire an irrevocable license to access a lake and erect a dock pursuant to O.C.G.A. § 44-9-4 because even assuming that the prior dock created an irrevocable license in favor of the prior property owner, the evidence failed to show that the marina's dock fell within the property covered by the alleged license; the prior dock fell into disrepair and was no longer in existence, and the dock the marina erected was not in the same location as the prior dock. Camp Cherokee, Inc. v. Marina Lane, LLC, 316 Ga. App. 366 , 729 S.E.2d 510 (2012).

In a declaratory judgment action brought by adjoining landowners seeking rights to access an undeveloped lot in a subdivision for use as a soccer field, the trial court properly granted summary judgment to the property owners who had terminated the access and use of the adjoining landowners to the field. There existed no express easement to grant the adjoining landowners access, no dedication of the field was established for public use, the treatment of the field for fire ants was merely maintenance, and since the adjoining landowners had previously used the lot with permission, no prescriptive rights were established. De Castro v. Durrell, 295 Ga. App. 194 , 671 S.E.2d 244 (2008).

No oral license to use land found. - Since plaintiff pointed to no evidence of any express oral license, it followed that the trial court did not err in finding O.C.G.A. § 44-9-4 inapplicable. Parrott v. Fairmont Dev., Inc., 256 Ga. App. 253 , 568 S.E.2d 148 (2002).

Trial court erred by not finding parol license. - In a suit brought by a property owner seeking to specifically perform an oral agreement to purchase a strip of real estate, the trial court properly denied the property owner's request for an interlocutory judgment based on a violation of the statute of frauds and because another held a first right of refusal over the sale/purchase of the property. However, the trial court erred by concluding that the property owner had not obtained a parol license to use the strip since the property owner had made expenditures to improve the land and, as to the right of first refusal held by another, the grant of a parol license was not the equivalent to a sale of the property to have in anyway interfered with that right. Meinhardt v. Christianson, 289 Ga. App. 238 , 656 S.E.2d 568 (2008).

Cited in Cherokee Mills v. Standard Cotton Mills, 138 Ga. 856 , 76 S.E. 373 (1912); Garrard v. Milledgeville Banking Co., 168 Ga. 339 , 147 S.E. 766 (1929); Frazier v. Lee, 180 Ga. 385 , 178 S.E. 722 (1935); Moxley v. Adams, 190 Ga. 164 , 8 S.E.2d 525 (1940); Waters v. Baker, 190 Ga. 186 , 8 S.E.2d 637 (1940); United States v. 1,070 Acres of Land, 52 F. Supp. 378 (M.D. Ga. 1943); Nassar v. Salter, 213 Ga. 253 , 98 S.E.2d 557 (1957); State Hwy. Dep't v. Morton, 104 Ga. App. 106 , 121 S.E.2d 275 (1961); Smith v. E.B. Burney Constr. Co., 231 Ga. 772 , 204 S.E.2d 93 (1974); City of Warrenton v. Johnson, 235 Ga. 665 , 221 S.E.2d 429 (1975); Arrington v. Watkins, 239 Ga. 793 , 239 S.E.2d 10 (1977); Strozzo v. Coffee Bluff Marina Prop., 250 Ga. App. 212 , 550 S.E.2d 122 (2001).

OPINIONS OF THE ATTORNEY GENERAL

License not revocable after expenditure and improvements. - There are cases where a license to erect a dam is not revocable after the expenditure of money and the making of improvements in pursuance thereof, and a license to cut a ditch for drainage is not revocable after the ditch has been dug at expense to the licensee. 1958-59 Op. Att'y Gen. p. 285.

Transportation department acquires permission from owner in form of license for erection of retaining wall. - The Department of Transportation is charged with the responsibility of acquiring the proper permission from a property owner in the form of a license for the erection of a retaining wall; after permission is acquired, a wall may be erected and the original license is converted into an easement by operation of law; permission for the erection of retaining walls should be in writing in order to avoid the necessity of a factual determination by a court as to whether permission was granted in the first instance. 1971 Op. Att'y Gen. No. 71-165.

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, § 137 et seq.

C.J.S. - 28 C.J.S., Easements, §§ 10 et seq., 53 et seq., 127. 37 C.J.S., Frauds, Statute of, §§ 63, 91. 53 C.J.S., Licenses, §§ 50 et seq., 89 et seq.

ALR. - Injunction as a proper remedy by licensor where license to use real property is revoked, 56 A.L.R. 1110 .

Extinguishment or modification of easement by parol agreement, 71 A.L.R. 1370 .

Physical conditions which will charge purchaser of servient estate with notice of easement, 74 A.L.R. 1250 .

Roadway or pathway used at time of severance of tract as visible or apparent easement, 100 A.L.R. 1321 ; 164 A.L.R. 1001 .

Affirmative covenants as running with land, 102 A.L.R. 781 ; 118 A.L.R. 982 .

Right of licensee for use of real property to compensation for expenditures upon revocation of license, 120 A.L.R. 549 .

License in real property as involving freeholder or title or interest in real estate, within constitutional or statutory provisions relating to jurisdiction or venue, 138 A.L.R. 147 .

Parol evidence rule as applied to question of easement by necessity or visible easement, 165 A.L.R. 567 .

Revocation of license to cut and remove timber as affecting rights in respect of timber cut but not removed, 26 A.L.R.2d 1194.

Duration of license in or on real property granted for a specific purpose where no period has been specified, 74 A.L.R.2d 886.

Right of owners of parcels into which dominant tenement is or will be divided to use right of way, 10 A.L.R.3d 960.

44-9-5. Cessation of easement of necessity upon purchase of land providing access to highway.

Where a way of necessity is appurtenant to land and the owner thereof purchases other land which provides him access to a highway over his own land, the way of necessity ceases.

(Civil Code 1895, § 3066; Civil Code 1910, § 3642; Code 1933, § 85-1402.)

History of section. - This section is derived from the decision in Russell v. Napier, 82 Ga. 770 , 9 S.E. 746 (1889).

JUDICIAL DECISIONS

Where the evidence fails to show any necessity for the way, the way ceases. Charleston & W.C. Ry. v. Fleming, 118 Ga. 699 , 45 S.E. 664 (1903).

This easement is acquired by implied grant and is based upon necessity, and when the necessity ceases, the easement ceases. S.A. Lynch Corp. v. Stone, 211 Ga. 516 , 87 S.E.2d 57 (1955).

A way of necessity cannot exist in a vacuum, to be retained by one having no property to be served by the way. Seignious v. Metropolitan Atlanta Rapid Transit Auth., 252 Ga. 69 , 311 S.E.2d 808 (1984).

Landlocked owner who can reach highway by another road not entitled to condemn neighbor's land. - The use of the common-law phrase "way of necessity" and the many authorities holding that wherever necessity ceases the right to such way ceases lead to the conclusion that if the owner of a landlocked farm can reach a highway by means of another private or quasi-private road, the landowner is not under that necessity which above entitles the landowner to condemn the land of a neighbor. Gaines v. Lunsford, 120 Ga. 370 , 47 S.E. 967 , 102 Am. St. R. 109 (1904).

Cited in Wagnon v. Keith, 222 Ga. 859 , 152 S.E.2d 865 (1967); Almaroad v. Giles, 230 Ga. 473 , 197 S.E.2d 706 (1973).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, §§ 42, 92, 108, 115.

C.J.S. - 28A C.J.S., Easements, §§ 40 et seq., 91 et seq., 119, 120, 162.

ALR. - Easement of way of necessity as affected by common ownership of parcels which are not accessible one from the other, 5 A.L.R. 1557 .

Dedication of footway by permissive use, 7 A.L.R. 125 .

Implied easement in respect of drains, pipes, or sewers upon severance of tract, 58 A.L.R. 824 .

May right of way be appurtenant where the servient tenement is not adjacent to the dominant, 76 A.L.R. 597 .

Roadway or pathway used at time of severance of tract as visible or apparent easement, 100 A.L.R. 1321 ; 164 A.L.R. 1001 .

Right of owner of servient estate to alter conditions essential to enjoyment of easement in connection with stairway, or other part of building, 101 A.L.R. 1292 .

Cessation of easement of way by necessity upon cessation of necessity, 103 A.L.R. 993 .

Private easement in way vacated, abandoned, or closed by public, 150 A.L.R. 644 .

Commencement and duration of express easement as affected by provision in instrument creating it, 154 A.L.R. 5 .

Conveyance of land as bounded by road, street, or other way as giving grantee rights in or to such way, 46 A.L.R.2d 461.

Easements: way by necessity where property is accessible by navigable water, 9 A.L.R.3d 600.

Right to maintain gate or fence across right of way, 52 A.L.R.3d 9.

Way of necessity over another's land, where a means of access does exist, but is claimed to be inadequate, inconvenient, difficult, or costly, 10 A.L.R.4th 447.

Way of necessity where only part of land is inaccessible, 10 A.L.R.4th 500.

44-9-6. Loss of easement by abandonment or nonuse.

An easement may be lost by abandonment or forfeited by nonuse if the abandonment or nonuse continues for a term sufficient to raise the presumption of release or abandonment.

(Civil Code 1895, § 3068; Civil Code 1910, § 3644; Code 1933, § 85-1403.)

History of section. - This section is derived from the decision in Winham, King & Aldridge v. McGuire, 51 Ga. 578 (1874).

Law reviews. - For comment on Aggregate Supply Co. v. Sewell, 217 Ga. 407 , 122 S.E.2d 580 (1961), as to nonabandonability of a profit a'prendre, see 14 Mercer L. Rev. 473 (1963).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Cited in Joel v. Publix-Lucas Theater, Inc., 193 Ga. 531 , 19 S.E.2d 730 (1942); Garner v. Mayor of Athens, 206 Ga. 815 , 58 S.E.2d 844 (1950); Arlington Cem. v. Bindig, 212 Ga. 698 , 95 S.E.2d 378 (1956); Burkett v. Hatch, 146 Ga. App. 2 , 245 S.E.2d 318 (1978); Beaulieu of Am., Inc. v. L.T. Dennard & Co., 253 Ga. 21 , 315 S.E.2d 889 (1984); Rolleston v. Sea Island Properties, Inc., 254 Ga. 183 , 327 S.E.2d 489 (1985); Duffy Street S.R.O., Inc. v. Mobley, 266 Ga. 849 , 471 S.E.2d 507 (1996); Strozzo v. Coffee Bluff Marina Prop., 250 Ga. App. 212 , 550 S.E.2d 122 (2001).

Applicability

O.C.G.A. § 44-9-6 applies to a municipal corporation, as well as an individual. Mayor of Savannah v. Bartow Inv. Co., 137 Ga. 198 , 72 S.E. 1095 (1911); Mayor of Savannah v. Barnes, 148 Ga. 317 , 96 S.E. 625 (1918).

There is a distinction between corporeal and incorporeal hereditaments; the former cannot be lost by abandonment; but the latter may be extinguished under certain circumstances. Tietjen v. Meldrim, 169 Ga. 678 , 151 S.E. 349 (1930), later appeal, 172 Ga. 814 , 159 S.E. 231 (1931).

A perfect legal title to the corporeal hereditament cannot be lost by abandonment. Aggregate Supply Co. v. Sewell, 217 Ga. 407 , 122 S.E.2d 580 (1961), for comment, see 14 Mercer L. Rev. 474 (1963).

Profit a'prendre. - The right to remove sand and gravel, granted by a lease, amounts to the profit a'prendre and not an easement. There is a distinction between a profit a'prendre and an easement, the latter may be lost by abandonment, while the former may not. Aggregate Supply Co. v. Sewell, 217 Ga. 407 , 122 S.E.2d 580 (1961), for comment, see 14 Mercer L. Rev. 474 (1963).

Abandonment

Municipal corporation may, by abandonment, relinquish control over street which has been dedicated to it for public use. Kelsoe v. Town of Oglethorpe, 120 Ga. 951 , 48 S.E. 366 , 102 Am. St. R. 138 (1904).

Where prescription to a private way has ripened, title is divested by abandonment, though not by neglect, and the duty to repair continues. Kirkland v. Pitman, 122 Ga. 256 , 50 S.E. 117 (1904).

Owner of easement arising from grant, express or implied, does not lose easement by mere nonuse, and nonuse without other evidence of intent to abandon will not constitute abandonment. Smith v. Gwinnett County, 248 Ga. 882 , 286 S.E.2d 739 (1982).

Easement acquired by grant not lost unless clear and unequivocal intention to abandon. - An easement of way acquired by a grant will not be lost by a nonuse for any length of time, unless there is clear and unequivocal evidence of an intention to abandon it; when such nonuse is accompanied by acts manifesting a clear intent to abandon, which destroy the object for which the easement was created or the means of its enjoyment, an abandonment will take place. Tietjen v. Meldrim, 169 Ga. 678 , 151 S.E. 349 (1930), later appeal, 172 Ga. 814 , 159 S.E. 231 (1931).

An easement of way acquired by a grant, will not be lost by a nonuse for any length of time, unless there is a clear and unequivocal evidence of an intention to abandon it. Gilbert v. Reynolds, 233 Ga. 488 , 212 S.E.2d 332 (1975).

In a dispute over an easement, although a fence blocked the roadway claimed by the appellees, the evidence did not constitute clear, unequivocal, and decisive evidence of an intent to abandon the easement as one of the appellees testified that the fence could be clipped and unclipped to travel on the easement; the other appellee gave undisputed testimony that the appellees and their family had made use of the easement ever since the appellees' father conveyed the easements in 1998, including to maintain the water lines that come from a spring and which provide water to Tract 1 as well as to access the barn/shed on the eastern end of Tract 1. Houston v. Flory, 329 Ga. App. 882 , 766 S.E.2d 227 (2014).

Abandonment of access to park not established. - Trial court did not err in concluding that the easement for access to the park had not been abandoned because evidence was presented that some residents used the access until the property owner blocked access. Doxey v. Crissey, 355 Ga. App. 891 , 846 S.E.2d 166 (2020).

Mere nonuse cannot constitute abandonment. - Where an easement has been acquired by grant, a mere nonuse, without further evidence of an intent to abandon it, will not constitute abandonment. Mayor of Savannah v. Barnes, 148 Ga. 317 , 96 S.E. 625 (1918).

An easement acquired by a grant cannot be lost by mere nonuse, without further evidence of an intention to abandon. Tietjen v. Meldrim, 169 Ga. 678 , 151 S.E. 349 (1930), later appeal, 172 Ga. 814 , 159 S.E. 231 (1931).

Trial court did not err in granting a directed verdict for the alleged trespasser in finding that platted subdivision road the alleged trespasser was using was a public road as the easement that existed on the road was acquired from the grantor; thus, evidence of nonuse of the road without a showing of an intent to abandon the easement meant the easement had not been abandoned. Hand v. Pettitt, 258 Ga. App. 170 , 573 S.E.2d 421 (2002).

No presumption arises from mere nonuse for time less than required for perfection by prescription. Gilbert v. Reynolds, 233 Ga. 488 , 212 S.E.2d 332 (1975).

The seeking of permission to use an area formally held through an easement would authorize a jury to conclude that the one seeking the permission had abandoned the easement. Lockard v. Davis, 169 Ga. App. 208 , 312 S.E.2d 194 (1983).

Questions of fact remained as to abandonment. - In a dispute over access to a roadway, the trial court erred in granting plaintiff summary judgment enjoining defendant from obstructing the road because questions of fact remained as to abandonment of the roadway leading to plaintiff's property, which were not properly resolved by the trial court. Pass v. Forestar GA Real Estate Group, Inc., 337 Ga. App. 244 , 787 S.E.2d 250 (2016), cert. denied, No. S16C1689, 2016 Ga. LEXIS 830 (Ga. 2016).

Nonuse

Easement may be forfeited by owner without the owner's "absolute refusal" to exercise privileges thereunder. McElwaney v. MacDiarmid, 131 Ga. 97 , 62 S.E. 20 (1908).

Where easement is acquired by mere user, doctrine of extinction by mere nonuse may apply. Tietjen v. Meldrim, 169 Ga. 678 , 151 S.E. 349 (1930), later appeal, 172 Ga. 814 , 159 S.E. 231 (1931).

Prescriptive easement abandoned by nonuse. - Defendants were entitled to summary judgment on the plaintiff's claim for a prescriptive easement because the undisputed evidence showed that the plaintiff abandoned any prescriptive easement as the plaintiff's own evidence was that the plaintiff and the plaintiff's family had not used the defendants' tract to access the plaintiff's property at all since July 13, 1994, which was well beyond the seven-year period that would generally raise a presumption of abandonment; and the plaintiff had pointed to nothing to show that the presumption of abandonment should be rebutted. Albenberg v. Szalay, 332 Ga. App. 665 , 774 S.E.2d 730 (2015).

Forfeiture not incurred unless nonuse raises presumption of release. - The right to an easement may be lost by an abandonment or by a forfeiture by a nonuser; but the forfeiture will not be incurred unless a nonuse is for a period sufficient to raise the presumption of a release or abandonment. Mathis v. Holcomb, 215 Ga. 488 , 111 S.E.2d 50 (1959).

Mere nonuse for 20 years affords a presumption, though not a conclusive one, of extinguishment, even in cases where no other circumstances indicating an intention to abandon appears; and if there has been in the meantime some act done by the owner of the land charged with the easement, inconsistent with or adverse to the right, a much stronger presumption of extinguishment will arise. Gilbert v. Reynolds, 233 Ga. 488 , 212 S.E.2d 332 (1975).

Evidence

Evidence to establish forfeiture of easement by abandonment or nonuse must be decisive and unequivocal. Gaston v. Gainesville & D.E. Ry., 120 Ga. 516 , 48 S.E. 188 (1904); Tietjen v. Meldrim, 169 Ga. 678 , 151 S.E. 349 (1930), later appeal, 172 Ga. 814 , 159 S.E. 231 (1931); Calfee v. Jones, 54 Ga. App. 481 , 188 S.E. 307 (1936).

The evidence to establish a forfeiture of an easement by abandonment or nonuse must be decisive and unequivocal; and where the testimony is in dispute as to the facts, the question as to any abandonment is for the jury, in applying to the evidence the law charged by the judge. Moxley v. Adams, 190 Ga. 164 , 8 S.E.2d 525 (1940).

Abandonment (as used in O.C.G.A. § 44-9-6 ) is a mixed question of law and fact. Gaston v. Gainesville & D.E. Ry., 120 Ga. 516 , 48 S.E. 188 (1904); Mayor of Savannah v. Bartow Inv. Co., 137 Ga. 198 , 72 S.E. 1095 (1911).

Generally, abandonment is a mixed question of law and fact, which applies to a municipal corporation, as well as to an individual. Hames v. City of Marietta, 212 Ga. 331 , 92 S.E.2d 534 (1956).

Whether there has been an abandonment of an easement by the public authority under O.C.G.A. § 44-9-6 is a mixed question of law and fact and is for the jury whenever the evidence is in conflict. Jackson v. Chatham County, 225 Ga. 641 , 170 S.E.2d 418 (1969).

Abandonment question for jury. - It would be a question for the jury, under all the facts, to determine whether a right once acquired by a continuous use was subsequently abandoned under O.C.G.A. § 44-9-6 by nonuse. Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7 , 60 S.E. 868 (1908).

Where the testimony is in dispute as to the facts indicating an abandonment, the determination of the true facts, to which the law of abandonment given in charge by the court is to be applied, is for the jury. Calfee v. Jones, 54 Ga. App. 481 , 188 S.E. 307 (1936).

Evidence held to show abandonment or forfeiture. - The evidence was held to show that if any easement of way in the streets in controversy ever existed in the purchases of lots in another division of the tract, there had been an abandonment or forfeiture by nonuse under the terms of O.C.G.A. § 44-9-6 . Mayor of Savannah v. Bartow Inv. Co., 137 Ga. 198 , 72 S.E. 1095 (1911).

There was evidence from which the jury was authorized to find no loss of easement by an abandonment or forfeiture by nonuse under the provisions of O.C.G.A. § 44-9-6 . Monroe v. Estes, 139 Ga. 729 , 78 S.E. 130 (1913).

Illustrative Cases

Easement obtained by prescription runs with land unless forfeiture or abandonment proved. - Where a purchaser of land was allowed the right to build a private way at the purchaser's own expense, which was used as a means of ingress and egress to the rear of the property and which was kept in repair during the six or eight years the purchaser occupied the house that the purchaser built on the property, the purchaser obtained an easement running with the land, and the easement passed with the dominant estate to each of successors in title, unless it could be proved that the easement was forfeited or abandoned or that the successors in title to the grantor of the easement took title to the servient estate with no notice, actual or constructive, of the existence of the easement. Mathis v. Holcomb, 215 Ga. 488 , 111 S.E.2d 50 (1959).

Easement designated on plat not lost by purchaser of lot by mere nonuse. - Where the owner of land in a city had it surveyed and laid off into lots, caused a plat of the same to be made which referred to a designated strip of land, shown on the plat as an avenue, and being so situated as to afford an outlet from the lots into a public street of the city, and where the owner sold the lots at a public auction, representing that they were sold by the plat, and the purchaser at the sale and the purchaser's successors in title acquired the right to use this strip as a way to and from the lots, the easement thus acquired by the purchaser and those holding under the purchaser would not be lost by mere lapse of time or nonuse, unless expressly abandoned. Harris v. Powell, 177 Ga. 15 , 169 S.E. 355 (1933).

Right to use nonnavigable watercourse lost by discontinuance for time sufficient to infer abandonment. - A right acquired by the public to use a watercourse not navigable may be lost by a discontinuance of such a use for the time sufficient to justify an inference of abandonment under O.C.G.A. § 44-9-6 . Seaboard Air-Line Ry. v. Sikes, 4 Ga. App. 7 , 60 S.E. 868 (1908).

When bridges constructed on land acquired by easement dismantled, easement abandoned. - When bridges constructed by a county on land on which only an easement was acquired were dismantled by the state, the easement therein was abandoned, since abandonment is conclusively shown by the fact that the steel in the bridges was moved elsewhere and stored. Stewart County v. Holloway, 69 Ga. App. 344 , 25 S.E.2d 315 (1943).

An easement across railroad tracks, even if created by an unrecorded agreement, would not remain valid after 25 years without any use. Central of Ga. R.R. v. DEC Assocs., 231 Ga. App. 787 , 501 S.E.2d 6 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, § 110 et seq.

C.J.S. - 28A C.J.S., Easements, §§ 117, 124 et seq.

ALR. - Loss of easement by adverse possession, or nonuser, 1 A.L.R. 884 ; 66 A.L.R. 1099 ; 98 A.L.R. 1291 ; 25 A.L.R.2d 1265; 62 A.L.R.5th 219.

Permission or license from owner of servient estate as extinguishing an existing easement, 50 A.L.R. 1295 .

Misuse of easement, or violation of conditions of its enjoyment, as ground of forfeiture, 78 A.L.R. 1222 .

Failure or delay or original grantee to assert or exercise right of way by necessity as precluding subsequent assertion or exercise, 133 A.L.R. 1393 .

Who entitled to land upon its abandonment for railroad purposes, where railroad's original interest or title was less than fee simple absolute, 136 A.L.R. 296 .

Private easement in way vacated, abandoned, or closed by public, 150 A.L.R. 644 .

Commencement and duration of express easement as affected by provision in instrument creating it, 154 A.L.R. 5 .

Rights and duties of owners inter se with respect to upkeep and repair of water easement, 169 A.L.R. 1147 .

Abandonment, waiver, or forfeiture of easement on ground of misuse, 16 A.L.R.2d 609.

Conveyance of land as bounded by road, street, or other way as giving grantee rights in or to such way, 46 A.L.R.2d 461.

What constitutes abandonment of a railroad right of way, 95 A.L.R.2d 468.

Right to maintain gate or fence across right of way, 52 A.L.R.3d 9.

What constitutes, and remedies for, misuse of easement, 111 A.L.R.5th 313.

44-9-7. Effect of sale of property for taxes or assessments on easements or rights of way.

No sale of real property under a fi. fa. for taxes or under a fi. fa. for any assessment for improvements shall extinguish or affect any easement or right of way in, over, under, or across said real property, which easement or right of way was created by an operation of law or by an express grant; provided, however, that an easement or right of way created by an express grant must be recorded prior to the recording of the fi. fa. for taxes or assessment for improvements under which the real property subject to the easement or right of way was sold.

(Ga. L. 1969, p. 39, § 1.)

JUDICIAL DECISIONS

Cited in Smith v. Gwinnett County, 248 Ga. 882 , 286 S.E.2d 739 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 20 Am. Jur. 2d, Covenants, Conditions, and Restrictions, § 243. 25 Am. Jur. 2d, Easements and Licenses, §§ 121, 122. 72 Am. Jur. 2d, State and Local Taxation, §§ 872, 873.

C.J.S. - 84 C.J.S., Taxation, §§ 111, 494 et seq., 510 et seq. 85 C.J.S., Taxation, §§ 1186, 1370 et seq.

ALR. - Implied easement, upon division of tract, in respect of railroad spur or branch or siding, 138 A.L.R. 779 .

Extinguishment of easement by implication or prescription, by sale of servient estate to purchase without notice, 174 A.L.R. 1241 .

Conveyance of land as bounded by road, street, or other way as giving grantee rights in or to such way, 46 A.L.R.2d 461.

Relative rights, as between municipality and abutting landowners, to minerals, oil, and gas underlying streets, alleys, or parks, 62 A.L.R.2d 1311.

Right to maintain gate or fence across right of way, 52 A.L.R.3d 9.

What constitutes unity of title or ownership sufficient for creation of an easement by implication or way of necessity, 94 A.L.R.3d 502.

ARTICLE 2 SOLAR EASEMENTS

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979).

RESEARCH REFERENCES

ALR. - Implied easement upon severance of tract where building is near or encroaches upon the dividing line, 9 A.L.R. 488 ; 41 A.L.R. 1210 ; 53 A.L.R. 910 .

Implied easement of light and air over private alley or right of way, 9 A.L.R. 1634 .

What are "minerals" within deed, lease, or license, 17 A.L.R. 156 ; 86 A.L.R. 983 .

Right of owner of fee burdened with easement in nature of street, private or public, to compensation on condemnation of property for public street, 17 A.L.R. 1249 .

Liability of abutter to one injured while using private way or road, 28 A.L.R. 856 .

Roadway or pathway used at time of severance of tract as visible easement, 34 A.L.R. 233 ; 100 A.L.R. 1321 ; 164 A.L.R. 1001 .

Destruction of building as terminating easement therein, 34 A.L.R. 606 ; 154 A.L.R. 82 .

Interference with easement of light, air, or view by structure in street or highway as ground for injunction at instance of abutting owner, 40 A.L.R. 1321 .

Automobile traffic as additional burden on right of way, 53 A.L.R. 553 .

Rights, privileges, or easements of public, its grantees or licensees, on land bordering on navigable water, 53 A.L.R. 1191 .

Locating easement of way of necessity, 68 A.L.R. 528 .

Character of easement in respect of water as one in gross or appurtenant, 89 A.L.R. 1187 .

Right of owner of dominant estate to have compensation for taking of easement by eminent domain determined with reference to land and improvements held in the dominant estate, 98 A.L.R. 640 .

Right of owner of servient estate to alter conditions essential to enjoyment of easement in connection with stairway, or other part of building, 101 A.L.R. 1292 .

Affirmative covenants as running with land, 102 A.L.R. 781 ; 118 A.L.R. 982 .

Locating easement of way created by a grant which does not definitely describe its location, 110 A.L.R. 174 .

Enlargement of easement by use for purpose or in a manner other than that specified in the grant, 110 A.L.R. 915 .

Easement appurtenant to land, created subsequent to mortgage of dominant estate, as inuring to the benefit of the mortgagee or of purchaser at foreclosure sale and his subsequent grantees, 116 A.L.R. 1078 .

Rights in respect of rents or royalties earned under an oil and gas lease or other grant of mineral rights in which owners of different tracts join as lessors, 116 A.L.R. 1267 .

Nature and extent of right granted by contract for use of wall or roof for advertising purposes, 119 A.L.R. 1523 .

Use of cemetery grounds for purposes other than interment, 130 A.L.R. 130 .

Private cemeteries, 130 A.L.R. 250 ; 75 A.L.R.2d 591.

Assignability and diversibility of easement in gross or license in respect of land or water, 130 A.L.R. 1253 .

Easement as precluding subsequent acquisition of easement in same land by third person, 133 A.L.R. 1200 .

Failure or delay of original grantee to assert or exercise right of way by necessity as precluding subsequent assertion or exercise, 133 A.L.R. 1393 .

Relief in injunction suit in respect of easement as affected by doubt as to right to, or extent or location of, easement; necessity of first establishing easement at law, 139 A.L.R. 165 .

Adjoining owner's use of wall standing on or near dividing line as imposing obligation to contribute to cost, where he was not party to oral agreement or unrecorded written agreement under which it was erected, 140 A.L.R. 1424 .

Express easements of light, air, and view, 142 A.L.R. 467 .

Commencement and duration of express easement as affected by provision in instrument creating it, 154 A.L.R. 5 .

Visible easement rule as applicable to reciprocal or cross easements resulting from common development and use of adjoining properties in different ownership, 155 A.L.R. 543 .

Parol evidence rule as applied to question of easement by necessity or visible easement, 165 A.L.R. 567 .

Easement or servitude or restrictive covenant as affected by sale for taxes, 168 A.L.R. 529 .

Rights and duties of owners inter se with respect to upkeep and repair of water easement, 169 A.L.R. 1147 .

Liability, as regards surface waters, for raising surface level of land, 12 A.L.R.2d 1338.

Easement or privileges of tenant of part of building as to other parts not included in lease, 24 A.L.R.2d 123.

Right to park vehicles on private way, 37 A.L.R.2d 944.

Easement by prescription in artificial drains, pipes, or sewers, 55 A.L.R.2d 1146.

Liability with respect to improvement assessments or charges as between vendor and purchaser, 59 A.L.R.2d 1044.

Grant, reservation, or exception as creating separate and independent legal estate in solid minerals or as passing only incorporeal privilege or license, 66 A.L.R.2d 978.

Private or family cemeteries, 75 A.L.R.2d 591.

Relocation of easements (other than those originally arising by necessity); rights as between private parties, 80 A.L.R.2d 743.

Acquisition of right of way by prescription as affected by change of location or deviation during prescriptive period, 80 A.L.R.2d 1095.

Reservation or exception in deed in favor of stranger, 88 A.L.R.2d 1199.

Deed to railroad company as conveying fee or easement, 6 A.L.R.3d 973.

Easements: way by necessity where property is accessible by navigable water, 9 A.L.R.3d 600.

Right of servient owner to maintain, improve, or repair easement of way at expense of dominant owner, 20 A.L.R.3d 1026.

Construction and operation of parking-space provision in shopping-center lease, 56 A.L.R.3d 596.

Separate assessment and taxation of air rights, 56 A.L.R.3d 1300.

Conveyance of "right of way," in connection with conveyance of another tract, as passing fee or easement, 89 A.L.R.3d 767.

Location of easement of way created by grant which does not specify location, 24 A.L.R.4th 1053.

Solar energy: landowner's rights against interference with sunlight desired for purposes of solar energy, 29 A.L.R.4th 349.

Locating easement of way created by necessity, 36 A.L.R.4th 769.

Liability for diversion of surface water by raising surface level of land, 88 A.L.R.4th 891.

Easement, servitude, or covenant as affected by sale for taxes, 7 A.L.R.5th 187.

44-9-20. Short title.

This article shall be known and may be cited as the "Solar Easement Act of 1978."

(Ga. L. 1978, p. 2076, § 1.)

Law reviews. - For article surveying Georgia cases dealing with environment, natural resources, and land use from June 1977 through May 1978, see 30 Mercer L. Rev. 75 (1978).

44-9-21. Legislative findings and declaration of policy.

The General Assembly finds that the use of solar energy in this state can help reduce the nation's reliance upon imported fuels and that solar energy development should, therefore, be encouraged. The General Assembly further finds that, as the use of solar energy devices increases, the possibility of future shading of such devices by buildings or vegetation will also increase. Therefore, the General Assembly declares that solar easements may be established to allow the owner of a solar energy device to negotiate for assurance of continued access to sunlight.

(Ga. L. 1978, p. 2076, § 2.)

Cross references. - Georgia State Energy Code for Buildings generally, §§ 8-2-22 , 8-2-27 .

Law reviews. - For article surveying Georgia cases dealing with environment, natural resources, and land use from June 1977 through May 1978, see 30 Mercer L. Rev. 75 (1978).

RESEARCH REFERENCES

ALR. - Separate assessment and taxation of air rights, 56 A.L.R.3d 1300.

44-9-22. Establishment of solar easements.

Any easement obtained for the purpose of ensuring the exposure of a solar energy device shall be created in writing and shall be subject to the same requirements of conveyance and recording as other easements.

(Ga. L. 1978, p. 2076, § 3.)

Law reviews. - For article surveying Georgia cases dealing with environment, natural resources, and land use from June 1977 through May 1978, see 30 Mercer L. Rev. 75 (1978).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, §§ 16, 18, 19. 63 Am. Jur. 2d, Property, § 14.

C.J.S. - 28A C.J.S., Easements, §§ 39, 52 et seq., 110 et seq., 151, 177, 183 et seq., 209, 210.

ALR. - Rule of visible easements as applied to easement of light or air, 56 A.L.R. 1138 .

Express easements of light, air, and view, 142 A.L.R. 467 .

44-9-23. Contents of solar easements.

Any instrument creating a solar easement shall include, but shall not be limited to:

  1. A definite and certain description of the airspace affected by such easement; and
  2. Any terms or conditions or both under which the solar easement is granted or will be terminated.

    (Ga. L. 1978, p. 2076, § 4.)

Law reviews. - For article surveying Georgia cases dealing with environment, natural resources, and land use from June 1977 through May 1978, see 30 Mercer L. Rev. 75 (1978).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, §§ 8, 99.

C.J.S. - 2A C.J.S., Aeronautics and Aerospace, § 8. 28A C.J.S., Easements, §§ 39, 53 et seq., 85 et seq., 110, 118 et seq., 151, 177, 183 et seq.

ARTICLE 3 PRIVATE WAYS

Cross references. - Taking of private ways upon payment of just compensation, Ga. Const. 1983, Art. I, Sec. III, Para. II.

JUDICIAL DECISIONS

Constitutionality, see Cato v. Arnold, 222 Ga. 567 , 151 S.E.2d 149 (1966).

Unconstitutionality of O.C.G.A. § 44-9-47 does not invalidate general scheme. - Although O.C.G.A. § 44-9-47 is unconstitutional, that portion of Art. 3, Ch. 9, T. 44, is not such an integral part of the statute as to invalidate the general legislative scheme. Arnold v. Selected Sites, Inc., 229 Ga. 468 , 192 S.E.2d 260 (1972).

When road has been used as private way for as much as one year, an owner of land over which it passes may not close it up without first giving the common users of the way 30-days' notice in writing, that they may take steps to have it made permanent by proceeding before the ordinary (now probate judge), in the manner provided by O.C.G.A. Art. 3, Ch. 9, T. 44. Hall v. Browning, 195 Ga. 423 , 24 S.E.2d 392 (1943).

Those who travel over a route may acquire an inchoate right before they secure perfect title. Thus, even incomplete and partial prescription will prevent the owner from obstructing a private way which has been used for 12 months, unless the person first gives 30-days' notice in writing of intention to the common users. Hall v. Browning, 195 Ga. 423 , 24 S.E.2d 392 (1943).

Cited in State Hwy. Dep't v. Ball, 112 Ga. App. 480 , 145 S.E.2d 577 (1965); State Hwy. Dep't v. Davis, 129 Ga. App. 142 , 199 S.E.2d 275 (1973).

RESEARCH REFERENCES

ALR. - Right to string wires across railroad right of way, 18 A.L.R. 619 .

Right of owner of property not abutting on closed section to compensation for vacation of street or highway, 93 A.L.R. 639 .

Right to park vehicles on private way, 37 A.L.R.2d 944.

Power to directly regulate or prohibit abutter's access to street or highway, 73 A.L.R.2d 652.

Power to restrict or interfere with access of abutter by traffic regulations, 73 A.L.R.2d 689.

Relocation of easements (other than those originally arising by necessity); rights as between private parties, 80 A.L.R.2d 743.

What constitutes unity of title or ownership sufficient for creation of an easement by implication or by way of necessity, 94 A.L.R.3d 502.

Way of necessity over another's land, where a means of access does exist, but is claimed to be inadequate, inconvenient, difficult, or costly, 10 A.L.R.4th 447.

Way of necessity where only part of land is inaccessible, 10 A.L.R.4th 500.

44-9-40. Authority of superior court to grant private ways; filing of petition as declaration of necessity; when proceeding enjoined.

  1. The superior court shall have jurisdiction to grant private ways to individuals to go from and return to their property and places of business. Private ways shall not exceed 20 feet in width and may be as much less as the applicant may choose or as the court may find to be reasonably necessary. They shall be kept open and in repair by the person on whose application they are established or his successor in title.
  2. When any person or corporation of this state owns real estate or any interest therein to which the person or corporation has no means of access, ingress, and egress and when a means of ingress, egress, and access may be had over and across the lands of any private person or corporation, such person or corporation may file his or its petition in the superior court of the county having jurisdiction; said petition shall allege such facts and shall pray for a judgment condemning an easement of access, ingress, and egress not to exceed 20 feet in width over and across the property of the private person or corporation. The filing of the petition shall be deemed to be the declaration of necessity; however, where it appears that the condemnor owns a right of access, ingress, and egress to his property over another route or owns an easement to a right of private way over another route, which right or easement is not less than 20 feet in width and which alternate route affords such person or corporation a reasonable means of access, ingress, and egress, or where the judge shall find that the exercise of such right of condemnation by the condemnor is otherwise unreasonable, the judge of the superior court is authorized under such circumstances to find that the condemnation and the declaration of necessity constitute an abuse of discretion and to enjoin the proceeding.

    (Laws 1834, Cobb's 1851 Digest, p. 955; Ga. L. 1853-54, p. 88, § 1; Code 1863, §§ 692, 693; Code 1868, §§ 754, 755; Code 1873, §§ 720, 721; Code 1882, §§ 720, 721; Civil Code 1895, §§ 661, 662; Civil Code 1910, §§ 807, 808; Code 1933, §§ 83-101, 83-102; Ga. L. 1953, Nov.-Dec. Sess., p. 98, § 1; Ga. L. 1967, p. 143, § 2; Ga. L. 1982, p. 3, § 44.)

Law reviews. - For article surveying Georgia cases in the area of real property from June 1979 through June 1980, see 32 Mercer L. Rev. 175 (1980). For survey article on real property law, see 59 Mercer L. Rev. 371 (2007). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For summary review article on zoning and land use law, see 60 Mercer L. Rev. 457 (2008).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Private way cannot exceed 20 feet in width. - An applicant cannot establish any right whatsoever in a private way if the width of the pathway exceeds the statutory 20-foot limit at any point when originally claimed by the applicant. Rizer v. Harris, 182 Ga. App. 31 , 354 S.E.2d 660 (1987), overruled on other grounds, Eileen B. White & Assocs. v. Gunnells, 263 Ga. 360 , 434 S.E.2d 477 (1993).

Evidence was not inadequate as to the width of a private way not exceeding 20 feet, where in addition to a nonexpert witness' guess that it was between 15 and 20 feet, several witnesses testified that a gate spanning the road was 16 feet wide and a tenant on the property testified the road had not been maintained wider than the 16 feet during tenancy, and although defendant's expert testified that the roadbed varied from 24 to 31 feet in width, the expert stated that outside the 16-foot strip maintained by the tenant, the only evidence that more footage was being used was some old levelling now covered by grass and scrub trees and the expert could only guess as to how recently the old levelling apart from the 16-foot strip had been bulldozed. Rizer v. Harris, 182 Ga. App. 31 , 354 S.E.2d 660 (1987), overruled on other grounds, Eileen B. White & Assocs. v. Gunnells, 263 Ga. 360 , 434 S.E.2d 477 (1993).

Cases of necessity do not arise except way sought is absolutely indispensable to the applicant as a means of reaching the applicant's property. If there is in existence a way suitable for all the purposes for which the property is to be used, and can presently be used, although owned by another, a case of necessity does not arise, even though such a way may be less convenient than the one proposed. Moore v. Dooley, 240 Ga. 472 , 241 S.E.2d 232 (1978).

Trial court's denial of a condemnation of easement action was affirmed as the trial court's finding of fact that two alternate routes existed to the landlocked property was not clearly erroneous, even though the owners of the landlocked property claimed that they could not get permission to use the two alternate routes. Blount v. Chambers, 257 Ga. App. 663 , 572 S.E.2d 32 (2002).

Proof of necessity of private way. - Even though there was evidence of two other potential routes to petitioner's property, there was at least some evidence to show necessity upon which the jury could conclude that the road was necessary to access the property. Hensley v. Henry, 246 Ga. App. 417 , 541 S.E.2d 398 (2000).

Under statute that was in derogation of the common law, and, thus, was strictly construed, the filing of the condemnor's petition for a right of way across the condemnee's property was deemed to be a declaration of necessity, and, thus, the evidentiary hearing held in the trial court was not a trial and did not involve a final judgment; rather, the hearing was a show cause hearing that placed the burden on the condemnee to show why a right of way should not be granted based on the declaration of necessity put forth in the petition. Morrison v. Derdziak, 255 Ga. App. 89 , 564 S.E.2d 500 (2002).

Owner was entitled to a condemnation of a private way of necessity under O.C.G.A. § 44-9-40(b) over the tip of the owner's triangle shaped lot, as the owner's only access to the lake front property was either by boat or by foot on a path of several hundred feet, which was unreasonable, the owner did not cause the lot to be landlocked, and there was no undue inconvenience to the condemnees, since a survey error caused the strange lot shape. Pierce v. Wise, 282 Ga. App. 709 , 639 S.E.2d 348 (2006).

Because the evidence presented at trial made it clear that a lessor conveyed no ownership interest to a tenant, leaving that tenant with only a right to possess and use the leased property, and more specifically, a usufruct, the tenant did not own an interest in the property, and thus could not pursue an easement by necessity under O.C.G.A. § 44-9-40 ; hence, summary judgment in the lessor's favor as to this issue was upheld on appeal. Read v. Ga. Power Co., 283 Ga. App. 451 , 641 S.E.2d 680 (2007).

Trial court erred in dismissing a property owner's statutory claim for an easement of necessity for failure to state a claim because the complaint sufficiently alleged that the owner had used a half mile of a private road on the defendant's land to access the owner's property since purchasing that land in 2006, that without such access, the owner had no legal means of ingress, and the owner had no ability to negotiate and acquire deeded fee simple title to roads to access the owner's property. S-D RIRA, LLC v. Outback Prop. Owners' Ass'n, 330 Ga. App. 442 , 765 S.E.2d 498 (2014), cert. denied, No. S15C0643, 2015 Ga. LEXIS 341 (Ga. 2015).

Condemnor required to show no other "reasonable means of access." - To condemn a private way over another's land the test for necessity is not "absolutely indispensable" test but the statutory test which requires a condemnor to show no other "reasonable means of access." Kellett v. Salter, 244 Ga. 601 , 261 S.E.2d 597 (1979).

Where condemnor establishes that only access to property is by navigable waters, he has established a prima facie case that the condemnor has no reasonable means of access. The burden then shifts to the condemnee to go forward with the evidence and demonstrate that access to the navigable waters constitutes a reasonable means of access under the peculiar circumstances of the case. International Paper Realty Corp. v. Miller, 255 Ga. 676 , 341 S.E.2d 445 (1986).

Failure of landowner to reserve easement. - Where the developer of a condominium could have reserved an easement over land it sold in order to provide access to other remaining land, the trial court did not err in declaring that condemnation of a private way was "otherwise unreasonable." Mersac, Inc. v. National Hills Condominium Assoc., 267 Ga. 493 , 480 S.E.2d 16 (1997).

Failure of lessee to reserve easement. - Because genuine issues of material fact remained as to whether a lessee's failure to reserve an easement to the subject property at the time the lessee executed a corrective quitclaim deed was otherwise unreasonable, foreclosing the condemnation action, partial summary judgment to the lessee was unwarranted. Wright v. Brookshire, 286 Ga. App. 162 , 648 S.E.2d 485 (2007).

Usufruct holder could not seek easement by necessity. - Courts of Georgia have drawn distinctions between the rights of a holder of a usufruct and those of a title holder. A usufruct is not subject to ad valorem taxation pursuant to O.C.G.A. § 48-5-3 , and the usufruct interest does not authorize the tenant to seek an easement by necessity, pursuant to O.C.G.A. § 44-9-40(b) . However, the usufruct holder's possessory rights may constitute a property interest for which just compensation is payable under Ga. Const. 1983, Art. I, Sec. III, Para. I(a). The Stuttering Foundation, Inc. v. Glynn County, 301 Ga. 492 , 801 S.E.2d 793 (2017).

Granting of easement under O.C.G.A. § 44-9-40 shall not authorize cancellation of covenant of limited use already in force with respect to the property involved. Bateman v. Fordham, 232 Ga. 520 , 207 S.E.2d 501 (1974).

"Prima facie case of necessity" shown by the existence of landlocked property does not equate to an absolute entitlement to a private way to such property regardless of the reasonableness involved. DOT v. Freeman, 187 Ga. App. 883 , 371 S.E.2d 887 , cert. denied, 187 Ga. App. 907 , 371 S.E.2d 887 (1988).

The feasibility of implementing a grantee's plans for landlocked property was not relevant to the question whether granting a private way would be "otherwise unreasonable so as to justify denial of the private way." The feasibility issue was appropriately left for jury consideration in regard to the claimed value of the condemned property. DOT v. Freeman, 187 Ga. App. 883 , 371 S.E.2d 887 , cert. denied, 187 Ga. App. 907 , 371 S.E.2d 887 (1988).

The effort of private parties to widen a roadway without agreement of adjoining landowners may succeed only by acquisition of a private way, as provided in O.C.G.A. § 44-9-40 . Keith v. Whitehead, 258 Ga. 142 , 365 S.E.2d 435 (1988).

Payment before final judgment for private way. - Requiring pre-appeal payment forces a petitioner for a private way to pay for that which the petitioner has not obtained and may not ever obtain. O.C.G.A. § 44-9-47 requires payment of the just and adequate compensation before the final judgment granting a private way is entered by the court but after all appeals have been exhausted. Cline v. McMullan, 263 Ga. 321 , 431 S.E.2d 368 (1993).

Applicant seeking private way of necessity did not voluntarily landlock itself. - Because the evidence in the record failed to support the trial court's conclusion that a corporate landowner voluntarily landlocked itself, and no other evidence showed that granting a private way of necessity would be otherwise unreasonable, the trial court erred by denying the corporation's petition for condemnation of a private way of necessity over an existing private access easement. Dovetail Props. v. Herron, 287 Ga. App. 808 , 652 S.E.2d 856 (2007).

Attempt to enforce right to obtain private way. - Trial court erred by characterizing the property owner's argument that the court was exercising the court's constitutional right by attempting to obtain a private way to the owner's landlocked property as a new claim not raised in the complaint. The complaint brought pursuant to O.C.G.A. § 44-9-40 et seq. was necessarily an attempt to enforce the owner's constitutional right to obtain a private way and the statute existed for the sole purpose of providing a procedure to enforce rights preserved by Ga. Const. 1983, Art. I, Sec. III, Para. II. Dehco, Inc. v. Bd. of Regents of the Univ. Sys. of Ga., 350 Ga. App. 760 , 830 S.E.2d 333 (2019).

Easement accorded with statute. - Trial court did not err in limiting an easement for ingress and egress down the center line of a street because the easement recognized accorded with the statutory private way easements that Georgia law allowed for such access to public roads under O.C.G.A. § 44-9-40 . Goodson v. Ford, 290 Ga. 662 , 725 S.E.2d 229 (2012).

Use of driveway and railroad crossing. - Trial court properly awarded a property owner compensatory damages in an inverse condemnation suit against the Georgia Department of Transportation (DOT) because the property owner established the acquisition of a prescriptive easement over the driveway and railroad crossing at issue and, thus, had a compensable property interest as a result of DOT closing the driveway. Ga. Dep't of Transp. v. Jackson, 322 Ga. App. 212 , 744 S.E.2d 389 (2013).

Standing to pursue claim. - When plaintiff filed the plaintiff's second petition, the plaintiff had an existing right to cross over the lands of one of the defendants but the plaintiff still could not cross the other defendant's property, and the landlocked parcel was, therefore, still without a means of access, ingress, and egress. The lack of a "means of access, ingress, and egress" adequately established the standing of plaintiff to pursue a condemnation action. Canton Partners v. Scarbrough Group, Inc., 316 Ga. App. 57 , 728 S.E.2d 733 (2012).

Cited in Flanigan v. Martin, 130 Ga. App. 272 , 202 S.E.2d 680 (1973); Atlanta-East, Inc. v. Tate Mt. Assocs., 265 Ga. 742 , 462 S.E.2d 613 (1995); Norfolk S. Ry. v. Dempsey, 267 Ga. 241 , 476 S.E.2d 577 (1996); Stover v. Tipton, 252 Ga. App. 427 , 555 S.E.2d 151 (2001); Norton v. Holcomb, 285 Ga. App. 78 , 646 S.E.2d 94 (2007); Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437 , 711 S.E.2d 709 (2011).

Decisions Under Prior Law
1. Decisions Under Code 1910, § 807

Former section exclusive provision giving jurisdiction to grant private ways. - There is no other provision of law which gives the ordinary (now probate court) jurisdiction to grant private ways over the lands of others, except as indicated in this former section. Porter v. Foster, 146 Ga. 154 , 90 S.E. 967 (1916).

Existing easements not contemplated. - The statutory provisions giving the ordinary (now probate judge) the authority to grant private ways over the lands of others to individuals to go to and return from their farms or places of residence contemplate the grant of easements that did not exist, and provide due notice and a hearing for the owner of the land before property is taken, and compensation for the injury done. Porter v. Foster, 146 Ga. 154 , 90 S.E. 967 (1916).

Law does not authorize probate judge to declare private way to be permanent. Herndon v. Strickland, 86 Ga. 323 , 12 S.E. 642 (1890).

Proceedings to acquire easements different from proceedings to remove obstructions. - In proceedings under the former provisions to acquire private easements, the questions involved are different from those in a proceeding under O.C.G.A. § 44-9-59 , to remove obstructions from an existing private way, and the notice required to be given to the landowner in each instance is different, as is also the judgment to be rendered by the ordinary (now probate judge). Porter v. Foster, 146 Ga. 154 , 90 S.E. 967 (1916).

Power under this former section is restricted to "cases of necessity." Chattanooga, Rome & S.R.R. v. Philpot, 112 Ga. 153 , 37 S.E. 181 (1900).

Way sought must be absolutely indispensable. - In a proceeding under the former provisions of this section, to condemn a private way over the lands of another person, in order to entitle the applicant to relief, it must appear that the way sought is absolutely indispensable as a means of reaching property. Wyatt v. Hendrix, 146 Ga. 143 , 90 S.E. 957 (1916).

No choice of way where reasonable way tendered. - The applicant is not entitled to choose route where the landowner has tendered a way reasonably convenient to both parties. Wyatt v. Hendrix, 146 Ga. 143 , 90 S.E. 957 (1916).

2. Decisions Under Code 1910, § 808

Those who use a private way must keep the same in repair, and cannot take advantage of their own default by turning out to avoid obstructions which they should have removed. Kirkland v. Pitman, 122 Ga. 256 , 50 S.E. 117 (1904).

3. Decisions Under Code 1933, § 83-101

Private way created by necessary implication is wholly distinct from "compulsory purchase and sale." Calhoun v. Ozburn, 186 Ga. 569 , 198 S.E. 706 (1938).

4. Decisions Under Code 1933, § 83-102

Right of private way over another's and may arise by prescription from seven years' uninterrupted use through improved lands; but in order to set up such a prescriptive right of way, it is essential that the prescriber show not only that the prescriber has been in the uninterrupted use thereof for seven years or more, but also that it does not exceed 15 (now 20) feet in width, that it is the same number of feet originally appropriated, and that the prescriber has kept it open and in repair during this period. Hall v. Browning, 195 Ga. 423 , 24 S.E.2d 392 (1943).

In order to acquire a prescriptive title to a private way over another's land, the burden of proof is on the prescriber to show that the prescriber has been in the uninterrupted use thereof for seven years or more, that it is the same number of feet originally appropriated, that it has been kept open and in repair during such period, and is of the width permitted by law. Bedingfield v. McCullough, 106 Ga. App. 759 , 128 S.E.2d 374 (1962).

Way's obstruction gives rise to right of action for damages. - The obstruction of a prescriptive private way would constitute an interference with a private right, and give a right of action in tort for damages from the alleged violation of this right. Hall v. Browning, 195 Ga. 423 , 24 S.E.2d 392 (1943).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, §§ 7, 13, 18, 74 et seq., 87, 124, 125.

C.J.S. - 28A C.J.S., Easements, §§ 8, 9, 13, 52, 152 et seq., 182 et seq.

ALR. - Private easement in way vacated, abandoned, or closed by public, 150 A.L.R. 644 .

Easements or privileges of tenant of part of building as to other parts not included in lease, 24 A.L.R.2d 123.

Necessary parties defendant to suit to prevent or remove obstruction or interference with easement of way, 28 A.L.R.2d 409.

44-9-41. Contents of petition; manner of service and advertisement; fees.

The petition shall describe the easement of private way sought to be condemned over the lands of another and shall state the distance and direction of the private way and the nature of any improvements through which the private way will go. There shall be attached to the petition or incorporated therein a plat showing the measurements and location of the private way. The petition shall state the names and addresses of all persons owning an interest in the property, if known, and shall be served in the following manner:

  1. Where the owner or owners of the property over which the private way is sought are known and reside in the county in which the land is located, the sheriff of the county shall serve each of the persons with a copy of the petition and any orders of the court thereon; and the sheriff shall make a return of the service;
  2. Where the owners of the property are known but reside in another county of this state, they may be served (A) either by the sheriff of the county in which the property is located or by the sheriff of the county of the residence of the owner or owners, such sheriff to make a return of the service, or (B) by the person or corporation seeking to condemn the private way or an agent thereof, in which event the return of service duly filed as a part of the record shall be prima-facie evidence as to the service so made and if not traversed shall be conclusive as to the service;
  3. Where the owner or owners of the property are known but reside outside of this state, the petition shall set forth the addresses of such nonresident owners, in which event it shall be the duty of the clerk of the superior court to cause a true and correct copy of the petition to be served upon the nonresident owner or owners. The clerk shall make and enter upon the original petition or attach thereto his certificate which certifies that he has served the owner or owners by mailing a copy of the petition by certified mail or statutory overnight delivery to the address given in the petition; and the clerk shall be allowed a fee of $2.00 for each entry of service to be taxed against the costs in the case;
  4. In the event any of the owners are minors or persons non compos mentis, the petition shall so state, in which case the petition shall be served on each minor defendant and each non compos mentis defendant in the same manner as provided by paragraph (3) of subsection (e) of Code Section 9-11-4; and
  5. In all cases, the matter shall be advertised once a week for four consecutive weeks in the county newspaper which carries the sheriff's advertisements. The advertisement shall describe the easement to be condemned as set forth in the petition and the owner or owners of the property so far as the same are known. Where this Code section has been complied with so far as possible, the advertisement shall be final and conclusive service upon all persons who are unknown or upon persons who are known but whose addresses and places of residence are unknown; and, in such event, the certificate of the sheriff of the county in which the land is located that such persons do not reside within said county, that he has made diligent inquiry as to their addresses, and that the same are unknown, which certificate is duly filed with the clerk, shall be prima-facie evidence of the fact so certified and unless traversed by a party at interest shall be conclusive. For each certificate the sheriff shall charge the same fee as is provided by law for the service of the petition upon residents of the county.

    (Orig. Code 1863, § 694; Code 1868, § 756; Code 1873, § 722; Code 1882, § 722; Civil Code 1895, § 663; Civil Code 1910, § 809; Code 1933, § 83-103; Code 1933, § 83-102, enacted by Ga. L. 1967, p. 143, § 2; Ga. L. 2000, p. 1225, § 6; Ga. L. 2000, p. 1589, § 3.)

The 2000 amendments. The first 2000 amendment, effective July 1, 2000, and applicable to civil actions filed on or after July 1, 2000, substituted "subsection (e)" for "subsection (d)" in paragraph (4). The second 2000 amendment, effective July 1, 2000, and applicable with respect to notices delivered on or after July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the second sentence of paragraph (3).

JUDICIAL DECISIONS

ANALYSIS

Decisions Under Prior Law
1. Decisions Under Code 1910, § 809

One entering with consent must bring notice to owner of intention to prescribe. - One who seeks to ripen an absolute right to the use of a private way by prescription, instead of obtaining it by express grant, must, when one enters with the consent of the owner, bring some affirmative notice to the owner, by making repairs or otherwise, of the person's intention to prescribe through seven years' use. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

Passive keeping in repair is notice, but inaction will not suffice; the expression "keeping in repair" originated in an age when private ways were unpaved and of necessity had to be repaired in order that the use thereof might be continued, and was then the equivalent of action and affirmative notice of an intention to prescribe, even where the use originated in consent. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

When way legally obtained and continued for statutory period, right becomes absolute. - When the use of a private way has been obtained under the former provisions of this section, and is continued as long as seven years, of which the owner has had six months' knowledge without moving for damages, the right of use becomes absolute, and the owner is barred from claiming damages. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

Obstruction of private right of way after right to use way is acquired is unlawful. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

2. Decisions Under Code 1933, § 83-103

Claim fails where failure to keep way open and in repair. - Where the plaintiff failed to show that plaintiff and predecessors in title had kept the alleged private way open and in repair, plaintiff's claim to a private way must fail. Woods v. Brannen, 208 Ga. 495 , 67 S.E.2d 702 (1951).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, §§ 106, 107.

C.J.S. - 28A C.J.S., Easements, § 113 et seq.

44-9-42. Selection of assessors.

The petition for condemnation shall name an assessor to act on behalf of the person or corporation seeking to condemn the easement of private way; and the selection of a board of assessors shall be in the way and manner provided for by Part 3 of Article 1 of Chapter 2 of Title 22.

(Code 1933, § 83-103, enacted by Ga. L. 1967, p. 143, § 2.)

44-9-43. Show cause order; selection of assessors; hearing before assessors.

Upon the filing of the petition for condemnation, the judge of the superior court, after taking into consideration the requirements of service provided for in Code Section 44-9-41, shall make and enter up an order requiring the owner or owners of the property to show cause before him on a day certain as to why the easement for private way should not be condemned and requiring the said owner or owners to name an assessor to act on his or their behalf. On the return day, the judge shall fix the time and place for a hearing before the board of assessors; but the same may be changed by the board of assessors in accordance with Code Section 22-2-60. In all other respects, the hearing before the board of assessors, together with the assessment of damages by them, shall be as is provided for in Part 4 of Article 1 of Chapter 2 of Title 22.

(Code 1933, § 83-104, enacted by Ga. L. 1967, p. 143, § 2.)

JUDICIAL DECISIONS

Word "established" means laying out of way under order of the probate judge. Watkins v. Country Club, 120 Ga. 45 , 47 S.E. 538 (1904).

Condemnation procedure. - After the condemnor's petition for right of way was filed, the trial court, assuming the petition was properly served, had to enter an order requiring the condemnee to show cause why the easement for the private way should not be condemned, and, thus, the trial court's evidentiary hearing was a show cause hearing, and neither a trial nor other proceeding involving a final judgment. Morrison v. Derdziak, 255 Ga. App. 89 , 564 S.E.2d 500 (2002).

Selection of assessors. - Statutory procedure required that once the condemnee failed to show a right of way should not be granted out of necessity the court was required to submit the issue of compensation for such private way to a board of assessors named in the court's order approving the private way and the court followed that procedure by specifically naming two assessors for that purpose in its order. Morrison v. Derdziak, 255 Ga. App. 89 , 564 S.E.2d 500 (2002).

Cited in Arnold v. Selected Sites, Inc., 229 Ga. 468 , 192 S.E.2d 260 (1972).

44-9-44. Appeals from award of assessors; jury trial.

Either party shall have the right to appeal from the award of the board of assessors to a jury in the superior court; and such appeals shall be made in accordance with and shall be controlled by Part 5 of Article 1 of Chapter 2 of Title 22.

(Code 1933, § 83-105, enacted by Ga. L. 1967, p. 143, § 2.)

JUDICIAL DECISIONS

Appeal from award of assessors. - Before a right of way could be granted, either the condemnee or condemnor had the right to appeal a board of assessor's award properly filed and recorded with the clerk of court; however, because the board of assessors did not file such an award, the 10-day time period for appealing a properly filed and recorded award did not start running, and, thus, the condemnor did not exhaust the appellate process and obtain a final judgment. Morrison v. Derdziak, 255 Ga. App. 89 , 564 S.E.2d 500 (2002).

Cited in Arnold v. Selected Sites, Inc., 229 Ga. 468 , 192 S.E.2d 260 (1972).

44-9-45. Maintenance of private way by condemnor; failure to maintain as abandonment.

Upon the final condemnation of the private way, it shall become the duty of the condemnor or his successors in title to maintain the private way and to keep it open and in a state of good repair. Failure to comply with this requirement for a period of one year shall constitute an abandonment of the private way; and the title thereto shall revert to the owner of the property over which the private way was condemned or his successors in title.

(Code 1933, § 83-105-A, enacted by Ga. L. 1967, p. 143, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, § 112 et seq.

C.J.S. - 28A C.J.S., Easements, § 124 et seq.

ALR. - Reversion of title upon abandonment or vacation of public street or highway, 18 A.L.R. 1008 ; 70 A.L.R. 564 .

44-9-46. Determination of amount of compensation and other issues by jury; payment and disposition of damages.

The amount of compensation to be assessed against the condemnor for the private way desired shall be determined by a verdict of the jury; and the case shall stand for trial at the first term after service is perfected or at any subsequent term at which the case may be reached for trial. If an issue is made by pleadings filed by any defendant regarding the condemnor's right to have a private way established or with respect to the location or width thereof, such issues shall likewise be determined by the jury. Damages assessed shall be paid into the court and shall be disbursed by the clerk in accordance with the court's order regarding the party or parties entitled thereto.

(Code 1933, § 83-106, enacted by Ga. L. 1967, p. 143, § 2.)

JUDICIAL DECISIONS

Determination of amount of compensation. - If condemnee filed an appeal to a jury after the Board of Assessors made its award, as the condemnee had a right to do, the trial court jury had the right to determine more than just the value of the right of way; it could also consider the issue of damages, if any, that the condemnee might have sustained. Morrison v. Derdziak, 255 Ga. App. 89 , 564 S.E.2d 500 (2002).

Cited in Arnold v. Selected Sites, Inc., 229 Ga. 468 , 192 S.E.2d 260 (1972).

44-9-47. Motions and proceedings subsequent to judgment; payment of compensation; nonpayment as abandonment; effect of abandonment on subsequent application.

With respect to the judgment of the court in such case, any party may have all remedies provided by law, including a motion for a new trial, a motion for an appeal, a motion for judgment on the pleadings, or a motion for judgment notwithstanding the verdict. Before the judgment becomes final and after the determination of any motions or appeals, the compensation fixed by the jury shall be paid in cash into the registry of the court by the applicant; and, upon the failure to pay the compensation, the private way applied for shall be considered abandoned. Upon a motion made by any interested party and a notice of not less than ten days to the applicant for the private way, the court shall enter a judgment of abandonment accordingly. If the right to the private way is abandoned in this manner and, after notice to the applicant, the court so finds, no application for a private way over the same land shall thereafter be filed by the same applicant or his successor in title.

(Code 1933, § 83-106-A, enacted by Ga. L. 1967, p. 143, § 2; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Former provision allowing for postponed payment after judgment unconstitutional. - The former portion of O.C.G.A. § 44-9-47 allowing for 60 days to pay for a private way after the entry of judgment is unconstitutional, because the grant of the private way is made before the payment is required. Arnold v. Selected Sites, Inc., 229 Ga. 468 , 192 S.E.2d 260 (1972).

When property right is taken or vested. - No property right is taken from a property owner, nor vested in a private way petitioner, until after all of the rights have been finally established, the compensation is paid and the court makes such a "grant" by final judgment. Cline v. McMullan, 263 Ga. 321 , 431 S.E.2d 368 (1993).

Payment before final judgment for private way. - Requiring pre-appeal payment forces a petitioner for a private way to pay for that which the petitioner has not obtained and may not ever obtain. O.C.G.A. § 44-9-47 requires payment of the just and adequate compensation before the final judgment granting a private way is entered by the court but after all appeals have been exhausted. Cline v. McMullan, 263 Ga. 321 , 431 S.E.2d 368 (1993).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, § 127 et seq.

C.J.S. - 28A C.J.S., Easements, § 205 et seq.

44-9-48. Agreements between parties as to payment of compensation.

Code Section 44-9-47 shall not divest the court of jurisdiction to permit payment by the applicant of the compensation fixed by the jury upon terms to which the parties agree, including security for compensation so fixed, provided and on condition that the agreement of the parties is approved by the court and that the court fixes reasonable conditions under which the right of private way shall be abandoned and a judgment of abandonment entered after notice for a period of ten days in the manner provided by Code Section 44-9-47.

(Code 1933, § 83-106-B, enacted by Ga. L. 1967, p. 143, § 2.)

44-9-49. Establishment of private way by agreement between parties.

Private ways may be established by an agreement in writing between the parties concerned, which agreement may stipulate any damages to be paid. The agreement shall be entered on the official minutes of the county commission and the road deed file and, when so done, shall have the same effect as though established by Code Sections 44-9-40 through 44-9-48.

(Orig. Code 1863, § 698; Code 1868, § 760; Code 1873, § 726; Code 1882, § 726; Civil Code 1895, § 667; Civil Code 1910, § 813; Code 1933, § 83-107.)

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, §§ 3, 21.

C.J.S. - 28A C.J.S., Easements, §§ 59, 147, 155, 160.

ALR. - Private easement in way vacated, abandoned, or closed by public, 150 A.L.R. 644 .

Maintenance, use, or grant of right of way over restricted property as violation of restrictive covenant, 25 A.L.R.2d 904.

44-9-50. Recording of private way; protection of owner's use.

When a private way becomes established, it shall be entered on and fully described on the official minutes of the county commission and the road deed file; and the owner thereof shall be entitled to be protected in the use of the same as a public road.

(Orig. Code 1863, § 699; Code 1868, § 761; Code 1873, § 727; Code 1882, § 727; Civil Code 1895, § 668; Civil Code 1910, § 814; Code 1933, § 83-108.)

JUDICIAL DECISIONS

Cited in Cato v. Arnold, 222 Ga. 567 , 151 S.E.2d 149 (1966); Cook v. Thomas, 175 Ga. App. 836 , 334 S.E.2d 727 (1985).

44-9-51. Establishment of private way by several landowners - Duties and privileges of subsequent vendees.

Several landowners may join together in opening a private way or in maintaining it after establishment or both. When this has been done and has been entered on the official minutes of the county commission and the road deed file, the duties and privileges incident thereto shall extend to vendees of the same real estate.

(Orig. Code 1863, § 700; Code 1868, § 762; Code 1873, § 728; Code 1882, § 728; Civil Code 1895, § 669; Civil Code 1910, § 815; Code 1933, § 83-109.)

JUDICIAL DECISIONS

O.C.G.A. § 44-9-51 does not refer to the right of prescription. Thompson v. Easley, 87 Ga. 320 , 13 S.E. 511 (1891).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, § 52.

44-9-52. Establishment of private way by several landowners - Apportionment of work among landowners.

When several landowners join together in opening a private way, they may apportion the road work among themselves.

(Orig. Code 1863, § 701; Code 1868, § 763; Code 1873, § 729; Code 1882, § 729; Civil Code 1895, § 670; Civil Code 1910, § 816; Code 1933, § 83-110.)

44-9-53. Establishment of private way over wild lands without notice to landowner; assessment of damages after notice.

If a private way is established over the wild lands of a person who has no notice of the proceeding, at any time within six months after the receipt of such notice he may proceed to have damages assessed against all the landowners who habitually use the private way.

(Orig. Code 1863, § 702; Code 1868, § 764; Code 1873, § 730; Code 1882, § 730; Civil Code 1895, § 671; Civil Code 1910, § 817; Code 1933, § 83-111.)

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, §§ 53, 129, 130.

C.J.S. - 28A C.J.S., Easements, §§ 209, 210.

44-9-54. Establishment of private way by prescription - Generally.

Whenever a private way has been in constant and uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way.

(Ga. L. 1872, p. 60, § 1; Code 1873, § 737; Code 1882, § 737; Civil Code 1895, § 678; Civil Code 1910, § 824; Code 1933, § 83-112.)

Cross references. - Obtaining title to land through adverse possession generally, § 44-5-160 et seq.

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Cited in Huson v. Farmer, 53 Ga. App. 131 , 185 S.E. 119 (1936); Seaboard Air Line Ry. v. Brown, 55 Ga. App. 368 , 190 S.E. 203 (1937); Tift v. Golden Hwde. Co., 204 Ga. 654 , 51 S.E.2d 435 (1949); Wheelus v. Trammell, 204 Ga. 883 , 52 S.E.2d 471 (1949); Srochi v. Postell, 206 Ga. 59 , 55 S.E.2d 603 (1949); Burton v. Atlanta & W.P.R.R., 206 Ga. 698 , 58 S.E.2d 424 (1950); Atlantic Coast Line Ry. v. Sweatman, 81 Ga. App. 269 , 58 S.E.2d 553 (1950); Hannah v. Jacobs, 92 Ga. App. 44 , 87 S.E.2d 645 (1955); Church v. York, 212 Ga. 135 , 91 S.E.2d 9 (1956); Burk v. Tyrrell, 212 Ga. 239 , 91 S.E.2d 744 (1956); Moon v. Jones, 101 Ga. App. 79 , 113 S.E.2d 159 (1960); Croker v. Lewis, 217 Ga. 762 , 125 S.E.2d 50 (1962); Moore v. McConnell, 105 Ga. App. 758 , 125 S.E.2d 675 (1962); Flanigan v. Martin, 130 Ga. App. 272 , 202 S.E.2d 680 (1973); Swygert v. Roberts, 136 Ga. App. 700 , 222 S.E.2d 75 (1975); Riggenbach v. Smith, 144 Ga. App. 24 , 240 S.E.2d 299 (1977); Thomas v. Douglas, 165 Ga. App. 128 , 299 S.E.2d 605 (1983); Jackson v. Stone, 210 Ga. App. 465 , 436 S.E.2d 673 (1993); Trammell v. Whetstone, 250 Ga. App. 503 , 552 S.E.2d 485 (2001); Stover v. Tipton, 252 Ga. App. 427 , 555 S.E.2d 151 (2001).

Applicability

O.C.G.A. §§ 44-9-54 and 44-9-59 are confined to cases of private ways which arise by prescriptive right acquired by seven years' possession or use. Clark v. Anderson, 52 Ga. App. 500 , 183 S.E. 852 (1936).

Constitutional provision on compensation inapplicable. - The constitutional provision which declares that private ways may be granted upon just compensation being first paid has no application to a private way acquired by prescription by seven years' continuous use of the way. Everedge v. Alexander, 75 Ga. 858 (1885).

No prescription against one who establishes way. - A case in which the plaintiffs are claiming to use the private way of the defendant, established for defendant's private use and benefit and paid for by defendant, is not within the provisions of O.C.G.A. § 44-9-54 . Puryear v. Clements, 53 Ga. 232 (1874).

No estoppel of grantor. - If a grantor, after conveying land, continued to use a private way, the fact that the grantor had such a conveyance would not prevent him from acquiring under a private way by prescription. Carlton v. Seaboard Air-Line Ry., 143 Ga. 516 , 85 S.E. 863 , 1917A Ann. Cas. 497 (1915).

Tenant in common acquires no prescriptive right by use of way over the common property so long as all of the tenants have an undisputed use of the premises. Boyd v. Hand, 65 Ga. 468 (1880).

Railroad tracks "improved land" subject to seven-year prescription period. - If the railroad was constructed and the tracks were made to cross a private way by means of a trestle, the land of the railroad company at such a point of intersection was "improved land" within the meaning of O.C.G.A. § 44-9-54 , and the period of prescription would be seven years. Carlton v. Seaboard Air-Line Ry., 143 Ga. 516 , 85 S.E. 863 , 1917A Ann. Cas. 497 (1915).

Mere use of private railroad crossing not enough to acquire prescriptive rights. - Property owner's mere use of a private railroad crossing was not enough for the owner to acquire prescriptive rights pursuant to O.C.G.A. § 44-9-54 because no written agreement or easement from the railway existed concerning the private crossing; the owner admitted that the owner's use of the private crossing had been with the permission of the railway, the crossing had been repaired and maintained throughout by the railway, and the fact that the railway restored the crossing so that the owner could continue to use the crossing was evidence that the railroad permitted, rather than forbade, continued use of the crossing. Yawn v. Norfolk S. Ry. Co., 307 Ga. App. 849 , 706 S.E.2d 197 (2011).

Section not applicable to wild lands. - O.C.G.A. § 44-9-54 cannot be construed to mean that seven years uninterrupted use of a way over wild or unimproved land will give title to the way by prescription, without bringing it into plain and irreconcilable conflict with O.C.G.A. § 44-9-41 . Watkins v. Country Club, 120 Ga. 45 , 47 S.E. 538 (1904).

Requirements

Party setting up claim required to strictly follow law. - While a right of private way over another's land may arise by prescription from seven years' uninterrupted use through improved lands, where a private way is claimed by prescription, the party setting up such a claim must be strictly within the requirements of the law. Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967).

Where a private way is claimed by prescription, the parties setting up such a claim must bring themselves strictly within the requirements of the law. Brown v. Statham, 21 Ga. App. 101 , 94 S.E. 273 (1917); Elliott v. Adams, 173 Ga. 312 , 160 S.E. 336 (1931).

Easement by prescription not acquired where O.C.G.A. § 44-9-54 not complied with. - Defendant landowner, who had conveyed parcel to plaintiff landowner's predecessor in title without reserving any easement in deed, did not acquire an easement by prescription where adverse use could not begin until after the severance of the two estates and where the strip of land over which the easement is claimed was owned by the claimant until a time less than seven years prior to bringing of action by the plaintiff landowner seeking to enjoin defendant landowner from the continued use of the strip of land in question. Farris Constr. Co. v. 3032 Briarcliff Rd. Assocs., 247 Ga. 578 , 277 S.E.2d 673 (1981).

To invoke provisions of O.C.G.A. § 44-9-54 , the claimant must also be within O.C.G.A. § 44-9-1 . First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

To entitle one to a prescriptive right of way over the land of another, it must be shown that the prescriber has been in the uninterrupted use of a permanent road over the land, not exceeding 15 (now 20) feet in width, and that the prescriber has kept it open and in repair for seven years. Childers v. Holloway, 69 Ga. 758 (1882); Nott v. Tinley, 69 Ga. 766 (1882); Collier v. Farr, 81 Ga. 749 , 7 S.E. 860 (1888); Johnson v. Sams, 136 Ga. 448 , 71 S.E. 891 (1911).

To acquire a prescriptive right to a private way over land, it is necessary to show the uninterrupted use of a permanent way, not over 15 (now 20) feet wide, kept open and in repair for seven years. Raines v. Petty, 170 Ga. 53 , 152 S.E. 44 (1930).

The acquisition of a private way, i.e., a right of ingress and egress over the land of another by prescription, rests upon a unique statutory foundation. Therefore, because plaintiff had not shown a likelihood of success on the claim that defendant has established a private way on debtor's property by prescription, the plaintiff's request for a preliminary injunction was denied. Metropolitan Life Ins. Co. v. Popescu, 172 Bankr. 691 (Bankr. N.D. Ga. 1994).

Use may originate in permission, yet ripen by prescription. - Possession must be adverse in order to form the basis for prescription. A notable exception exists, however, in the case of private ways. The use may originate in permission, and yet may ripen by prescription. Burnum v. Thomas, 71 Ga. App. 690 , 31 S.E.2d 925 (1944); Duncan v. Sluder, 204 Ga. 458 , 50 S.E.2d 78 (1948).

The doctrine that prescriptive titles to the fee in real estate by seven years' possession cannot originate in consent, because the possession there must be adverse all the time, does not prevail or apply to a right of way, under O.C.G.A. § 44-9-54 . Everedge v. Alexander, 75 Ga. 858 (1885).

Knowledge and acquiescence of owner is of very essence of right of way against owner. Everedge v. Alexander, 75 Ga. 858 (1885).

Prescriber must give notice. - It is fundamental that prescription is to be strictly construed, and that the prescriber must give some notice, actual or constructive, to the individual against whom the prescriber intends to prescribe. Burnum v. Thomas, 71 Ga. App. 690 , 31 S.E.2d 925 (1944).

When use originates by permission, prescription runs upon notification of changed position. - When the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that the user has changed position from that of a mere licensee to that of a prescriber. Burnum v. Thomas, 71 Ga. App. 690 , 31 S.E.2d 925 (1944); Duncan v. Sluder, 204 Ga. 458 , 50 S.E.2d 78 (1948); Nassar v. Salter, 213 Ga. 253 , 98 S.E.2d 557 (1957); Hunt v. Parker, 221 Ga. 484 , 145 S.E.2d 483 (1965).

One who seeks to ripen an absolute right to the use of a private way by prescription, instead of obtaining it by express grant, must, when that person enters with the consent of the owner, bring some affirmative notice to the owner, by making repairs or otherwise, of intention to prescribe through seven years' use. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

Owner of property adjacent to a bankruptcy debtor's private airport did not have a prescriptive easement to use the airport since the owner's use of the airport was permissive and any repairs or maintenance to the airport were not substantial enough to serve as notice to the debtor of an adverse claim. Flyboy Aviation Props., LLC v. Franck, 501 Bankr. 808 (Bankr. N.D. Ga. 2013).

Prescriber must show that way kept open and in repair during statutory period. - In order to set up a prescriptive right of way, it is essential that the prescriber show not only that prescriber has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the prescriber has kept it open and in repair during this period. Rogers v. Wilson, 171 Ga. 802 , 156 S.E. 817 (1931).

To acquire a private way by prescription it is essential that the prescriber keep the way in repair for the period of prescription. Charleston & W.C. Ry. v. Fleming, 118 Ga. 699 , 45 S.E. 664 (1903).

The right of private way over another's land may arise by prescription from seven years' uninterrupted use through improved lands, but in order to set up this prescriptive right of way, it is essential that the prescriber show not only that one has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the person has kept it open and in repair during this period. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934); Hall v. Browning, 195 Ga. 423 , 24 S.E.2d 392 (1943).

In order for one to take or keep another's land as a road for private use, that one should be compelled to keep it open and in repair. Keeping it open and working it would be the best evidence of that person's intention to appropriate it for a road, and would put the owner upon notice that the person did intend to appropriate it. Burnum v. Thomas, 71 Ga. App. 690 , 31 S.E.2d 925 (1944).

Though O.C.G.A. § 44-9-54 is silent as to the necessity for keeping open and in repair a private way, it has been held by the Supreme Court many times that these are essential requirements. Hardin v. Snow, 201 Ga. 58 , 38 S.E.2d 836 (1946).

One of the essential requirements for the acquiring of a prescriptive right of way over the lands of another is that the party claiming such right has kept the way in repair. Sams v. Seaboard Air Line R.R., 218 Ga. 569 , 129 S.E.2d 859 (1963).

In order to set up a prescriptive right of way, it is essential that the prescriber show not only that the prescriber has been in the uninterrupted use thereof for seven years or more, that it does not exceed 20 feet in width, and that it is the same number of feet originally appropriated, but also that the prescriber has kept it open and in repair during this period. Hasty v. Wilson, 223 Ga. 739 , 158 S.E.2d 915 (1967).

Crux of repairs requirement lies in notice of adverse use. - The crux of the requirement for repairs, or maintenance of the private way, lies not in the actual effectuation of repairs by the prescriber but in the notice of adverse use the performance of such repairs would give to the property owner. Rizer v. Harris, 182 Ga. App. 31 , 354 S.E.2d 660 (1987), overruled on other grounds, Eileen B. White & Assocs. v. Gunnells, 263 Ga. 360 , 434 S.E.2d 477 (1993); Georgia Pac. Corp. v. Johns, 204 Ga. App. 594 , 420 S.E.2d 39 (1992); Keng v. Franklin, 267 Ga. 472 , 480 S.E.2d 25 (1997).

Passive keeping in repair is notice, but inaction will not suffice; the expression "keeping in repair" originated in an age when private ways were unpaved and of necessity had to be repaired in order that the use thereof might be continued, and was then the equivalent of action and affirmative notice of an intention to prescribe, even where the use originated in consent. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

If repair made by landowner's permission, no prescriptive right acquired. - Where the landowner was merely passive and made no objection to the use of and repairing the road, then such use and repairs thereon would be the proper basis for obtaining a prescriptive right to the road. But, if the use of and the repairs made on the road were by the permission of the landowner, then the plaintiff would not acquire a prescriptive right or title to the road. Burnum v. Thomas, 71 Ga. App. 690 , 31 S.E.2d 925 (1944).

Because an adjoining landowner's use and repair of a landowner's road began with permission, a special master's finding that the adjoining landowner never asked for permission and that the owners never objected to their activities from 1968 to 2008 was inadequate to establish the adverse notice necessary to establish an easement by prescription. McGregor v. River Pond Farm, LLC, 312 Ga. App. 652 , 719 S.E.2d 546 (2011).

It is not incumbent upon the prescriber to make repairs where none are needed. The requirement is limited to the making of such repairs as become necessary in order to make a way usable. Hardin v. Snow, 201 Ga. 58 , 38 S.E.2d 836 (1946).

Mere passing over the land would not work prescription. Raines v. Petty, 170 Ga. 53 , 152 S.E. 44 (1930).

To acquire a prescriptive right to a private way over land, it is necessary to show the uninterrupted use of a permanent way, not over 15 (now 20) feet wide, kept open and in repair for seven years. It is not sufficient to show that those claiming the prescription have been accustomed for more than seven years to pass over the land, changing the way as they saw fit, to avoid obstructions or for convenience. Short v. Walton, 61 Ga. 28 (1878).

That one has been in the habit of traveling across the land of another by a route more than 15 (now 20) feet wide, which was not kept in repair, and was not permanent in its location, will not suffice. Childers v. Holloway, 69 Ga. 758 (1882).

Merely passing through an alley in a city, belonging to the owner of the adjacent property and kept open by the owner for personal use or the use of the owner's tenants, will not ripen into a right to continue such passing by any lapse of time, no repairs being made nor any other acts being done so as to give notice to the owner of a claim of right to pass, as distinguished from a mere license or permission. Nassar v. Salter, 213 Ga. 253 , 98 S.E.2d 557 (1957).

Location of the way must not shift from place to place as to any part of the route, but the way must occupy the same ground all the while and be kept in repair on that ground. Raines v. Petty, 170 Ga. 53 , 152 S.E. 44 (1930).

Where way changed by petitioner, no prescriptive right. - Where it appears that a private way claimed to exist by prescription was not permanent, but was obstructed and changed by the petitioner personally, the county erred in ordering it opened. Leathers v. Furr, 62 Ga. 421 (1879).

Where one who had for a period of more than two years used as a private way a strip of land belonging to another, then at the request of the owner abandoned this strip and, with the owner's consent, used in its stead as a private way, for more than five but less than seven years, another strip of land belonging to the owner, no prescriptive right to the use of either strip as a private way arose in favor of the person first mentioned. Peters v. Little, 95 Ga. 151 , 22 S.E. 44 (1894).

Right to way acquired with unlocked gates effective. - Where the plaintiff's right to a way in question in a proceeding was acquired with unlocked gates thereon, plaintiff's right to the way was just as effective, except for this impediment, as though plaintiff's right had been acquired without gates on the way. Deaton v. Taliaferro, 80 Ga. App. 685 , 57 S.E.2d 215 (1950).

Average width not to exceed statutory limit. - It will not alter the case that the average width of the road, considering its entire length, was not over 15 (now 20) feet. Childers v. Holloway, 69 Ga. 758 (1882).

Rights not defeated by wider places. - Where a private way of the general width of 15 (now 20) feet, but with a few wider places, is laid out by the owner of the land, and the same is used for the statutory period, the existence of the wider places will not defeat the rights of the users of the way. Kirkland v. Pitman, 122 Ga. 256 , 50 S.E. 117 (1904).

Where the general width of a private way does not exceed 20 feet, the mere existence of a few wider places will not defeat the right of the users; accordingly, the increased width of a private road as it formerly turned out in either direction into a public road could not be said, as a matter of law, to have caused a forfeiture of the rights of a petitioner for the removal by a railroad of obstructions from the road. Latham Homes Sanitation, Inc. v. CSX Transp., Inc., 245 Ga. App. 573 , 538 S.E.2d 107 (2000).

By running around spot few hours until road repaired. - Whilst the way is confined by the law to a track of 15 (now 20) feet, yet the mere running around one spot until the road there could be repaired within a few hours, which was done, and it was immediately resumed as the way again, is not an increase of width as to break the continuance of the use of it. Everedge v. Alexander, 75 Ga. 858 (1885).

Use need not be by one party, but may be continued by successor in title. Thompson v. Easley, 87 Ga. 320 , 13 S.E. 511 (1891).

Results

Character of the use during the prescribing period determines the right to the prescriber. Hill v. Miller, 144 Ga. 404 , 87 S.E. 385 (1915).

When way legally obtained and continued for statutory period, right becomes absolute. - When the use of a private way has been legally obtained and is continued as long as seven years, of which the owner has had six months' knowledge without moving for damages, the right of use becomes absolute, and the owner is barred from claiming damages. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

Prescription passes with land. - Where one has acquired a prescriptive right to a private way, whether the prescription be of common-law or statutory origin, the right to the way presumably passes with the land to which it is appurtenant. Nugent v. Watkins, 124 Ga. 150 , 52 S.E. 158 (1905).

Interference and Obstructions

Obstruction of private right of way after right to use way is acquired is unlawful. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

Once an easement has been acquired, the owner of the servient tenement may not unilaterally alter the path of the easement. When a subsequent owner obstructs part of a private way but permits the private way to be changed a few feet so that its use is continued without interruption, such permissive change will not defeat a title by prescription to a private way that has already ripened, nor create a new date from which prescriptive title must ripen as to the permitted change. BMH Real Estate Pshp. v. Montgomery, 246 Ga. App. 301 , 540 S.E.2d 256 (2000).

To sustain an application for the removal of obstructions from an alleged private way, the right to which is based upon prescription by seven years' use, it is essential that the applicant show not only that the applicant has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same feet originally appropriated, but that the applicant has kept it open and in repair during this period. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

Before an applicant can have obstructions removed from a private way, the applicant must show that it is in the same 15 (now 20) feet originally appropriated. Collier v. Farr, 81 Ga. 749 , 7 S.E. 860 (1911).

Before an applicant can have obstructions removed from a private way, the applicant must show not only that there has been an uninterrupted use for more than seven years, but that it is not more than 15 (now 20) feet wide, that the applicant has kept it open and in repair, and that it is the same feet originally appropriated. Clark v. Anderson, 52 Ga. App. 500 , 183 S.E. 852 (1936); Priest v. Dupree, 60 Ga. App. 149 , 3 S.E.2d 106 (1939); Roach v. Smith, 79 Ga. App. 348 , 53 S.E.2d 688 (1949).

In order for an applicant to have an obstruction removed from a private way, it is necessary for the applicant to show that the applicant and predecessors in title have been in constant and uninterrupted use of the way for seven years or more, that during such time they have kept the way open and in repair, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated. Deaton v. Taliaferro, 80 Ga. App. 685 , 57 S.E.2d 215 (1950).

Where no evidence of repairs, no obstruction removed. - Where the evidence did not show that the users of an alley had at any time made repairs to the alleged 15-foot (now 20-foot) alley as to which they claimed a prescriptive right of user, they were not entitled to have removed, under O.C.G.A. § 44-9-54 , an obstruction which had been placed in the alley. Maddox v. Willis, 205 Ga. 596 , 54 S.E.2d 632 (1949).

Applicant not entitled to judgment by proof that road closed without notice after year's use. - Under a proceeding to cause obstructions to be removed from a private way, and alleging solely that the way was one established by prescription for more than seven years, the applicant is not entitled to a judgment by proof that the road has been in use as a private way for more than a year, and that the owner has closed it without giving to the common users 30 days' notice in writing, in order that they might take legal steps to have it made permanent, as required by O.C.G.A. § 44-9-56 . Cowart v. Baker, 62 Ga. App. 502 , 8 S.E.2d 732 (1940).

Prescriptive rights-of-way awarded. - Where the evidence showed that defendant's predecessor-in-title never prevented the public from using the roads, and that plaintiffs never sought permission to do so, the repairs were extensive enough to put the owner on notice that others were using the road. Therefore, the landowners were required to remove obstructions from the private road and the plaintiffs were awarded prescriptive rights-of-way. Georgia Pac. Corp. v. Johns, 204 Ga. App. 594 , 420 S.E.2d 39 (1992).

Prescriber using private way may legally remove obstructions. - Where one has used a private way for more than 30 years without gates or other obstructions, the erection of gates or fences across the way by another would give the prescriber the right to have the obstructions removed in the manner provided by law. Hill v. Miller, 144 Ga. 404 , 87 S.E. 385 (1915).

Obstruction of private way gives rise to damage action. - The obstruction of a prescriptive private way would constitute an interference with a private right, and gives rise to a right of action in tort for damages from the alleged violation of the right. Hall v. Browning, 195 Ga. 423 , 24 S.E.2d 392 (1943).

Threatened obstruction prevented by injunction. - To place an obstruction across a private way sufficient to prevent its use would constitute a nuisance, and the threatened obstruction may be prevented by an injunction in equity. A different case might be presented if the obstruction had already been placed across the private way, since the law provides a legal remedy for its removal. Hardin v. Snow, 201 Ga. 58 , 38 S.E.2d 836 (1946).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, § 45 et seq.

C.J.S. - 28A C.J.S., Easements, §§ 14 et seq., 129, 145, 163.

ALR. - Necessary parties defendant to suit to prevent or remove obstruction or interference with easement of way, 28 A.L.R.2d 409.

Acquisition of right of way by prescription as affected by change of location or deviation during prescriptive period, 80 A.L.R.2d 1095.

Right of owners of parcels into which dominant tenement is or will be divided to use right of way, 10 A.L.R.3d 960.

Right to maintain gate or fence across right of way, 52 A.L.R.3d 9.

Tacking as applied to prescriptive easements, 72 A.L.R.3d 648.

Scope of prescriptive easement for access (easement of way), 79 A.L.R.4th 604.

44-9-55. Establishment of private way by prescription - When owners barred from damages.

When a person has established a private way and has enjoyed its use for as long as seven years, the right to use the private way shall become complete and the owners shall be barred from damages, provided that the owners have had six months' knowledge of such facts without moving for damages.

(Orig. Code 1863, § 703; Code 1868, § 765; Code 1873, § 731; Code 1882, § 731; Civil Code 1895, § 672; Civil Code 1910, § 818; Code 1933, § 83-113; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

O.C.G.A. § 44-9-55 applicable to statutory ways. - The words "six months' knowledge" and "without moving for damages" are applicable to ways laid out by statutory proceedings and not to prescriptive ways. Watkins v. Country Club, 120 Ga. 45 , 47 S.E. 538 (1904).

O.C.G.A. § 44-9-55 is apparently intended as a statute of limitations upon the right of the owner of land over which a private way is laid out to have damages for the subjection of land to the servitude of the way assessed and paid. And the "six months' knowledge" of the owner of the land in that section refers to knowledge of the laying out of a way under statutory proceedings. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

One entering with consent must bring notice to owner of prescriptive use. - One who seeks to ripen an absolute right to the use of a private way by prescription, instead of obtaining it by express grant, must, when one enters with the consent of the owner, bring some affirmative notice to the owner, by making repairs or otherwise, of the owner's intention to prescribe through seven years' use. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

Prescriber must show way kept open and in repair during statutory period. - In order to set up a prescriptive right of way, it is essential that the prescriber show not only that the prescriber has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the prescriber has kept it open and in repair during this period. Rogers v. Wilson, 171 Ga. 802 , 156 S.E. 817 (1931).

Passive keeping in repair is notice, but inaction will not suffice; the expression "keeping in repair" originated in an age when private ways were unpaved and of necessity had to be repaired in order that the use thereof might be continued, and was then the equivalent of action and affirmative notice of an intention to prescribe, even where the use originated in consent. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

When way legally obtained and continued for statutory period, right becomes absolute. - When use of a private way has been legally obtained and is continued as long as seven years, of which the owner has had six months' knowledge without moving for damages, the right of use becomes absolute, and the owner is barred from claiming damages. First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, § 129, 130.

C.J.S. - 28A C.J.S., Easements, §§ 191, 209, 210.

ALR. - Acquisition of right of way by prescription as affected by change of location or deviation during prescriptive period, 80 A.L.R.2d 1095.

44-9-56. Notice of closing of private way after one year's use.

If a road has been used as a private way for as much as one year, the owner of the land over which it passes may not close it up without first giving the common users of the private way 30 days' written notice so that they may take steps to have it made permanent pursuant to Code Sections 44-9-42 through 44-9-48.

(Orig. Code 1863, § 704; Code 1868, § 766; Code 1873, § 732; Code 1882, § 732; Civil Code 1895, § 673; Civil Code 1910, § 819; Code 1933, § 83-114.)

JUDICIAL DECISIONS

Where tenant permitted to use road, succeeding tenant cannot close road without giving notice. - Where a landlord leases a farm and permits the tenant to open thereon a road for the tenant's convenience and the convenience of the community, and, after the expiration of the lease and the removal of the tenant from the land, the tenant and others are permitted for more than one year to use the road, another tenant who has succeeded the first cannot, though so authorized by the landlord, close the road without giving the 30 days' notice required by O.C.G.A. § 44-9-56 . Dodson v. Scarborough, 110 Ga. 4 , 35 S.E. 291 (1900).

Those who travel over a route may acquire inchoate right before they secure perfect title. Even incomplete and partial prescription will prevent the owner from obstructing a private way which has been used for 12 months, unless the first gives 30 days' notice in writing of that intention to the common users. Hall v. Browning, 195 Ga. 423 , 24 S.E.2d 392 (1943).

Way need not be established. - In order to entitle one who has used and maintained a road as a private way for as much as one year to the notice prescribed by O.C.G.A. § 44-9-56 , it is not necessary that the way so used and maintained should have been actually established as a private way, but such use for only that limited period is sufficient to give to the common user such an inchoate right as will entitle the user to the notice mentioned before the landowner will be permitted to close the way. Ford v. Waters, 27 Ga. App. 83 , 107 S.E. 351 (1921).

Prescription is not standard. - The right defined in O.C.G.A. § 44-9-56 is not dependent upon such use as could ultimately result in prescription. Barnes v. Holcomb, 35 Ga. App. 713 , 134 S.E. 628 (1826).

Way claimed must not vary. - The right defined in O.C.G.A. § 44-9-56 does not require such use as could ultimately result in prescription. However, the use required by O.C.G.A. § 44-9-56 must resemble a prescriptive use in at least one respect: the way claimed must not vary from the location originally appropriated. Jordan v. Ridgdill, 120 Ga. App. 63 , 169 S.E.2d 675 (1969).

Petitioner proceeding on theory of perfect prescriptive way must recover on case laid. - Since the petitioner proceeded in pleadings on the theory of a perfect prescriptive right of way, petitioner must recover on the case as laid; no judgment was obtainable in petitioner's favor on the ground that no written notice had been given by the owner of an intention to close the driveway. Duncan v. Sluder, 204 Ga. 458 , 50 S.E.2d 78 (1948).

Right to have way made permanent is conditional upon proceedings before ordinary (now superior court) after the required notice is given. Moore v. McConnell, 105 Ga. App. 758 , 125 S.E.2d 675 (1962).

Burden of proving notice is upon one whose duty it is to give it. Powell v. Amoss, 85 Ga. 273 , 11 S.E. 598 (1890).

Closing of way not justified by remedy to prevent others from misusing land. - That the owner may have a remedy to prevent other people who have discontinued using a part of the private way from running over the shrubbery in owner's yard does not justify the owner in seeking to close the private way as it has actually existed for more than 12 months. Riggs v. Martin, 198 Ga. 824 , 33 S.E.2d 15 (1945).

Removal of obstruction from way may be based upon both O.C.G.A. §§ 44-9-56 and 44-9-59 . Moore v. McConnell, 105 Ga. App. 758 , 125 S.E.2d 675 (1962).

Remedy provided in O.C.G.A. § 44-9-59 is applicable to prescriptive ways and private ways used for one year where the landowner fails to give 30 days' notice under O.C.G.A. § 44-9-56 . Johnson v. Williams, 138 Ga. 853 , 76 S.E. 380 (1912); Ford v. Waters, 27 Ga. App. 83 , 107 S.E. 351 (1921).

Applicant alleging prescription not entitled to judgment by proof that road closed without notice. - Under a proceeding to cause obstructions to be removed from a private way and alleging solely that the way was one established by prescription for more than seven years, the applicant is not entitled to a judgment by proof that the road has been in use as a private way for more than a year, and that the owner has closed it without giving to the common users 30 days' notice in writing, in order that they might take legal steps to have it made permanent, as required by O.C.G.A. § 44-9-56 . Nugent v. Watkins, 129 Ga. 382 , 58 S.E. 888 (1907). See also Gardner v. Swann, 114 Ga. 304 , 40 S.E. 271 (1901); Fraley v. Nabors, 131 Ga. 457 , 62 S.E. 527 (1908); Cowart v. Baker, 62 Ga. App. 502 , 8 S.E.2d 732 (1940).

Jury instructions. - In a trespass action, where there was no objection to the court's failure to charge the defendant's request regarding O.C.G.A. § 44-9-56 and the existence of the roadway was continually disputed at trial, the failure to give such instruction did not work a gross injustice so as to deprive the defendant of a fair trial. Milam v. Attaway, 195 Ga. App. 496 , 393 S.E.2d 753 (1990).

Cited in Elliott v. Adams, 173 Ga. 312 , 160 S.E. 336 (1931); Burton v. Atlanta & W.P.R.R., 206 Ga. 698 , 58 S.E.2d 424 (1950); Moon v. Jones, 101 Ga. App. 79 , 113 S.E.2d 159 (1960); Hunt v. Parker, 221 Ga. 484 , 145 S.E.2d 483 (1965); Thomas v. Douglas, 165 Ga. App. 128 , 299 S.E.2d 605 (1983).

OPINIONS OF THE ATTORNEY GENERAL

Purpose of O.C.G.A. § 44-9-56 is to give the users an opportunity to take proper steps to undertake to make the private way a permanent one, which would give the owner an opportunity to show any cause why it should not be made permanent. 1950-51 Op. Att'y Gen. p. 431.

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, § 110.

C.J.S. - 28A C.J.S., Easements, § 117.

44-9-57. Limitation on use of private ways for specific commercial purposes.

  1. When a private way is established over the land of another for the purpose of hauling wood, timber, or any other commodity to any place of landing where the business of rafting or shipping is carried on or to any railroad depot, the use of the private way shall not extend to the use of any landing erected by a person for his own benefit.
  2. Notwithstanding subsection (a) of this Code section, if there is only one bluff or place of landing, the owner may not appropriate it to himself exclusively if he will not be damaged by the admission of others to its use or if he is properly compensated for any damages he sustains; but no person shall be entitled to use the wood-slide or other improvement erected by another for his own use or a timber landing while the owner is using it.

    (Ga. L. 1853-54, p. 90, § 2; Code 1863, §§ 705, 706; Code 1868, §§ 767, 768; Code 1873, §§ 733, 734; Code 1882, §§ 733, 734; Civil Code 1895, §§ 674, 675; Civil Code 1910, §§ 820, 821; Code 1933, §§ 83-115, 83-116.)

RESEARCH REFERENCES

ALR. - Scope of prescriptive easement for access (easement of way), 79 A.L.R.4th 604.

44-9-58. Petition to use another's landing.

When the applicant for a private way also desires to use another's landing, he must state this desire in his petition so that proper damages may be assessed for such use.

(Orig. Code 1863, § 707; Code 1868, § 769; Code 1873, § 735; Code 1882, § 735; Civil Code 1895, § 676; Civil Code 1910, § 822; Code 1933, § 83-117.)

44-9-59. Obstructions; proceedings for removal; petition; rule nisi; order; appeal; fees.

  1. In the event the owner or owners of land over which a private way may pass or any other person obstructs, closes up, or otherwise renders the private way unfit for use, the party or parties injured by the obstructions or other interference may petition the judge of the probate court in the county where the private way has been in use to remove the obstructions; and, upon the petition being filed, the judge shall issue a rule nisi directed to the party or parties complained against calling upon the offending parties to show cause why the obstructions should not be removed and the free use of said private way reestablished. The rule shall be served by the sheriff or his deputy at least three days before the day set for the hearing; and when the day arrives the judge shall proceed to hear evidence as to the obstructions or other interference. If it appears that the private way has been in continuous, uninterrupted use for seven years or more and no steps were taken to prevent the enjoyment of the same, the judge shall grant an order directing the party or parties so obstructing or otherwise interfering with the right of way to remove the obstructions or other interference within 48 hours; and, if the party or parties fail to remove the obstructions, the judge shall issue a warrant commanding the sheriff to remove the obstructions immediately.
  2. Except as otherwise provided in Article 6 of Chapter 9 of Title 15, either party who is dissatisfied with the judgment of the judge of the probate court pursuant to subsection (a) of this Code section may appeal to the superior court as a matter of right.
  3. The fee of the judge of the probate court in a proceeding under subsection (a) of this Code section shall be paid by the losing party. The sheriff's fees shall be the same as those charged for serving a petition or other process of court.

    (Ga. L. 1872, p. 60, §§ 2-4; Code 1873, §§ 738, 739, 740; Code 1882, §§ 738, 739, 740; Civil Code 1895, §§ 679, 680, 681; Civil Code 1910, §§ 825, 826, 827; Code 1933, §§ 83-119, 83-120, 83-121; Ga. L. 1953, Jan.-Feb. Sess., p. 519, § 1; Ga. L. 1986, p. 982, § 16.)

Editor's notes. - Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Cited in Fortson v. Mattox, 67 Ga. 282 (1881); Little v. McCalla, 20 Ga. App. 324 , 93 S.E. 37 (1917); First Christian Church v. Realty Inv. Co., 180 Ga. 35 , 178 S.E. 303 (1934); Huson v. Farmer, 53 Ga. App. 131 , 185 S.E. 119 (1936); Seaboard Air Line Ry. v. Brown, 55 Ga. App. 368 , 190 S.E. 203 (1937); Cook v. Wimpey, 57 Ga. App. 338 , 195 S.E. 325 (1938); Campbell v. Deal, 185 Ga. 474 , 195 S.E. 432 (1938); Bowen v. Lewis, 201 Ga. 487 , 40 S.E.2d 80 (1946); Putnam v. Sewell, 209 Ga. 28 , 70 S.E.2d 462 (1952); Atkinson v. Drake, 212 Ga. 26 , 89 S.E.2d 888 (1955); Moon v. Jones, 101 Ga. App. 79 , 113 S.E.2d 159 (1960); Jordan v. Ridgdill, 224 Ga. 695 , 164 S.E.2d 231 (1968); Jordan v. Ridgdill, 120 Ga. App. 63 , 169 S.E.2d 675 (1969); Carter v. Kinman, 132 Ga. App. 845 , 209 S.E.2d 230 (1974); Swygert v. Roberts, 136 Ga. App. 700 , 222 S.E.2d 75 (1975); O'Neill v. Myers, 148 Ga. App. 749 , 252 S.E.2d 638 (1979); Thomas v. Douglas, 165 Ga. App. 128 , 299 S.E.2d 605 (1983); Lawhorne v. Horace, 188 Ga. App. 427 , 373 S.E.2d 263 (1988); Henderson v. Cam Dev. Co., 190 Ga. App. 199 , 378 S.E.2d 495 (1989); Mitchell v. Mitchell, 220 Ga. App. 682 , 469 S.E.2d 540 (1996); Stover v. Tipton, 252 Ga. App. 427 , 555 S.E.2d 151 (2001).

Applicability

O.C.G.A. § 44-9-59 applies only to ways acquired by prescription. Belcher v. Kelly, 143 Ga. 525 , 85 S.E. 696 (1915), citing Holloway v. Birdsong, 139 Ga. 316 , 77 S.E. 146 (1913).

O.C.G.A. §§ 44-9-54 and 44-9-59 , giving the ordinary (now probate judge) jurisdiction summarily to try obstructions to private ways, is confined to cases of private ways which arise by prescriptive right acquired by seven years' possession or use. Clark v. Anderson, 52 Ga. App. 500 , 183 S.E. 852 (1936).

Obstruction of private right of way after right to use way is acquired is unlawful. - Once an easement has been acquired, the owner of the servient tenement may not unilaterally alter the path of the easement. When a subsequent owner obstructs part of a private way but permits the private way to be changed a few feet so that its use is continued without interruption, such permissive change will not defeat a title by prescription to a private way that has already ripened, nor create a new date from which prescriptive title must ripen as to the permitted change. BMH Real Estate Pshp. v. Montgomery, 246 Ga. App. 301 , 540 S.E.2d 256 (2000).

Notice by repair requirement. - The crux of the requirement for repairs lies not in the actual effectuation of repairs by the prescriber but in the notice of adverse use the performance of such repairs would give to the property owner. The importance of this "notice by repair" requirement is best illustrated in situations where the initial use of the private way was permissive. Georgia Pac. Corp. v. Johns, 204 Ga. App. 594 , 420 S.E.2d 39 (1992).

Removal of obstruction from way may be based upon both O.C.G.A. §§ 44-9-56 and § 44-9-59 . Moore v. McConnell, 105 Ga. App. 758 , 125 S.E.2d 675 (1962).

Summary remedy is applicable to prescriptive ways and private ways used for one year where the landowner fails to give 30 days' notice, as provided in O.C.G.A. § 44-9-56 . But while an applicant for such an order of removal may base the applicant's right to relief upon both sections, yet in the event the applicant prevails and the obstruction is ordered to be removed, the judgment should show upon which claim of the applicant it rests. Hall v. Browning, 195 Ga. 423 , 24 S.E.2d 392 (1943).

Available Remedies

If obstruction completed, statutory removal adequate legal remedy. - If an obstruction of a private way has been completed, the statutory remedy for a removal of the obstruction would afford a full, adequate, and complete remedy at law - whether those deprived of the use rely on a full prescriptive right, or rely only on an inchoate one-year right. Hall v. Browning, 195 Ga. 423 , 24 S.E.2d 392 (1943).

Petition for injunctive relief fails. - O.C.G.A. §§ 41-2-1 , 41-2-5 , and 44-9-59 , make ample provision for removal of completed obstructions from private and public ways; thus, when it does not appear why one of these remedies is not adequate and complete, a petition asking for injunctive relief fails to state a cause of action. Levinson v. Pendley, 209 Ga. 335 , 72 S.E.2d 306 (1952).

If the obstruction of a private way has been completed, the statutory remedy before the judge of the probate court will afford to the users a full and adequate remedy at law by removal of the obstruction, so that a petition for injunction will not lie. Justice v. Dunbar, 241 Ga. 327 , 245 S.E.2d 286 (1978).

Injunction justified to prevent threatened obstruction. - O.C.G.A. § 44-9-59 does not give such a plain remedy at law as will justify the refusal of an injunction to prevent a threatened, continued obstruction. Dodson v. Evans, 151 Ga. 435 , 107 S.E. 59 (1921); Phinizy v. Gardner, 159 Ga. 136 , 125 S.E. 195 (1924). But see Childers v. Holloway, 69 Ga. 757 (1882).

Where one gives notice of an intention to close a private way, but has not actually obstructed the same, the statutory remedies for removing obstructions do not apply. In a proper case, an injunction may issue to prevent the threatened injury. Croker v. Lewis, 217 Ga. 762 , 125 S.E.2d 50 (1962).

Constantly recurring obstruction. - The statutory remedy provided by O.C.G.A. § 44-9-59 for the removal of an obstruction from a private way is available only for the removal of an existing obstruction and is not an adequate and complete remedy when there is a constantly recurring obstruction of a temporary nature. Hancock v. Moriarity, 215 Ga. 274 , 110 S.E.2d 403 (1959).

No authority to impose conditions on removal of obstructions. - On a hearing under O.C.G.A. § 44-9-59 , there is no authority to order the obstructions removed on the performance of certain conditions by the petitioner. Allen v. Meyerhardt, 64 Ga. 337 (1879).

No authority to close way. - On a hearing under O.C.G.A. § 44-9-59 , there is no authority to order the way closed. Allen v. Meyerhardt, 64 Ga. 337 (1879).

No provision for taking property of owner. - The statutory proceeding provided for in O.C.G.A. § 44-9-59 contemplates merely the removal of obstructions from existing private ways, and has no reference to taking the property of the owner of the land. Porter v. Foster, 146 Ga. 154 , 90 S.E. 967 (1916).

Procedural Requirements

Agent cannot proceed under O.C.G.A. § 44-9-59 . - Where the claim of a right to a private way is founded upon an uninterrupted use of the way for more than seven years by the owners of a certain plantation, their agents, servants, and tenants, the right is not in the agents or servants themselves, but in the owners; their agent cannot institute and carry on a proceeding under O.C.G.A. § 44-9-59 in the agent's own name, either individually or as an agent. Cunningham v. Elliott, 92 Ga. 159 , 18 S.E. 365 (1893).

Required showing. - The petition should show that the alleged private way from which it was sought to remove the obstruction complained of was not over 15 (now 20) feet in width, as well as the fact that it had been kept open and in repair for the period prescribed. Holloway v. Birdsong, 139 Ga. 316 , 77 S.E. 146 (1913).

The burden is on the plaintiff to show the constant and uninterrupted use of the way for seven years or longer, and that it has been kept in repair during that time. Goodwin v. Bickers, 22 Ga. App. 13 , 95 S.E. 311 (1918).

Where persons claiming a prescriptive right of way apply for the removal of obstructions from it, they must show not only that there has been an uninterrupted use of it for more than seven years, but that it is not more than 15 (now 20) feet wide, and that it has been kept open and in repair, and is the same number of feet originally appropriated. Barnett v. Davis, 38 Ga. App. 494 , 144 S.E. 330 (1928).

Before an applicant can have obstructions removed from a private way, the applicant must show not only that there has been an uninterrupted use for more than seven years, but that it is not more than 15 (now 20) feet wide, that the applicant has kept it open and in repair, and that it is the same number of feet originally appropriated. Walker v. Greene, 46 Ga. App. 274 , 167 S.E. 546 (1933); Clark v. Anderson, 52 Ga. App. 500 , 183 S.E. 852 (1936); Roach v. Smith, 79 Ga. App. 348 , 53 S.E.2d 688 (1949).

In a proceeding for the removal of an obstruction from a private way, a prescriptive right to use which the applicant claims to have acquired, it is necessary, to sustain the application, to show not only that the applicant has been in the uninterrupted use thereof for seven years or more, that it does not exceed 15 (now 20) feet in width, and that it is the same number of feet originally appropriated, but that the applicant has kept it open and in repair during this period. Scarboro v. Edenfield, 58 Ga. App. 619 , 199 S.E. 325 (1938).

In order to sustain a proceeding under O.C.G.A. § 44-9-59 , it is necessary for the applicant to show that the applicant has been in the uninterrupted use of the way for seven years or more, that it does not exceed 15 (now 20) feet in width, that it is the same number of feet originally appropriated, and that the applicant has kept it open and in repair during this period. Burnum v. Thomas, 71 Ga. App. 690 , 31 S.E.2d 925 (1944).

Where the plaintiff's right to the private way was based on prescription by seven years of uninterrupted use of the same through the improved lands of the defendant, and the proceeding to remove the obstructions was brought under O.C.G.A. § 44-9-59 , in order to sustain such a proceeding it is necessary for the applicant to show that the applicant or the applicant's predecessors in title have been in uninterrupted use of the way for seven years or more, that it does not exceed 15 (now 20) feet in width, that it is the same number of feet originally appropriated, and that the applicant and the applicant's predecessors in title have kept it open and in repair during this period. Ponder v. Williams, 80 Ga. App. 145 , 55 S.E.2d 668 (1949).

In order for an applicant to have an obstruction removed from a private way, it is necessary for the applicant to show that the applicant and the applicant's predecessors in title have been in constant and uninterrupted use of the way for seven years or more and that during such time they have kept the way open and in repair and that it does not exceed 15 (now 20) feet in width and is the same number of feet originally appropriated. Deaton v. Taliaferro, 80 Ga. App. 685 , 57 S.E.2d 215 (1950).

Where the general width of a private way does not exceed 20 feet, the mere existence of a few wider places will not defeat the right of the users; accordingly, the increased width of a private road as it formerly turned out in either direction into a public road could not be said, as a matter of law, to have caused a forfeiture of the rights of a petitioner for the removal by a railroad of obstructions from the road. Latham Homes Sanitation, Inc. v. CSX Transp., Inc., 245 Ga. App. 573 , 538 S.E.2d 107 (2000).

Not necessary to allege way laid out by petitioner, or that defendant knew of use. - In an action by one holding the land under a deed from the prescriber, to require the removal of obstacles erected in the way, it is not necessary to allege that the way was laid out by the petitioner, or that the defendant had knowledge that the way was laid out, used, and enjoyed. Nugent v. Watkins, 124 Ga. 150 , 52 S.E. 158 (1905).

Description of way sufficient if land accurately defined. - In a proceeding to remove an obstruction from a private way over the land of another, it is not necessary to describe the way insofar as it extends over the land of others; it is sufficient if the description of the way through the land where the obstruction is alleged to have been placed is accurately defined. Johnson v. Williams, 138 Ga. 853 , 76 S.E. 380 (1912).

Description need not be as sufficient as that to lay out and establish way. - A description of a road which would not be sufficient in a proceeding to lay out and establish may be sufficient to identify an existing way across which an obstruction has been placed. Kirkland v. Pitman, 122 Ga. 256 , 50 S.E. 117 (1904). See also Brennan v. Brooks, 131 Ga. 94 , 61 S.E. 1035 (1908).

Petition dismissed upon failure to allege land improved. - Where, in a petition to have obstructions removed from an alleged private way, the petitioner based petitioner's alleged right to the relief for which the petitioner prayed upon seven years' continuous and uninterrupted use of the way, and failed to allege that the land over which the way was claimed was improved land, a demurrer (now motion to dismiss) predicated upon such failure was properly sustained. Watkins v. Country Club, 120 Ga. 45 , 47 S.E. 538 (1904).

No defense against recovery for interference with abutting street that landowner has other access. - It is no defense to the lot owner's right to recover for a substantial interference with the owner's easement in one of the streets upon which the owner's lot abuts that the owner has access to his lot from the other street. Felton v. State Hwy. Bd., 47 Ga. App. 615 , 171 S.E. 198 (1933), later appeal, 57 Ga. App. 930 , 181 S.E. 506 (1935).

Applicant alleging prescription not entitled to judgment by proving road used for year summarily closed. - Under a proceeding to cause obstructions to be removed from a private way, and alleging solely that the way was one established by prescription for more than seven years, the applicant is not entitled to judgment by proof that the road has been in use as a private way for more than a year, and that the owner has closed it without giving to the common users 30 days' notice in writing, in order that they might take legal steps to have it made permanent, as required by O.C.G.A. § 44-9-56 . Cowart v. Baker, 62 Ga. App. 502 , 8 S.E.2d 732 (1940).

Venue in county in which property located. - Neither the probate court nor the superior court erred in refusing to transfer an action seeking removal of an obstruction from a private way to the county in which the defendant resided since such action was properly brought in the county in which the property at issue was located. Lee v. Collins, 249 Ga. App. 674 , 547 S.E.2d 583 (2001).

Appeal

Appeal made in conformity with general provisions. - O.C.G.A. § 44-9-59 does not itself provide any mode of appeal. An appeal made in accord with O.C.G.A. § 44-9-59 must be made in conformity with the general laws contained in O.C.G.A. Ch. 3, T. 5. Rogers v. Anderson, 95 Ga. App. 637 , 98 S.E.2d 388 (1957).

Failure to serve opposing party with notice not ground to dismiss. - The failure to serve the opposing party with notice of appeal to the superior court from the ruling ordering an obstruction removed from a private way is not a ground to dismiss the appeal, as there is no requirement for giving of such notice. Slocumb v. Ross, 119 Ga. App. 567 , 168 S.E.2d 208 (1969).

One not party to original proceeding not bound by judgment, although present at review hearing. - One who is not a party to a proceeding to remove obstructions from a private way under O.C.G.A. § 44-9-59 , and has no notice of such proceeding until after judgment was rendered, and who has taken no part in the trial, is not bound by the judgment, although it should appear that the individual was physically present at the hearing of the certiorari (now appeal) brought by the defendant to review the judgment rendered against the individual in the proceeding, but took no part therein. Elliott v. Adams, 173 Ga. 312 , 160 S.E. 336 (1931).

Court cannot set aside judgment where conflicting evidence. - On a proceeding to remove obstructions from a private way, there being sufficient evidence to sustain the finding that the private way claimed existed by prescription, the superior court has no legal right to set aside that judgment on the facts, unless abused, although there may have been conflict in the testimony. Franklin v. Wesley, 73 Ga. 145 (1884).

Where the user of a private way over the land of another person brings a petition under O.C.G.A. § 44-9-59 for the removal of an obstruction placed across the way, barring its further use, and alleges that the way has been in constant and uninterrupted use by the petitioner and others for more than seven years, and when, upon a trial, there is a conflict of the evidence and the ordinary (now probate judge) settles that conflict, it is not error for the superior court to refuse to disturb the settlement of the issues of fact. Cowart v. Baker, 62 Ga. App. 502 , 8 S.E.2d 732 (1940).

If essential facts disputed, should remand for new trial. - Upon the hearing of the writ of certiorari (now appeal), if the rights of the parties depend upon the determination of disputed facts, the court should not pass final judgment, but should remand the case for a new trial under O.C.G.A. § 44-9-59 . Desvergers v. Kruger, 60 Ga. 100 (1878).

Appeal from superior court must be to Court of Appeals. - An appeal from a judgment of a superior court in an action to remove obstructions from a private way under O.C.G.A. § 44-9-59 is not one of which the Supreme Court has jurisdiction under the Constitution, and it must be transferred to the Court of Appeals. Carter. v. Kinman, 231 Ga. 759 , 204 S.E.2d 299 (1974).

The Court of Appeals, not the Supreme Court, had jurisdiction of an action begun in the probate court as a petition for removal of an obstruction of a private way, which was appealed as such to the superior court, and which also concerned whether plaintiffs had an easement across defendant's property. Stutts v. Moore, 218 Ga. App. 624 , 463 S.E.2d 30 (1995).

Illustrative Cases

Right to way acquired with unlocked gates effective. - Where the right to a way was acquired with unlocked gates thereon, the right was just as effective, except for this impediment, as though the right had been acquired without gates. Deaton v. Taliaferro, 80 Ga. App. 685 , 57 S.E.2d 215 (1950).

Where fence constructed upon way, removal proper remedy. - Where the main purpose of the action was to enjoin the proposed building of a fence upon an alleged private way, and as to the area claimed as a way the construction of the fence had been completed before the defendant was served with the petition or had knowledge of the restraining order, the court did not err in refusing an interlocutory injunction, the plaintiff's remedy in the circumstances being an action at law for removal of the obstruction. Braswell v. Clark, 180 Ga. 727 , 180 S.E. 486 (1935).

Renewal not required. - The trial court properly refused to order a property owner to remove a fence which obstructed a field road where there was evidence that some old limbs and dead trees were removed from the road from time to time, but there was no evidence that the road was ever scraped, ditched, or otherwise repaired. Simmons v. Bearden, 234 Ga. App. 81 , 506 S.E.2d 220 (1998).

Cause of action for injunctive relief stated. - A petition alleging that the plaintiff purchased a described tract of land, and at the same time acquired an easement adjacent thereto over a lane as a means of ingress and egress from the public road to plaintiff's farm, that plaintiff had used this lane without interruption since the date it was acquired until the defendant obstructed the same by placing a "cattle gap" across it, that the obstruction had interfered with the plaintiff's movement of cattle along the lane to a pasture, thereby causing the plaintiff much inconvenience, trouble, and injury to plaintiff's cattle, and thereby depriving plaintiff's family of necessary milk and food, stated a cause of action for injunctive relief. Ozbolt v. Miller, 206 Ga. 558 , 57 S.E.2d 601 (1950).

Prescriptive rights-of-way awarded. - Where the evidence showed that defendant's predecessor-in-title never prevented the public from using the roads, and that plaintiffs never sought permission to do so, the repairs were extensive enough to put the owner on notice that others were using the road. Therefore, the landowners were required to remove obstructions from the private road and the plaintiffs were awarded prescriptive rights-of-way. Georgia Pac. Corp. v. Johns, 204 Ga. App. 594 , 420 S.E.2d 39 (1992).

Prescriptive rights surrendered. - Because a petitioner had surrendered all prescriptive rights in a "settlement road" freely and voluntarily for crossing licenses that were terminated under the contractual terms of the license agreements, then it had no prescriptive rights for purposes of O.C.G.A. § 44-9-59 . Latham Homes Sanitation, Inc. v. CSX Transp., Inc., 245 Ga. App. 573 , 538 S.E.2d 107 (2000).

Ownership of land not required. - There is no requirement that a plaintiff must actually own property as a condition precedent to plaintiff's adverse usage of a private way for seven years; thus, the plaintiff established seven years use of a private way where plaintiff and family began to use a private road within two weeks of signing a contract to purchase land with a cabin on it and continued such use for more than seven years. Lee v. Collins, 249 Ga. App. 674 , 547 S.E.2d 583 (2001).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Easements and Licenses, §§ 58 et seq., 98 et seq., 119, 125, 129, 130.

C.J.S. - 28A C.J.S., Easements, § 177 et seq.

ALR. - Right of owner or occupant of property to damages for obstruction or interference with access incident to building operations on other private property, 86 A.L.R. 101 .

Liability in connection with injury allegedly caused by defective condition of private road or driveway, 44 A.L.R.3d 355.

Right to maintain gate or fence across right of way, 52 A.L.R.3d 9.

Location of easement of way created by grant which does not specify location, 24 A.L.R.4th 1053.

44-9-60. Conditions for converting private ways into public roads.

Once a private way is established, the judge of the probate court may declare it a public road, provided it is of sufficient length and importance and the number of persons who habitually use it can and will do as much work thereon as is their proper share in working the road alone or in connection with adjacent public roads.

(Orig. Code 1863, § 709; Code 1868, § 771; Code 1873, § 741; Code 1882, § 741; Civil Code 1895, § 682; Civil Code 1910, § 828; Code 1933, § 83-122.)

RESEARCH REFERENCES

ALR. - Private easement in way vacated, abandoned, or closed by public, 150 A.L.R. 644 .

ARTICLE 4 RIGHTS OF WAY FOR MINING, QUARRYING, AND OTHER BUSINESSES

RESEARCH REFERENCES

ALR. - What is "top" or "apex" of vein or lode, 1 A.L.R. 418 .

Pollution of stream by mining operations, 39 A.L.R. 891 .

Doctrine of potential possession or ownership as applied to sale or mortgage of royalty or other interest in oil or gas to be produced, 88 A.L.R. 1281 .

Instrument conveying land, minerals, or mineral rights as raising implied obligation to drill and develop for oil and gas, 137 A.L.R. 415 .

Estoppel to assert termination of oil and gas lease because of cessation of operations, 137 A.L.R. 1037 .

Surface owner's right of access through solid mineral seam or vein conveyed to another, or through the space left by its removal, to reach underlying strata, water, oil, gas, etc., 25 A.L.R.2d 1250.

Right of mineral lessee to deposit topsoil, waste materials, and the like upon lessor's additional land not being mined, 26 A.L.R.2d 1453.

Liability of strip or other surface mine or quarry operator to person, other than employee, injured or killed during mining operations, 84 A.L.R.2d 733.

44-9-70. Rights of way for mining, quarrying, and other business - Method of obtaining.

Any person, firm, corporation, company of persons, or corporation chartered under the laws of any state of the United States who is actually engaged in the business of mining iron, copper, gold, coal, or any other metal or mineral; quarrying marble, granite, or any other stone; or making copperas, sulphur, saltpeter, alum, or other similar articles and who needs a right of way for a railroad, turnpike, or roadway; an easement for pipelines or power lines; or a common road across the lands of others in order to operate his business successfully may obtain a right of way in the manner provided in this article for acquiring the right to convey water across the lands of others by the owners of mines. All proceedings in relation thereto shall be had and the damages shall be assessed and paid according to the method of condemning land provided in Title 22.

(Ga. L. 1862-63, p. 171, § 1; Code 1868, § 772; Code 1873, § 742; Code 1882, § 742; Ga. L. 1887, p. 35, § 2; Civil Code 1895, § 650; Ga. L. 1904, p. 51, § 1; Civil Code 1910, § 795; Code 1933, § 83-201; Ga. L. 1952, p. 38, § 1.)

Cross references. - Mining and drilling generally, § 12-4-20 et seq.

JUDICIAL DECISIONS

O.C.G.A. Art. 4, Ch. 9, T. 44 is a constitutional exercise of legislative authority. Jones & Co. v. Venable, 120 Ga. 1 , 47 S.E. 549 , 1 Ann. Cas. 185 (1904).

O.C.G.A. § 44-9-70 's "necessity" standard, which is based upon the successful operation of the applicant's business, is a valid exercise of the General Assembly's state constitutional authority with respect to the declaration of private ways of necessity. Benton v. Georgia Marble Co., 258 Ga. 58 , 365 S.E.2d 413 (1988).

O.C.G.A. § 44-9-70 does not constitute a delegation of the state's power of eminent domain with respect to property to be condemned for a public purpose. Benton v. Georgia Marble Co., 258 Ga. 58 , 365 S.E.2d 413 (1988).

O.C.G.A. Art. 4, Ch. 9, T. 44 applies only to corporations chartered within this state. Chestatee Pyrites Co. v. Cavenders Creek Gold Mining Co., 119 Ga. 354 , 46 S.E. 422 , 100 Am. St. R. 174 (1904).

RESEARCH REFERENCES

17B Am. Jur. Pleading and Practice Forms, Mines and Minerals, § 2.

ALR. - Validity of statute restricting the right of mining so as not to interfere with surface, 28 A.L.R. 1330 .

Condemnation of premises or part thereof as affecting rights of landlord and tenant inter se, 163 A.L.R. 679 .

Condemner's waiver, surrender, or limitation, after award, of rights or part of property acquired by condemnation, 5 A.L.R.2d 724.

Compensation for, or extent of rights acquired by, taking of land, as affected by condemner's promissory statements as to character of use or undertakings to be performed by it, 7 A.L.R.2d 364.

Correlative rights of dominant and servient owners in right of way for pipeline, 28 A.L.R.2d 626.

Right to intervene in court review of zoning proceeding, 46 A.L.R.2d 1059.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property during pendency of the proceeding, 55 A.L.R.2d 781.

Admissibility, in eminent domain proceeding, of evidence as to price paid for condemned real property on sale prior to the proceeding, 55 A.L.R.2d 791.

Right of adjoining landowners to intervene in condemnation proceedings on ground that they might suffer consequential damage, 61 A.L.R.2d 1292.

Eminent domain: recovery of value of improvements made with knowledge of impending condemnation, 98 A.L.R.3d 504.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific owner, 26 A.L.R.4th 68.

44-9-71. Rights of way for mining, quarrying, and other business - Appointment of arbitrators.

In the event the parties disagree as to the necessity for the right of way sought to be condemned and as to the compensation to be paid to the landowners therefor, arbitrators may be selected as provided by Parts 1 and 2 of Article 2 of Chapter 9 of Title 9.

(Ga. L. 1887, p. 35, § 3; Civil Code 1895, § 651; Civil Code 1910, § 796; Code 1933, § 83-202.)

44-9-72. Rights of way for mining, quarrying, and other business - Arbitration of requests for diversions of watercourses.

In all cases where it may be deemed desirable and necessary to divert any watercourse from its usual channel for any of the purposes specified in Code Section 44-9-70, it shall be lawful to submit the request to arbitration as provided in Chapter 9 of Title 9; and the arbitrators shall decide if it is necessary to divert the watercourse, who will be damaged by the diversion, and the amount of damage which will result.

(Ga. L. 1862-63, p. 171, § 1; Code 1868, § 774; Code 1873, § 744; Code 1882, § 744; Civil Code 1895, § 652; Civil Code 1910, § 797; Code 1933, § 83-203.)

44-9-73. Right of mine owner to control water power with canal or dam; damages to intervening landowners; application to probate court for such right.

  1. The owner of any mine shall have the right to enter upon any land between the mine and the water power upon which the mine is dependent and to cut thereon such ditch, canal, or tunnel or to construct such flume or other aqueduct and to build such dam as may be necessary to control the water power; provided, however, that the mine owner shall first have the damages assessed arising to the owner of the intervening land or to the owner of the land on which the dam is to be erected and shall pay such damages to the owner of the land so intervening or on which such dam is to be erected.
  2. After giving the owner of the land to be entered upon at least five days' notice of his intention to make such application, the owner of the mine shall present to the judge of the probate court of the county his written application for the right and privilege of cutting such ditch, canal, or tunnel or constructing such flume or aqueduct or erecting such dam.

    (Ga. L. 1868, p. 139, §§ 1, 2; Code 1873, §§ 746, 747; Code 1882, §§ 746, 747; Civil Code 1895, §§ 653, 654; Civil Code 1910, §§ 798, 799; Code 1933, §§ 83-204, 83-205.)

RESEARCH REFERENCES

ALR. - Validity of statute restricting the right of mining so as not to interfere with surface, 28 A.L.R. 1330 .

44-9-74. Right to drain mine, carry off ore or transport items over adjoining land; compensation of landowner; application for such right; proceedings.

  1. The owner of any mine shall have the right to enter upon any land and to cut and open thereon such ditches, canals, and tunnels or to construct such flumes or other aqueducts or such rope, wire, track, or other tramway or such wagonway as may be necessary to drain his mine, to carry off and drain away the water and tailings of the mine or mining operations, or to carry off and transport any crude ore from the mine or mining operations to the mill or other place of reduction where the ore is to be refined; provided, however, that the mine owner shall first have the damages arising or which may arise to the owner of the land assessed and shall pay same to the owners of such land.
  2. The mine owner who desires the right and privilege of cutting and opening ditches, canals, or tunnels or of constructing such flumes or other aqueducts shall make his application under and according to the provisions and requirements specified in Title 22 and all proceedings in relation thereto shall be had and the damages shall be assessed and paid according to the method of condemning land provided in Title 22, all of which provisions and requirements are extended to the owners of mines desiring to drain their mines and to carry off the water and tailings from their mines and mining operations through or over the land of others.

    (Ga. L. 1870, p. 264, §§ 1, 2; Code 1873, §§ 752, 753; Code 1882, §§ 752, 753; Ga. L. 1895, p. 20, § 1; Civil Code 1895, §§ 655, 656; Civil Code 1910, §§ 800, 801; Code 1933, §§ 83-207, 83-208.)

RESEARCH REFERENCES

ALR. - Rights and obligations, with respect to adjoining landowners, arising out of secondary recovery of gas, oil, and other fluid minerals, 19 A.L.R.4th 1182.

44-9-75. Application of article to lessee of mine.

Any person or company of persons engaged in working a mine under a lease shall be held and regarded as the owner or owners and as such shall be entitled to avail himself or themselves of the benefits and privileges of this article.

(Ga. L. 1868, p. 139, § 6; Code 1873, § 750; Code 1882, § 750; Civil Code 1895, § 657; Ga. L. 1897, p. 21, § 1; Code 1933, § 83-209.)

RESEARCH REFERENCES

ALR. - Validity of statute restricting the right of mining so as not to interfere with surface, 28 A.L.R. 1330 .

Right to incidental gas or oil under mining lease, 64 A.L.R. 734 .

Contract for the sale of gas or oil produced from wells on leased premises as creating an interest or equity affecting a subsequent assignee or lessee, 64 A.L.R. 1244 .

Constitutionality of statute or ordinance limiting right of surface owner in respect of oil or gas, 67 A.L.R. 1346 ; 99 A.L.R. 1119 .

Effect of acquisition by assignee or sublessee of lessee in mining lease of rights inconsistent with those reserved by lessee, 69 A.L.R. 936 .

Overriding royalty as affected by surrender, forfeiture, abandonment, or loss of lease, 135 A.L.R. 557 .

Deed or mortgage of real estate as affecting right to oil and gas or royalty interest under existing lease, 140 A.L.R. 1280 .

Construction and effect of provision in mineral lease excusing payment of minimum rent or royalty, 28 A.L.R.2d 1013.

Expenses and taxes deductible by lessee in computing lessor's oil and gas royalty or other return, 73 A.L.R.2d 1056.

Duty of lessee or assignee of mineral lease other than lease for oil and gas, as regards marketing or delivery for marketing of mineral products, 77 A.L.R.2d 1058.

Construction of oil and gas lease as to the lessee's right and duty of geophysical or seismograph exploration or survey, 28 A.L.R.3d 1426.

44-9-76. Amount of water allowed to be withdrawn from stream above mill or factory by mine owner or lessee.

In no instance shall a greater amount of water, measured in cubic feet, than the surplus be withdrawn and carried away entirely from a stream above any mill or factory, surplus water being that full amount of water that would run to waste with a tight mill dam at such mill or factory. This Code section shall apply as fully to owners of mines as to lessees of mines.

(Ga. L. 1868, p. 139, § 6; Ga. L. 1897, p. 21, § 1; Civil Code 1910, § 803; Code 1933, § 83-206.)

ARTICLE 5 TIMBER TRAMWAYS

RESEARCH REFERENCES

ALR. - Tramroad or other private railroad as a nuisance, 57 A.L.R. 943 .

Exercise of power of eminent domain for purposes of logging road or logging railroad, 86 A.L.R. 552 .

44-9-90. Petition for construction of tramway.

Any person or corporation desiring to build or construct any tramway to connect with any waterway or railway in this state for the purpose of transporting lumber, naval stores, and timber by means of the same may make application in writing to the judge of the probate court or the county commissioners of the county in which the tramway is to be located, which application shall set out the length of the tramway, the starting place and the terminus, and the line of its location.

(Ga. L. 1887, p. 103, § 1; Civil Code 1895, § 658; Civil Code 1910, § 804; Code 1933, § 83-301.)

History of section. - This section is derived, in part, from the decision in Normandale Lumber Co. v. Knight, 89 Ga. 111 , 14 S.E. 882 (1892).

JUDICIAL DECISIONS

O.C.G.A. § 44-9-90 applies only in cases of necessity. Normandale Lumber Co. v. Knight, 89 Ga. 111 , 14 S.E. 882 (1892); Valdosta, M. & W.R.R. v. Adel Lumber Co., 136 Ga. 559 , 71 S.E. 803 (1911); Alaculsey Lumber Co. v. Shippen Bros. Lumber Co., 143 Ga. 296 , 84 S.E. 967 (1915); Hutchinson v. Caldwell Lumber Co., 146 Ga. 356 , 91 S.E. 208 (1917).

Right of way limited in length. - Where, in an attempt to condemn land for a right of way, the notice states that a strip 20 feet wide is to be condemned, this is manifestly not an attempt to apply O.C.G.A. Art. 5, Ch. 9, T. 44. Garbutt Lumber Co. v. Georgia & Ala. Ry., 111 Ga. 714 , 36 S.E. 942 (1900) (decided under former Code 1910, § 805, prior to amendment by Ga. L. 1953, Nov.-Dec. Sess., p. 98, § 2).

Procedure for condemnation of right of way for a tramroad under O.C.G.A. § 44-9-90 is that prescribed in O.C.G.A. § 22-1-6 et seq. Hutchinson v. Copeland, 146 Ga. 357 , 91 S.E. 206 (1917).

Superior court given jurisdiction to entertain petition to enjoin proceeding. - The pendency of a proceeding to condemn land as a way of necessity for a tramroad is such a proceeding as to give the superior court of the county where the condemnation proceeding is pending jurisdiction to entertain a petition to enjoin the proceeding. Hutchinson v. Copeland, 146 Ga. 357 , 91 S.E. 206 (1917).

RESEARCH REFERENCES

ALR. - Exercise of power of eminent domain for purposes of logging road or logging railroad, 86 A.L.R. 552 .

44-9-91. Proceedings to lay out way; maximum width.

When the application provided for in Code Section 44-9-90 has been filed in the office of the judge of the probate court or the office of the county commissioners, as the case may be, all the proceedings thereafter shall be the same as are allowed and directed by Title 22 for condemning property, except that the strip of land to be used for such purpose shall not exceed 20 feet in width.

(Ga. L. 1887, p. 103, § 2; Civil Code 1895, § 659; Civil Code 1910, § 805; Code 1933, § 83-302; Ga. L. 1953, Nov.-Dec. Sess., p. 98, § 2; Ga. L. 1982, p. 3, § 44.)

History of section. - This section is derived, in part, from the decision in Normandale Lumber Co. v. Knight, 89 Ga. 111 , 14 S.E. 882 (1892).

JUDICIAL DECISIONS

For enumeration of successive steps in proceedings, see Normandale Lumber Co. v. Knight, 89 Ga. 111 , 14 S.E. 882 (1892).

44-9-92. Abandonment; effect.

If the tramway so laid out shall at any time cease to be used for such purposes, the land employed for such way shall revert to the owner thereof.

(Ga. L. 1887, p. 103, § 3; Civil Code 1895, § 660; Civil Code 1910, § 806; Code 1933, § 83-303.)

CHAPTER 10 HISTORIC PRESERVATION

Article 1

Uniform Conservation Easements.

Article 2

Ordinances Providing for Historical

Preservation.

Cross references. - Preservation, promotion, etc., of historic areas, identification, preservation, etc., of natural areas, etc., § 12-3-50 et seq.

Written permission from land owner for archeological artifact collection, § 12-3-621 .

ARTICLE 1 UNIFORM CONSERVATION EASEMENTS

Editor's notes. - Ga. L. 1992, p. 2227, § 1, effective July 1, 1992, repealed the Code sections formerly codified at this article and enacted the current article. The former article consisted of Code Sections 44-10-1 through 44-10-5 and was based on Ga. L. 1976, p. 1181, §§ 1-5; Ga. L. 1981, Ex. Sess., p. 8; Ga. L. 1982, p. 3, § 44; Ga. L. 1982, p. 1227, § 1; and Ga. L. 1985, p. 149, § 44.

44-10-1. Short title.

This article shall be known and may be cited as the "Georgia Uniform Conservation Easement Act."

(Code 1981, § 44-10-1 , enacted by Ga. L. 1992, p. 2227, § 1.)

Law reviews. - For article, "A Time to Preserve: A Call for Formal Private-Party Rights in Perpetual Conservation Easements," 40 Ga. L. Rev. 85 (2005).

44-10-2. Definitions.

As used in this article, the term:

  1. "Conservation easement" means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations, the purposes of which include retaining or protecting natural, scenic, or open-space values of real property; assuring its availability for agricultural, forest, recreational, or open-space use; protecting natural resources; maintaining or enhancing air or water quality; or preserving the historical, architectural, archeological, or cultural aspects of real property.
  2. "Holder" means:
    1. A governmental body empowered to hold an interest in real property under the laws of this state or the United States; or
    2. A charitable corporation, charitable association, or charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic, or open-space values of real property; assuring the availability of real property for agricultural, forest, recreational, or open-space use; protecting natural resources; maintaining or enhancing air or water quality; or preserving the historical, architectural, archeological, or cultural aspects of real property.
  3. "Third-party right of enforcement" means a right provided in a conservation easement to enforce any of its terms granted to a governmental body, charitable corporation, charitable association, or charitable trust, which, although eligible to be a holder, is not a holder. (Code 1981, § 44-10-2 , enacted by Ga. L. 1992, p. 2227, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1992, "archeological" was substituted for "archaeological" in paragraph (1) and in subparagraph (2)(B).

OPINIONS OF THE ATTORNEY GENERAL

Location of conservation easement. - Where the purpose of a conservation easement is to preserve land or water areas predominantly in their natural, scenic, landscape, or open condition or in agricultural, farming, forest, or open space use, it is not essential that the land be located within a historic district. 1976 Op. Att'y Gen. No. 76-50.

RESEARCH REFERENCES

ALR. - May paramount right of public to improve navigability of stream without compensating riparian owner for resulting damage extended to improvements for purposes not in aid of navigation, 18 A.L.R. 403 .

44-10-3. Creation or alteration of conservation easements; acceptance; duration; effect on existing rights and duties; limitation of liability; encumbered property must be located within boundaries of locality holding easement.

  1. Except as otherwise provided in this article, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements, except that a conservation easement may not be created or expanded by the exercise of the power of eminent domain.
  2. No right or duty in favor of or against a holder and no right in favor of a person having a third-party right of enforcement arises under a conservation easement before its acceptance by the holder and a recordation of the acceptance.
  3. Except as provided in subsection (c) of Code Section 44-10-4, a conservation easement is unlimited in duration unless the instrument creating it otherwise provides.
  4. An interest in real property in existence at the time a conservation easement is created is not impaired by it unless the owner of the interest is a party to the conservation easement or consents to it.
  5. The ownership or attempted enforcement of rights held by the holder of an easement shall not subject such holder to any liability for any damage or injury that may be suffered by any person on the property or as a result of the condition of such property encumbered by a conservation easement.
  6. No county, municipality, or consolidated government shall hold a conservation easement unless the encumbered real property lies at least partly within the jurisdictional boundaries of such county, municipality, or consolidated government. (Code 1981, § 44-10-3 , enacted by Ga. L. 1992, p. 2227, § 1; Ga. L. 1993, p. 91, § 44; Ga. L. 1993, p. 794, § 1; Ga. L. 2012, p. 257, § 3-2/HB 386.)

The 2012 amendment, effective January 1, 2013, added subsection (f). See Editor's notes for applicability.

Cross references. - Obtaining of scenic easements for scenic river system, § 12-5-353 .

Editor's notes. - Ga. L. 2012, p. 257, § 7-1(e)/HB 386, not codified by the General Assembly, provides that the 2012 amendment shall be applicable to all taxable years beginning on or after January 1, 2013.

Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 112 (2012). For note on 1993 amendment of this Code section, see 10 Ga. St. U. L. Rev. 207 (1993).

OPINIONS OF THE ATTORNEY GENERAL

Conservation easement possible outside historic district. - Where the purpose of a conservation easement is to preserve land or water areas predominantly in their natural, scenic, landscape, or open condition or in agricultural, farming, forest, or open space use, it is not essential that the land be located within a historic district. 1976 Op. Att'y Gen. No. 76-50.

RESEARCH REFERENCES

Am. Jur. 2d. - 20 Am. Jur. 2d, Covenants, Conditions, and Restrictions, § 47 et seq. 25 Am. Jur. 2d, Easements and Licenses, §§ 5, 8, 82, 83 et seq.

C.J.S. - 28A C.J.S., Easements, §§ 13, 52 et seq., 130, 143 et seq., 159 et seq.

ALR. - Relief in injunction suit in respect of easement as affected by doubt as to right to, or extent or location of, easement; necessity of first establishing easement at law, 139 A.L.R. 165 .

What constitutes unity of title or ownership sufficient for creation of an easement by implication or way of necessity, 94 A.L.R.3d 502.

Scope of prescriptive easement for access (easement of way), 79 A.L.R.4th 604.

44-10-4. Actions affecting easements; parties; power of court to modify or terminate easement.

  1. An action affecting a conservation easement may be brought by:
    1. An owner of an interest in the real property burdened by the easement;
    2. A holder of the easement;
    3. A person having a third-party right of enforcement; or
    4. A person authorized by other law.
  2. The easement holder shall be a necessary party in any proceeding of or before any governmental agency which may result in a license, permit, or order for any demolition, alteration, or construction on the property.
  3. This article does not affect the power of a court to modify or terminate a conservation easement in accordance with the principles of law and equity. (Code 1981, § 44-10-4 , enacted by Ga. L. 1992, p. 2227, § 1.)

44-10-5. Validity of easement.

A conservation easement is valid even though:

  1. It is not appurtenant to an interest in real property;
  2. It can be or has been assigned to another holder;
  3. It is not of a character that has been recognized traditionally at common law;
  4. It imposes a negative burden;
  5. It imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder;
  6. The benefit does not touch or concern real property; or
  7. There is no privity of estate or of contract. (Code 1981, § 44-10-5 , enacted by Ga. L. 1992, p. 2227, § 1.)

RESEARCH REFERENCES

ALR. - May easement or right of way be appurtenant where servient tenement is not adjacent to dominant, 15 A.L.R.7th 1.

44-10-6. Interests covered by article; interests not invalidated by article.

  1. This article applies to any interest created after July 1, 1992, which complies with this article, whether designated as a conservation or facade easement, or as a covenant, protective covenant, equitable servitude, restriction, easement, or otherwise.
  2. This article applies to any interest created before July 1, 1992, if such interest would have been enforceable had such interest been created after July 1, 1992, unless retroactive application contravenes the Constitution or laws of this state or the United States.
  3. This article does not invalidate any interest, whether designated as a conservation or preservation or facade easement or as a covenant, protective covenant, equitable servitude, restriction, easement, or otherwise, that is enforceable under other law of this state. (Code 1981, § 44-10-6 , enacted by Ga. L. 1992, p. 2227, § 1.)

44-10-7. Construction and application of article to effect uniformity of laws.

This article shall be applied and construed to effectuate its general purpose to make uniform the laws with respect to the subject of this article among states enacting it.

(Code 1981, § 44-10-7 , enacted by Ga. L. 1992, p. 2227, § 1.)

44-10-8. Recordation of easements; revaluation of encumbered property; appeals.

A conservation easement may be recorded in the office of the clerk of the superior court of the county where the land is located. Such recording shall be notice to the board of tax assessors of such county of the conveyance of the conservation easement and shall entitle the owner to a revaluation of the encumbered real property so as to reflect the existence of the encumbrance on the next succeeding tax digest of the county. Any owner who records a conservation easement and who is aggrieved by a revaluation or lack thereof under this Code section may appeal to the board of equalization and may appeal from the decision of the board of equalization in accordance with Code Section 48-5-311.

(Code 1981, § 44-10-8 , enacted by Ga. L. 1992, p. 2227, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 139, 140, 673, 674, 684, 685.

C.J.S. - 84 C.J.S., Taxation, §§ 111, 494 et seq., 510 et seq. 85 C.J.S., Taxation, §§ 1186, 1370.

ALR. - Permission or license from owner of servient estate as extinguishing an existing easement, 50 A.L.R. 1295 .

ARTICLE 2 ORDINANCES PROVIDING FOR HISTORICAL PRESERVATION

Law reviews. - For article, "Hazardous Waste Issues in Real Estate Transactions," see 38 Mercer L. Rev. 581 (1987).

RESEARCH REFERENCES

ALR. - Validity and construction of statute or ordinance protecting historical landmarks, 18 A.L.R.4th 990.

44-10-20. Short title.

This article shall be known and may be cited as the "Georgia Historic Preservation Act."

(Ga. L. 1980, p. 1723, § 1.)

Law reviews. - For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010).

JUDICIAL DECISIONS

Number of active commission members. - A county historic preservation commission's decision was not void because the commission did not have seven members as required by an ordinance. Neither the ordinance nor the Historical Preservation Act, O.C.G.A. § 44-10-20 et seq., provided that failure to have seven active members invalidated a decision; such an express requirement was necessary under O.C.G.A. § 1-3-1(c) . DeKalb County v. Buckler, 288 Ga. App. 346 , 654 S.E.2d 193 (2007), cert. denied, No. S08C0514, 2008 Ga. LEXIS 374 (Ga. 2008).

Substantial compliance as standard of review. - Because the Georgia Historic Preservation Act (HPA), O.C.G.A. § 44-1-20 et seq., does not expressly provide that a county's failure to strictly comply with the HPA's uniform procedures invalidates an ordinance adopted thereunder, and because the developers failed to show the developers were harmed by the county's alleged failure to strictly comply with the procedures of the HPA, the trial court properly applied the "substantial compliance" standard of review. Buckler v. DeKalb County Bd. of Comm'rs, 299 Ga. App. 465 , 683 S.E.2d 22 (2009), cert. denied, No. S09C2027, 2010 Ga. LEXIS 3 (Ga. 2010).

44-10-21. Legislative purpose; intent.

The General Assembly finds that the historical, cultural, and esthetic heritage of this state is among its most valued and important assets and that the preservation of this heritage is essential to the promotion of the health, prosperity, and general welfare of the people. Therefore, in order to stimulate the revitalization of central business districts in this state's municipalities, to protect and enhance this state's historical and esthetic attractions to tourists and visitors and thereby promote and stimulate business in this state's cities and counties, to encourage the acquisition by cities and counties of conservation easements pursuant to Code Sections 44-10-1 through 44-10-8, and to enhance the opportunities for federal tax relief of this state's property owners under the relevant provisions of the Tax Reform Act of 1976 allowing tax deductions for rehabilitation of certified historic structures, the General Assembly establishes a uniform procedure for use by each county and municipality in the state in enacting ordinances providing for the protection, enhancement, perpetuation, and use of places, districts, sites, buildings, structures, and works of art having a special historical, cultural, or esthetic interest or value.

(Ga. L. 1980, p. 1723, § 2; Ga. L. 1993, p. 91, § 44.)

U.S. Code. - The federal Tax Reform Act of 1976 referred to in this section was codified as 26 U.S.C. § 191, before being repealed in 1981.

44-10-22. Definitions.

As used in this article, the term:

  1. "Certificate of appropriateness" means a document approving a proposal to make a material change in the appearance of a designated historic property or of a structure, site, or work of art located within a designated historic district, which document must be obtained from a historic preservation commission before such material change may be undertaken.
  2. "Commission" means a historic preservation commission created or established pursuant to Code Section 44-10-24.
  3. "Designation" means a decision by the local governing body of a municipality or county wherein a property or district proposed for preservation is located to designate such property or district as a "historic property" or as a "historic district" and thereafter to prohibit all material changes in appearance of such property or within such district prior to the issuance of a certificate of appropriateness by the historic preservation commission.
  4. "Exterior architectural features" means the architectural style, general design, and general arrangement of the exterior of a building or other structure, including, but not limited to, the kind or texture of the building material; the type and style of all windows, doors, and signs; and other appurtenant architectural fixtures, features, details, or elements relative to the foregoing.
  5. "Historic district" means a geographically definable area, urban or rural, which contains structures, sites, works of art, or a combination thereof which:
    1. Have special character or special historical or esthetic interest or value;
    2. Represent one or more periods or styles of architecture typical of one or more eras in the history of the municipality, county, state, or region; and
    3. Cause such area, by reason of such factors, to constitute a visibly perceptible section of the municipality or county.
  6. "Historic preservation jurisdiction," in the case of a county, means the unincorporated area of the county; and, in the case of a municipality, such term means the area within the corporate limits of the municipality.
  7. "Historic property" means a structure, site, or work of art, including the adjacent area necessary for the proper appreciation or use thereof, deemed worthy of preservation by reason of its value to the municipality, county, state, or region for one or more of the following reasons:
    1. It is an outstanding example of a structure representative of its era;
    2. It is one of the few remaining examples of a past architectural style;
    3. It is a place or structure associated with an event or person of historic or cultural significance to the municipality, county, state, or region; or
    4. It is a site of natural or esthetic interest that is continuing to contribute to the cultural or historical development and heritage of the municipality, county, state, or region.
  8. "Local governing body" means the elected governing body or governing authority of any municipality or county of this state.
  9. "Material change in appearance" means a change that will affect only the exterior architectural features of a historic property or of any structure, site, or work of art within a historic district and may include any one or more of the following:
    1. A reconstruction or alteration of the size, shape, or facade of a historic property, including relocation of any doors or windows or removal or alteration of any architectural features, details, or elements;
    2. Demolition of a historic property;
    3. Commencement of excavation;
    4. A change in the location of advertising visible from the public way on any historic property; or
    5. The erection, alteration, restoration, or removal of any building or other structures within a designated historic district, including walls, fences, steps, and pavements, or other appurtenant features, except exterior paint alterations.
  10. "Person" includes any natural person, corporation, or unincorporated association.

    (Ga. L. 1980, p. 1723, § 3.)

44-10-23. Exemptions.

Cities or counties which have adopted ordinances relative to planning and zoning for historic purposes as of March 31, 1980, under authority granted by a local constitutional amendment or by any other means, including cities or counties which have subsequently replaced or amended in whole or in part such ordinances, shall not be required to comply with this article and are authorized to create and regulate historic districts, zones, or sites pursuant to their existing local historic preservation ordinances.

(Ga. L. 1980, p. 1723, § 12; Ga. L. 1989, p. 1160, § 1.)

Law reviews. - For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 173 (1989).

44-10-24. Historic preservation commission - Establishment or designation; number, eligibility, and terms of members.

  1. The local governing body of a municipality or county electing to enact an ordinance to provide for the protection, enhancement, perpetuation, or use of historic properties or historic districts shall establish or designate a historic preservation commission. Such local governing body shall determine the number of members of the commission, which shall be at least three, and the length of their terms, which shall be no greater than three years. A majority of the members of any such commission shall have demonstrated special interest, experience, or education in history or architecture; all the members shall reside within the historic preservation jurisdiction of their respective municipality or county except as otherwise provided by subsection (b) of this Code section; and all shall serve without compensation. In establishing such a commission and making appointments to it, a local governing body may seek the advice of any state or local historical agency, society, or organization.
  2. The local governing body of a county and the local governing body or bodies of one or more municipalities lying wholly or partially within such county may establish or designate a joint historic preservation commission. If a joint commission is established, the local governing bodies of the county and the municipality or municipalities involved shall determine the residence requirements for members of the joint commission.

    (Ga. L. 1980, p. 1723, § 4.)

Law reviews. - For survey article on local government law, see 60 Mercer L. Rev. 263 (2008).

44-10-25. Historic preservation commission - Powers and duties.

Any municipal, county, or joint historic preservation commission appointed or designated pursuant to Code Section 44-10-24 shall be authorized to:

  1. Prepare an inventory of all property within its respective historic preservation jurisdiction having the potential for designation as historic property;
  2. Recommend to the municipal or county local governing body specific places, districts, sites, buildings, structures, or works of art to be designated by ordinance as historic properties or historic districts;
  3. Review applications for certificates of appropriateness and grant or deny the same in accordance with Code Section 44-10-28;
  4. Recommend to the municipal or county local governing body that the designation of any place, district, site, building, structure, or work of art as a historic property or as a historic district be revoked or removed;
  5. Restore or preserve any historic properties acquired by the municipality or county;
  6. Promote the acquisition by the city or county governing authority of conservation easements in accordance with Code Sections 44-10-1 through 44-10-8;
  7. Conduct an educational program on historic properties located within its historic preservation jurisdiction;
  8. Make such investigations and studies of matters relating to historic preservation as the local governing body or the commission itself may from time to time deem necessary or appropriate for the purposes of this article;
  9. Seek out state and federal funds for historic preservation and make recommendations to the local governing body concerning the most appropriate use of any funds acquired;
  10. Consult with historic preservation experts in the Department of Community Affairs or its successor and the Georgia Trust for Historic Preservation, Inc.; and
  11. Submit to the Department of Community Affairs or its successor a list of historic properties or historic districts designated as such pursuant to Code Section 44-10-26.

    (Ga. L. 1980, p. 1723, § 5; Ga. L. 1993, p. 91, § 44; Ga. L. 1996, p. 6, § 44; Ga. L. 2020, p. 38, § 11/SB 473.)

The 2020 amendment, effective July 1, 2020, substituted "Department of Community Affairs" for "Division of Historic Preservation of the Department of Natural Resources" in paragraphs (10) and (11).

44-10-26. Designation by ordinance of historic properties or districts; required provisions; investigation and report; submittal to Department of Community Affairs; notice and hearing; notification of owners.

  1. Ordinances adopted by local governing bodies to designate historic properties or historic districts shall be subject to the following requirements:
    1. Any ordinance designating any property as a historic property or any district as a historic district shall require that the designated property or district be shown on the official zoning map of the county or municipality adopting such ordinance or that, in the absence of an official zoning map, the designated property or district be shown on a map of the county or municipality adopting such ordinance and kept by the county or municipality as a public record to provide notice of such designation in addition to other notice requirements specified by this Code section;
    2. Any ordinance designating any property as a historic property shall describe each property to be designated, shall set forth the name or names of the owner or owners of the property, and shall require that a certificate of appropriateness be obtained from the historic preservation commission prior to any material change in appearance of the designated property; and
    3. Any ordinance designating any district as a historic district shall include a description of the boundaries of the district, shall list each property located therein, shall set forth the name or names of the owner or owners of each property, and shall require that a certificate of appropriateness be obtained from the historic preservation commission prior to any material change in appearance of any structure, site, or work of art located within the designated historic district.
  2. No ordinance designating any property as a historic property and no ordinance designating any district as a historic district nor any amendments thereto may be adopted by the local governing body nor may any property be accepted or acquired as historic property by the local governing body until the following procedural steps have been taken:
    1. The commission shall make or cause to be made an investigation and shall report on the historic, cultural, architectural, or esthetic significance of each place, district, site, building, structure, or work of art proposed for designation or acquisition. This report shall be submitted to the Department of Community Affairs or its successor which will be allowed 30 days to prepare written comments concerning the report;
    2. The commission and the local governing body shall hold a public hearing on the proposed ordinance. Notice of the hearing shall be published at least three times in the principal newspaper of general circulation within the municipality or county in which the property or properties to be designated or acquired are located; and written notice of the hearing shall be mailed by the commission to all owners and occupants of such properties. All the notices shall be published or mailed not less than ten nor more than 20 days prior to the date set for the public hearing; and
    3. Following the public hearing, the local governing body may adopt the ordinance as prepared, adopt the ordinance with any amendments it deems necessary, or reject the proposal.
  3. Within 30 days immediately following the adoption of the ordinance, the owners and occupants of each designated historic property and the owners and occupants of each structure, site, or work of art located within a designated historic district shall be given written notification of such designation by the local governing body, which notice shall apprise said owners and occupants of the necessity for obtaining a certificate of appropriateness prior to undertaking any material change in the appearance of the historic property designated or within the historic district designated.

    (Ga. L. 1980, p. 1723, § 6; Ga. L. 1996, p. 6, § 44; Ga. L. 2020, p. 38, § 11/SB 473.)

The 2020 amendment, effective July 1, 2020, substituted "Department of Community Affairs" for "Division of Historic Preservation of the Department of Natural Resources" in the second sentence of paragraph (b)(1).

JUDICIAL DECISIONS

No due process violation in claimed notice deficiencies. - As the developers knew when the developers bought the developers' property that the property was in a historic district and subject to the district's restrictions on development, the developers failed to show that the developers were denied due process or otherwise harmed by any of the claimed notice deficiencies in the county's designation of the historic district. Buckler v. DeKalb County Bd. of Comm'rs, 299 Ga. App. 465 , 683 S.E.2d 22 (2009), cert. denied, No. S09C2027, 2010 Ga. LEXIS 3 (Ga. 2010).

Substantial compliance with notice provisions sufficient. - As the developers failed to show the developers were harmed by a county's alleged lack of strict compliance with the notice procedures of the Georgia Historic Preservation Act (HPA), O.C.G.A. § 44-10-20 et seq., and as the record established that the county substantially complied with the HPA in designating a historic district, the county's ordinance was valid. Buckler v. DeKalb County Bd. of Comm'rs, 299 Ga. App. 465 , 683 S.E.2d 22 (2009), cert. denied, No. S09C2027, 2010 Ga. LEXIS 3 (Ga. 2010).

44-10-27. Certificate of appropriateness - When required; local or state actions.

  1. After the designation by ordinance of a historic property or of a historic district, no material change in the appearance of the historic property or of a structure, site, or work of art within the historic district shall be made or be permitted to be made by the owner or occupant thereof unless and until application for a certificate of appropriateness has been submitted to and approved by the commission. Such application shall be accompanied by such drawings, photographs, or plans as may be required by the commission.
  2. The Department of Transportation and any contractors, including cities and counties, performing work funded by the Department of Transportation are exempt from this article. Local governments are exempt from the requirement of obtaining certificates of appropriateness; provided, however, that local governments shall notify the commission 45 days prior to beginning an undertaking that would otherwise require a certificate of appropriateness and allow the commission an opportunity to comment.

    (Ga. L. 1980, p. 1723, § 7.)

JUDICIAL DECISIONS

City's delay in notifying the historic preservation commission of its action to condemn property in its historic district for a road-widening project did not demonstrate bad faith with respect to the condemnation. Fowler v. City of Marietta, 233 Ga. App. 622 , 504 S.E.2d 726 (1998), aff'd in part and rev'd in part sub nom. City of Marietta v. Edwards, 271 Ga. 349 , 519 S.E.2d 217 (1999).

44-10-28. Certificate of appropriateness - Review of applications; procedure; approval, modification, or rejection; negotiations for acquisitions; variances; appeals.

  1. Prior to reviewing an application for a certificate of appropriateness, the commission shall take such action as may reasonably be required to inform the owners of any property likely to be affected materially by the application and shall give the applicant and such owners an opportunity to be heard. In cases where the commission deems it necessary, it may hold a public hearing concerning the application.
  2. The commission shall approve the application and issue a certificate of appropriateness if it finds that the proposed material change in appearance would not have a substantial adverse effect on the esthetic, historical, or architectural significance and value of the historic property or the historic district. In making this determination, the commission shall consider, in addition to any other pertinent factors, the historical and architectural value and significance; architectural style; general design, arrangement, texture, and material of the architectural features involved; and the relationship thereof to the exterior architectural style and pertinent features of other structures in the immediate neighborhood.
  3. In its review of applications for certificates of appropriateness, the commission shall not consider interior arrangement or uses having no effect on exterior architectural features.
  4. The commission shall approve or reject an application for a certificate of appropriateness within 45 days after the filing thereof by the owner or occupant of a historic property or of a structure, site, or work of art located within a historic district. Evidence of approval shall be by a certificate of appropriateness issued by the commission. Failure of the commission to act within the 45 day period shall constitute approval, and no other evidence of approval shall be needed.
  5. In the event the commission rejects an application, it shall state its reasons for doing so and shall transmit a record of such action and the reasons therefor, in writing, to the applicant. The commission may suggest alternative courses of action it thinks proper if it disapproves of the application submitted. The applicant, if he so desires, may make modifications to the plans and may resubmit the application at any time after doing so.
  6. In cases where the application covers a material change in the appearance of a structure which would require the issuance of a building permit, the rejection of an application for a certificate of appropriateness by the commission shall be binding upon the building inspector or other administrative officer charged with issuing building permits; and, in such a case, no building permit shall be issued.
  7. Where such action is authorized by the local governing body and is reasonably necessary or appropriate for the preservation of a unique historic property, the commission may enter into negotiations with the owner for the acquisition by gift, purchase, exchange, or otherwise of the property or any interest therein.
  8. Where, by reason of unusual circumstances, the strict application of any provision of this article would result in exceptional practical difficulty or undue hardship upon any owner of any specific property, the commission, in passing upon applications, shall have the power to vary or modify strict adherence to the provisions or to interpret the meaning of the provision so as to relieve such difficulty or hardship; provided, however, that such variance, modification, or interpretation shall remain in harmony with the general purpose and intent of the provisions so that the architectural or historical integrity or character of the property shall be conserved and substantial justice done. In granting variations, the commission may impose such reasonable and additional stipulations and conditions as will in its judgment best fulfill the purpose of this article.
  9. The commission shall keep a record of all applications for certificates of appropriateness and of all its proceedings.
  10. Any person adversely affected by any determination made by the commission relative to the issuance or denial of a certificate of appropriateness may appeal such determination to the governing body of the county or municipality in whose historic preservation jurisdiction the property in question is located; and such governing body may approve, modify and approve, or reject the determination made by the commission if the governing body finds that the commission abused its discretion in reaching its decision. The ordinances adopted in conformity with Code Section 44-10-26 shall specify the procedures for the review of decisions of the commission by the governing body of the county or municipality involved. Appeals from decisions of the governing body made pursuant to this article may be taken to the superior court in the manner provided by law for appeals from a conviction for municipal or county ordinance violations.

    (Ga. L. 1980, p. 1723, § 8.)

44-10-29. Certain changes or uses not prohibited.

Nothing in this article shall be construed to prevent the ordinary maintenance or repair of any exterior architectural feature in or on a historic property, which maintenance or repair does not involve a material change in design, material, or outer appearance thereof, nor to prevent any property owner from making any use of his property not prohibited by other laws, ordinances, or regulations.

(Ga. L. 1980, p. 1723, § 9.)

44-10-30. Court action or proceedings to prevent improper changes or illegal acts or conduct.

The municipal or county governing body or the historic preservation commission shall be authorized to institute any appropriate action or proceeding in a court of competent jurisdiction to prevent any material change in the appearance of a designated historic property or historic district, except those changes made in compliance with the provisions of an ordinance adopted in conformity with this article, or to prevent any illegal act or conduct with respect to such historic property or historic district.

(Ga. L. 1980, p. 1723, § 11.)

44-10-31. Violations of this article; penalties.

Violations of any ordinance adopted in conformity with this article shall be punished in the same manner as provided by charter or local law for the punishment of violations of other validly enacted municipal or county ordinances.

(Ga. L. 1980, p. 1723, § 10.)

CHAPTER 11 EJECTMENT AND PROCEEDINGS AGAINST INTRUDERS

Article 1

Ejectment.

Article 2

Proceedings Against Intruders.

Cross references. - Civil actions relating to injuries to real estate generally, Ch. 9, T. 51.

ARTICLE 1 EJECTMENT

JUDICIAL DECISIONS

Action in ejectment is proper legal method of trying title to land. Bright v. City of Washington, 95 Ga. App. 84 , 97 S.E.2d 163 (1957).

Municipality may maintain action in ejectment to recover possession of street. Bright v. City of Washington, 95 Ga. App. 84 , 97 S.E.2d 163 (1957).

Conveyance of interest by one of several plaintiffs pending action. - Where one of several plaintiffs in ejectment conveys an interest in the premises during the pendency of the action, the action may still proceed in that plaintiff's name to recover the interest. Poland Laundry Mach. Co. v. Pyle, 50 Ga. App. 453 , 178 S.E. 474 (1935).

Where there is an assignment for benefit of creditors after commencement of action, and where such an assignment of a chose in action is not made until after the assignor has filed an action on the assigned claim, the action in the name of the original plaintiff is not thereby abated; but the original plaintiff, without amendment and without the presence of the assignee, may continue to prosecute the claim to a judgment, holding the amount represented by the secured debt as the trustee for the assignee. Poland Laundry Mach. Co. v. Pyle, 50 Ga. App. 453 , 178 S.E. 474 (1935).

Complaint can be sufficient without specifying which portion of tract plaintiffs claim. - Where a complaint in an ejectment action, together with the abstract of title which was duly made a part thereof, fully and completely describes the 250 acres of land claimed to be owned by the plaintiffs, and alleges that the six acres sought to be recovered "are situate in the 250 acre tract," the sheriff would have no trouble in executing a writ of possession for the reason that the sheriff could put the petitioners in possession of any part of the 250 acres found to be in the possession of the defendant. Crews v. Russell, 199 Ga. 732 , 35 S.E.2d 444 (1945).

RESEARCH REFERENCES

ALR. - Constructive notice by record of true title or interest as affecting right to compensation for improvements, 68 A.L.R. 288 ; 82 A.L.R. 921 .

44-11-1. Requirement that plaintiff recover on strength of own title; effect of common grantor on proof of title.

A plaintiff in ejectment must recover on the strength of his own title and not on the weakness of the defendant's title. Where both parties claim under a common grantor, it is not necessary to show title back of such common grantor.

(Civil Code 1895, § 5004; Civil Code 1910, § 5582; Code 1933, § 33-101.)

Law reviews. - For article discussing origin and construction of Georgia provision concerning ejectment, see 14 Ga. L. Rev. 239 (1980). For comment on Brooks v. Williams, 227 Ga. 59 , 178 S.E.2d 880 (1970), see 23 Mercer L. Rev. 399 (1972).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

History of section. - The first sentence of O.C.G.A. § 44-11-1 is derived from the decisions in Harris v. Cannon, 6 Ga. 382 (1849) and Hitch v. Robinson, 73 Ga. 140 (1884).

The second sentence of O.C.G.A. § 44-11-1 is practically a rule of estoppel or admission, and is derived from the common-law decisions in the cases of Wood v. Milly McGuire's Children, 17 Ga. 303 (1855); Harrison v. Hatcher, 44 Ga. 638 (1872); Hanson v. Crawley, 51 Ga. 528 (1874); Werner v. Footman, 54 Ga. 128 (1875); Greenfield v. McIntyre, 112 Ga. 691 , 38 S.E. 44 (1901); Holder v. Scarborough, 119 Ga. 256 , 46 S.E. 93 (1903); Garbutt Lumber Co. v. Wall, 126 Ga. 172 , 54 S.E. 944 (1906); Deen v. Williams, 128 Ga. 265 , 57 S.E. 427 (1907); Gaskins v. Gray Lumber Co., 6 Ga. App. 167 , 64 S.E. 714 (1909); Sinclair v. Friedlander, 197 Ga. 797 , 30 S.E.2d 398 (1944).

Purpose of ejectment is to evict one from realty who wrongfully withholds possession from the person legally entitled thereto. Douglas v. Vourtsanis, 203 Ga. 64 , 45 S.E.2d 203 (1947).

O.C.G.A. § 44-11-1 is qualified by O.C.G.A. § 44-7-9 . Ingold, Inc. v. Adair, 247 Ga. 155 , 274 S.E.2d 560 (1981).

Academic principle of section is rule of evidence. - O.C.G.A. § 44-11-1 requirement that a plaintiff in ejectment must recover because of plaintiff's own title and not the defendant's defective title is a rule of evidence. Jackson v. Sanders, 199 Ga. 222 , 33 S.E.2d 711 (1945).

Plaintiff may not eject tenant in possession on basis of vague lease if vagueness cured. - A plaintiff cannot rely on vagueness of the legal description to eject a tenant when at the time the plaintiff in ejectment acquired the property, the tenant was in possession under a recorded lease and the vagueness had been cured so that the description was adequate to give the plaintiff notice. Roe v. Doe, 246 Ga. 138 , 268 S.E.2d 901 (1980).

No ejectment action where landlord-tenant relationship. - Where defendant contended that no landlord-tenant relationship was shown to exist between the parties and that the action consequently should have been for ejectment, pursuant to O.C.G.A. § 44-11-1 , rather than for possession, pursuant to O.C.G.A. § 44-7-50 , but defendant conceded that it had been defendant's intention to include the house in the property conveyed by security deed and the trial court was authorized to conclude from the evidence that the house was so included, it was held that when the defendant defaulted on the debt and the security deed was foreclosed upon, the relationship between the parties became that of landlord and tenant at sufferance. West v. VA, 182 Ga. App. 767 , 357 S.E.2d 121 (1987).

Breach of lease contract not case respecting title to land. - Landlord's complaint for ejectment, alleging that landlord has a presently enforceable lease contract with tenant and that tenant has breached this contract so as to entitle landlord to possession, does not allege a case respecting title to land under Ga. Const. 1976, Art. VI, Sec. IV, Para. I (see, now, Ga. Const. 1983, Art. VI, Sec. IV, Para. I), for purposes of subject matter jurisdictional requirements. Ingold, Inc. v. Adair, 247 Ga. 155 , 274 S.E.2d 560 (1981).

Landlord may eject on basis of lease. - By virtue of the qualification to O.C.G.A. § 44-11-1 that is found in O.C.G.A. § 44-7-9 , a landlord is authorized to file a complaint for the ejectment of a tenant alleging, not that the landlord has a presently enforceable legal title to the land, but that the landlord has a presently enforceable lease contract with the tenant, and that the tenant has breached the contract as to entitle the landlord to possession. The landlord is entitled to recover upon the admission of title in the landlord, which grows out of the relation of landlord and tenant, if according to the law applicable to the facts of the case, that relation did exist. Ingold, Inc. v. Adair, 247 Ga. 155 , 274 S.E.2d 560 (1981).

Until after default by the grantor, grantee in security deed has no right of entry such as will authorize grantee to maintain an action against the grantor for recovery of the land, with the accompanying right to apply the rents and profits until they are sufficient to discharge the debt. Sweat v. Arline, 186 Ga. 460 , 197 S.E. 893 (1938).

Security deed holder may not eject if debt paid. - While the holder of a security deed to land may sue in ejectment to recover possession of the property, where the debt is not paid at maturity, the holder cannot recover solely upon such a deed where the debt has been paid in full. This proposition will hold true regardless of whether payment of the debt without the cancellation of the security deed or a reconveyance of the property will operate to divest the legal title and cause it to revert to the debtor. Even if the legal title may in such a case be considered as remaining in the holder of the security deed, it is not a title accompanied by the right of possession, and for this reason will not authorize a recovery in ejectment. Capps v. Smith, 175 Ga. 795 , 166 S.E. 234 (1932).

Action against county. - A county is liable to suit in an action to recover land owned by the plaintiffs and which has been taken possession of by the county, where it refuses on demand to deliver possession. Lynch v. Harris County, 188 Ga. 651 , 4 S.E.2d 573 (1939).

Trespasser may not take land by paying damages. - In no event should a landowner be obliged to submit to invasion or be compelled to part with property, or any portion thereof, upon the mere payment of damages by a trespasser. Randolph v. Merchants & Mechanics Banking & Loan Co., 181 Ga. 671 , 183 S.E. 801 (1936).

Action of ejectment will lie to recover mine or mineral interests in lands, to which the plaintiff has title, though another owns the surface, and although the plaintiff has never been in possession. Hale v. Turner, 183 Ga. 593 , 189 S.E. 10 (1936).

Ejectment action will establish boundaries in cities. - As the processioning statutes do not have application to a determination of the boundaries of coterminous lots located within the corporate limits of cities and towns, an action of ejectment for recovery of land in a city taken over by an encroachment of an adjacent lot owner constitutes a proper remedy for establishment of the true dividing line in such a dispute. Smith v. Bailey, 183 Ga. 869 , 189 S.E. 905 (1937).

Judge may charge boundary question where city plaintiff shows prior possession. - Where plaintiff in ejectment against the owner of adjacent city lot shows prior possession under a color of title of the lot occupied by plaintiff, and defendant adjacent lot owner shows no superior title to the lot thus occupied by the plaintiff, and where the only conflict in the evidence is whether the property sued for lies within the boundaries of the plaintiff's lot or those of the adjacent lot of the defendant, the essential question in determining title to the land in dispute concerns boundary only, and it is not error to charge the jury that the question is one of fact as to where the line is between the two parties. Smith v. Bailey, 183 Ga. 869 , 189 S.E. 905 (1937).

No recovery by joint plaintiffs if one unentitled. - Where a joint action for land is brought by several persons and the evidence shows that one of them is not entitled to recover, there can be no recovery at all. The rule in such case is the same whether the action is in the statutory or fictitious form. Guess v. Morgan, 196 Ga. 265 , 26 S.E.2d 424 (1943).

Directed verdict for joint plaintiffs wrong if one unentitled. - In an action in ejectment, where the plaintiffs sued jointly as heirs at law of a certain person, directed verdict for plaintiffs was erroneous in that there was no evidence to show that one of the plaintiffs was entitled to recover any interest in the land upon such theory. Guess v. Morgan, 196 Ga. 265 , 26 S.E.2d 424 (1943).

Landowners' trespass and negligence suit. - Trial court properly denied a neighbor's motion for summary judgment and the appellate court reversed the denial of the cross-motion for summary judgment filed by the adjoining landowners in a trespass and negligence suit, because the neighbor purchased property without first obtaining a survey and the adjoining landowners' home was already encroaching upon the neighbor's property by two feet at the time of the purchase; the adjoining landowners were not liable for their predecessor's conduct in building the house and a fence across the property line of the neighbor's predecessor in title, in the absence of evidence that their predecessor was acting as their agent, and were, therefore, entitled to summary judgment. Navajo Constr., Inc. v. Brigham, 271 Ga. App. 128 , 608 S.E.2d 732 (2004).

Cited in Conway v. Caswell, 121 Ga. 254 , 48 S.E. 956 , 2 Ann. Cas. 269 (1904); Gable v. Gable, 130 Ga. 689 , 61 S.E. 595 (1908); Walton v. Sikes, 165 Ga. 422 , 141 S.E. 188 (1927); Gormley v. Brazil, 180 Ga. 383 , 179 S.E. 81 (1935); Patrick v. Sheppard, 182 Ga. 788 , 187 S.E. 379 (1936); Horton v. Wilkerson, 192 Ga. 508 , 16 S.E.2d 8 (1941); Yerbey v. Chandler, 194 Ga. 263 , 21 S.E.2d 636 (1942); Tapley v. Claxton, 195 Ga. 61 , 23 S.E.2d 426 (1942); Townsend v. Rechsteiner, 195 Ga. 61 8 , 24 S.E.2d 776 (1943); Heath v. Miller, 197 Ga. 443 , 29 S.E.2d 416 (1944); Rose v. Crane Heating Co., 198 Ga. 295 , 31 S.E.2d 717 (1944); McEntyre v. Burns, 81 Ga. App. 239 , 58 S.E.2d 442 (1950); Green v. Stafford, 206 Ga. 836 , 59 S.E.2d 244 (1950); O'Connor v. Edmonds, 208 Ga. 42 , 64 S.E.2d 893 (1951); Everett v. Culberson, 215 Ga. 577 , 111 S.E.2d 367 (1959); Franks v. Sparks, 217 Ga. 117 , 121 S.E.2d 27 (1961); Clements v. Elder, 221 Ga. 438 , 145 S.E.2d 246 (1965); Filsoof v. West, 235 Ga. 818 , 221 S.E.2d 811 (1976); Beavers v. Weatherly, 250 Ga. 546 , 299 S.E.2d 730 (1983); Allgood Farm, LLC v. Johnson, 275 Ga. 297 , 565 S.E.2d 471 (2002).

Proof of Title

Equity requires plaintiff recover on strength of own title. - The rule that a plaintiff must recover upon the strength of plaintiff's own title, and not upon the weakness of the defendant's, has been applied to equity suits involving title to land as well as to common-law ejectment. Bright v. Cudahy Packing Co., 192 Ga. 584 , 15 S.E.2d 880 (1941).

Except recovery from intruder permissible based on prior possession only. - While under O.C.G.A. § 44-11-1 a plaintiff in ejectment must recover on the strength of plaintiff's own title, and not on the weakness of the defendant's title, under O.C.G.A. § 44-11-2 plaintiff may recover upon prior possession alone, against one who subsequently acquires possession of the land by mere entry and without any lawful right whatever. Smith v. Bailey, 183 Ga. 869 , 189 S.E. 905 (1937).

Perfect equity is the equivalent of legal title and is a good defense to an action in ejectment brought by one who took with notice of such equity. Bank of Arlington v. Sasser, 182 Ga. 474 , 185 S.E. 826 (1936).

Constructive possession sufficient if under color of title. - Where reliance is had upon possession alone, and not upon possession under color of title, the possession must be actual; but where the possession is accompanied by color of title, the possession relied upon may be either actual or constructive. Smith v. Bailey, 183 Ga. 869 , 189 S.E. 905 (1937).

Plaintiff must hold true title. - Broadly speaking, O.C.G.A. § 44-11-1 means that the plaintiff must be the holder of the true title, a title good against the whole world, but as limited by exceptions. It means that the plaintiff must either have the true title, or else stand in such legal relation to the defendant that the latter is estopped from denying title. Bridges v. McGalliard, 207 Ga. 422 , 61 S.E.2d 922 (1950).

Plaintiff must recover on title had at start of action. - When an action is brought for the recovery of land, either under the common-law form or under the Code, the plaintiff must recover, if at all, upon the state of plaintiff's title as it existed at the commencement of the action. Evidence of any after-acquired title is wholly inadmissible and ineffective to prove the required title. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

Tenders pending action insufficient. - Since the right to recover in ejectment land sold under a tax sale depends upon the plaintiff's title where an action is brought, without benefit from any subsequently acquired title, two alleged tenders made during pendency of the action were ineffective. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

Title must be accompanied by right of possession. - Where the plaintiff's title to the land is controverted, plaintiff must show not only that plaintiff had the legal title to the property in dispute at the commencement of the action, but that such legal title was accompanied by the right of possession. Capps v. Smith, 175 Ga. 795 , 166 S.E. 234 (1932).

Action against purchaser at sale under security deed. - In an ejectment suit by a grantee of the purchaser at a sale had in accordance with the powers conferred by a security deed, against the grantor in such deed, the plaintiff is not required to show title personally other than by showing the sale, and in such a suit a verdict is demanded in favor of the plaintiff, where the defendant does not attack the validity of the sale or of any of the deeds under which the plaintiff claims, but alleges only that defendant had become a purchaser of the land from the plaintiff's grantor, which was not sustained by evidence, and that defendant had acquired title to the land after the date of the security deed with warranty, since where a vendor, with no title to land, sells or mortgages the land, but afterwards acquires title, such title inures to the benefit of the vendee or mortgagee. Morris v. Butler, 184 Ga. 845 , 193 S.E. 883 (1937).

O.C.G.A. § 44-11-1 not pertinent where suit brought for injunction and damages for cutting timber. Farrar Lumber Co. v. Brindle, 170 Ga. 37 , 151 S.E. 923 (1930).

Plaintiff must have interest or right in land. - A plaintiff in a suit to enjoin cutting and converting trees standing on land, as in other cases of injunction, must have some interest or right in the land to protect. First Nat'l Bank v. Harmon, 186 Ga. 847 , 199 S.E. 223 (1938).

When donee of parol gift of land gains title. - A parol gift of land, accompanied by possession, based upon a consideration meritorious, is not of itself sufficient to pass title into the donee, but a donee of land under a parol gift based upon a meritorious consideration, who, with the consent of the donor, enters into possession, and makes valuable improvements upon the faith of the gift, acquires a perfect equity as against the donor, the donor's heirs, and those claiming under the donor with notice and in such circumstances the donee can defend an action of ejectment by proof of such perfect equity. Smith v. Lanier, 199 Ga. 255 , 34 S.E.2d 91 (1945).

Possession of land under a voluntary agreement, based upon a meritorious consideration, with valuable improvements made upon the faith thereof, will invest the holder with such right or equity that the holder cannot be ousted by the donor, or by a purchaser from the holder with notice; a mere parol gift, however, is not, without more, sufficient to pass title, nor will it vest in the donee any right or equity as against a subsequent purchaser from the donor, with or without notice. Beetles v. Steadham, 186 Ga. 110 , 197 S.E. 270 (1938).

A donee of land under a parol gift who, in pursuance thereof, enters into possession with the consent of the donor, and makes valuable improvements upon the faith of the gift, acquires such a perfect equity in the premises as that, upon a suit in ejectment against the donee by the donor or the donee's heirs at law, the donee may, by proof of these facts, successfully defend possession, and a plea setting up such equity should not be stricken on demurrer (now motion to dismiss), even though it contains no prayer for specific performance. Parker v. Parker, 214 Ga. 509 , 105 S.E.2d 742 (1958).

What plaintiff must aver. - The purpose of ejectment is to eject the defendant from possession of the land involved. Consequently, the averments of the plaintiff must allege that plaintiff is entitled to possession and the defendant wrongfully or unlawfully keeps plaintiff out of possession. Harry v. Scenic Heights Dev. Corp., 220 Ga. 497 , 140 S.E.2d 192 (1965).

Ways plaintiff can prove title. - The plaintiff may carry the burden of establishing plaintiff's own title either by tracing title from the original source of title to plaintiff personally, through conveyances, transmission of title by operation of law, or both; or through presumptions which the law recognizes as arising from certain given states of fact; or by the admissions, actual or implied, of the defendant or privies in estate; or by showing title by prescription, or a certificate under O.C.G.A. Art. 2, Ch. 2, T. 44; or by proving such a state of facts as will estop the defendant from denying plaintiff's title. Bridges v. McGalliard, 207 Ga. 422 , 61 S.E.2d 922 (1950).

Defense that plaintiff's own claim to title is void or insufficient. - A plaintiff in ejectment must recover on the strength of plaintiff's own title, and not on the weakness of the title of the defendant. Consequently, in such an action it is generally a good defense that the plaintiff's claim of title is void and insufficient to support plaintiff's alleged claim of title. Crump v. McEntire, 190 Ga. 684 , 10 S.E.2d 186 (1940).

Defendant may show paramount title of another. - A defendant in ejectment can defeat the plaintiff therein by showing a paramount title to the premises in dispute outstanding in another, without connecting defendant's possession therewith. Guthrie v. Gaskins, 171 Ga. 303 , 155 S.E. 185 (1930).

Defense of prescriptive right under color of title. - In an action to recover land, if the plaintiffs make out a prima facie case, and the defendants rest their claim upon an alleged prescription under color of title for over seven years, the burden is upon them to affirmatively establish the same by evidence. Bussey v. Jackson, 104 Ga. 151 , 30 S.E. 646 (1898).

In ejectment action where defendants allege adverse title to property, under the law, the defendants are entitled to prevail in the case if the plaintiff fails to establish title to the property as alleged, and are not required to prove by a preponderance of evidence that they have adverse title to the property. Morgan v. Lester, 215 Ga. 570 , 111 S.E.2d 228 (1959).

Judge may charge jury plaintiff must recover through own title. - It is always proper in an ejectment case to tell the jury that "in an ejectment case the plaintiff must recover upon the strength of his own title, and not upon the weakness of the defendant's title." Sikes v. Seckinger, 170 Ga. 1 , 152 S.E. 65 (1930).

Directed verdict justified for defendant long in possession when plaintiff's claim vague. - Where, the evidence adduced on the trial of ejectment suit was too vague and indefinite to show title in the plaintiffs, by virtue of inheritance through parties dying years ago, the trial court did not err, at the conclusion of evidence offered by both sides, in directing a verdict for the defendant who, according to the plaintiffs' evidence, had been in possession of the premises for a long number of years prior to the institution of the suit. Floyd v. Bell, 202 Ga. 269 , 42 S.E.2d 639 (1947).

Plaintiff must prove title even if verdict for defendant lacks evidence. - Even if the verdict for the defendant was without evidence to support it that fact would not relieve the plaintiff of the burden placed on plaintiff by law, in a complaint for land, to show title in plaintiff. Woodard v. Bowen, 213 Ga. 185 , 97 S.E.2d 573 (1957).

Acquiescence

Landowner estopped from recovery where landowner allows use by public utility for long period. - If a landowner stands by and permits, without legal objection, a public utility company to appropriate the owner's land to its necessary corporate use until such becomes a necessary and constituent part of its service to the public, and the rights of the public intervene to such extent that to oust the company would interrupt the service and deny it to the public, the landowner, not to protect the company but to benefit the public, will be estopped from recovering the land in ejectment or from enjoining its use for the service, but will, if the landowner moves in time, be remitted to an appropriate action for damages. Georgia Power Co. v. Kelly, 182 Ga. 33 , 184 S.E. 861 (1936).

Purchaser's action against utility enjoinable. - Subsequent purchaser of land, after predecessor in title had conveyed land to the State Highway Department (now Department of Transportation), and after electric power company, with right of eminent domain, without condemning the land or acquiring it from the owner, had constructed, with the permission of the State Highway Department (now Department of Transportation), its electric power line along the highway and over the land was serving the public through such line, could not eject the power company or enjoin the service until the purchaser was compensated for the land, and where such purchaser declared an intention to remove the power line from the land, the purchaser would be enjoined, at the instance of the power company, from interfering with the service. Georgia Power Co. v. Kelly, 182 Ga. 33 , 184 S.E. 861 (1936).

Applicability of O.C.G.A. § 44-4-6. - There is nothing which would prevent the rule of law declared in O.C.G.A. § 44-4-6 from being applied in an action for land, where the evidence shows the acquiescence and the paper title of the litigants embraces the land to the line thus established. Calhoun v. Babcock Bros. Lumber Co., 198 Ga. 74 , 30 S.E.2d 872 (1944).

Proof of parol agreement by mere acquiescence of adjoining landowners insufficient. - Where the defendant contends simply that the land in controversy was given to defendant by parol agreement, but that for some reason the land was not included in defendant's deed, in order to set up an equitable title in defense of an ejectment suit, it is necessary for the defendant to show more than mere acquiescence for seven years by acts or declarations of adjoining landowners in order to take the case out of the operation of the statute of frauds. Smith v. Lanier, 199 Ga. 255 , 34 S.E.2d 91 (1945).

Common Grantor

Holder of better title from common grantor wins. - Where the evidence shows that plaintiff and defendant claim under a common grantor, the holder of the better title from such grantor is entitled to prevail in an ejectment suit. Owens v. Conyers, 189 Ga. 793 , 7 S.E.2d 675 (1940); Holliday v. Guill, 196 Ga. 723 , 27 S.E.2d 398 (1943); Patellis v. Tanner, 199 Ga. 304 , 34 S.E.2d 84 (1945).

Plaintiff must show title from grantor. - The mere fact that both parties claim under a common grantor does not dispense with the need to show that the plaintiff has acquired title or an interest from the common grantor. First Nat'l Bank v. Harmon, 186 Ga. 847 , 199 S.E. 223 (1938); Holliday v. Guill, 196 Ga. 723 , 27 S.E.2d 398 (1943).

Even if both parties have deeds to separate tracts. - Where plaintiff claims one tract, and defendant claims another, plaintiff is not relieved of the necessity of proving title merely because the parties had deeds to the two tracts claimed by them respectively, their claims of title going back to a common grantor who also was a grantee in a prior deed covering both tracts. Sinclair v. Friedlander, 197 Ga. 797 , 30 S.E.2d 398 (1944).

Where defendant holds under same grantor, plaintiff need not prove title in common source. - If plaintiff shows that defendant holds under grantor under whom plaintiff claims, plaintiff makes the prima facie case for the application of the ordinary rule relieving the plaintiff of the necessity of proving title into the common source. Beetles v. Steadham, 186 Ga. 110 , 197 S.E. 270 (1938).

Plaintiff may examine defendant to show common grantor. - Plaintiff may examine defendant orally on the witness stand for the purpose of showing that the defendant holds under the common grantor. Beetles v. Steadham, 186 Ga. 110 , 197 S.E. 270 (1938).

Reliance on common grantor rule opens plaintiff's title to attack. - When a plaintiff establishes and relies upon the common grantor rule, plaintiff opens chain of title derived therefrom to any attack which the defendant may find available. North Ga. Prod. Credit Ass'n v. Vandergrift, 239 Ga. 755 , 238 S.E.2d 869 (1977).

Plaintiff recovers by showing title and right of entry from common grantor. - Where plaintiff and defendant both claim under a common grantor, or propositus, that common grantor or propositus will, for the purposes of the case, be treated as a true and original source of title. The plaintiff may recover by showing legal title and right of entry as derived from that source. Beetles v. Steadham, 186 Ga. 110 , 197 S.E. 270 (1938).

Use of sheriff's deed to prove chain of title. - A sheriff's deed executed in pursuance of a foreclosure of a security deed, when accompanied by appropriate supporting documents, is admissible in evidence as proof of a link in the chain of title from the common grantor, although there is no evidence of possession of the land by the grantor in the security deed. Owens v. Conyers, 189 Ga. 793 , 7 S.E.2d 675 (1940).

Purchase by deed prevails over oral gift from same grantor. - In an action for land, where the plaintiff and the defendant claim under a common propositus, the plaintiff's claim being based upon a purchase by deed from the defendant's husband, and the defendant's claim being based upon an oral gift from the same person, and where the defendant had made no valuable improvements on the faith of the gift, nor acquired prescriptive title based on actual possession thereunder, verdict in the plaintiff's favor is supported by the evidence. Beetles v. Steadham, 186 Ga. 110 , 197 S.E. 270 (1938).

Proper Parties

Ejectment must be commenced against the person in possession. Douglas v. Vourtsanis, 203 Ga. 64 , 45 S.E.2d 203 (1947).

Petition brought in ejectment against one not in possession, to evict the actual occupants who were not parties to the suit, fails to state a cause of action. Douglas v. Vourtsanis, 203 Ga. 64 , 45 S.E.2d 203 (1947).

Actual tenant in possession is proper defendant in action of ejectment; that tenant is the adverse holder to the plaintiff, and plaintiff has a full right to treat the tenant as the person keeping plaintiff out of the land. Douglas v. Vourtsanis, 203 Ga. 64 , 45 S.E. 203 (1947).

Tenant must be joined in suit against landlord. - Both in the fictitious form and in the statutory action for land, where the premises are actually occupied by a tenant, an action cannot be maintained against the landlord without adjoining the tenant. Douglas v. Vourtsanis, 203 Ga. 64 , 45 S.E.2d 203 (1947).

Tenant's wrongful eviction claim dismissed following foreclosure. - Trial court properly granted summary judgment to a property company and others in a tenant's suit asserting wrongful eviction and other claims because the tenant was properly summarily dispossessed following a foreclosure on the real estate at issue. Oduok v. Wedean Props., 319 Ga. App. 785 , 738 S.E.2d 626 (2013).

Amendment to reflect change of lessor. - There can be no recovery in ejectment where the sole lessor of the plaintiff was dead when the suit was brought, but an amendment introducing a new lessor of the plaintiff is permissible any time before trial. Roberts v. Tift, 136 Ga. 901 , 72 S.E. 234 (1911).

Joinder of prior grantors. - Where in an action in the nature of a complaint for land it is necessary, in order for the defendant to establish a claim to the land, that deeds respecting the land in controversy be reformed, it is permissible to make prior grantors to the plaintiff parties to the action, so as to authorize the granting of such relief. In such a case the grantors in the deed which it is sought to reform by reason of their obligations as warrantors of the title are proper and necessary parties. Volunteer State Life Ins. Co. v. Powell-White Co., 196 Ga. 372 , 26 S.E.2d 815 (1943).

Description of Land

Description must be sufficient for sheriff to execute writ of possession. - In an action for the recovery of land and ejectment the description of the property in the declaration must be sufficiently definite to enable the sheriff, in the event the plaintiff recovers, to execute a writ of possession from the description given. Hamil v. Gormley, 188 Ga. 585 , 4 S.E.2d 471 (1939); Guess v. Morgan, 196 Ga. 265 , 26 S.E.2d 424 (1943); Phillips v. Wilson, 212 Ga. 54 , 90 S.E.2d 553 (1955); White v. Gordon, 213 Ga. 730 , 101 S.E.2d 759 (1958).

Failure to identify lands so that writ of possession might issue. - Plaintiff cannot recover where plaintiff fails to establish any title to the lands described in the petition, and fails to so identify the lands that a writ of possession might properly issue. Edwards v. Fryer, 210 Ga. 560 , 81 S.E.2d 823 (1954).

Description that land bounded by plaintiff's land "on three sides" insufficient. - Petition in a statutory complaint for land which bounds the property on three sides by "other property" of the plaintiff, but gives neither measurements of the boundaries nor a starting point on the ascertainable boundary to determine the location of the tract, falls below the required standard for the description of the land. Hamil v. Gormley, 188 Ga. 585 , 4 S.E.2d 471 (1939).

Sufficiency of description may be raised in motion to dismiss. - The question of sufficiency of description in a declaration in ejectment may be raised by general demurrer (now motion to dismiss), and an oral motion to dismiss may be made after pleading. Hamil v. Gormley, 188 Ga. 585 , 4 S.E.2d 471 (1939).

Ambiguity must be patent. - A declaration in ejectment, which upon its face discloses a patent ambiguity, is subject to general demurrer (now motion to dismiss), but unless the ambiguity is patent, and appears on the face of the declaration, the suit cannot be dismissed for uncertainty in the description. White v. Gordon, 213 Ga. 730 , 101 S.E.2d 759 (1958).

Description in petition and map, if sustained by proof, sufficient to withstand motion to dismiss. - The description of land set apart contained in the petition of a plaintiff when considered in connection with a map attached as an exhibit, while it may not afford a precise identification of the land sued for, is sufficient, as against a general demurrer (now motion to dismiss), to afford a basis for recovery of land, if the allegations of the petition are sustained by proof. Dubberly v. Chapman, 177 Ga. 416 , 170 S.E. 228 (1933).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Ejectment, § 7.

9 Am. Jur. Pleading and Practice Forms, Ejectment, § 1.

C.J.S. - 28A C.J.S., Ejectment, § 9.

ALR. - Right of owner of interest in mineral in situ to maintain ejectment, 35 A.L.R. 234 .

Instructions in ejectment on rule that plaintiff must recover on strength of own title, 159 A.L.R. 646 .

Common source of title doctrine, 5 A.L.R.3d 375.

44-11-2. When plaintiff may recover on prior possession alone.

A plaintiff in ejectment may recover the premises in dispute upon his prior possession alone against one who subsequently acquires possession of the land by mere entry and without any lawful right whatsoever.

(Orig. Code 1863, § 3278; Code 1868, § 3290; Code 1873, § 3366; Code 1882, § 3366; Civil Code 1895, § 5008; Civil Code 1910, § 5586; Code 1933, § 33-102.)

JUDICIAL DECISIONS

Who may recover under section. - Heirs at law, donees by parol gift of land, partnerships, lessors of plaintiff, and administrators ejected by their successors may recover under O.C.G.A. § 44-11-2 . McKay v. Kendrick, 44 Ga. 607 (1872); Boynton v. Brown, 67 Ga. 396 (1881); Wolfe v. Baxter, 86 Ga. 705 , 13 S.E. 18 (1891); McDonough & Co. v. Carter & Co., 98 Ga. 703 , 25 S.E. 938 (1896); Ellis v. Dasher, 101 Ga. 5 , 29 S.E. 268 (1897); Watkins v. Nugen, 118 Ga. 375 , 45 S.E. 260 (1903); Whitehead v. Pitts, 127 Ga. 774 , 56 S.E. 1004 (1907).

A cestui of an executed trust may maintain an action of ejectment. Glover v. Stamps, 73 Ga. 209 , 54 Am. R. 870 (1884).

Squatter may be ejected. Eaton v. Freeman, 63 Ga. 535 (1879).

Section applies to equity bills. - O.C.G.A. § 44-11-2 applies where a bill in equity was filed as the equivalent of an action of ejectment. Nolan v. Pelham, 77 Ga. 262 , 2 S.E. 639 (1886).

With prior possession alone, section allows recovery from subsequent unlawful occupant. - While under O.C.G.A. § 44-11-1 , a plaintiff in ejectment must recover on the strength of plaintiff's own title, and not on the weakness of the defendant's title, under O.C.G.A. § 44-11-2 plaintiff may recover upon prior possession alone, against one who subsequently acquires possession of the land by mere entry and without any lawful right whatever. Smith v. Bailey, 183 Ga. 869 , 189 S.E. 905 (1937).

Prior possession requires occupancy. - A mere entry upon premises, when unaccompanied by an actual occupancy, is not a prior possession. Flannery & Co. v. Hightower, 97 Ga. 592 , 25 S.E. 371 (1895).

Constructive possession under color of title. - Where reliance is had upon possession alone, and not upon possession under color of title, the possession must be actual; but where the possession is accompanied by color of title, the possession relied upon may be either actual or constructive. Smith v. Bailey, 183 Ga. 869 , 189 S.E. 905 (1937).

Possession for less than prescriptive period supports recovery for damages. - Possession as referred to in O.C.G.A. § 44-11-2 , for less than the prescriptive period, will support a recovery against one who after such possession commenced enters without a lawful right. Slaughter v. Land, 194 Ga. 156 , 21 S.E.2d 72 (1942).

Prior possession sufficient for recovery against trespasser. - Prior possession is some evidence of title, and is sufficient as a basis for recovery of possession as against a trespasser. Terrell v. Gould, 168 Ga. 607 , 148 S.E. 515 (1929); Chandler v. Raney, 201 Ga. 544 , 40 S.E.2d 661 (1946); Grand Lodge, I.O.O.F. v. City of Thomasville, 226 Ga. 4 , 172 S.E.2d 612 (1970).

Where a plaintiff relies on prior possession, plaintiff need not aver that the defendant is a trespasser. Horton v. Murden, 117 Ga. 72 , 42 S.E. 786 (1903); Moss v. Chappell, 126 Ga. 196 , 54 S.E. 968 (1906); Jackson v. Strickland, 127 Ga. 106 , 56 S.E. 107 (1906).

Entry under mere claim of right not sufficient to defeat prior possession, for a mere claim of right is not a "lawful right" of entry within the meaning of O.C.G.A. § 44-11-2 . Chandler v. Raney, 201 Ga. 644 , 40 S.E.2d 661 (1946); Grand Lodge, I.O.O.F. v. City of Thomasville, 226 Ga. 4 , 172 S.E.2d 612 (1970).

Defendant must prove own title, not that of third person. - A defendant in an action of ejectment, where prior possession is shown in the plaintiff, cannot successfully defend by showing merely that the plaintiff did not in fact have title, or by setting up outstanding title in a third person, unless defendant connects personally with that title. Grand Lodge, I.O.O.F. v. City of Thomasville, 226 Ga. 4 , 172 S.E.2d 612 (1970); Fessenden v. Parrigin, 228 Ga. 61 , 183 S.E.2d 771 (1971).

Defendant may set up a bona fide possession with title in a third person. Johnson v. Lancaster, 5 Ga. 39 (1848); Jones v. Scoggins, 11 Ga. 119 (1852).

Where lessor of plaintiff was ejected, plaintiff cannot be said to have voluntarily abandoned, because plaintiff did not resume possession immediately upon the land becoming vacant again. McKay v. Kendrick, 44 Ga. 607 (1872); Lovett v. Taylor, 144 Ga. 210 , 87 S.E. 7 (1915).

Action proper against possessor where petition alleges possessor claims under will. - If the petition in ejectment alleges that the defendant as an individual is in possession of the property claiming the title thereto as a devisee under the will, there is no exemption from the action, and the action is properly brought against the party in possession. Sharp v. Autry, 183 Ga. 282 , 188 S.E. 354 (1936).

Possession at time of death supports administrator's claim for land and mesne profit. - If a person dies while in possession of land under a bona fide claim of right thereto, such possession at the time of death is prima facie evidence of title in the deceased that will support an action of complaint for land and mesne profit instituted by the administrator of such deceased person against a third person, who after the death of the intestate entered possession adversely and not under a better title. Segars v. Crump, 177 Ga. 665 , 170 S.E. 785 (1933).

Bona fide entry may be made under void deed. Watkins v. Nugen, 118 Ga. 375 , 45 S.E. 260 (1903); Wilcox v. Moore, 118 Ga. 351 , 45 S.E. 400 (1903).

Utility not ejectable if appropriated land becomes necessary for public service. - If a landowner permits, without legal objection, a public utility company to appropriate the owner's land to its necessary corporate use until such becomes a necessary and constituent part of its service to the public, and the rights of the public intervene to such extent that to oust the company would interrupt the service and deny it to the public, to protect the public rather than the company, the landowner is estopped from recovering the land in ejectment or from enjoining its use for the service, but may, if the owner moves in time, sue for damages. Wiggins v. Southern Bell Tel. & Tel. Co., 245 Ga. 526 , 266 S.E.2d 148 (1980).

Plaintiff in fi. fa. has burden if defendant not in possession. - Where property is levied on under execution and claimed by a third party, O.C.G.A. § 9-13-102 imposes the burden of proof on the plaintiff in fi. fa. in all cases where the property levied on is, at the time of such levy, not in possession of the defendant in execution. One of the ways in which the onus may be carried is to show possession in the defendant in fi. fa. after the rendition of the judgment. Such proof will raise a presumption of title in the defendant and require a finding in favor of the plaintiff in fi. fa. in the absence of rebutting evidence. Roughton v. Roughton, 178 Ga. 367 , 173 S.E. 673 (1934).

Defendant has burden to show record title or adverse possession. - The burden is on the defendant to show that defendant has a title superior to the plaintiffs' rights acquired by possession either by showing record title to the property, or title by adverse possession. Grand Lodge, I.O.O.F. v. City of Thomasville, 226 Ga. 4 , 172 S.E.2d 612 (1970).

Evidence of prior possession shifts burden of proof. - Evidence of prior possession alone is sufficient to require the defendant to prove that defendant has a better title than that of the plaintiff. Terrell v. Gould, 158 Ga. 607 , 148 S.E. 515 (1929); Crews v. Russell, 199 Ga. 732 , 35 S.E.2d 444 (1945); Grand Lodge, I.O.O.F. v. City of Thomasville, 226 Ga. 4 , 172 S.E.2d 612 (1970).

Nonsuit proper where right to possession not proven. Priester v. Melton, 123 Ga. 375 , 51 S.E. 330 (1905); Delay v. Felton, 133 Ga. 15 , 65 S.E. 122 (1909).

Nonsuit proper where property given up with animo revertendi. - A nonsuit is proper where premises are relinquished with an animo revertendi. Administrators of Jones v. Nunn, 12 Ga. 469 (1853); McKay v. Kendrick, 44 Ga. 607 (1872); King v. Sears, 91 Ga. 577 , 18 S.E. 830 (1893); Jackson v. Strickland, 127 Ga. 106 , 56 S.E. 107 (1906); Lovett v. Taylor, 144 Ga. 210 , 87 S.E. 7 (1915); Walton v. Whitton, 158 Ga. 741 , 124 S.E. 338 (1924).

Ejectment petition properly denied. - Where a successor received title to a disputed parcel of land by means of a quitclaim deed, an original property owner was not able in an ejectment petition to seek recovery based upon prior possession, which required that the defendant subsequently acquired possession by mere entry and without any lawful right whatsoever. Brooks v. Green, 277 Ga. 722 , 594 S.E.2d 629 (2004).

Cited in Buckner v. Chambliss, 30 Ga. 652 (1860); Jones v. Easley, 53 Ga. 454 (1873); Johnson v. Jones, 68 Ga. 825 (1882); Hitch v. Robinson, 73 Ga. 140 (1884); Parker v. Waycross & F.R.R., 81 Ga. 387 , 8 S.E. 871 (1889); Gormley v. Brazil, 180 Ga. 383 , 179 S.E. 81 (1935); Couey v. Talalah Estates Corp., 183 Ga. 442 , 188 S.E. 822 (1936); Crawford v. Taliaferro, 187 Ga. 381 , 200 S.E. 776 (1938); Crump v. McEntire, 190 Ga. 684 , 10 S.E.2d 186 (1940); Payne v. Nix, 193 Ga. 4 , 17 S.E.2d 67 (1941); Yerbey v. Chandler, 194 Ga. 263 , 21 S.E.2d 636 (1942); Nelms v. Venable, 199 Ga. 109 , 33 S.E.2d 418 (1945); Bethel Farm Bureau v. Anderson, 217 Ga. 529 , 123 S.E.2d 754 (1962); John Doe v. Roe, 234 Ga. 127 , 214 S.E.2d 880 (1975).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Ejectment, § 19 et seq.

C.J.S. - 28A C.J.S., Ejectment, §§ 16, 17.

44-11-3. Right of joint owner to bring an action alone; effect of judgment.

Any joint tenant, tenant in common, or other person having a part interest in lands or tenements may bring an action of ejectment for the recovery of such lands or tenements or an action for damages for injury thereto without joining with him any other person as plaintiff. The judgment in such a case shall not affect the rights of those interested in such lands or tenements who are not parties to the action.

(Ga. L. 1855-56, p. 227, § 1; Code 1863, § 3271; Code 1868, § 3282; Code 1873, § 3358; Code 1882, § 3358; Civil Code 1895, § 4999; Civil Code 1910, § 5577; Code 1933, § 33-103.)

JUDICIAL DECISIONS

Section limits recovery in separate action by tenant in common. - O.C.G.A. § 44-11-3 , which is an application of O.C.G.A. § 9-2-23 permitting tenants in common to sue severally, limits the amount of recovery. Sanford v. Sanford, 58 Ga. 259 (1877); Wilson v. Chandler, 60 Ga. 129 (1878).

Remedy against cotenant for taking disproportionate profits or committing waste. - A tenant in common can recover in equity the tenant's interest in property when a cotenant has taken more than that tenant's share of the profits or has committed waste, but the remedy is partition, not ouster of tenant in common from the property. Thompson v. Sanders, 113 Ga. 1024 , 39 S.E. 419 (1901).

Joint tenant may not sue another joint tenant absent disclaimer of title. Lawton v. Adams, 29 Ga. 273 , 74 Am. Dec. 59 (1859).

One tenant in common may alone enjoin cutting of timber. - A tenant in common or other person having part interest in land may enjoin the cutting of timber by third parties without joining the other tenants as plaintiffs. Camp v. Garbutt Lumber Co., 129 Ga. 411 , 58 S.E. 870 (1907); Harrell v. Rose Bros. & Co., 157 Ga. 640 , 122 S.E. 240 (1924).

Possession at time of death supports administrator's claim for land and mesne profit. - If a person dies while in possession of land under a bona fide claim of right thereto, such possession at the time of death is prima facie evidence of title in the deceased that will support an action of complaint for land and mesne profit instituted by the administrator of such deceased person against a third person, who after the death of the intestate entered possession adversely and not under a better title. Segars v. Crump, 177 Ga. 665 , 170 S.E. 785 (1933).

Cited in Colquitt v. Howard, 11 Ga. 556 (1852); Butler v. Prudden, 182 Ga. 189 , 185 S.E. 102 (1936); Sharp v. Autry, 183 Ga. 282 , 188 S.E. 354 (1936); Aycock v. Williams, 185 Ga. 585 , 196 S.E. 54 (1938); Crawford v. Taliaferro, 187 Ga. 381 , 200 S.E. 776 (1938); Yerbey v. Chandler, 194 Ga. 263 , 21 S.E.2d 636 (1942); Roberts v. Hill, 78 Ga. App. 264 , 50 S.E.2d 706 (1948); Pugh v. Moore, 207 Ga. 453 , 62 S.E.2d 153 (1950); Kitchens v. Jefferson County, 85 Ga. App. 902 , 70 S.E.2d 527 (1952); Bowdoin v. Malone, 287 F.2d 282 (5th Cir. 1961).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Ejectment, § 26.

C.J.S. - 28 C.J.S., Ejectment, § 50.

44-11-4. Joint action against separate claimants; when prohibited.

When several persons claim several parcels of land under distinct titles and do not sustain to each other the relationship of landlord and tenant, a joint action of ejectment may not be maintained against them nor may a joint or several recovery be had in such action either for the premises or for mesne profits.

(Orig. Code 1863, § 3272; Code 1868, § 3283; Code 1873, § 3359; Code 1882, § 3359; Civil Code 1895, § 5000; Civil Code 1910, § 5578; Code 1933, § 33-113.)

History of section. - This section is derived from the decision in Wood v. Milly McGuire's Children, 17 Ga. 303 (1855); Ivey v. Cowart, 124 Ga. 159 , 52 S.E. 436 , 110 Am. St. R. 160 (1905).

JUDICIAL DECISIONS

Noncompliance with section subject to motion to dismiss. - The point that O.C.G.A. § 44-11-4 has not been complied with may be raised by demurrer (now motion to dismiss) if the fact appears on the face of the proceedings. Lewis v. Adams, 61 Ga. 559 (1878).

Nonsuit. - A defendant may move for nonsuit if O.C.G.A. § 44-11-4 has not been complied with, and such irregularity first appears from the evidence. Doe v. Roe, 26 Ga. 238 (1858); Ivey v. Cowart, 124 Ga. 159 , 52 S.E. 436 , 110 Am. St. R. 160 (1905); Bradley v. Chattanooga Iron & Coal Co., 144 Ga. 478 , 87 S.E. 465 (1915).

Plaintiff may merely drop suit against improper parties. - In the event defendant moves for a nonsuit, the plaintiff may dismiss the suit as regards the improper parties. Doe v. Roe, 26 Ga. 238 (1858); Ivey v. Cowart, 124 Ga. 159 , 52 S.E. 436 , 110 Am. St. R. 160 (1905); Bradley v. Chattanooga Iron & Coal Co., 144 Ga. 478 , 87 S.E. 465 (1915).

Equity may grant relief where the interests of the parties are complicated. Smith v. King, 50 Ga. 192 (1873).

RESEARCH REFERENCES

C.J.S. - 28A C.J.S., Ejectment, § 1 et seq.

ALR. - Avoidance of multiplicity of suits as ground for jurisdiction in equity of a suit by one out of possession to quiet title against persons in possession of different portions of the land in severalty, 30 A.L.R. 109 .

44-11-5. Making true claimant a defendant; effect of judgment as to such defendant.

A plaintiff in ejectment may in all cases make the true claimant a defendant by serving a copy of the pending action upon him, and the person so notified shall be bound by the judgment.

(Orig. Code 1863, § 3273; Code 1868, § 3284; Code 1873, § 3360; Code 1882, § 3360; Civil Code 1895, § 5001; Civil Code 1910, § 5579; Code 1933, § 33-114.)

JUDICIAL DECISIONS

Right to introduce new defendants, pending action, seems to be without restriction as to residence. Gardner v. Granniss, 57 Ga. 539 (1876).

True claimant need only be joined to be held for mesne profits. - The only necessity for making the true claimant a party in the manner provided by O.C.G.A. § 44-11-5 is to hold that claimant for the mesne profits. Roe v. Doe, 47 Ga. 540 (1873); Williamson v. Heyser, 74 Ga. 271 (1884).

Landlord may defend in ejectment. - A landlord, including all persons claiming title consistent with the persons sued as tenants in possession, may appear and defend in an action of ejectment. Rodgers v. Bell, 53 Ga. 94 (1874); Bower v. Cohen, 126 Ga. 35 , 54 S.E. 918 (1906).

Unless title acquired after action brought. - A landlord may not appear and defend if the landlord acquired title subsequent to the time the action was brought. Roe v. Doe, 36 Ga. 611 (1867).

Substitution of landlord for tenant upon tenant's death. - In a statutory action against a tenant to recover realty and mesne profits, the landlord can be substituted as defendant by serving the landlord with a copy of the writ, after the death of the plaintiff and the original defendant, without joining the representatives of the deceased tenant. Blalock v. Newhill, 78 Ga. 245 , 1 S.E. 383 (1887).

Cestui que trust can be substituted as plaintiffs when trustee dies, pending an action in the statutory form to recover real estate and mesne profits. Blalock v. Newhill, 78 Ga. 245 , 1 S.E. 383 (1887).

Defendant not bound by judgment when not made a party. - A judgment in a former action for land in which the defendant was not a party and was not notified or made a party under O.C.G.A. § 44-11-5 , is not admissible in evidence against the defendant in a later action for the land. Harrison v. Hester, 163 Ga. 250 , 135 S.E. 845 (1926).

Where defendant disclaims title and possession, owner or landowner not bound if not party. - When in an action for land, the defendant disclaims both title and right of possession, and a judgment thereupon is rendered against defendant in favor of the plaintiff, the same does not bind or conclude the true owner or landlord as to title, when the latter is neither a party to the action nor had any notice of the action. Sanford v. Tanner, 114 Ga. 1005 , 41 S.E. 668 (1902); Hodges v. Stuart Lumber Co., 140 Ga. 567 , 79 S.E. 462 (1913).

Cited in Ramey v. O'Byrne, 121 Ga. 516 , 49 S.E. 595 (1904); Bowdoin v. Malone, 287 F.2d 282 (5th Cir. 1961).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Ejectment, § 27.

C.J.S. - 28A C.J.S., Ejectment, § 51 et seq.

44-11-6. Disclaimer by defendant; effect on costs.

A defendant in ejectment may disclaim any claim of title or right of possession. After such disclaimer is filed, such defendant shall not be liable for any future court costs.

(Orig. Code 1863, § 3274; Code 1868, § 3285; Code 1873, § 3361; Code 1882, § 3361; Civil Code 1895, § 5003; Civil Code 1910, § 5581; Code 1933, § 33-112.)

JUDICIAL DECISIONS

Defendant can plead not guilty or file disclaimer. - The defendant in ejectment may at the first term file a disclaimer of title or of possession, after which defendant will not be liable for future costs, or, among others, defendant may file a plea of not guilty. Elliott v. Robinson, 192 Ga. 682 , 16 S.E.2d 433 (1941).

Limits on liability after disclaimer. - Where one of defendants in ejectment asserts no interest in the land, nor any claim against any of the plaintiffs, and having disclaimed any claim of title or right of possession, defendant could not be liable for any future costs, and in the event of another trial, defendant's only liability would be the possibility of a judgment against defendant for mesne profits. Reese v. Baker, 197 Ga. 265 , 29 S.E.2d 412 (1944).

Disclaimer does not dismiss action. - A defendant on filing a disclaimer, is not entitled to have the action dismissed as to that defendant; as the plaintiff may prove that plaintiff was in actual possession, and then take a verdict on the disclaimer of title. Killen v. Compton, 60 Ga. 116 (1878).

Disclaimer, unless withdrawn, is conclusive. Shingler v. Bailey, 135 Ga. 666 , 70 S.E. 563 (1911).

Defendant's plea for set off and plaintiff's recovery limited to land described in demises. - Where a not guilty plea is filed in an ejectment action, and is amended by a plea seeking to set off the value of permanent improvements placed on the land by defendant against mesne profits and to impress a lien upon the land for any balance, the issues thus raised are restricted to the land described in the demises. If the plaintiff prevails, the sheriff will put plaintiff in possession of only the land so described. Even if the defendant might be in possession of other land, and makes permanent improvements on such land, those facts are outside the issues made by the pleadings, and wholly irrelevant to the case. Elliott v. Robinson, 192 Ga. 682 , 16 S.E.2d 433 (1941).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Ejectment, § 37.

C.J.S. - 28A C.J.S., Ejectment, § 66.

44-11-7. Recovery of mesne profits.

  1. By adding a count in his petition and submitting the evidence to the jury, the plaintiff in ejectment may recover by way of damages all such sums of money to which he may be entitled by way of mesne profits, together with the premises in dispute.
  2. No plaintiff in ejectment shall have and maintain a separate action in his behalf for the recovery of mesne profits which may have accrued to him from the premises in dispute.

    (Laws 1839, Cobb's 1851 Digest, p. 489; Code 1863, §§ 3269, 3270; Code 1868, §§ 3280, 3281; Code 1873, §§ 3356, 3357; Code 1882, §§ 3356, 3357; Civil Code 1895, §§ 4997, 4998; Civil Code 1910, §§ 5575, 5576; Code 1933, §§ 33-104, 33-105.)

Cross references. - Form to be used in action for recovery of real estate and mesne profits, § 9-10-200 .

JUDICIAL DECISIONS

ANALYSIS

General Consideration

History of action of ejectment. - At common law, the action of ejectment was originally a fictitious action, by a tenant ousted of the tenant's term, in effect an action of trespass. The title of the freehold was not formally and directly in issue and the remedy was in damages only. In the modern development of the law, the fiction passed out and the action is now generally by one claiming ownership of real property to recover title and possession, together with rents and revenues, usually called mesne profits, and damages resulting from the unlawful detention. Sweat v. Atlantic Coast Line R.R., 81 F.2d 492 (5th Cir. 1935).

O.C.G.A. § 44-11-7 refers only to plaintiffs in ejectment and says nothing of the defendant. Moody v. McHan, 66 Ga. App. 29 , 16 S.E.2d 889 (1941).

Count for mesne profits may be in name of nominal plaintiff. Shadwick v. McDonald, 15 Ga. 392 (1854).

Value of premises is material evidence on question of mesne profits only. Roe v. Doe, 42 Ga. 403 (1871).

Mesne profits recoverable up to final judgment. - While in an action of ejectment, mesne profits may be recovered up to the time of the final judgment, this exception to the general rule is based on O.C.G.A. § 44-11-7 . Lankford v. Dockery, 85 Ga. App. 86 , 67 S.E.2d 800 (1951).

Mesne profits recoverable. - In an ejectment action, the trial court erred in adopting the special master's finding that concluded that the ejector was entitled to recover the property but had no right to recover mesne profits because a plaintiff in an ejectment action may seek recovery of mesne profits, such as rental income from the land. Small v. Irving, 291 Ga. 316 , 729 S.E.2d 323 (2012).

Defendant not liable for mesne profits taken, prior to defendant's own entry, by those under whom defendant claims. Gardner v. Granniss, 57 Ga. 539 (1876).

No liability for increments from improvements. - A defendant in ejectment cannot be compelled to pay an enhancement amount as rent in consequence of defendant's own improvements. That rule applies though defendant is a trespasser. Dean v. Feely, 69 Ga. 804 (1883).

Plaintiff owner not entitled to recover mesne profits for time prior to requisition of title. Patellis v. Tanner, 199 Ga. 304 , 34 S.E.2d 84 (1945).

Mesne profits and land value unrelated to subsequent action for breach of warranty. - The mesne profits and the value of land involved in an ejectment action have no connection with the measure of damages recoverable in a subsequent action by the vendee, who has lost the land, against the vendor on breach of warranty. Cook v. Pollard, 50 Ga. App. 752 , 179 S.E. 264 (1935).

Where grantor entitled to cancellation of deed for fraud or mental incapacity of grantor, the grantor is also entitled to the rents and profits of the land for the time that the grantee was wrongfully in possession. Moody v. McHan, 66 Ga. App. 29 , 16 S.E.2d 889 (1941).

Heir may petition to recover rents and land for period grantee in wrongful possession. - Where the heir, or devisee under a will of the deceased grantor, petitions to set aside the deed of the grantee, the heir, or devisee, may ordinarily, under a proper allegation, ask in the same petition to recover rents and profits for the time during which the grantee was in wrongful possession. Moody v. McHan, 66 Ga. App. 29 , 16 S.E.2d 889 (1941).

Rent of sawmill is an element of damages. Morris v. Tinker, 60 Ga. 466 (1878).

Recovery in ejectment as bar to trespass, see Cunningham v. Morris, 19 Ga. 583 , 65 Am. Dec. 611 (1856).

Burden of proof on claimant of mesne profits. - One who in an action to recover land claims mesne profits has the burden of producing evidence to show entitlement to some amount. Patellis v. Tanner, 199 Ga. 304 , 34 S.E.2d 84 (1945).

O.C.G.A. § 44-11-7 on damages for trespass not applicable. - O.C.G.A. § 51-9-6 which limits claims for damages in cases of continuous trespass to those incurred before suit is filed did not apply in an ejectment action by a landowner against an outdoor sign company. Outdoor Sys. v. Woodson, 221 Ga. App. 901 , 473 S.E.2d 204 (1996).

Cited in Averett v. Brady, 20 Ga. 523 (1856); Doe v. Roe, 24 Ga. 384 (1858); Downing v. Anderson, 126 Ga. 373 , 55 S.E. 184 (1906); Treadway v. Harris, 34 Ga. App. 583 , 130 S.E. 827 (1925); Clements v. Elder, 221 Ga. 438 , 145 S.E.2d 246 (1965); Gregory v. Mayor of Athens, 141 Ga. App. 821 , 234 S.E.2d 404 (1977); Courtesy Leasing, Inc. v. Christian, 266 Ga. 187 , 465 S.E.2d 443 (1996).

Bar to Separate Action

Rule at common law changed. - O.C.G.A. § 44-11-7 changed the common law which was to the effect that a plaintiff in ejectment must resort to a separate action for mesne profits. Shadwick v. McDonald, 15 Ga. 392 (1854); Cobb v. Wrightsville & T.R.R., 129 Ga. 377 , 58 S.E. 862 (1907); Brydie v. Pritchard, 97 Ga. App. 1 , 101 S.E.2d 915 (1958).

Applicability of O.C.G.A. § 44-11-7(b) . - The prohibitory terms of O.C.G.A. § 44-11-7(b) apply only to those persons who have as plaintiffs in a prior ejectment action recovered possession. Brydie v. Pritchard, 97 Ga. App. 1 , 101 S.E.2d 915 (1958).

The requirement that recovery of property and mesne profits be in one action only applies to those persons who have as plaintiffs in a prior ejection action recovered possession; thus, an equitable petition by an executor to enjoin the defendant's building on real estate will not bar as an ejectment the defendant's right to sue for mesne profits after title is shown to be in defendant. Parker v. Salmons, 113 Ga. 1167 , 39 S.E. 475 (1901); Jones v. Cliett, 114 Ga. 673 , 40 S.E. 719 (1902).

Heirs of one tenant in common cannot have an equitable accounting for personal property of their ancestor against another cotenant, and mesne profits accruing prior to the testator's death are not realty; in such a case, the requirement that ejectment and mesne profits be sued for in one action does not apply. Smith v. Smith, 141 Ga. 629 , 81 S.E. 895 (1914).

Abandonment of ejectment count does not prohibit continuance of action for profits. - The mere abandonment of the count in ejectment by the plaintiff who has not had a prior recovery in such action is not such a prior recovery as would prohibit the continuance of the action for mesne profits. Brydie v. Pritchard, 97 Ga. App. 1 , 101 S.E.2d 915 (1958).

One who has filed an action in ejectment in the fictitious form with a count for mesne profits may, by showing that since the commencement of the action the individual has parted with title to the land in dispute, abandon the ejectment element and proceed for mesne profits only during the time the individual claims to have been the owner of the land. Brydie v. Pritchard, 97 Ga. App. 1 , 101 S.E.2d 915 (1958).

Where parties agree to limit issues at trial, later action for mesne profits barred. - Where parties, through counsel, agree to limit the issues to recovery of the real property in ejectment, and the plaintiff wins, the plaintiff may not later sue for mesne profits. Neil v. Harris, 133 Ga. 493 , 66 S.E. 246 (1909).

Regardless of form of action to recover land, separate action for mesne profits barred. - Whether an action brought for the recovery of land is in the form of ejectment, or a complaint for land in the statutory form, or an equitable petition for the recovery of the land, the plaintiff cannot thereafter, in a separate action, recover mesne profits against the same defendant for rents which may have accrued to plaintiff from the premises in dispute. Moody v. McHan, 66 Ga. App. 29 , 16 S.E.2d 889 (1941).

When the plaintiffs in a former action, brought for the recovery of the land, took a judgment favorable to themselves, whether it was in terms that they should recover the land, or merely that they had a right to recover, and that the same be partitioned, they should in that action also have had settled and adjudicated the question of mesne profits. They had the right to eliminate that question from that action if they wished to; but, when it was once eliminated, it ceased to exist as a basis of a claim on the part of these plaintiffs against the defendant, and it could not be revived and insisted upon in a separate action. Milton v. Milton, 176 Ga. 88 , 166 S.E. 857 (1932).

New trial may be granted on question of mesne profits alone, without including the issue of rights to the real property. Cowart v. Strickland, 149 Ga. 397 , 100 S.E. 447 (1920).

When the Supreme Court of Georgia has reversed a decision for plaintiff in an ejection action as regards mesne profits, due to improper amendment for such profits without notice to defendant by plaintiff the Supreme Court will permit the plaintiff if under O.C.G.A. § 5-6-8 to give appropriate notice to the defendant and to bring action for the profits. Brown v. Tyson, 150 Ga. 598 , 104 S.E. 420 (1920).

Mesne profits accruing up to appeal not recoverable in separate action. - The mesne profits accruing to the plaintiff up to the time of the verdict can be recovered only in that proceeding and upon proper pleadings therefor. Those accruing thereafter, and while the case is on appeal to the Supreme Court of Georgia, can be recovered only in the manner pointed out in Brown v. Tyson, 150 Ga. 598 , 104 S.E. 420 (1920). This is the plaintiff's exclusive remedy, and plaintiff cannot maintain a separate and independent action, to recover therefor. The petition is therefore subject to demurrer (now motion to dismiss) and should be dismissed. Beetles v. Steadham, 187 Ga. 601 , 1 S.E.2d 431 (1939).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Ejectment, § 54 et seq.

C.J.S. - 28A C.J.S., Ejectment, § 139 et seq.

44-11-8. Setoff of value of improvements against mesne profits by trespasser.

A trespasser may not set off improvements in an action brought for mesne profits except when the value of the premises has been increased by the repairs or improvements which have been made. In that case, the jury may take into consideration the improvements or repairs and may diminish the profits by that amount but not below the sum which the premises would have been worth without such improvements or repairs.

(Orig. Code 1863, § 3397; Code 1868, § 3416; Code 1873, § 3468; Code 1882, § 3468; Civil Code 1895, § 5087; Civil Code 1910, § 5671; Code 1933, § 33-106.)

JUDICIAL DECISIONS

O.C.G.A. § 44-11-8 does not allow an excess recovery by trespasser who sued for mesne profits, and hence states a different rule than O.C.G.A. § 44-11-9 , regulating the set off of improvements by one who took possession bona fide. Beverly v. Burke, 9 Ga. 440 , 54 Am. Dec. 351 (1851); Dean v. Feely, 69 Ga. 804 (1883); Dudley v. Johnson, 102 Ga. 1 , 29 S.E. 50 (1897); Moate v. Rives, 146 Ga. 425 , 91 S.E. 420 (1917).

O.C.G.A. § 44-11-8 inapplicable to equitable proceeding for accounting and partition. Smith v. Smith, 141 Ga. 629 , 81 S.E. 895 (1914).

Basis for setoff amount. - The increased value of the premises is the subject matter of setoff, and not the actual value of the improvements. Roe v. Doe, 39 Ga. 328 , 99 Am. Dec. 459 (1869).

Setoff of improvements made by spouse. - The husband of a legatee and life tenant may not setoff the value of improvements made by his wife, when he is sued by another legatee. Burns v. Richardson, 145 Ga. 430 , 89 S.E. 418 (1916).

Cited in Harper v. Durden, 177 Ga. 216 , 170 S.E. 45 (1933); Shellnut v. Shellnut, 188 Ga. 306 , 3 S.E.2d 900 (1939); Jones v. Federal Land Bank, 189 Ga. 419 , 6 S.E.2d 52 (1939); Courtesy Leasing, Inc. v. Christian, 266 Ga. 187 , 465 S.E.2d 443 (1996).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Ejectment, § 57.

14 Am. Jur. Pleading and Practice Forms, Improvements, § 2.

44-11-9. Setoff of value of improvements against mesne profits by adverse claimant; right of plaintiff to election; payment by defendant to plaintiff and acquisition of title; sale; levy; molding of decree; title of purchaser.

  1. In all actions for the recovery of land, the defendant who has a bona fide possession of the land under adverse claim of title may set off the value of all permanent improvements placed on the land in good faith by himself or other bona fide claimants under whom he claims. If the legal title to the land is found to be in the plaintiff and if the value of such improvements at the time of the trial exceeds the mesne profits, the jury may render a verdict in favor of the plaintiff for the land and in favor of the defendant for the amount of the excess of the value of the improvements over the mesne profits.
  2. The verdict mentioned in subsection (a) of this Code section shall find the value of the land itself at the time of the trial. Such verdict shall give the plaintiff the right:
    1. To have and recover the premises subject to the payment to the defendant of the excess of the value of the improvements over the mesne profits, such payment to be made by the plaintiff to the defendant within such time as may be fixed by the court in the decree; or
    2. To receive from the defendant the value of the land and the mesne profits found by the jury to be due to the plaintiff, such payment to be made by the defendant to the plaintiff within such time as the court may direct by its decree.

      In the event that the plaintiff fails to make the payment pursuant to paragraph (1) of this subsection within the time allowed in the decree, the defendant shall have the right to pay to the plaintiff the value of the land and the mesne profits in accordance with paragraph (2) of this subsection. In all cases in which a setoff of improvements is sought in excess of mesne profits, the jury shall have the right to fix the time from which mesne profits shall be allowed.

  3. Upon the defendant making the payment to the plaintiff with all court costs of the proceedings, the defendant shall then acquire and have all the right and title the plaintiff had and held in and to the property in dispute. The court may by its decree require the plaintiff to make such titles to the lands in dispute as may be necessary in the premises, or to have the premises sold by a commissioner appointed by the court and the proceeds of such sale divided between the plaintiff and the defendant in the ratio or proportion that the value of the land itself bears to the amount of the excess of value of improvements over the mesne profits, or to recover the value of the land itself together with the amount of any excess of the value of the mesne profits over and above the value of the improvements. In case the plaintiff elects to recover the value of the land itself together with the amount of the excess of value of mesne profits over the value of the improvements, any fi. fa. issued upon the verdict and judgment entered therein shall be levied upon the lands and improvements; and the same shall be sold by the sheriff after due advertisement under the law governing sheriffs' sales.
  4. In those cases contemplated by this Code section, the court shall mold a decree to carry out and effectuate fully the provisions of the verdict.
  5. The purchaser of the premises, whether the same are sold by a commissioner appointed by the court or by the sheriff under a fi. fa. as provided in subsection (c) of this Code section, shall acquire all the right, title, and interest in the land and the improvements owned and possessed by the plaintiff or the defendant.

    (Ga. L. 1897, p. 79, § 1; Civil Code 1910, §§ 5587, 5588, 5589, 5590; Code 1933, §§ 33-107, 33-108, 33-109, 33-110.)

Cross references. - Setoff of improvements by one in bona fide possession, § 13-7-10 .

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Section constitutional. - O.C.G.A. § 44-11-9 , regulating the rights of setoff by a bona fide holder of property, and procedures thereunder, is constitutional. Mills v. Geer, 111 Ga. 275 , 36 S.E. 673 (1900); Bellinger v. Thompson, 112 Ga. 111 , 37 S.E. 110 (1900); Ayer v. Chapman, 147 Ga. 715 , 95 S.E. 257 (1918).

O.C.G.A. § 44-11-9 contemplates that defendant in ejectment, who has made permanent improvements, may set them off against a successful plaintiff in such action. Mid-State Homes, Inc. v. Johnson, 218 Ga. 397 , 128 S.E.2d 197 (1962).

No set-off allowed. - Where the defendant in a dispossessory action was the tenant of an aunt, who held a life estate in the property in question, the trial court correctly ruled that the individual was a tenant at sufferance, that a dispossessory action would lie, and that the tenant was not entitled to a set-off, under O.C.G.A. § 44-11-9 for improvements. Fallin v. Rule, 194 Ga. App. 865 , 392 S.E.2d 314 (1990).

Section strictly construed. - O.C.G.A. § 44-11-9 , while in conformity with what has become recognized equitable principles, is nevertheless contrary to the early common-law rule and by its terms, the right to an equitable setoff is greatly enlarged and extended. Accordingly, the words "permanent improvements bona fide placed thereon" must be given a strict rather than liberal and general interpretation. Tennessee, Ala. & Ga. Ry. v. Zugar, 193 Ga. 386 , 18 S.E.2d 758 (1942).

Value of all improvements recoverable. - O.C.G.A. § 44-11-9 wrought a great change in providing that the value of all improvements as described can be recovered. If the recovery for permanent improvements did not exceed the mesne profits, it is obvious that the purposes of O.C.G.A. § 44-11-9 would fail in many, if not most, instances. Since the passage of O.C.G.A. § 44-11-9, all improvements might be recovered. Harper v. Durden, 177 Ga. 216 , 170 S.E. 45 (1933).

When one sought the aid of equity in recovering land, the court was allowed to make compensation for improvements a condition of relief; judgment ordering landowners to pay for improvements on their property was affirmed where the testimony at trial amply supported the trial court's conclusion that the improvements on the land were placed in good faith. Gay v. Strain, 261 Ga. App. 708 , 583 S.E.2d 529 (2003).

Valuation of improvements and accounting for mesne profits. - In an action by remainderman, where the improvements were made during the pendency of a precedent life estate by the defendant bona fide in possession under an adverse claim of title, the value of the improvements is to be estimated at the time of the bringing of the action, and the defendant need only account for mesne profits accruing subsequently to the falling in of the life estate. Hawks v. Smith, 141 Ga. 422 , 81 S.E. 200 (1914); Burns v. Richardson, 145 Ga. 430 , 89 S.E. 418 (1916); Ayer v. Chapman, 147 Ga. 715 , 95 S.E. 257 (1918).

Plaintiff may not recover as mesne profits the increased income from defendant's improvements. - Where the defendant in an action to recover land is in bona fide possession under adverse claim of title, the mesne profits are to be assessed upon the value of the property as it stood when the defendant's title accrued, and the plaintiff may not recover the increased income as mesne profits from improvements the defendant made in good faith. Norris v. Richardson, 151 Ga. 31 , 105 S.E. 493 (1921); Winn v. Rainey, 153 Ga. 641 , 113 S.E. 8 (1922).

Sale of recovered land to provide for improvements. - O.C.G.A. § 44-11-9 authorizes an allowance to a defendant, in the same ejectment case in which the plaintiff recovers, of any excess in value of the defendant's improvements on the land involved over the mesne profits and in proper cases provides for a sale of the recovered land by a commissioner and a division of the proceeds between the parties in the ratio or proportion that the value of the land itself bears to the amount of said excess of value of improvements over the mesne profits. Smith v. Bailey, 183 Ga. 869 , 189 S.E. 905 (1937).

Under O.C.G.A. § 44-11-9 permanent improvements may be setoff against remaindermen who recover land. Harper v. Durden, 177 Ga. 216 , 170 S.E. 45 (1933).

Where improvements placed pursuant to agreement with one tenant no recovery from cotenant. - Party in possession of premises, seeking to recover the value of the improvements erected upon the property in question in virtue of a contract with owner of undivided one-half interest who agreed to make a will giving the possessor fee simple title to the entire property if the possessor would repair it and render certain personal services to partial owner, cannot recover for such improvements as against administrator of deceased owner of other undivided one-half interest. Bowles v. White, 206 Ga. 343 , 57 S.E.2d 187 (1950).

Recovery for improvements placed by tenant of adverse possessor. - A tenant who leases land from a bona fide possessor under adverse claim of right, may setoff, in an action brought against the tenant by the true owner, the value of permanent improvements that the tenant placed on the property. Moate v. Rives, 146 Ga. 425 , 91 S.E. 420 (1917).

Improvements by adverse possessor who neither ousted nor notified tenant in common. - The right of a defendant in adverse possession to setoff the value of improvements does not apply where a tenant in common was not ousted, nor given notice of adverse possession by the defendant, and where there is no contract transferring title from plaintiffs to defendant. Smith v. Smith, 141 Ga. 629 , 81 S.E. 895 (1914).

Permanent improvements by tenant of holder of void deed. - Permanent improvements having been made by the tenant of the holder of a void deed, as a part of the terms of a rental contract which was ratified and adopted by the owner, the holder of such void deed is not entitled to receive credit for the value of such permanent improvements placed upon the premises by such tenant, in an accounting for such rents and profits. Yudelson v. Northwestern Mut. Life Ins. Co., 193 Ga. 518 , 18 S.E.2d 833 (1942).

Party in possession under bond for title, or verbal agreement to buy land, is not a bona fide holder under adverse claim of title, and may not setoff the value of permanent improvement. Puckett v. Heaton, 153 Ga. 69 , 111 S.E. 402 (1922).

Setoff of mortgagee's improvements generally. - The right of a mortgagee in possession to setoff the improvements placed upon property is not controlled by O.C.G.A. § 44-11-9 where the action is not for the recovery of land, but is an equity case for an accounting by a trustee. However, the equity rule does not differ essentially from the statutory rule. That section allows the setoff for improvements only if placed thereon by the mortgagee personally or other bona fide claimants under whom the mortgagee claims, and the equity rule provides that the plaintiff will be compelled to reimburse the occupant for expenditures. Either of these rules would require a disbursement by the party to be reimbursed. Yudelson v. Northwestern Mut. Life Ins. Co., 193 Ga. 518 , 18 S.E.2d 833 (1942).

Mortgagee may not recover for improvements made without mortgagor's consent. - As to permanent improvements, a mortgagee in possession is not authorized, without the consent of the mortgagor, to make such improvements and thereby increase the burden on the mortgagor upon a redemption of the premises. Yudelson v. Northwestern Mut. Life Ins. Co., 193 Ga. 518 , 18 S.E.2d 833 (1942).

Recovery of mesne profits not barred by possession in receiver. - The fact that the property was in possession of the receiver as property of defendant's grantor will not itself prevent a recovery of mesne profits. Acme Brewing Co. v. Central R.R. & Banking Co., 115 Ga. 494 , 42 S.E. 8 (1902).

Mesne profits recoverable. - In an ejectment action, the trial court erred in adopting the special master's finding that concluded that the ejector was entitled to recover the property but had no right to recover mesne profits because a plaintiff in an ejectment action may seek recovery of mesne profits, such as rental income from the land. Small v. Irving, 291 Ga. 316 , 729 S.E.2d 323 (2012).

Defendant may not claim as assets to avoid bankruptcy improvements conveyed by him. - The right to setoff the value of permanent improvements against a demand for mesne profits is one which inures to the successor in title of the person by whom such improvements were made while the latter was in adverse possession. Thus, if a defendant in a bankruptcy proceeding conveys property to a spouse, with mention in the deed as to impending claims on the land, defendant cannot cite improvements made on the property as defendant's own assets to avert bankruptcy. R.P. Brown & Co. v. Glover Grocery Co., 287 F. 709 (5th Cir. 1923).

One holding in good faith not guilty of trespass. - If it be true that notice of an adverse claim is not inconsistent with the good faith of a holder of land, it would seem, a fortiori, that one holding in good faith would not be guilty of a willful trespass in exercising the rights of ownership. Tennessee, Ala. & Ga. Ry. v. Zugar, 193 Ga. 386 , 18 S.E.2d 758 (1942).

Barbed wire fence as improvement. See Calhoun v. Babcock Bros. Lumber Co., 198 Ga. 74 , 30 S.E.2d 872 (1944).

Cited in Lytle v. Scottish Am. Mtg. Co., 122 Ga. 458 , 50 S.E. 402 (1905); Boyett v. Edenfield, 144 Ga. 109 , 86 S.E. 222 (1915); Hammock v. Kemp, 148 Ga. 672 , 97 S.E. 852 (1919); Coniff v. Hunnicutt, 157 Ga. 823 , 122 S.E. 694 (1924); Lanier v. Graham, 179 Ga. 744 , 177 S.E. 574 (1934); Cook v. Pollard, 50 Ga. App. 752 , 179 S.E. 264 (1935); Blackshear Mfg. Co. v. Carter, 180 Ga. 828 , 181 S.E. 155 (1935); Burden v. Gates, 188 Ga. 284 , 3 S.E.2d 679 (1939); Jones v. Federal Land Bank, 189 Ga. 419 , 6 S.E.2d 52 (1939); Burden v. Gates, 190 Ga. 300 , 9 S.E.2d 245 (1940); Behr v. City of Macon, 194 Ga. 334 , 21 S.E.2d 169 (1942); Owen v. Miller, 209 Ga. 875 , 76 S.E.2d 772 (1953); Ross v. Lowery, 249 Ga. 307 , 290 S.E.2d 61 (1982); Beavers v. Weatherly, 250 Ga. 546 , 299 S.E.2d 730 (1983); Archer v. Newkirk, 167 Ga. App. 54 , 30 6 S.E.2d 52 (1983); Courtesy Leasing, Inc. v. Christian, 266 Ga. 187 , 465 S.E.2d 443 (1996).

Good Faith and Notice

Defendant must show improvements bona fide placed thereon. - In order to entitle the defendant in an ejectment action, claiming to be a bona fide holder, to the provisions in defendant's favor contained in O.C.G.A. § 44-11-9 , defendant must show that defendant is not only a bona fide holder, but that the improvements upon the property have been bona fide placed thereon. Zugar v. Tennessee, A. & G. R. Co., 65 Ga. App. 658 , 16 S.E.2d 149 (1941), rev'd on other grounds, 193 Ga. 386 , 18 S.E.2d 758 (1942).

"Bona fide" assumes absence of notice of adverse claim. - The words "bona fide" as used in the sense of a bona fide holder, or bona fide purchaser, carry as their technical, primary connotation the absence of notice or knowledge of an outstanding adverse claim. Tennessee, Ala. & Ga. Ry. v. Zugar, 193 Ga. 386 , 18 S.E.2d 758 (1942).

"Adverse claim of title," under O.C.G.A. § 44-11-9 , need not be evidenced by any writing. Walton v. Sikes, 165 Ga. 422 , 141 S.E. 188 (1927).

Clear and definite notice nullifies claim for improvements. - Since O.C.G.A. § 44-11-9 must be taken as using the words "bona fide placed thereon" in their primary technical sense, clear and definite notice of an adverse claim, as by an action in ejectment, as distinguished from imperfect notice, will nullify the right of the holder to claim that the improvements were bona fide erected. However, it is unquestionable that mere notice or knowledge of an adverse claim does not destroy the bona fide character of a reasonable and honest claim by one in possession. Tennessee, Ala. & Ga. Ry. v. Zugar, 193 Ga. 386 , 18 S.E.2d 758 (1942).

Distinction exists between personal and presumed notice. - A distinction is drawn between personal notice, proven either by positive or presumptive evidence, and notice which is a mere legal presumption, and which does not, as a consequence, necessarily affect the conscience of the party. Harper v. Durden, 177 Ga. 216 , 170 S.E. 45 (1933).

Good faith unimpeached by mere constructive notice. - When the controversy is between the record owner of land and a defeated occupant seeking pay for improvements, constructive notice of the adverse title will not impeach the good faith of the occupant in putting betterments on the land, and this can be done only by proof that the occupant had actual notice of the successful title when the improvements were made. Harper v. Durden, 177 Ga. 216 , 170 S.E. 45 (1933).

When conveyance has been properly recorded, record is constructive notice of its contents, and of all interests, legal and equitable, created by its terms. Harper v. Durden, 177 Ga. 216 , 170 S.E. 45 (1933).

Recordation of deed not necessarily conclusive as to good faith. - In an action for land, where the defendant seeks, under O.C.G.A. § 44-11-9 , to setoff valuable improvements, the fact that the plaintiff's deed was duly recorded is not necessarily conclusive, as against the defendant, on the question of good faith. McKaig v. Hardy, 196 Ga. 582 , 27 S.E.2d 11 (1943).

The fact that the plaintiff may have had a title deed or record at the time the defendant took possession of the lot does not necessarily show lack of good faith on the part of the defendant. Claxton v. Claxton, 214 Ga. 715 , 107 S.E.2d 320 (1959).

Purchaser need not make every possible search to determine if the purchaser's title is bad. Norris v. Richardson, 151 Ga. 31 , 105 S.E. 493 (1921).

Payment of valuable consideration raises presumption of good faith. Harper v. Durden, 177 Ga. 216 , 170 S.E. 45 (1933).

Improvements placed pending action may not be setoff. - Where, pending an action to recover land, the defendant places improvements on it, defendant is not entitled to set them off under O.C.G.A. § 44-11-9 . Harper v. Durden, 177 Ga. 216 , 170 S.E. 45 (1933).

The value of improvements placed upon land by a defendant pending an action brought by another to recover it from defendant cannot be setoff against the land itself, under O.C.G.A. § 44-11-9 . Zugar v. Tennessee, A. & G. R. Co., 65 Ga. App. 658 , 16 S.E.2d 149 (1941), rev'd on other grounds, 193 Ga. 386 , 18 S.E.2d 758 (1942).

Where a defendant enters upon land in good faith under an adverse claim of title, and, after an action is brought against defendant by one who has actual title to the property, erects improvements upon the land, it cannot be held that defendant has bona fide placed improvements thereon, so as to entitle defendant to setoff the value of such improvements against the land. Zugar v. Tennessee, A. & G. R. Co., 65 Ga. App. 658 , 16 S.E.2d 149 (1941), rev'd on other grounds, 193 Ga. 386 , 18 S.E.2d 758 (1942).

A person who enters onto land in the good faith belief that the person has title, but before the person makes improvements, is sued by the actual title holder is not entitled to setoff improvements the person makes subsequent to the actions commencement, if the person is made aware beforehand of the defects in title and the character of the plaintiff's title. Richards v. Edwardy, 138 Ga. 690 , 76 S.E. 64 (1912).

Except against claim for mesne profits. - Defendants who improve land, pending an action may not set up the value of such improvements, except to extinguish the claim for mesne profits. Hinesley v. Stewart, 139 Ga. 7 , 76 S.E. 385 (1912).

Defendant's faith in own title, as against adverse one of which defendant was aware, is not enough to confer the right to reimbursement. Harper v. Durden, 177 Ga. 216 , 170 S.E. 45 (1933).

Notice of improvement by another bona fide possessor. - A plaintiff who has title to land and sees another who is a bona fide possessor place valuable improvements on the property, and does not give notice of title, is not subsequently estopped from asserting title. Kemp v. Hammock, 144 Ga. 717 , 87 S.E. 1030 (1916); Green v. Ellis, 145 Ga. 241 , 88 S.E. 976 (1916).

Good faith of possessor of land is generally an issue for the jury to consider, and possessor's knowledge of an opposing claim of title is a circumstance to be considered in this determination. Moate v. Rives, 146 Ga. 425 , 91 S.E. 420 (1917).

Knowledge considered by jury to determine good faith. - One may be the possessor of land in good faith though aware of an opposing claim, where such knowledge would not of itself impute bad faith, if one enters in full confidence of title or the title of one under whom one immediately claims. But knowledge of an opposing claim of title is a circumstance to be considered by the jury in determining one's good faith. Claxton v. Claxton, 214 Ga. 715 , 107 S.E.2d 320 (1959).

Pleadings

Defendant's plea must allege value of premises. Moore v. Carey, 116 Ga. 28 , 42 S.E. 258 (1902).

Plea must include value of profits and improvements. - A plea under O.C.G.A. § 44-11-9 must set forth the value of the land, the value of the permanent improvements claimed to have been placed thereon, and the amount of mesne profits admitted to be due, because the verdict must contain a finding with reference to all three. A plea which fails to set forth the facts from which the jury can find the value of the land and the value of the mesne profits, as well as the value of the permanent improvements, is not a sufficient plea under the act, and should on proper and timely motion be stricken because of its insufficiency. Bridges v. Henry, 210 Ga. 415 , 80 S.E.2d 173 (1954).

Jury Instructions

Charge that good faith not necessarily destroyed by error of judgment or lack of diligence. - It is error to refuse a request to charge the jury that under O.C.G.A. § 44-11-9 "the good faith of the purchaser or the defendant who has possession is not necessarily destroyed by error of judgment or the failure to exercise all possible diligence." Walton v. Sikes, 165 Ga. 422 , 141 S.E. 188 (1927).

Charge as to obligation of true owner. - The court errs in charging the jury as follows: "One who enters upon land under a conveyance from one not in possession, and, so far as appears, not having any color of title, enters and improves the premises at his peril. The true owner is under no obligation to account to him for taxes paid or for the cost of improvements over and above the mesne profits accruing." Walton v. Sikes, 165 Ga. 422 , 141 S.E. 188 (1927).

Timing and value of improvements question for jury. - Where the evidence demands a finding by the jury that valuable permanent improvements were erected on the land while defendant's predecessor in title was in actual possession under a claim adverse to that asserted by the plaintiffs, and would authorize, but does not demand, a finding by the jury that defendant placed such improvements on the land after it had been given to him and that the value of such improvements was in excess of the stipulated rental value of the property, it makes an issue of fact which it is the province of the jury to settle, and the trial judge errs in directing a verdict in favor of the plaintiffs for the premises sued for and for mesne profits. Parker v. Parker, 214 Ga. 509 , 105 S.E.2d 742 (1958).

Judge may limit jury to facts disclosed during trial. - The phrase "take into consideration all the facts and circumstances of the case as they have transpired here in your presence" does not limit the jury to a consideration only of the facts and circumstances of the case as they happened on the trial of the case, but does properly limit the jury to a consideration of the facts and circumstances of the case as they were disclosed to the jury on the trial of the case. Sheridan v. Haggard, 95 Ga. App. 792 , 99 S.E.2d 163 (1957).

Remedies

Election of remedies only after verdict. - The time for making an election does not arrive until after the verdict is rendered and the decree of the court has been entered. Acme Brewing Co. v. Central R.R. & Banking Co., 115 Ga. 494 , 42 S.E. 8 (1902).

Election of remedies must be made available. - In an ejectment action, a trial court erred by adopting the recommendation of the special master that title be vested in the ejector and that the ejectee have a judgment against the ejector in the amount of $60,000 because the trial court deprived the ejector of the ejector's statutory right to elect to recover the property within a period of time to be fixed by the trial court's decree as set forth in O.C.G.A. § 44-11-9 . Small v. Irving, 291 Ga. 316 , 729 S.E.2d 323 (2012).

No damage remedy if improvements admittedly exceed profits. - A plaintiff cannot take a money verdict where plaintiff admits that the value of the improvements exceeds mesne profits. Acme Brewing Co. v. Central R.R. & Banking Co., 115 Ga. 494 , 42 S.E. 8 (1902).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Ejectment, §§ 123, 159. 47 Am. Jur. 2d, Judicial Sales, § 234 et seq.

14 Am. Jur. Pleading and Practice Forms, Improvements, § 2.

C.J.S. - 28A C.J.S., Ejectment, §§ 119 et seq., 157. 50 C.J.S., Judicial Sales, § 39.

ALR. - Right to crops sown or grown by one wrongfully in possession of land, 39 A.L.R. 958 ; 57 A.L.R. 584 ; 91 A.L.R. 102 ; 131 A.L.R. 457 .

Right as against remainderman to allowance under statute for improvements made during continuance of life estate by one in possession under mistaken claim of title to fee, 89 A.L.R. 635 .

Betterment or occupying claimant acts as available to plaintiff seeking affirmative relief, 137 A.L.R. 1078 .

44-11-10. When previous warrantor may be codefendant.

A previous warrantor of the title to the land in dispute may be a codefendant in an action of ejectment, provided he would be answerable in damages in case of eviction.

(Orig. Code 1863, § 3276; Code 1868, § 3288; Code 1873, § 3364; Code 1882, § 3364; Civil Code 1895, § 5006; Civil Code 1910, § 5584; Code 1933, § 33-115.)

JUDICIAL DECISIONS

Warrantor defending action bound by subsequent judgment on warranty. - Where the warrantor having been notified of an action, conducted the defense of it under O.C.G.A. § 44-11-10 , the warrantor is bound by the judgment rendered in a subsequent action on the warranty. Lord v. Cannon, 75 Ga. 300 (1885).

Cited in Redwine v. Brown, 10 Ga. 311 (1851); Roe v. Doe, 47 Ga. 540 (1873); Bowdoin v. Malone, 287 F.2d 282 (5th Cir. 1961).

RESEARCH REFERENCES

C.J.S. - 28A C.J.S., Ejectment, § 51 et seq.

44-11-11. Necessity for substitution upon death of codefendant in ejectment.

If a codefendant in any action of ejectment dies after the commencement of the action, the action may proceed against the surviving defendant without making the representative of the deceased codefendant a party.

(Orig. Code 1863, § 3374; Code 1868, § 3393; Code 1873, § 3441; Code 1882, § 3441; Civil Code 1895, § 5038; Civil Code 1910, § 5620; Code 1933, § 33-116.)

JUDICIAL DECISIONS

Procedure upon death of sole defendant. - After the sole defendant in an action of ejectment has died, and another defendant has been brought in, and has pleaded to the merits, the action may proceed as to the latter, without making the representatives of the former a party. Gardner v. Granniss, 57 Ga. 539 (1876).

Cited in Henderson v. Hackney, 13 Ga. 282 (1853).

RESEARCH REFERENCES

C.J.S. - 28A C.J.S., Ejectment, § 51 et seq.

ALR. - Abatement by pendency of another action as affected by addition or omission of parties defendant in second suit, 44 A.L.R. 806 .

44-11-12. Annexation of title abstract to petition.

The plaintiff shall attach an abstract of the title relied on for recovery to the petition for the recovery of land and mesne profits.

(Ga. L. 1860, p. 43, § 1; Code 1863, § 3312; Code 1868, § 3324; Code 1873, § 3401; Code 1882, § 3401; Civil Code 1895, § 5002; Civil Code 1910, § 5580; Code 1933, § 33-117.)

JUDICIAL DECISIONS

Section requires abstract of title in addition to notice. - O.C.G.A. § 44-11-12 requires the annexation of an abstract of the title relied on for recovery in addition to notice of the title. Minor v. Sullivan, 220 Ga. 793 , 141 S.E.2d 910 (1965).

Object of the abstract is not to show title in the plaintiff on the face of the pleadings, but only to give notice of what is relied upon at the trial. Yonn v. Pittman, 82 Ga. 637 , 9 S.E. 667 (1889); Callahan v. Beeland, 170 Ga. 760 , 154 S.E. 226 (1930); Segars v. Crump, 177 Ga. 665 , 170 S.E. 785 (1933).

Petition may state that plaintiff "claims title" under abstract. - Where the petition departs from the statutory form and alleges that the plaintiff "claims title" under an abstract of title annexed to the petition, this is equivalent to an allegation that the plaintiff's title is as defined in the abstract. Dugas v. Hammond, 130 Ga. 87 , 60 S.E. 268 (1908).

No dismissal although inadmissible affidavit added to abstract. - Inclusion of an ex parte affidavit of possession in the abstract of title attached to the petition, did not make the petition subject to demurrer (now motion to dismiss) merely because the affidavit would not be admissible in evidence. Palmer v. Mann, 206 Ga. 144 , 56 S.E.2d 467 (1949).

Declaration in ejectment is amendable by adding abstract, which is a necessary part of the declaration. Camp v. Smith, 61 Ga. 449 (1878); Carter v. Greer, 72 Ga. 897 (1884); Oellrich v. Georgia R.R., 73 Ga. 389 (1884).

Abstract unnecessary in common-law ejection. - O.C.G.A. § 44-11-12 's requirement that an abstract of title be attached to the petition applies only to actions for recovery of land and mesne profits, not actions of ejectment brought in the common-law form. Georgia Iron & Coal Co. v. Allison, 116 Ga. 444 , 42 S.E. 794 (1902).

Abstract unnecessary in injunctions against trespass. - The requirement that a plaintiff attach to the petition, an abstract of the title plaintiff relies on, does not apply to a plaintiff suing in equity to enjoin a trespass, such as cutting timber; such action is not an action to recover land. Fletcher v. Fletcher, 123 Ga. 326 , 51 S.E. 418 (1905).

Abstract unnecessary in petitions to reform deed. - A plaintiff who petitions in equity to reform a deed which the defendant had fraudulently altered, need not attach to the petition an abstract of the title relied on, in order to recover land and mesne profits. Prater v. Bennett, 98 Ga. 413 , 25 S.E. 510 (1896).

Cited in Callahan v. Beeland, 170 Ga. 760 , 154 S.E. 226 (1930); Allgood Farm, LLC v. Johnson, 275 Ga. 297 , 565 S.E.2d 471 (2002); Newcomer v. Newcomer, 278 Ga. 776 , 606 S.E.2d 238 (2004).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Ejectment, § 34.

C.J.S. - 28A C.J.S., Ejectment, § 61.

44-11-13. When judgment conclusive of title.

A judgment in ejectment shall be conclusive as to the title between the parties thereto unless the jury awards the plaintiff less than the fee.

(Orig. Code 1863, § 3275; Code 1868, § 3286; Code 1873, § 3362; Code 1882, § 3362; Civil Code 1895, § 5005; Civil Code 1910, § 5583; Code 1933, § 33-119.)

JUDICIAL DECISIONS

Judgment in ejectment is conclusive where verdict is taken by consent, and will serve to exclude deeds offered by the defendant, which would set up a title independent of the one established in a prior ejectment involving the same lands between privies of the parties. McDowell v. Sutlive, 78 Ga. 142 , 2 S.E. 937 (1887).

Issue of title must be tried. - O.C.G.A. § 44-11-13 is applicable only where the issue as to the title was actually litigated in the previous suit, but where the merits of the case were not adjudicated, the judgment is not conclusive. Banks v. Sirmans, 218 Ga. 413 , 128 S.E.2d 66 (1962).

Tenant's ability to litigate all issues. - A judgment in ejectment for a landlord against a tenant where the landlord relies for recovery upon privity existing between the parties, involving only the right of possession, is not conclusive in later action by the tenant, as the tenant cannot be bound on issues which the tenant could not litigate in the first action. Parker v. Stambaugh, 71 Ga. 735 (1883); Vada Naval Stores Co. v. Sapp, 148 Ga. 677 , 98 S.E. 79 (1919).

Lesser estate involved in first trial. - O.C.G.A. § 44-11-13 makes the judgment between the same real parties to the title conclusive against those parties, with the single exception that, if the fee was not involved, but a less estate, the claimant of the fee could sue again, though the claimant had been defeated on a trial of an estate less than a fee in the same land. Poore v. Rigsby, 206 Ga. 66 , 55 S.E.2d 547 (1949).

Dismissal if controlling issue res judicata. - Upon application of O.C.G.A. § 44-11-13 to the facts alleged in the plaintiff's petition, the defendant's demurrer (now motion to dismiss) based upon the ground that the controlling issue in the case was res adjudicata should have been sustained, and the court erred in overruling it. Merritt v. Hutchings, 168 Ga. 734 , 148 S.E. 916 (1929).

Generally, cases respecting title to land shall be tried in superior court where land lies. Pearson v. George, 211 Ga. 18 , 83 S.E.2d 593 (1954).

Cited in Killen v. Compton, 57 Ga. 63 (1876); Glover v. Stamps, 73 Ga. 209 , 54 Am. R. 870 (1884); Lamar v. Knott, 74 Ga. 379 (1884); Downing v. Anderson, 126 Ga. 373 , 55 S.E. 184 (1906); Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830 , 16 S.E.2d 720 (1941); Bostic v. Nesbitt, 212 Ga. 198 , 91 S.E.2d 484 (1956).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Ejectment, § 50.

C.J.S. - 28A C.J.S., Ejectment, § 126 et seq.

44-11-14. Issuance of writ of possession; levy and sale clause.

When a verdict in ejectment is rendered in favor of the plaintiff and a judgment is entered thereon, the clerk of the superior court shall issue a writ of possession in which the clerk shall incorporate a clause directing the sheriff to collect by levy and sale of the defendant's property all sums of money awarded to the plaintiff in ejectment as mesne profits and costs.

(Orig. Code 1863, § 3559; Code 1868, § 3582; Code 1873, § 3637; Code 1882, § 3637; Civil Code 1895, § 5418; Civil Code 1910, § 6023; Code 1933, § 33-120.)

JUDICIAL DECISIONS

Writ must describe land exactly. - In an action to recover land, the plaintiff in the petition must describe land with such certainty that the sheriff can deliver possession to plaintiff in accordance with writ, if the decision be in plaintiff's favor. Harwell v. Foster, 97 Ga. 264 , 22 S.E. 994 (1895); Hollywood Cem. Corp. v. Hudson, 133 Ga. 271 , 65 S.E. 777 (1909); Williams v. Perry, 136 Ga. 453 , 71 S.E. 886 (1911).

No writ if plaintiff does not describe exact tract claimed. - If the plaintiff sues for a certain number of acres embraced in a larger tract, but only describes the larger tract, such petition is too indefinite to be made the basis of a recovery. Harwell v. Foster, 97 Ga. 264 , 22 S.E. 994 (1895).

If verdict too vague for sheriff to find land. - If the verdict is intended to find for the plaintiff only a portion of the premises sued for, but that verdict is so vague in description that the sheriff cannot ascertain and locate with certainty what land is involved, no writ of possession should be issued. Hicks v. Brinson, 100 Ga. 595 , 28 S.E. 380 (1897).

Injunction if verdict vague. - An injunction to enjoin the execution of a writ may be had in a proper case, as when the jury verdict is too vague to permit proper execution and removal of part of a brick wall would destroy the building to which it was attached. Hicks v. Brinson, 100 Ga. 595 , 28 S.E. 380 (1897).

Injunction cannot protect mortgagor indefinitely from claim against home. - It is proper to protect homestead against an execution of a writ favoring a mortgagee, but a verdict which restrains enforcement of writ after termination of homestead and which perpetually enjoins the mortgagee from dispossessing the mortgagor is too broad. American Freehold Land Mtg. Co. v. Walker, 119 Ga. 341 , 46 S.E. 426 (1904).

Owner of an undivided interest will be put in possession as tenant in common. Burney v. Arnold, 134 Ga. 141 , 67 S.E. 712 (1910).

Cited in Bowdoin v. Malone, 287 F.2d 282 (5th Cir. 1961).

RESEARCH REFERENCES

C.J.S. - 28A C.J.S., Ejectment, § 131 et seq.

44-11-15. Persons not subject to writ of possession.

The writ of possession shall not issue against third persons who were not known in the action on which such writ of possession is founded nor against third persons who were not put in possession by and do not claim under or by virtue of any conveyance from the defendant in the action.

(Laws 1811, Cobb's 1851 Digest, p. 511; Code 1863, § 3560; Code 1868, § 3583; Code 1873, § 3638; Code 1882, § 3638; Civil Code 1895, § 5419; Civil Code 1910, § 6024; Code 1933, § 33-121.)

JUDICIAL DECISIONS

Action against one of several possessors holding independently of one another. - Where an action for land is brought against one of several persons in possession, holding independently of each other, and it appears that neither claims under the other, the judgment, as a rule, will bind only the one who is a defendant in the action, and the others, not being parties, cannot be expelled, even though the action, the judgment, and the writ embrace the whole of the premises, and treat the defendant in the action as sole occupant. Injunction will lie to prevent its execution. Bethune v. Wilkins, 8 Ga. 118 (1850); Stokes v. Morrow, 54 Ga. 597 (1875); Jefferson v. Hartley, 81 Ga. 716 , 9 S.E. 174 (1889); McSwain v. Ricketson, 129 Ga. 176 , 58 S.E. 655 (1907); Browning v. Guest, 147 Ga. 400 , 94 S.E. 234 (1917).

Sheriff liable for removing person not named in writ. - If the sheriff, in executing a writ of possession, removes from the premises any person not mentioned in the writ and not within its legal operation according to O.C.G.A. § 44-11-15 , such removal amounts to official misconduct, and the sheriff is thereby subject to liability both personally and as regards the sheriff's sureties. Jefferson v. Hartley, 81 Ga. 716 , 9 S.E. 174 (1889).

Cited in Bowdoin v. Malone, 287 F.2d 282 (5th Cir. 1961); Northern Freight Lines v. Fireman's Fund Ins. Cos., 121 Ga. App. 786 , 175 S.E.2d 104 (1970); Hurt v. Norwest Mortg., Inc., 260 Ga. App. 651 , 580 S.E.2d 580 (2003).

RESEARCH REFERENCES

C.J.S. - 28A C.J.S., Ejectment, § 131 et seq.

ARTICLE 2 PROCEEDINGS AGAINST INTRUDERS

RESEARCH REFERENCES

ALR. - Punitive damages for wrongful seizure of chattel by one claiming security interest, 35 A.L.R.3d 1016.

44-11-30. Manner of ejecting intruders; affidavit; ejection by sheriff; counteraffidavit.

When any person, either by himself, his agent, or his attorney in fact, shall take and subscribe an affidavit in writing before any officer authorized to administer an oath setting forth that he claims, in good faith, the right of possession to the described land or tenement and that such land or tenement is in the hands of another named person who does not in good faith claim a right to such possession and yet refuses to abandon the same, it shall be the duty of the sheriff of the county where the land or tenement is located, upon receiving such affidavit, to exhibit such affidavit to the person described as being in possession of such land or tenement at the earliest possible day and to turn such person out of possession unless the person in possession tenders to the sheriff a counteraffidavit stating that he claims, in good faith, a legal right to the possession of the land or tenement.

(Ga. L. 1853-54, p. 52, § 1; Code 1863, § 3979; Code 1868, § 4000; Code 1873, § 4072; Code 1882, § 4072; Civil Code 1895, § 4808; Civil Code 1910, § 5380; Code 1933, § 105-1501.)

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Similarity of eviction and ejectment warrants. - Dispossessory warrants used in dispossessing tenants holding over, and warrants for the ejection of intruders, are different only insofar as their specific purposes are concerned, such difference depending on the relationship between the parties. Their natures and the ultimate ends they accomplish are the same, the dispossession of one in favor of another who is legally entitled to the possession. Dantley v. Burge, 88 Ga. App. 478 , 77 S.E.2d 107 (1953).

Process not abused when used in eviction. - This process was designed to accomplish eviction and to gain possession of the premises, and where it was used by the defendant to accomplish that end, it cannot, then, be said that the process was perverted or put to a use which the law did not intend that it be put. Dantley v. Burge, 88 Ga. App. 478 , 77 S.E.2d 107 (1953).

Basis for determining validity of process. - In determining whether the process was perverted and put to an unintended use, the law, in an abuse of legal process case, will look to the nature of the process and the ultimate end it is designed to accomplish, and not to the specific purpose of that particular process. Dantley v. Burge, 88 Ga. App. 478 , 77 S.E.2d 107 (1953).

Section construed liberally as to defendant. - O.C.G.A. § 44-11-30 provides for a harsh and speedy process, and should be construed strictly as to the plaintiff but liberally as to the defendant. Paige v. Dodson, 46 Ga. 223 (1872).

Section applies to intruders, squatters, and disseizors. - The remedy prescribed in O.C.G.A. § 44-11-30 is intended to apply only to intruders, squatters or disseizors, who enter in bad faith and without any claim or shadow of right. Sheats v. Blair, 7 Ga. App. 272 , 66 S.E. 812 (1910).

No application to discharged employees. - The remedy prescribed in O.C.G.A. § 44-11-30 cannot be made to apply against a discharged employee, for the employee's entry was not originally unlawful and the employee could easily defeat the proceeding by filing a counter-affidavit of claim of right. MacKenzie v. Minis, 132 Ga. 323 , 63 S.E. 900 (1909).

No application to vendor who remains in possession. - Where the owner of land sells and conveys it to another by absolute conveyance, but does not actually go out of possession, even though the vendee be also in possession, the latter cannot eject the former from the premises as an intruder, by the summary process of O.C.G.A. § 44-11-30 . Russel v. Chambers, 43 Ga. 478 (1871); Williams v. McMichael, 64 Ga. 445 (1879); Durden v. Clack, 94 Ga. 278 , 21 S.E. 521 (1894); Thompson v. Glover, 120 Ga. 440 , 47 S.E. 935 (1904).

Proceeding emphasizes defendant's good faith, not plaintiff's title. - In a proceeding to eject an intruder, the sole question concerns the good faith of the defendant in entering upon the land and in claiming the right of possession; title is only incidentally involved. Lane v. Williams, 114 Ga. 124 , 39 S.E. 919 (1901); Forman v. Pelham, 8 Ga. App. 822 , 70 S.E. 158 (1911).

Purchasers of real property under warranty deed from the record title holder's brother sufficiently established their good faith to be entitled to a jury trial on the title holder's claim in ejectment; therefore, a jury verdict in the purchasers' favor was upheld. Sims v. Merritt, 270 Ga. App. 877 , 608 S.E.2d 547 (2004).

Section must be followed in ejection. - O.C.G.A. § 44-11-30 prescribes the manner in which one must eject intruders from possession of land and tenements, and where persons are in possession of lands and tenements, and another person who claims right of possession claims that those holding possession are intruders holding without good faith, the claimant must resort to the judicial manner prescribed in O.C.G.A. § 44-11-30 in ejecting the alleged intruders. Allison v. Hodo, 84 Ga. App. 790 , 67 S.E.2d 606 (1951).

Owner cannot forcibly evict intruders. - Even if defendants in ejectment are intruders and not tenants, plaintiff owes them a duty not to use force in evicting them from the premises. Allison v. Hodo, 84 Ga. App. 790 , 67 S.E.2d 606 (1951).

Owner liable in damages for wrongful ouster. - If one without regard for O.C.G.A. § 44-11-30 forcefully ejects the alleged intruders, that person can be held liable for any damages arising out of such wrongful ouster. Allison v. Hodo, 84 Ga. App. 790 , 67 S.E.2d 606 (1951).

Removing furniture into the yard instead of into some protective place of storage aggravates the wrongful ouster, regardless of the manner in which the furniture was removed, and the court is authorized to award additional damages either to deter the wrongdoer or as compensation for the wounded feelings of one wrongfully ousted. Allison v. Hodo, 84 Ga. App. 790 , 67 S.E.2d 606 (1951).

Plaintiff with only color of title may remove possessor in bad faith. - A plaintiff in possession under a deed conferring color of title, if not title, may evict as an intruder a person who has entered on the premises in bad faith, under a pretended claim of title. It is not the rightfulness or sufficiency of the possessor's claim that gives the possessor the right to evict, but the possessor's honesty. Burdock v. Miller, 21 Ga. 368 (1857); McHan v. Stansell, 39 Ga. 197 (1869); Thorpe v. Atwood, 100 Ga. 597 , 28 S.E. 287 (1897).

Subsequent entry by one who surrenders land is intrusion. - Where parties having possession of land made a formal surrender thereof, evidence by writing, and afterward, in direct contravention of such surrender, entered on the land, they were intruders, and subject to the proceedings provided for by O.C.G.A. § 44-11-30 . Burdock v. Miller, 21 Ga. 368 (1857); Baker v. Downing, 69 Ga. 746 (1882).

If one joint plaintiff should not recover, none may. - Where a joint action for land is brought by several persons, and the evidence shows that one of them is not entitled to recover, there can be no recovery at all. The rule in such case is the same whether the action be in the statutory or fictitious form. Paine v. Thomas, 228 Ga. 519 , 186 S.E.2d 737 (1972).

Plaintiff who purchased realty at executor's private sale and who received the executor's authorization to take possession is entitled to eject from possession an earlier purchaser who has failed to make payments, even if the testator did not confer on the executors the right to sell at private sale. Bagley v. Stephens, 78 Ga. 304 , 2 S.E. 545 (1887).

Cited in Burt v. Crawford, 180 Ga. 331 , 179 S.E. 82 (1935); Hurst v. Hurst, 182 Ga. 138 , 184 S.E. 867 (1936); Crockett v. Oliver, 98 Ga. App. 853 , 107 S.E.2d 234 (1959); Coggins v. Fuller, 108 Ga. App. 706 , 134 S.E.2d 494 (1963).

Procedure

Plaintiff's affidavit may be made before county judge. - Affidavit may be made before any officer authorized to administer an oath, thus differing from the affidavit which is the foundation of a proceeding against a tenant, which must be taken before a judge of the superior court or a justice of the peace. (See O.C.G.A. § 44-7-50 .) Consequently, a county judge can administer the oath in this proceeding and then determine the issue made by the defendant's counter-affidavit. Griswold v. Rutherford, 109 Ga. 398 , 34 S.E. 602 (1899); Rigell v. Sirmans, 123 Ga. 455 , 51 S.E. 381 (1905).

Attorneys at law. - An attorney at law is not such an agent, without special appointment, as would authorize the attorney to make an affidavit under the provisions of O.C.G.A. § 44-11-30 . Montgomery v. Walker, 41 Ga. 681 (1871).

Defendant may take an oath to the counteraffidavit before the sheriff who comes to turn defendant out of possession. Simpson v. Wall, 41 Ga. 105 (1870).

File any time before eviction. - The defendant must make and file a counteraffidavit before actual eviction, but it may be made at any time before such eviction. Simpson v. Wall, 41 Ga. 105 (1870); Montgomery v. Walker, 41 Ga. 681 (1871); Sheats v. Blair, 7 Ga. App. 272 , 66 S.E. 812 (1910).

Sheriff will dispossess unless counteraffidavit shown. - When an affidavit is made for the removal of an intruder, as provided by O.C.G.A. § 44-11-30 , it is the duty of the sheriff, at the earliest practicable day, to exhibit the affidavit to the person described therein, as being in possession of the land, and to turn such person out of the possession thereof, unless the person so in possession shall at once tender to the sheriff the counteraffidavit prescribed in O.C.G.A. § 44-11-30 . Simpson v. Wall, 41 Ga. 105 (1870).

Defective counteraffidavit gives the defendant no standing in court, it cannot be amended, and a second one cannot be made. Hass v. Gardner, 36 Ga. 477 (1867); Paige v. Dodson, 46 Ga. 223 (1872); Yancey v. Karwisch, 129 Ga. 788 , 59 S.E. 777 (1907); Stephens v. Mathis, 142 Ga. 117 , 82 S.E. 520 (1914).

Clerical error not defective. - A defendant's affidavit that defendant "claims the bona fide legal right to possession" of the premises complies with O.C.G.A. § 44-11-30 ; placing the word "the" before the words "bona fide" is an evident clerical mistake, the real meaning being that defendant "claims the bona fide, the legal right to the possession." Paige v. Dodson, 46 Ga. 223 (1872).

Husband's counteraffidavit may state he is wife's agent. - A husband may make a counteraffidavit that he holds possession as agent of his wife and thus make an issue for trial. Jackson v. Dickson, 73 Ga. 126 (1884).

It is error to dismiss counter-affidavit properly made because of nonappearance of defendant at trial. Yancey v. Karwisch, 129 Ga. 788 , 59 S.E. 777 (1907).

If counter-affidavit shows bad faith, directed verdict proper. - Where the action is brought under O.C.G.A. § 44-11-30 , as a summary action to eject intruders, the sole question in such a case is whether or not the defendant in good faith claims the right to occupy the premises in question; and when the counter-affidavit taken with the admissions of the defendant made on cross-examination and under oath show that no issuable defense is made, or that the defendant does not in good faith claim the right to possession of the disputed premises a finding in favor of the plaintiffs is demanded and it is proper for the trial judge to direct a verdict for the plaintiffs. Krasner v. Crosswell, 80 Ga. App. 134 , 55 S.E.2d 381 (1949).

County court has jurisdiction to try applications for eviction of intruders, and it would be no ground to dismiss a proceeding for this purpose that the evidence showed the plaintiff's remedy was by ejectment; but such evidence would require an adjudication in favor of the defendant on the merits. Durden v. Clack, 94 Ga. 278 , 21 S.E. 521 (1894).

Equity court may have final adjudication. - When in the course of proceedings under O.C.G.A. § 44-11-30 equitable jurisdiction arises, a court of equity may hold the case for final adjudication. Wyley v. Whitely, 38 Ga. 605 (1869).

No trial by justice of the peace. - A proceeding instituted under O.C.G.A. § 44-11-30 cannot be made the basis of a trial before a justice of the peace and a jury. Such a trial is coram non judice, and its result a nullity. Music v. Barber, 99 Ga. 799 , 27 S.E. 164 (1896).

No necessity of process and return. - Under O.C.G.A. § 44-11-30 , no process or return of service is required. Hill v. Security Loan & Abstract Co., 35 Ga. App. 93 , 132 S.E. 107 (1926).

Bona fide claim to possession good defense. - That the alleged intruder claims the legal right to possession of the land in good faith is a legal defense against eviction under such process. Hill v. Security Loan & Abstract Co., 35 Ga. App. 93 , 132 S.E. 107 (1926).

Where evidence is conflicting, verdict against defendant should not be directed. Stilwell v. Watkins, 135 Ga. 149 , 68 S.E. 1114 (1910).

Where the evidence is conflicting, the plaintiff should not be nonsuited. Coffey v. Pace, 106 Ga. 293 , 32 S.E. 115 (1898).

Certiorari is proper remedy where dissatisfied with judgment. - The proper procedure by a party dissatisfied with a judgment in the proceeding is by certiorari, not by appeal. Rigell v. Sirmans, 123 Ga. 455 , 51 S.E. 381 (1905).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Ejectment, §§ 1 et seq.

C.J.S. - 28A C.J.S., Ejectment, §§ 1 et seq., 24 et seq.

ALR. - Rights and remedies of tenant who remains in possession of all or part of the premises against landlord for interfering with his possession or enjoyment, 20 A.L.R. 1369 ; 28 A.L.R. 1333 ; 64 A.L.R. 900 .

Right to eject customer from store, 33 A.L.R. 421 .

Life tenant's right of action for injury or damage to property, 49 A.L.R.2d 1117.

Right of landlord legally entitled to possession to dispossess tenant without legal process, 6 A.L.R.3d 177.

44-11-31. Sheriff competent to administer oath to person in possession.

The sheriff shall be a competent officer to administer the oath to the person in possession if he desires to tender the counteraffidavit provided for in Code Section 44-11-30.

(Ga. L. 1853-54, p. 52, § 2; Code 1863, § 3980; Code 1868, § 4001; Code 1873, § 4073; Code 1882, § 4073; Civil Code 1895, § 4809; Civil Code 1910, § 5381; Code 1933, § 105-1502.)

RESEARCH REFERENCES

C.J.S. - 28A C.J.S., Ejectment, § 34 et seq.

44-11-32. Procedure on submission of counteraffidavit; trial.

If the party in possession submits a counteraffidavit as provided in Code Section 44-11-30, the sheriff shall not turn him out of possession but shall leave both parties in their respective positions. In such an event, the sheriff shall return both affidavits to the office of the clerk of the superior court of the county in which the land is located for a trial of the issue before a jury in accordance with the laws of this state.

(Ga. L. 1853-54, p. 52, § 3; Code 1863, § 3981; Code 1868, § 4002; Code 1873, § 4074; Code 1882, § 4074; Civil Code 1895, § 4810; Civil Code 1910, § 5382; Code 1933, § 105-1503.)

JUDICIAL DECISIONS

Jurisdiction of superior court exclusive. Chambliss v. Hawkins, 123 Ga. 361 , 51 S.E. 337 (1905).

When trial held. - The proceeding under O.C.G.A. § 44-11-30 being strictly summary and there being no provision as to when an issue formed upon a counter-affidavit to such a proceeding under O.C.G.A. § 44-11-32 may be tried, the trial of such an issue may be held at the term of court during which the counter-affidavit is filed. Hill v. Security Loan & Abstract Co., 35 Ga. App. 93 , 132 S.E. 107 (1926).

Purchasers of real property under warranty deed from the record title holder's brother sufficiently established their good faith to be entitled to a jury trial on the title holder's claim in ejectment; therefore, a jury verdict in the purchasers' favor was upheld. Sims v. Merritt, 270 Ga. App. 877 , 608 S.E.2d 547 (2004).

Case on intruder warrant could not be in magistrate court. - Superior court erred in finding that the later-filed action, seeking an intruder warrant, had to be abated according to O.C.G.A. § 9-2-44 , because, per the explicit language of O.C.G.A. § 44-11-32 , the case on the intruder warrant could not have been brought in the magistrate court and, thus, the prior pending action doctrine did not apply. Brixmor/IA Northeast Plaza, LLC v. Sublet Atlanta Realty, LLC, 347 Ga. App. 223 , 818 S.E.2d 681 (2018).

Cited in Little v. Thompson, 39 Ga. 658 (1869); Burt v. Crawford, 180 Ga. 331 , 179 S.E. 82 (1935).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Ejectment, §§ 75 et seq., 44 et seq.

C.J.S. - 28A C.J.S., Ejectment, § 111 et seq.

44-11-33. Issuance of writ of possession; fi. fa. for costs.

If the jury, upon the trial provided for in Code Section 44-11-32, finds for the plaintiff, the clerk of the court shall issue a writ of possession and a fi. fa. for the costs of the proceeding.

(Ga. L. 1853-54, p. 52, § 3; Code 1863, § 3982; Code 1868, § 4003; Code 1873, § 4075; Code 1882, § 4075; Civil Code 1895, § 4811; Civil Code 1910, § 5383; Code 1933, § 105-1504.)

JUDICIAL DECISIONS

Cited in Stokes v. McNeal, 48 Ga. App. 816 , 173 S.E. 879 (1934).

RESEARCH REFERENCES

Am. Jur. 2d. - 25 Am. Jur. 2d, Ejectment, § 134 et seq.

C.J.S. - 28A C.J.S., Ejectment, § 131 et seq.

CHAPTER 12 RIGHTS IN PERSONALTY

Article 1

In General.

Article 2

Choses in Action.

Article 3

Bailments.

Part 1

I N GENERAL .

Part 2

H IRING .

Part 3

D EPOSITS .

Part 4

L OANS OF PROPERTY .

Part 5

P AWNBROKERS .

Article 4

Trover.

Part 1

I N GENERAL .

Part 2

B AIL IN TROVER PROCEEDINGS .

Article 5

Disposition of Unclaimed Property.

Article 6

Falling Pecans.

Article 7

Protection of American Indian Human Remains and Burial Objects.

Part 1

A MERICAN INDIAN HUMAN REMAINS AND BURIAL OBJECTS HELD BY MUSEUMS .

Part 2

C OUNCIL ON AMERICAN INDIAN CONCERNS .

Part 3

L EGITIMATE AMERICAN INDIAN TRIBES .

Article 8

Die, Molds, Forms, and Patterns.

Part 1

I N GENERAL .

Part 2

M OLDERS' LIENS .

Cross references. - Obtaining of title to personal property through adverse possession, § 44-5-177 .

RESEARCH REFERENCES

ALR. - Bailee's duty to insure bailed property, 28 A.L.R.3d 513.

Modern status of rules as to ownership of treasure trove as between finder and owner of property on which found, 61 A.L.R.4th 1180.

ARTICLE 1 IN GENERAL

44-12-1. Partition of personal property.

Application may be made and partition of personal property may be obtained in the same manner and under the same regulations as are prescribed by law for obtaining a partition of lands and tenements.

(Orig. Code 1863, § 3908; Code 1868, § 3938; Code 1873, § 4008; Code 1882, § 4008; Civil Code 1895, § 4798; Civil Code 1910, § 5370; Code 1933, § 85-1707.)

Law reviews. - For article, "Joint Bank Accounts: A Different Form of Joint Tenancy," see 17 Ga. St. B.J. 184 (1981).

JUDICIAL DECISIONS

Superior courts have jurisdiction in matters of partition; therefore, a petition to a city court for a partition of personal property is a nullity and not amendable. Roberson v. Bennett, 20 Ga. App. 590 , 93 S.E. 297 (1917).

Cited in Walden v. Walden, 191 Ga. 182 , 12 S.E.2d 345 (1940); Verdery v. Campbell, 203 Ga. 211 , 46 S.E.2d 66 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 59 Am. Jur. 2d, Partition, § 11.

C.J.S. - 68 C.J.S., Partition, § 29.

ALR. - Partition: division of building, 28 A.L.R. 727 .

ARTICLE 2 CHOSES IN ACTION

JUDICIAL DECISIONS

No particular language needed for valid assignment of chose in action. - To constitute a valid assignment of a chose in action, either in toto or pro tanto, no particular form of words or formal instrument is necessary. Any language which makes an appropriation of the funds amounts to an equitable assignment. Salzburger Bank v. Standard Oil Co., 173 Ga. 722 , 161 S.E. 584 (1931).

Cited in Security Feed & Seed Co. v. Nesmith, 213 Ga. 783 , 102 S.E.2d 37 (1958).

RESEARCH REFERENCES

ALR. - Priority of assignment of chose in action over subsequent garnishment as affected by lack of notice to debtor of assignment, 52 A.L.R. 109 .

Rights and remedies incident to subrogation to one but not both elements of a single cause of action for injury to person and damage to property, 140 A.L.R. 1241 .

44-12-20. "Chose in action" defined.

A chose in action is personalty to which the owner has a right of possession in the future or a right of immediate possession which is being wrongfully withheld.

(Orig. Code 1863, § 2219; Code 1868, § 2213; Code 1873, § 2239; Code 1882, § 2239; Civil Code 1895, § 3072; Civil Code 1910, § 3648; Code 1933, § 85-1801.)

JUDICIAL DECISIONS

"Personalty" includes rent. Few v. Pou, 32 Ga. App. 620 , 124 S.E. 372 (1924); Padgett v. Butler, 84 Ga. App. 297 , 66 S.E.2d 194 (1951).

Stocks are personalty. Clark v. Baker, 186 Ga. 65 , 196 S.E. 750 (1938).

Where "chose in action" exists. - The right to maintain an action against carrier for failure to deliver all or any of the goods specified in a bill of lading is a chose in action under O.C.G.A. § 44-12-20 . Askew & Co. v. Southern Ry., 1 Ga. App. 79 , 58 S.E. 242 (1907).

Judgment creditor's claim against proceeds of a sale of a bankruptcy debtor's interest in a marital residence awarded in divorce proceedings was wholly unsecured since the debtor's interest was a chose in action to which the creditor's judgment lien did not automatically attach and the creditor did not initiate a collateral proceeding to attach the lien to the chose in action. Souther v. First Bank (In re Sapp), Bankr. (Bankr. S.D. Ga. Apr. 2, 2015).

An unpaid subscription to the capital stock of a corporation, after a call has been made, is a chose in action under O.C.G.A. § 44-12-20 . Lynah v. Citizens & S. Bank, 136 Ga. 344 , 71 S.E. 469 (1911).

The right to maintain an action for any damage done to property assigned while the property is still in the transferee's possession is a chose in action under O.C.G.A. § 44-12-20 . Benjamin-Ozburn Co. v. Morrow Transf. & Storage Co., 13 Ga. App. 636 , 79 S.E. 753 (1913).

Although a debtor in a bankruptcy proceeding has no vested title or interest in an exemption at the time of the sale or assignment, the debtor has a "chose in action" and a potential right in the nature of a defeasible title. Eibel v. Mechanics Loan & Sav. Co., 52 Ga. App. 349 , 183 S.E. 133 (1935).

Where interest in an estate remains in the hands of the administrator, the right of an heir at law to have an interest in the estate is a chose in action. Clark v. Baker, 186 Ga. 65 , 196 S.E. 750 (1938).

Limited partnership interest. - Financial payments to which a limited partner is entitled pursuant to statute or the partnership/certificate of formation is a chose in action. Prodigy Centers/Atlanta v. T-C Assocs., 269 Ga. 522 , 501 S.E.2d 209 (1998).

Debts as choses in action. - The terms "choses in action" and "debts" are used by courts to represent the same thing when viewed from opposite sides; the chose in action is the right of the creditor to be paid, while the debt is the obligation of the debtor to pay. Water Processing Co. v. Toporek, 158 Ga. App. 502 , 280 S.E.2d 901 , rev'd on other grounds, 248 Ga. 597 , 285 S.E.2d 21 (1981).

A debt is a chose in action, for it is personalty which the person to whom the debt is owed has a right of immediate or future possession, and if possession is wrongfully withheld an action may be brought thereon. Anderson v. Burnham, 12 Bankr. 286 (Bankr. N.D. Ga. 1981).

A judgment, as a debt of record, is encompassed within the definition of a chose in action. Anderson v. Burnham, 12 Bankr. 286 (Bankr. N.D. Ga. 1981).

A bank deposit is within the definition of a chose in action. Ellenberg v. DeKalb County (In re Maytag Sales & Serv., Inc.), 23 Bankr. 384 (Bankr. N.D. Ga. 1982).

The proper way to get at a chose in action is by garnishment. Water Processing Co. v. Toporek, 158 Ga. App. 502 , 280 S.E.2d 901 , rev'd on other grounds, 248 Ga. 597 , 285 S.E.2d 21 (1981).

A bankruptcy debtor's pre-petition claim constituted a chose in action against which a creditor's judgment lien did not attach because the creditor did not file a pre-petition garnishment action against it. Jankowski v. Dixie Power Sys. (In re Rose Marine, Inc.), 203 Bankr. 511 (Bankr. S.D. Ga. 1996).

Attorney at law, who has money or other effects belonging to defendant in the attorney's hands, is subject to garnishment. Water Processing Co. v. Toporek, 158 Ga. App. 502 , 280 S.E.2d 901 , rev'd on other grounds, 248 Ga. 597 , 285 S.E.2d 21 (1981).

Showing of legal title required for recovery of personalty. - When the plaintiff relies on title to recover possession of personal property wrongfully withheld, plaintiff must show a legal title; a mere equitable title will not suffice. Eibel v. Mechanics Loan & Sav. Co., 52 Ga. App. 349 , 183 S.E. 133 (1935).

Incomplete present existence of subject matter requires potential of future interest. - If the existence of the subject matter of a present transfer of title in an executed sale is not then actual or complete, it must at least be so potential as to amount to a present right in the vendor to a future interest or benefit. Eibel v. Mechanics Loan & Sav. Co., 52 Ga. App. 349 , 183 S.E. 133 (1935).

Tort liability for subsequent property owners. - While it appears unfair for a municipality to be liable to subsequent adjacent property owners for any preexisting nuisance to their property, the nuisance is a continuing tort and, to the extent that it is a damage to property interests, would be an assignable chose in action which would pass to successors in title. Hammond v. City of Warner Robins, 224 Ga. App. 684 , 482 S.E.2d 422 (1997).

Absent potential existence of subject matter, actual future delivery required. - Where the instrument is merely an executory contract to sell, the parties may be bound, even though the subject matter is known to have neither an actual nor a potential existence, provided the agreement is not merely speculative, but contemplates an actual future delivery of the thing bargained for. Eibel v. Mechanics Loan & Sav. Co., 52 Ga. App. 349 , 183 S.E. 133 (1935).

Determination of validity of "chose in action." - The validity of a trust of choses in action created by a settlement or other transaction inter vivos is determined by the law of the place where the transaction takes place. Clark v. Baker, 186 Ga. 65 , 196 S.E. 750 (1938).

Criminal statute did not authorize private right of action. - O.C.G.A. §§ 44-12-20 and 51-10-1 did not authorize a mortgage borrower to bring a claim against a loan servicer for theft by conversion based on criminal statutes; the criminal statutes did not create a private right of action, and the borrower was limited to a tort claim for conversion. Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 1366 (N.D. Ga. 2012).

Cited in Evans v. Pennington, 177 Ga. 56 , 169 S.E. 349 (1933); Harris v. Hill, 129 Ga. App. 403 , 199 S.E.2d 847 (1973); Canal Ins. Co. v. Cambron, 240 Ga. 708 , 242 S.E.2d 32 (1978); Citizens & S. Nat'l Bank v. Wray, 144 Ga. App. 769 , 242 S.E.2d 365 (1978); Tidwell v. Slocumb (In re Ga. Steel, Inc.), 71 Bankr. 903 (Bankr. M.D. Ga. 1987); Prodigy Centers/Atlanta v. T-C Assocs., 127 F.3d 1021 (11th Cir. 1997).

RESEARCH REFERENCES

Am. Jur. 2d. - 63 Am. Jur. 2d, Property, § 25.

C.J.S. - 73 C.J.S., Property, § 22.

ALR. - Necessity and sufficiency of statement in writing of consideration or price for sale of goods or choses in action in order to satisfy statute of frauds, 59 A.L.R. 1422 .

Rights and remedies incident to subrogation to one but not both elements of a single cause of action for injury to person damage to property, 140 A.L.R. 1241 .

Statute relating to joint tenancy in personal property as applicable to choses in action, 144 A.L.R. 1465 .

44-12-21. Rights and remedies to enforce choses in action.

For every violation of an express or implied contract and for every injury done by another to one's person or property, the law gives a right to recover and a remedy to enforce it. The right is a chose in action, and the remedy is an action at law.

(Orig. Code 1863, § 2223; Code 1868, § 2217; Code 1873, § 2243; Code 1882, § 2243; Civil Code 1895, § 3076; Civil Code 1910, § 3652; Code 1933, § 85-1802.)

JUDICIAL DECISIONS

Creation of right of action. - Nothing is needed under O.C.G.A. § 44-12-21 but a right in the plaintiff and some invasion of that right by the defendant to create a right of action. Stafford v. Maddox, 87 Ga. 537 , 13 S.E. 559 (1891).

There can be no right of action until there has been a wrong, that is, a violation of a legal right. City of Columbus v. Anglin, 120 Ga. 785 , 48 S.E. 318 (1904); Strachan Shipping Co. v. Hazlip-Hood Cotton Co., 161 Ga. 480 , 131 S.E. 283 (1926).

O.C.G.A. § 44-12-21 is remedy which the law gives to enforce a right, arising from the violation of a contract, or for an injury done to a person or property. Chisholm v. Lewis & Co., 66 Ga. 729 (1881); State Hwy. Dep't v. Noble, 220 Ga. 410 , 139 S.E.2d 318 (1964).

O.C.G.A. § 44-12-21 should be harmonized as to right and remedy with O.C.G.A. § 9-2-3 unless the law forbids. Cox v. Strickland, 120 Ga. 104 , 47 S.E. 912 , 1 Ann. Cas. 870 (1904).

Right of action for tort is "chose in action" under O.C.G.A. § 44-12-21 . Gamble v. Cent. R.R. & Banking Co., 80 Ga. 595 , 7 S.E. 315 , 12 Am. St. R. 276 (1888); Central R.R. & Banking Co. v. Brunswick & W.R.R., 87 Ga. 386 , 13 S.E. 520 (1891).

Assignability. - Pursuant to Georgia law, the debtor's cause of action for wrongful foreclosure was an injury to property, which made it an assignable chose in action. Colony Bank Worth v. 150 Beachview Holdings, LLC (In re Fry), Bankr. (Bankr. S.D. Ga. Mar. 23, 2007).

Recovery for damage to property is not bar to subsequent action for injury to person where one sustains both injuries from the same act or acts of negligence of another. Endsley v. Georgia Ry. & Power Co., 37 Ga. App. 439 , 140 S.E. 386 (1927).

Instruction as to unrelated matters inappropriate. - In a suit to recover compensation for the damaging of real property as the consequence of a public improvement, instructions as to the measure of damages and relevant to a tort action are not appropriate as they are issues which were neither made by the pleadings nor the evidence. Clarke County Sch. Dist. v. Madden, 99 Ga. App. 670 , 110 S.E.2d 47 (1959).

Cited in Lacey v. Hutchinson, 5 Ga. App. 865 , 64 S.E. 105 (1909); Chattahoochee Brick Co. v. Goings, 135 Ga. 529 , 69 S.E. 865 , 1912A Ann. Cas. 263 (1910); Franklin v. City of Atlanta, 40 Ga. App. 319 , 149 S.E. 326 (1929); Sessions v. Parker, 174 Ga. 296 , 162 S.E. 790 (1932); Roberts v. Roberts, 174 Ga. 645 , 163 S.E. 735 (1932); Kutchey Motor Co. v. Hood, 46 Ga. App. 156 , 167 S.E. 126 (1932); Clarke County Sch. Dist. v. Madden, 99 Ga. App. 670 , 110 S.E.2d 47 (1959); Betts v. Brown, 219 Ga. 782 , 136 S.E.2d 365 (1964); State Hwy. Dep't v. Noble, 220 Ga. 410 , 139 S.E.2d 318 (1964); State Hwy. Dep't v. Hester, 112 Ga. App. 51 , 143 S.E.2d 658 (1965); Canal Ins. Co. v. Cambron, 240 Ga. 708 , 242 S.E.2d 32 (1978); Taylor v. Greiner, 156 Ga. App. 663 , 275 S.E.2d 737 (1980); Timms v. Verson Allsteel Press Co., 520 F. Supp. 1147 (N.D. Ga. 1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 63 Am. Jur. 2d, Property, § 23.

C.J.S. - 73 C.J.S., Property, § 22.

ALR. - Presence of noxious weeds as ground for rescission of contract for purchase of land, 2 A.L.R. 1511 .

Necessity, as condition of action at law, a defense thereto, based on rescission of contract, of return or tender before act of securities, commercial paper, or documents evidencing proper or contractual rights received as consideration, 105 A.L.R. 1003 .

Hotel or innkeeper's liability for refusal to honor reservation, 58 A.L.R.3d 369.

Measure and element of damages recoverable from vendor where there has been a mistake as to amount of land conveyed, 94 A.L.R.3d 1091.

44-12-22. Assignment of choses in action arising upon contracts.

Except as may be otherwise provided in Title 11, all choses in action arising upon contract may be assigned so as to vest the title in the assignee, but he takes it, except negotiable instruments subject to the equities existing between the assignor and debtor at the time of the assignment, and until notice of the assignment is given to the person liable.

(Orig. Code 1863, § 2224; Code 1868, § 2218; Code 1873, § 2244; Code 1882, § 2244; Civil Code 1895, § 3077; Civil Code 1910, § 3653; Code 1933, § 85-1803; Ga. L. 1943, p. 263, § 1; Ga. L. 1952, p. 225, § 9; Ga. L. 1982, p. 3, § 44; Ga. L. 1987, p. 3, § 44.)

Law reviews. - For note, "Wrongful Refusal to Pay Insurance Claims in Georgia," see 13 Ga. L. Rev. 935 (1979).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

O.C.G.A. § 44-12-22 makes all choses in action assignable with full protection to the debtor as to all equities existing until the time of notice. Gilmore v. Bangs, 55 Ga. 403 (1875); Baer v. English & Co., 84 Ga. 403 , 11 S.E. 453 , 20 Am. St. R. 372 (1890); Hartford Fire Ins. Co. v. Amos, 98 Ga. 533 , 25 S.E. 575 (1896); Herring v. First Nat'l Bank, 13 Ga. App. 492 , 79 S.E. 359 (1913); Few v. Pou, 32 Ga. App. 620 , 124 S.E. 372 (1924); Lamon v. Perry, 33 Ga. App. 248 , 125 S.E. 907 (1924).

Except where contract involves relation of personal confidence, such as to show that the party conferring the rights must necessarily have intended them to be exercised only by that party upon whom they were actually conferred. Tifton, T. & G. Ry. v. Bedgood & Co., 116 Ga. 945 , 43 S.E. 257 (1903); Adair v. Smith, 23 Ga. App. 290 , 98 S.E. 224 (1919).

Intent of O.C.G.A. § 44-12-22 . - The manifest intent of O.C.G.A. § 44-12-22 seems to be that the notice prescribed is intended to fix the status of all equities, and that, after such notice has been given, any equities subsequently arising are barred. Ellis v. Dudley, 19 Ga. App. 566 , 91 S.E. 904 (1917).

To avoid disturbing the time-honored rule that none save the holder of the legal title can prosecute an action, O.C.G.A. § 44-12-22 provides that a regular assignment, in conformity to established custom, should operate to pass the legal title, and thus enable the assignee to maintain a suit in own name. Haug v. Riley, 101 Ga. 372 , 29 S.E. 44 , 40 L.R.A. 244 (1897).

Manner of assignment not prescribed by this section. - O.C.G.A. § 44-12-22 does not undertake to prescribe the manner in which choses in action may be assigned so as to vest the title. Haug v. Riley, 101 Ga. 372 , 29 S.E. 44 , 40 L.R.A. 244 (1897).

O.C.G.A. § 44-12-22 does not prohibit parties from providing that their contract shall not be assignable. Mingledorff's, Inc. v. Hicks, 133 Ga. App. 27 , 209 S.E.2d 661 (1974).

O.C.G.A. §§ 9-12-21 and 44-12-22 must be construed together harmoniously. Western Nat'l Bank v. Maverick Nat'l Bank, 90 Ga. 339 , 16 S.E. 942 , 35 Am. St. R. 210 (1892).

"Assigned" means transferred. Haug v. Riley, 101 Ga. 372 , 29 S.E. 44 , 40 L.R.A. 244 (1897).

Damages to property and person distinguished. - O.C.G.A. §§ 44-12-22 and 44-12-24 distinguish damages to property and damages to person, and under them a right of action for damage to the person cannot be assigned, and a right of action for damage to property can be assigned. Benjamin-Ozburn Co. v. Morrow Transf. & Storage Co., 13 Ga. App. 636 , 79 S.E. 753 (1913).

Executed sale and executory contract to sell distinguished. - In an executed sale, as distinguished from an executory contract to sell, where the instrument purports to make a present transfer of title, if the existence of the subject matter is not then actual or complete, it must at least be so potential as to amount to a present right in the vendor to a future interest or benefit; but where the instrument is merely an executory contract to sell, the parties may be bound, even though the subject matter is known to have neither an actual nor a potential existence, provided the agreement is not merely speculative, but contemplates an actual future delivery of the thing bargained for. Eibel v. Mechanics Loan & Sav. Co., 52 Ga. App. 349 , 183 S.E. 133 (1935).

Cited in Murray & Co. v. Jones, 50 Ga. 109 (1873); Adams v. Robinson, 69 Ga. 627 (1882); Zellner v. Mobley, 84 Ga. 746 , 11 S.E. 402 , 20 Am. St. R. 390 (1890); Western Nat'l Bank v. Maverick Nat'l Bank, 90 Ga. 339 , 16 S.E. 942 , 35 Am. St. R. 210 (1892); Loudermilk v. Loudermilk, 93 Ga. 443 , 21 S.E. 77 (1894); Peoples Bank v. Exchange Bank, 116 Ga. 820 , 43 S.E. 269 (1902); Dean v. Bateman, 12 Ga. App. 253 , 77 S.E. 102 (1913); Ellis v. Dudley, 19 Ga. App. 566 , 91 S.E. 904 (1917); Fourth Nat'l Bank v. Odom, 147 Ga. 170 , 93 S.E. 91 (1917); Garrard v. Milledgeville Banking Co., 168 Ga. 339 , 147 S.E. 766 (1929); Macon Nat'l Bank v. Smith, 170 Ga. 332 , 153 S.E. 4 (1930); Doepke v. Cocke, 45 Ga. App. 65 , 163 S.E. 310 (1932); Southern Ry. v. Cole, 49 Ga. App. 635 , 176 S.E. 512 (1934); National Fin. Co. v. Citizens Loan & Sav. Co., 184 Ga. 619 , 192 S.E. 717 (1937); West v. Anderson, 187 Ga. 587 , 1 S.E.2d 671 (1939); Delray, Inc. v. Reddick, 194 Ga. 676 , 22 S.E.2d 599 (1942); Padgett v. Butler, 84 Ga. App. 297 , 66 S.E.2d 194 (1951); Whatley v. Alto Corp., 211 Ga. 718 , 88 S.E.2d 398 (1955); Mobley v. GMAC, 103 Ga. App. 584 , 119 S.E.2d 804 (1961); S.M. & M. Realty Corp. v. Highlands Ins. Co., 123 Ga. App. 170 , 179 S.E.2d 781 (1971); Ampex Credit Corp. v. Bateman, 554 F.2d 750 (5th Cir. 1977); Arrow Dyeing & Finishing Co. v. Clarklift of Dalton, Inc., 148 Ga. App. 693 , 252 S.E.2d 197 (1979); Cobb Bank & Trust Co. v. American Mfrs. Mut. Ins. Co., 624 F.2d 722 (5th Cir. 1980); Dennard v. Freeport Minerals Co., 250 Ga. 330 , 297 S.E.2d 222 (1982); Decatur N. Assocs. v. Builders Glass, Inc., 180 Ga. App. 862 , 350 S.E.2d 795 (1986); Rome Hous. Auth. v. Allied Bldg. Materials, Inc., 182 Ga. App. 233 , 355 S.E.2d 747 (1987); Hammond v. City of Warner Robins, 224 Ga. App. 684 , 482 S.E.2d 422 (1997).

Requirements for Assignment of Choses in Action

Assignment of chose in action must be in writing. Hawkes v. Mobley, 174 Ga. 481 , 163 S.E. 494 (1932); Jarecky v. Arnold, 51 Ga. App. 954 , 182 S.E. 66 (1935); Lumpkin v. American Sur. Co., 69 Ga. App. 887 , 27 S.E.2d 412 (1943).

No special form of words is necessary to make assignment of chose in action. - Any language, however informal, will be sufficient to vest the title in the assignee, if it shows the intention of the owner of the chose in action to at once transfer it so that it will be the property of the transferee. Southern Mut. Life Ins. Ass'n v. Durdin, 132 Ga. 495 , 64 S.E. 264 , 131 Am. St. R. 210 (1909); Myers v. Adams, 14 Ga. App. 520 , 81 S.E. 595 (1914); Peck v. Calhoun, 38 Ga. App. 764 , 145 S.E. 528 (1928); Baker v. Sutton, 47 Ga. App. 176 , 170 S.E. 95 (1933); Lumpkin v. American Sur. Co., 61 Ga. App. 777 , 7 S.E.2d 687 (1940), later appeal, 69 Ga. App. 887 , 27 S.E.2d 412 (1943).

Where the petition set forth a right in the petitioners, as assignees of a written option, to a reconveyance of described land upon the tender and offer to perform as made to the defendant, the court did not err in overruling the motion to dismiss the action. Barron v. Anderson, 204 Ga. 7 , 48 S.E.2d 846 (1948).

Proof of immediate change of ownership required for assignment. - In order to infer an equitable assignment, such facts and circumstances must appear, as would not only raise an equity between the assignor and the assignee, but show that the parties contemplated an immediate change of ownership with respect to the particular fund in question, not a change of ownership when the fund should be collected or realized, but at the time of the transaction relied upon to constitute the assignment. Brown Guano Co. v. Bridges, 34 Ga. App. 652 , 130 S.E. 695 (1925).

Potential existence of fund assigned required. - It is not necessary that the fund attempted to be assigned shall be in actual existence at the time, for it is well settled that it is sufficient if it exists potentially. Brown Guano Co. v. Bridges, 34 Ga. App. 652 , 130 S.E. 695 (1925).

Previous acceptance by debtor required for partial assignment of debt. - A partial assignment of a debt due the assignor will not vest in the assignee such a title to the part of the debt assigned as can be enforced in a common-law action, without a previous acceptance by the debtor. Rivers v. Wright & Co., 117 Ga. 81 , 43 S.E. 499 (1903); Central of Ga. Ry. v. Dover, 1 Ga. App. 240 , 57 S.E. 1002 (1907); Ison Co. v. Atlantic Coast Line R.R., 17 Ga. App. 459 , 87 S.E. 754 (1916).

Employer's assent to assignment of wages required to maintain action. - An action at law by the assignee against a railway company, for that part of the wages earned by the assignor at the date of the assignment, cannot be maintained, unless the railway company assented to the assignment. Central of Ga. Ry. v. Dover, 1 Ga. App. 240 , 57 S.E. 1002 (1907).

Assignable Choses in Action

All choses in action arising upon contract, including accounts receivable, may be assigned so as to vest title and the right to sue on them in the assignee. William Iselin & Co. v. Davis, 157 Ga. App. 739 , 278 S.E.2d 442 (1981).

Claim arising from breach of contract to become surety on a guano note is assignable. Adams v. Williams, 125 Ga. 430 , 54 S.E. 99 (1906).

Insurance policies. - A policy of insurance being a chose in action may be assigned so as to vest the title in the assignee, but the assignee takes it subject to the equities existing between the assignor and debtor at the time of the assignment. Morris v. Georgia Loan, Sav. & Banking Co., 109 Ga. 12 , 34 S.E. 378 , 46 L.R.A. 506 (1899); Sprouse v. Skinner, 155 Ga. 119 , 116 S.E. 606 (1923); Baldwin v. Atlanta Joint Stock Land Bank, 189 Ga. 607 , 7 S.E.2d 178 (1940); Parramore v. Williams, 215 Ga. 179 , 109 S.E.2d 745 (1959).

After a life insurance policy has matured by the death of the insured, the policy may be assigned as any chose in action regardless of any stipulation in the policy. Progressive Life Ins. Co. v. Bohannon, 74 Ga. App. 617 , 40 S.E.2d 564 (1946).

An assignment of an insurance policy for value received which recites that it "is an absolute assignment" is an absolute assignment as against the original beneficiary, and the insured under such an assignment will have no interest in the policy after assignment. Parramore v. Williams, 215 Ga. 179 , 109 S.E.2d 745 (1959).

A beneficiary, having only a divestible interest which is not a vested right, is, in effect, divested of this interest by the assignment of an insurance policy subject to the payment of a debt. Ruis v. Bank of Albany, 213 Ga. 41 , 96 S.E.2d 580 (1957).

Reinsurance company proceeding as sole claimant. - Trial court properly denied the appellant's motion to stay arbitration and granted the appellees' motion to compel arbitration because the assignment of the claims to the reinsurance company was valid and enforceable and, therefore, the reinsurance company could proceed as the sole claimant. McLarens Young Int'l, Inc. v. Am. Safety Cas. Ins. Co., 334 Ga. App. 819 , 780 S.E.2d 464 (2015).

Subscription to capital stock of railroad company is a chose in action and assignable, and the assignee can enforce its payment under circumstances where the company could do so. Chattanooga R. & C.R.R. v. Warthen, 98 Ga. 599 , 25 S.E. 988 (1896).

Any chose in action involving a property right may be assigned, and so a deed, as made after a breach, vested all the rights of the grantor as to this property, including the right to sue. Evans v. Brown, 196 Ga. 364 , 27 S.E.2d 300 (1943).

Automobile retail installment sales contract. - Automobile dealer had the right to assign a retail installment sales contract, and a discount deducted from the face amount of the contract when it was sold to a finance company was not a finance charge required to be disclosed by the dealer to the purchasers. Chancellor v. Gateway Lincoln-Mercury, Inc., 233 Ga. App. 38 , 502 S.E.2d 799 (1998).

Chose in action based on tort is transferable where it directly involves right of property. Colter v. Livingston, 154 Ga. 401 , 114 S.E. 430 (1922); Lamon v. Perry, 33 Ga. App. 248 , 125 S.E. 907 (1924); Lumpkin v. American Sur. Co., 69 Ga. App. 887 , 27 S.E.2d 412 (1943); Ricketts v. Liberty Mut. Ins. Co., 127 Ga. App. 483 , 194 S.E.2d 311 (1972).

While action is pending for tort, there can be no legal assignment of the cause of action or of the damages to be recovered. Gamble v. Cent. R.R. & Banking Co., 80 Ga. 595 , 7 S.E. 315 , 12 Am. St. R. 276 (1888); Sullivan v. Curling, 149 Ga. 96 , 99 S.E. 533 , 5 A.L.R. 124 (1919); Colter v. Livingston, 154 Ga. 401 , 114 S.E. 430 (1922).

Therefore, an action of deceit arising under O.C.G.A. § 51-6-2 , which is a tort, is not assignable. Bates & Co. v. Forsyth, 64 Ga. 232 (1879).

Bank entitled to assign right of action against defalcating employee. - Where a surety company contracts to indemnify a bank against loss occasioned by the defalcation of any employee thereof, and upon an alleged defalcation by one of the bank's employees, the company pays the loss sustained by the bank upon the presentation to it by the bank of a claim of loss in accordance with the terms of the contract, the bank may properly transfer and assign its right of action against the employee to recover the amount of its loss to the company, and the surety company may maintain an action in its own name against the defalcating employee of the bank to recover the amount paid by it to the bank under the contract of indemnity made with the bank. Lumpkin v. American Sur. Co., 61 Ga. 777 , 7 S.E.2d 687 (1940), later appeal, 69 Ga. App. 887 , 27 S.E.2d 412 (1943).

Liability is asset assignable by trustee in bankruptcy of a corporation under an order of the referee in bankruptcy. Baker v. Sutton, 47 Ga. App. 176 , 170 S.E. 95 (1933).

Transfer of note is fully within the terms of O.C.G.A. § 44-12-22 . Jackson v. State, 5 Ga. App. 177 , 62 S.E. 726 (1908).

Account is assignable. - See Mordecai v. Stewart, 37 Ga. 364 (1867); Barron v. Walker, 80 Ga. 121 , 7 S.E. 272 (1887); Akin v. Feagin, 90 Ga. 72 , 15 S.E. 654 (1892); Nix v. Ellis, 118 Ga. 345 , 45 S.E. 404 (1903); Central of Ga. Ry. v. King Bros. & Co., 137 Ga. 369 , 73 S.E. 632 (1912); Southern Ry. v. Pitner & Raines, 17 Ga. App. 451 , 87 S.E. 754 (1916).

Right of action on letter of credit is assignable. Adams v. Williams, 125 Ga. 430 , 54 S.E. 99 (1906).

Bond for title is assignable. - Although a bond for title obligated the owners of certain land to make title thereto to the obligee, heirs, executors, and administrators, without adding assigns, it is nevertheless assignable under O.C.G.A. § 44-12-22 . Fulcher & Co. v. Daniel & Son, 80 Ga. 74 , 4 S.E. 259 (1887).

Architects' certificate is assignable. Timmons v. Citizens Bank, 11 Ga. App. 69 , 74 S.E. 798 (1912).

Entry in bank book. - An entry in a bank book is equivalent to a receipt for money and is, consequently, evidence of a loan and of a contract for repayment on demand; as such, it is sufficient to establish the relation of debtor and creditor between the parties and it is assignable so as to vest a right of action in the assignee in the assignee's own name. Flanders & Huguenin v. Maynard, 58 Ga. 56 (1877).

Covenants are assignable. Tucker v. McArthur, 103 Ga. 409 , 30 S.E. 283 (1898).

Right of heir to interest in ancestor's estate is assignable. Greenwood v. Greenwood, 178 Ga. 605 , 173 S.E. 858 (1934).

Contingent right in certain real estate is assignable even though it is not at all certain that it would ever be transformed into a present right. Chattahoochee Holdings, Inc. v. Marshall, 146 Ga. App. 658 , 247 S.E.2d 167 (1978).

Title to exemption assignable by debtor. - Although a debtor has no vested title or interest in an exemption at the time of its sale or assignment, the debtor has a chose in action and a potential right in the nature of a defeasible title, which is assignable. Eibel v. Mechanics Loan & Sav. Co., 52 Ga. App. 349 , 183 S.E. 133 (1935).

An interest in the title to an exemption may be assigned in good faith to a creditor, not only before the exemption is set aside by the court, but even before bankruptcy proceedings are instituted. Eibel v. Mechanics Loan & Sav. Co., 52 Ga. App. 349 , 183 S.E. 133 (1935).

O.C.G.A. § 44-12-22 inapplicable to bill of lading. Postell v. Avery & Co., 12 Ga. App. 507 , 77 S.E. 666 (1913).

Exclusive use of name. - The exclusive use of a person's name conveyed to a party for consideration may be assigned by that party in an enforceable contract. Fletcher v. Atlanta Bd. of Realtors, Inc., 250 Ga. 21 , 295 S.E.2d 737 (1982).

Legal malpractice claims. - Appellate court properly affirmed the denial of summary judgment to a lawyer on a legal malpractice claim because in light of assignments allowable under O.C.G.A. §§ 44-12-22 and 44-12-24 , the Georgia Supreme Court agrees that the assignment of legal malpractice claims is not prohibited as a matter of law. Villanueva v. First Am. Title Ins. Co., 292 Ga. 630 , 740 S.E.2d 108 (2013).

Georgia Supreme Court agrees with the Georgia Court of Appeals that legal malpractice claims are not per se unassignable. Villanueva v. First Am. Title Ins. Co., 292 Ga. 630 , 740 S.E.2d 108 (2013).

Rights of Parties

Assignee can acquire no greater rights than the assignor had. Healey v. Morgan, 135 Ga. App. 915 , 219 S.E.2d 628 (1975).

Contracting parties may waive or renounce what law has established in their favor provided such waiver or renunciation does not thereby injure others or affect the public interest. Young v. John Deere Plow Co., 102 Ga. App. 132 , 115 S.E.2d 770 (1960).

Debtor under a conditional sale contract, by expressly agreeing not to set up as a defense to an action on the contract by the assignee thereof any claim the debtor may have had against the assignor of the contract, waived the right to plead failure of consideration in an action on the contract by the assignee, and such plea and the cross action for the down payment are without merit. Jones v. Universal C.I.T. Credit Corp., 88 Ga. App. 24 , 75 S.E.2d 822 (1953); Young v. John Deere Plow Co., 102 Ga. App. 132 , 115 S.E.2d 770 (1960).

Because third party failed to present sufficient evidence supporting its position that it had a right, as successor in interest, to sue on a creditor's account with the creditor's debtor in order to support that right, summary judgment in its favor in suit against the debtor was erroneously entered. Ponder v. CACV of Colo., LLC, 289 Ga. App. 858 , 658 S.E.2d 469 (2008).

Agreement for debt setoff. - If the agreement is for a consideration, it is binding on the same terms as any other agreement; and if it is executed, it needs no consideration. National Sur. Corp. v. Algernon Blair, Inc., 114 Ga. App. 30 , 150 S.E.2d 256 , rev'd on other grounds, 222 Ga. 672 , 151 S.E.2d 724 (1966).

Claim of assignee of judgment is subject to such equities and defenses as may have existed in favor of the judgment debtor against the judgment creditor at the time of the assignment, but is not subject to rights which did not then exist in favor of such judgment debtor and of which the judgment debtor did not become possessed until some time later, as by the subsequent purchase of judgments against the judgment creditor. Sheffield v. Preacher, 175 Ga. 719 , 165 S.E. 742 (1932).

Equities existing between assignor and debtor include the terms and conditions of the contract under which the indebtedness arose. National Sur. Corp. v. Algernon Blair, Inc., 114 Ga. App. 30 , 150 S.E.2d 256 , rev'd on other grounds, 222 Ga. 672 , 151 S.E.2d 724 (1966).

Holder's rights unaffected by equities between maker and payee. - The equities between the maker and the payee, originating after a transfer to a third person, will not affect the rights of the holder, though the transfer is made after the note becomes due. Central Trust Co. v. Fargason, 21 Ga. App. 696 , 94 S.E. 902 (1918).

Effect of mere equitable assignment. - An assignee may sue in own name, but a mere equitable assignment or interest arising from paying for a chose in action, without written transfer, gives no right to sue upon it in the name of the equitable assignee. Florida Coca Cola Bottling Co. v. Ricker, 136 Ga. 411 , 71 S.E. 734 (1911). See also Lamon v. Perry, 33 Ga. App. 248 , 125 S.E. 907 (1924).

Right to sue where subject matter of assignment not mere naked right of action. - Where the subject matter of a sale, purchase, and assignment is not a mere naked right of action, but assignable property, such as an execution, mortgage and note, the ownership carried with it a right to sue as an incident of such ownership. Reed v. Janes, 84 Ga. 380 , 11 S.E. 401 (1890).

Upon the transfer to the plaintiffs of a bill of lading calling for a full quantity of corn, there is assigned to plaintiffs the right of action for the defendant's loss or conversion of a part of the corn. Askew & Co. v. Southern Ry., 1 Ga. App. 79 , 58 S.E. 242 (1907).

Mere equitable title insufficient when plaintiff relies on title to recover possession of personal property wrongfully withheld from the plaintiff who must show a legal title; a mere equitable title will not suffice. Eibel v. Mechanics Loan & Sav. Co., 52 Ga. App. 349 , 183 S.E. 133 (1935).

Absent description of property equitable interest conveyed by instrument other than draft. - An instrument, other than a draft, purporting to assign a sum of money to be paid out of a fund claimed to be in the hands of another, without describing the identical money intended to be conveyed, will not of itself convey legal title to any part of the fund which in fact may be in the hands of such other person; if anything is conveyed it is an equitable interest in the entire fund. Western & A.R.R. v. Union Inv. Co., 128 Ga. 74 , 57 S.E. 100 (1907).

Choses in action are not subject to seizure and sale under executions based upon ordinary judgment, and can only be reached by the judgment creditor through a garnishment or some other collateral proceeding; and, inasmuch as such garnishment or collateral proceeding is necessary to fix the lien of the judgment so as to make it effective, an assignment of the chose in action by the debtor before the institution of such collateral proceeding passes to the assignee the property of the debtor in the chose in action assigned, freed from the lien of a general judgment previously rendered against the assignor. Greenwood v. Greenwood, 178 Ga. 605 , 173 S.E. 858 (1934).

Assignment of entire chose in action entitled to priority over prior partial assignment. - Where a second assignment is of the entire chose in action, it vests in the assignee the legal title to the whole chose in action, and it is entitled to priority over the holder of a prior partial assignment of a chose in action to which the debtor of the assignor has not assented. King Bros. & Co. v. Central of Ga. Ry., 135 Ga. 225 , 69 S.E. 113 , 1912A Ann. Cas. 672 (1910).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments, §§ 58, 59. 63 Am. Jur. 2d, Property, §§ 26, 27.

2A Am. Jur. Pleading and Practice Forms, Assignments, § 2.

C.J.S. - 6A C.J.S., Assignments, § 36. 73 C.J.S., Property, § 22.

ALR. - Assignability of right of action ex delicto for injury to property, as affected by statute, 5 A.L.R. 130 .

Payment of judgment by debtor without notice of its assignment, 32 A.L.R. 1021 .

Priority as between one who redelivers papers or securities not transferable by endorsement or delivery to pledgor or assignee and a bona fide purchaser from the latter, 37 A.L.R. 1540 .

Priority of assignment of chose in action over subsequent garnishment as affected by lack of notice to debtor of assignment, 52 A.L.R. 109 .

Meaning and scope of covenant in assignment of claim as regards legality or quality of claim, 91 A.L.R. 548 .

Assignability of statutory claim against employer for nonpayment of wages, 48 A.L.R.2d 1385.

Law governing assignment of wages or salary, 1 A.L.R.3d 927.

Validity, in contract for installment sale of consumer goods, or commercial paper given in connection therewith, of provision waiving, as against assignee, defenses good against seller, 39 A.L.R.3d 518.

44-12-23. Assignment of a fund.

A fund may be assigned in writing. The written acceptance of a draft will be treated as an assignment pro tanto of funds of the drawer in the hands of the acceptor.

(Civil Code 1895, § 3078; Civil Code 1910, § 3654; Code 1933, § 85-1804.)

History of section. - This section is derived from the decisions in Baer v. English & Co., 84 Ga. 403 , 11 S.E. 453 (1890) and Jones v. Glover, 93 Ga. 484 , 21 S.E. 50 (1893).

JUDICIAL DECISIONS

O.C.G.A. § 44-12-23 applies solely to sureties. Davis v. Perkins, 178 Ga. 195 , 172 S.E. 562 (1934).

Cited in West v. Anderson, 187 Ga. 587 , 1 S.E.2d 671 (1939); Chancellor v. Gateway Lincoln-Mercury, Inc., 233 Ga. App. 38 , 502 S.E.2d 799 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments, §§ 51-54.

C.J.S. - 6A C.J.S., Assignments, § 19.

ALR. - Priority as between one who redelivers papers or securities not transferable by endorsement or delivery to pledgor or assignee and a bona fide purchaser from the latter, 37 A.L.R. 1540 .

Enforceability in equity of assignment of part of a debt without the debtor's consent, 80 A.L.R. 413 .

Meaning and scope of covenant in assignment of claim as regards legality or quality of claim, 91 A.L.R. 548 .

Assignability of claim for tax refund, and rights of assignee in respect thereof, 134 A.L.R. 1202 .

44-12-24. What rights of action may and may not be assigned.

Except for those situations governed by Code Sections 11-2-210 and 11-9-406, a right of action is assignable if it involves, directly or indirectly, a right of property. A right of action for personal torts, for legal malpractice, or for injuries arising from fraud to the assignor may not be assigned.

(Civil Code 1895, § 3079; Civil Code 1910, § 3655; Code 1933, § 85-1805; Ga. L. 2001, p. 362, § 33; Ga. L. 2013, p. 634, § 1/HB 160; Ga. L. 2013, p. 636, § 1/HB 359.)

The 2001 amendment, effective July 1, 2001, substituted "11-9-406" for "11-9-402" in the first sentence.

The 2013 amendments. The first 2013 amendment, effective May 6, 2013, inserted ", for legal malpractice," in the last sentence of this Code section. The second 2013 amendment, effective May 6, 2013, made identical changes.

History of section. - This section is derived from the decisions in Central R.R. & Banking Co. v. Brunswick & W.R.R., 87 Ga. 386 , 13 S.E. 520 (1891) and Sullivan v. Curling, 149 Ga. 96 , 99 S.E. 533 (1919).

Law reviews. - For article, "Uninsured Motorist Coverage in Georgia," see 4 Ga. St. B. J. 329 (1968). For annual survey on legal ethics, see 64 Mercer L. Rev. 189 (2012). For annual survey on legal ethics, see 65 Mercer L. Rev. 175 (2013). For note, "Wrongful Refusal to Pay Insurance Claims in Georgia," see 13 Ga. L. Rev. 935 (1979). For note, "Conflicts of Interest in the Liability Insurance Setting," 13 Ga. L. Rev. 973 (1979). For note, "Laissez Fair: The Case for Alternative Litigation Funding and Assignment of Lawsuit Proceeds in Georgia," see 49 Ga. L. Rev. 1121 (2015). For comment, "The Employer's/Insurance Carrier's Right to Subrogation Under the Georgia Workers' Compensation Act (O.C.G.A. Section 34-9-11.1): How Long Will It Last?," see 46 Mercer L. Rev. 1575 (1995).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

"Assign" means transfer so as to vest title in the recipient and allow such person to sue directly. McLanahan v. Keith, 135 Ga. App. 117 , 217 S.E.2d 420 (1975); In re Carroll, 89 Bankr. 1007 (Bankr. N.D. Ga. 1988); Shook v. Pilot Life Ins. Co., 188 Ga. App. 714 , 373 S.E.2d 813 , cert. denied, 188 Ga. App. 912 , 373 S.E.2d 813 (1988).

Right of action is assignable if it is for damage to property or a right of action or chose in action arising from tort which involves, directly or indirectly, a right of property. Sullivan v. Curling, 149 Ga. 96 , 99 S.E. 533 , 5 A.L.R. 124 (1919); Lumpkin v. American Sur. Co., 69 Ga. App. 887 , 27 S.E.2d 412 (1943).

Contract to share recovery obtained not assignment of right of action. - Where a widowed mother had a cause of action against a railway company to recover damages for the homicide of her son, and she entered into a contract with her children, by the terms of which she agreed, in consideration of advances, made by them to her for the purpose of defraying the expenses of prosecuting her cause of action to share equally with them in any recovery she might obtain in her suit, this was not an assignment of the right of action for the personal tort. Anderson v. Anderson, 12 Ga. App. 706 , 78 S.E. 271 (1913).

Conveyance of title to land. - Conveyance of title to land neither passes title to timber cut nor assigns the right to recover damages for the trespass resulting from its wrongful removal and conversion. Rome Kraft Co. v. Davis, 213 Ga. 899 , 102 S.E.2d 571 (1958).

Agreement to pay contingent fee not assignment. - An agreement to pay a contingent fee does not confer on an attorney the right of an assignee. Winslow Bros. Co. v. Murphy, 139 Ga. 231 , 77 S.E. 25 (1913).

Subrogation generally. - While the common law recognized subrogation in property damage claims, it did not recognize it in personal injury claims. These principles have been followed generally in the Official Code of Georgia Annotated. Carter v. Banks, 254 Ga. 550 , 330 S.E.2d 866 (1985).

Subrogation and assignment distinguished. - Subrogation effects an assignment by operation of law, but differs from an ordinary assignment of the debt in that an assignment assumes the continued existence of the debt, while subrogation follows upon its payment. Maryland Cas. Co. v. Brown, 321 F. Supp. 309 (N.D. Ga. 1971).

Health insurance policy which merely purported to give the insurer a right to be reimbursed for benefits paid on behalf of the insured, to the extent of monies received by the insured from the tort-feasor "as a result of judgment, settlement or otherwise" did not purport to effect an assignment of a cause of action, as proscribed by O.C.G.A. § 44-12-24 , but created a valid and enforceable right of subrogation. Shook v. Pilot Life Ins. Co., 188 Ga. App. 714 , 373 S.E.2d 813 , cert. denied, 188 Ga. App. 912 , 373 S.E.2d 813 (1988).

Subrogee is limited to indemnification only. Maryland Cas. Co. v. Brown, 321 F. Supp. 309 (N.D. Ga. 1971).

Judgment creditor could not set aside fraudulent transfers that occurred prior to assignment of loan. - Because of the anti-assignment statute, O.C.G.A. § 44-12-24 , a judgment creditor did not have standing under the Uniform Fraudulent Transfers Act (UFTA) to contest transfers by the debtor that occurred prior to assignment of the debtor's loan to the creditor. Merrill Ranch Props., LLC v. Austell, 336 Ga. App. 722 , 784 S.E.2d 125 (2016).

Cited in Southern Ry. v. Barrett, Denton & Lynn Co., 141 Ga. 584 , 81 S.E. 863 (1914); West v. Anderson, 187 Ga. 587 , 1 S.E.2d 671 (1939); Keene v. Lumbermen's Mut. Ins. Co., 60 Ga. App. 864 , 5 S.E.2d 379 (1939); American Ins. Co. v. Keene, 61 Ga. App. 754 , 7 S.E.2d 427 (1940); Sanders v. Hepp, 190 Ga. 18 , 8 S.E.2d 87 (1940); Delray, Inc. v. Reddick, 194 Ga. 676 , 22 S.E.2d 599 (1942); James v. Emmco Ins. Co., 71 Ga. App. 196 , 30 S.E.2d 361 (1944); Mangum v. Jones, 205 Ga. 661 , 54 S.E.2d 603 (1949); Graham v. Frazier, 82 Ga. App. 185 , 60 S.E.2d 833 (1950); Davis v. Atlanta Gas Light Co., 82 Ga. App. 460 , 61 S.E.2d 510 (1950); Ernest L. Miller Co. v. Gauntt, 93 Ga. App. 178 , 91 S.E.2d 104 (1956); White v. Gordon, 213 Ga. 730 , 101 S.E.2d 759 (1958); Security Feed & Seed Co. v. Nesmith, 213 Ga. 783 , 102 S.E.2d 37 (1958); State Farm Mut. Auto. Ins. Co. v. Jones, 98 Ga. App. 46 , 104 S.E.2d 725 (1958); Thomas v. Cities Transit, Inc., 98 Ga. App. 694 , 106 S.E.2d 351 (1958); Wrightsman v. Hardware Dealers Mut. Fire Ins. Co., 113 Ga. App. 306 , 147 S.E.2d 860 (1966); S.M. & M. Realty Corp. v. Highlands Ins. Co., 123 Ga. App. 170 , 179 S.E.2d 781 (1971); Southern Guar. Ins. Co. v. Robinson, 132 Ga. App. 121 , 207 S.E.2d 599 (1974); American Sec. Van Lines v. AMOCO, 133 Ga. App. 368 , 210 S.E.2d 832 (1974); Ramsey v. Thomas, 133 Ga. App. 869 , 212 S.E.2d 444 (1975); Liberty Mut. Ins. Co. v. Clark, 165 Ga. App. 31 , 299 S.E.2d 76 (1983); Tidwell v. Slocumb (In re Ga. Steel, Inc.), 71 Bankr. 903 (Bankr. M.D. Ga. 1987); Getz Exterminators of Ga., Inc. v. Towe, 193 Ga. App. 268 , 387 S.E.2d 338 (1989); Santiago v. Klosik, 199 Ga. App. 276 , 404 S.E.2d 605 (1991); GEICO v. Hardman, 212 Ga. App. 367 , 444 S.E.2d 165 (1994); Hammond v. City of Warner Robins, 224 Ga. App. 684 , 482 S.E.2d 422 (1997); Chancellor v. Gateway Lincoln-Mercury, Inc., 233 Ga. App. 38 , 502 S.E.2d 799 (1998); Outdoor Sys. v. Wood, 247 Ga. App. 287 , 543 S.E.2d 414 (2000); Fox v. Norfolk S. Corp., 342 Ga. App. 38 , 802 S.E.2d 319 (2017).

Assignable Rights of Action
1. Requirements for Assignment

Express agreement required to assign tort action. - A right of action for a tort is not extinguished and hence not assignable under this section by a compromise settlement in which a given sum is to be paid to the injured party, unless it be expressly agreed between the parties that the promise to pay the amount fixed by the settlement shall be accepted as a satisfaction within terms of O.C.G.A. § 13-7-9 of the original claim. Fouche & Fouche v. Morris, 112 Ga. 143 , 37 S.E. 182 (1900) (decided under former Civil Code § 3079).

Form of assignment of chose in action is immaterial; it is sufficient if it is in writing and manifests the intention of the owner to transfer to the assignee title in the chose in action. Lumpkin v. American Sur. Co., 69 Ga. App. 887 , 27 S.E.2d 412 (1943).

No joinder of assignor in suit by assignee. - Where the right of action does involve directly or indirectly a right of property, it is assignable, and the assignee must bring the suit in own name without joining the assignor. Browder v. Cox, 83 Ga. App. 738 , 64 S.E.2d 460 (1951).

Specific assignment required to pass right of action to subsequent purchaser. - A right of action which arises from a tort and involves property does not "run with the land," and therefore does not pass to a subsequent purchaser by deed in the absence of a specific assignment thereof. Dougherty County v. Pylant, 104 Ga. App. 468 , 122 S.E.2d 117 (1961).

Willful and malicious injury to property specifically assignable. - Court declined to reconsider the court's ruling that Count 5 of the amended complaint was assignable under O.C.G.A. § 44-12-24 because a claim under 11 U.S.C.S. § 523(a)(6) for willful and malicious injury to property was specifically assignable under § 44-12-24 . McAfee v. Harman (In re Harman), Bankr. (Bankr. N.D. Ga. Feb. 24, 2021).

2. Specific Acts of Assignment

Right of action based on conversion of personal property is assignable. Ricketts v. Liberty Mut. Ins. Co., 127 Ga. App. 483 , 194 S.E.2d 311 (1972).

A cause of action for unlawful conversion may be assigned. Maryland Cas. Co. v. Brown, 321 F. Supp. 309 (N.D. Ga. 1971).

Right of action based on destruction of property in tortious manner is assignable. Davis v. Rome Kraft Co., 96 Ga. App. 450 , 100 S.E.2d 473 (1957).

A cause of action for damages to property resulting from the negligence of the defendant is an action which involves a property right and is assignable under O.C.G.A. § 44-12-24 . Hubbard v. Ruff, 97 Ga. App. 251 , 103 S.E.2d 134 (1958).

Insured's right of action in tort assignable. - Where property covered by a policy of fire insurance is destroyed, the insurer, when settling with the insured for the loss, may take, as a consideration for the settlement, an assignment of the insured's right of action in tort against another for the destruction of the property, thereby subrogating the insurer to the insured's right to recover for the loss. Hoxie v. Americus Auto. Co., 73 Ga. App. 686 , 37 S.E.2d 808 (1946).

Counterclaim alleging that surveyor and agents trespassed on and to wife's property and interfered with her enjoyment of her real and personal property stated an assignable property injury claim; a right of action involving a property right is assignable, including a cause of action for a tort to property. Barnes v. Collins, 205 Ga. App. 750 , 423 S.E.2d 308 (1992).

A tort cause of action for compensatory damages for loss of property resulting from an insurer's bad faith may be assigned. Southern Gen. Ins. Co. v. Ross, 227 Ga. App. 191 , 489 S.E.2d 53 (1997).

Reinsurance company proceeding as sole claimant. - Trial court properly denied the appellant's motion to stay arbitration and granted the appellees' motion to compel arbitration because the assignment of the claims to the reinsurance company was valid and enforceable and, therefore, the reinsurance company could proceed as the sole claimant. McLarens Young Int'l, Inc. v. Am. Safety Cas. Ins. Co., 334 Ga. App. 819 , 780 S.E.2d 464 (2015).

Assignment of tort proceeds. - Although a court had earlier rejected a debtor's reliance on O.C.G.A. § 44-12-24 in seeking a ruling that the assignment of a tort action was invalid because the debtor had assigned the future proceeds of the action, not the right of action, the assignee creditor's default allowed the court to accept the debtor's assertion that the assignment of the proceeds to be received in the future was not a valid, enforceable assignment under Georgia law; in addition, the creditor had no lien or perfected security interest in the proceeds under O.C.G.A. § 44-14-320 ; thus, because there was no valid assignment and because the creditor did not have a valid, perfected security interest under Georgia law, then the creditor was an unsecured creditor with only a claim based on the debtor's breach of her promise to pay. Carson v. Rhodes (In re Carson), Bankr. (Bankr. N.D. Ga. June 12, 2006).

Heir's right of interest in estate assignable. - The right of an heir to an interest in the estate of an ancestor is a chose in action; such choses in action are assignable. Greenwood v. Greenwood, 178 Ga. 605 , 173 S.E. 858 (1934).

Deed made after breach assigns proper right. - Any chose in action involving a property right may be assigned; thus, a deed made after a breach vests all the rights of the grantor as to the property, including the right of action. Evans v. Brown, 196 Ga. 634 , 27 S.E.2d 300 (1943).

Bank may properly transfer and assign its right of action against defalcating employee to recover the amount of its loss to a surety company where the surety company contracts to indemnify the bank against loss occasioned by the defalcation of any employee thereof, and upon an alleged defalcation by one of the bank's employees, the company pays the loss sustained by the bank upon the presentation to it by the bank of a claim of loss in accordance with the terms of the contract, the bank may properly transfer and assign its right of action against the employee to recover the amount of its loss to the company, and the company may maintain an action in its own name against the defalcating employee of the bank to recover the amount paid by it to the bank under the contract of indemnity made with the bank. Lumpkin v. American Sur. Co., 69 Ga. App. 887 , 27 S.E.2d 412 (1943).

The right of a bank to recover of the defendant employee, on account of the employee's alleged wrongful acts in taking or removing the money of the bank and concealing defendant's wrongful acts by false entries upon the books of the bank, is a right to recover for injury involving the bank's property right in the money. Lumpkin v. American Sur. Co., 69 Ga. App. 887 , 27 S.E.2d 412 (1943).

A right of action to recover amount of checks paid out by the defendant bank, the endorsements upon which were forged by the depositor's employee and which loss had been paid by insurers under policy indemnifying the depositor against dishonesty of its employees is assignable. First Nat'l Bank v. American Sur. Co., 71 Ga. App. 112 , 30 S.E.2d 402 (1944).

Effect of assignment by debtor of property before garnishment. - Choses in action are not subject to seizure and sale under executions based upon ordinary judgments, and can only be reached by the judgment creditor through a garnishment or some other collateral proceeding; and, inasmuch as such garnishment or collateral proceeding is necessary to fix the lien of the judgment so as to make it effective, an assignment of the chose in action by the debtor before the institution of such collateral proceeding passes to the assignee the property of the debtor in the chose in action assigned, freed from the lien of a general judgment previously rendered against the assignor. Greenwood v. Greenwood, 178 Ga. 605 , 173 S.E. 858 (1934).

Judgments are transferable. - Transfer of debt owed by debtor from judgment creditor to judgment creditor's son was effective because judgments, even if based on fraud or personal torts, were transferable. McAfee v. Harman (In re Harman), Bankr. (Bankr. N.D. Ga. Sept. 30, 2019).

Tax preparer's payment to a taxpayer of a discounted sum in exchange for the right to a refund was not a "loan" but instead constituted a "sale" by the taxpayer of a chose in action. Cullen v. Bragg, 180 Ga. App. 866 , 350 S.E.2d 798 (1986).

Legal malpractice claim. - Trial court did not err in denying an attorney summary judgment on an insurer's malpractice claim because the loss was solely a financial loss, the claim involved a right of property, and the claim was assignable; the closing protection letter from the insurer to the insured created an assignment because the claim transferred to the insurer not merely the insured's rights of recovery but also the right of action. Villanueva v. First Am. Title Ins. Co., 313 Ga. App. 164 , 721 S.E.2d 150 (2011), cert. denied, No. S12C0502, 2012 Ga. LEXIS 607 (Ga. 2012).

Appellate court properly affirmed the denial of summary judgment to a lawyer on a legal malpractice claim because in light of assignments allowable under O.C.G.A. §§ 44-12-22 and 44-12-24 , the Georgia Supreme Court agrees that the assignment of legal malpractice claims is not prohibited as a matter of law. Villanueva v. First Am. Title Ins. Co., 292 Ga. 630 , 740 S.E.2d 108 (2013).

Georgia Supreme Court agrees with the Georgia Court of Appeals that legal malpractice claims are not per se unassignable. Villanueva v. First Am. Title Ins. Co., 292 Ga. 630 , 740 S.E.2d 108 (2013).

Nonassignable Rights of Action
1. In General

Tort action and action for fraud. - Under O.C.G.A. § 44-12-24 , a personal tort action and an action for fraud are non-assignable. Additionally, the rights to punitive damages are not assignable. In re Estate of Sims, 259 Ga. App. 786 , 578 S.E.2d 498 (2003).

Absent plaintiff's ownership or claim of property at institution of action, suit not maintainable. - Where property previously belonging to the plaintiff is illegally converted at a time when the title was vested in plaintiff, the plaintiff is not entitled to maintain an action in trover where it appears that at the time the suit was instituted plaintiff did not own and does not claim the property for which plaintiff sues. Browder v. Cox, 83 Ga. App. 738 , 64 S.E.2d 460 (1951).

A conveyance of land, without more, does not assign a right of action to the grantee resulting from a trespass previously committed on such land. Rome Kraft Co. v. Davis, 213 Ga. 899 , 102 S.E.2d 571 (1958).

Exemplary damages and attorney fees are recoverable only by the party who has suffered a tortious loss of property, not by those harmed only vicariously; a subrogee under the law of Georgia is limited to indemnification. Southern Ry. v. Malone Freight Lines, 174 Ga. App. 405 , 330 S.E.2d 371 (1985).

2. Personal Torts

Right to bring action of trespass for damage to realty is not assignable by a landowner to the successor in title. Allen v. Macon, D. & S.R.R., 107 Ga. 838 , 33 S.E. 696 (1899).

A vendee of land, upon which a trespass is committed while it is the property of the vendor, has no right of action against the trespasser for damages thus occasioned; such damages are recoverable by the vendor. Rome Kraft Co. v. Davis, 213 Ga. 899 , 102 S.E.2d 571 (1958).

In Georgia, assignment of a personal injury claim is not permitted. American Chain & Cable Co. v. Brunson, 157 Ga. App. 833 , 278 S.E.2d 719 (1981).

Subrogation provision in an automobile policy, which provided that if the insurer paid under the policy it had the right to sue anyone else who may be responsible, was a statutorily prohibited assignment of a personal injury claim. GEICO v. Hirsh, 211 Ga. App. 374 , 439 S.E.2d 59 (1993).

Subrogation provision in an automobile policy, which provided that if the insurer paid under the policy it was entitled to all rights of recovery which the person to whom payment was made had against any other person, was a prohibited assignment of a personal injury claim. Southern Gen. Ins. Co. v. Ezekiel, 213 Ga. App. 665 , 445 S.E.2d 807 (1994).

Although uninsured motorist coverage in a policy provided the insurer was subrogated to the rights of recovery of its insured, the right of action belonged to the insured, and any action against the uninsured motorist had to be brought in the name of the insured. Generali - United States Branch v. Owens, 218 Ga. App. 584 , 462 S.E.2d 464 (1995); Travelers Ins. Co. v. Harris, 226 Ga. App. 269 , 486 S.E.2d 427 (1997).

Punitive damages are not assignable as property right. Maryland Cas. Co. v. Brown, 321 F. Supp. 309 (N.D. Ga. 1971); Southern Ry. v. Malone Freight Lines, 174 Ga. App. 405 , 330 S.E.2d 371 (1985).

Bare right to file bill or maintain suit is not assignable. Hayslip v. Speed Check Co., 214 Ga. 479 , 105 S.E.2d 455 (1958).

Title VII claims not assignable. - Because claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for back pay, front pay, emotional pain and suffering, loss of enjoyment of life, and punitive damages were more similar to a personal injury tort action than an action to enforce contractual or property rights, an employee's assignment of a Title VII religious discrimination claim to a third party was invalid. Under O.C.G.A. § 44-12-24 , a right of action for personal torts could not be assigned, and under federal common law personal injury claims were not assignable absent a statute to the contrary. Evans v. Boyd Rest. Group, LLC, 240 Fed. Appx. 393 (11th Cir. 2007)(Unpublished).

A bankruptcy trustee was the real party in interest regarding a tort action of the debtor regardless of the trustee's purported assignment to the debtor of the right to prosecute the action while the trustee retained legal title to it. United Techs. Corp. v. Gaines, 225 Ga. App. 191 , 483 S.E.2d 357 (1997).

Federal bankruptcy law pre-empts the statute; therefore, a bankruptcy trustee properly abandoned a tort claim back to the debtor/tort victim. Denis v. Delta Airlines, Inc., 248 Ga. App. 377 , 546 S.E.2d 805 (2001).

Tort claim becomes part of bankruptcy estate. - The defendant in a tort action which was based on an unliquidated claim that the plaintiff failed to disclose when plaintiff filed a voluntary Chapter 13 federal bankruptcy petition was entitled to summary judgment because the claim became part of the bankruptcy estate even though the statute normally prohibits the assignment of personal tort causes of action, and the federal doctrine of judicial estoppel precluded the prosecution of the claim. Spoon v. Johnson, 247 Ga. App. 754 , 545 S.E.2d 328 (2001).

Bankruptcy debtor's agreement to pay a health care provider from the proceeds of a personal injury action created an invalid assignment since the assignment of personal injury claims was prohibited under O.C.G.A. § 44-12-24 , and the putative assignment was not limited to an interest in any recovery and extended to the action itself. Klosinski v. Southeastern Neurologic Assocs. P.C (In re Oglesby), Bankr. (Bankr. S.D. Ga. Sept. 27, 2000).

Automobile insurance policy provision requiring only that the insured reimburse the company from the insured's recovery against a tortfeasor for medical expenses paid by the company was not an assignment of a right of action for personal torts. Sheppard v. State Farm Fire & Cas. Co., 222 Ga. App. 619 , 475 S.E.2d 675 (1996).

Subrogation right. - An uninsured motorist insurer could not file a subrogation action in its own name because O.C.G.A. § 44-12-24 prohibits the assignment of rights of action for personal torts. State Farm Mut. Auto. Ins. Co. v. Cox, 233 Ga. App. 296 , 502 S.E.2d 778 (1998), aff'd, 271 Ga. 77 , 515 S.E.2d 832 (1999).

Purported assignment to attorney void. - A purported assignment of an interest in a personal injury action to an attorney made in an attempt to survive termination of the attorney's contract and to give the attorney an interest in the litigation separate from statutory lien rights was void as a violation of public policy. Peoples v. Consolidated Freightways, Inc., 226 Ga. App. 265 , 486 S.E.2d 604 (1997).

Executor's commission not assigned. - Contracts are to be construed so as to uphold and give effect to the agreement as lawful and not to render portions of the agreement meaningless; to construe a settlement agreement and promissory note as assigning an executor's commission would have risked making the settlement agreement void ab initio under O.C.G.A. § 44-12-24 , and the ambiguity was resolved by holding that the executor did not waive the executor's right to a commission. In re Estate of Sims, 259 Ga. App. 786 , 578 S.E.2d 498 (2003).

Insufficient evidence of assignment. - Debtor's motion for default judgment, in an action for a declaration that the assignment of proceeds from a lawsuit to a defendant was invalid, was denied because the debtor did not assign a right of action, so O.C.G.A. § 44-12-24 did not apply, and there was no allegation that the defendant had a lien and if so, whether it was unperfected, so O.C.G.A. § 44-14-320 did not apply. Carson v. Rhodes (In re Carson), Bankr. (Bankr. N.D. Ga. Nov. 9, 2005).

Creditors' 11 U.S.C. § 523(a)(4) claim against a Chapter 13 debtor, their attorney, was dismissed because although the attorney failed to file a wrongful death complaint on the creditors' behalf and represented to the creditors that the attorney had, the creditors failed to allege a contract or other agreement establishing a technical trust. The creditors' wrongful death cause of action did not comprise the res of a technical trust because under O.C.G.A. § 53-12-25 only property subject to transfer by the settler could become the subject matter of a trust, and under O.C.G.A. § 44-12-24 the creditors' wrongful death action was non-transferable. Crisler v. Farr (In re Farr), Bankr. (Bankr. M.D. Ga. May 18, 2011).

3. Injuries Arising from Fraud

Right of action for injuries arising from fraud cannot be assigned. Morehead v. Ayers, 136 Ga. 488 , 71 S.E. 798 (1911); Couch v. Crane, 142 Ga. 22 , 82 S.E. 459 (1914); Hayslip v. Speed Check Co., 214 Ga. 479 , 105 S.E.2d 455 (1958).

It cannot be said that because money possessed by defendants was the money and property of the plaintiff, and that as it was defrauded out of this money by the defendants, a right of property was involved, either directly or indirectly. Feeney v. Decatur Developing Co., 47 Ga. App. 353 , 170 S.E. 518 (1933).

While a judgment based on fraud could be assigned, a right of action for fraud could not; the Superior Court Consent Order assigned to the assignee did not contain a judgment based on fraud, as the lender's claim for fraud was specifically excepted from the judgment, and thus, the assignee had no standing to bring an action based on injuries arising from fraud to the lender. Cadlerock Joint Venture, L.P. v. Pittard (In re Pittard), 358 Bankr. 457 (Bankr. N.D. Ga. 2006).

Plaintiff assignee's objection to dischargeability under 11 U.S.C. § 523(a)(2) failed because its claim was that debtor allegedly misrepresented the state of the company's accounts receivable at the time the lender made a loan; this was a right of action arising from alleged fraud, not a right to property, and as such, the lender's right of action was not assignable under O.C.G.A. § 44-12-24 (2002). Cadlerock Joint Venture, L.P. v. Pittard (In re Pittard), 358 Bankr. 457 (Bankr. N.D. Ga. 2006).

An assignee of debt is precluded from pursuing a fraudulent transfer claim even though the assignee met the definitions of a creditor with a claim under the Georgia Uniform Fraudulent Transfers Act (now the Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., because the non-assignment statute provides that a right of action for injuries arising from fraud cannot be assigned; thus, the second assignee had no standing to assert a fraudulent transfer claim against the appellee regarding two parcels of real property because a fraudulent transfer claim could not be assigned under Georgia law. RES-GA Hightower, LLC v. Golshani, 334 Ga. App. 176 , 778 S.E.2d 805 (2015), cert. denied, No. S16C0330, 2016 Ga. LEXIS 54 (Ga. 2016).

Action under Uniform Fraudulent Transfers Act could not be assigned. - In a suit by an assignee of a judgment seeking to set aside a fraudulent transfer by the judgment debtor to a corporation, the assignee's fraudulent transfer claim did not survive the assignment of the California judgment based on Georgia's assignment statute, O.C.G.A. § 44-12-24 , and was not revived by O.C.G.A. § 9-11-25(c) . EMM Credit, LLC v. Remington, 343 Ga. App. 710 , 808 S.E.2d 96 (2017).

Fraudulent transfer claim could not be assigned. - Lender's assignee had no standing to pursue a fraudulent transfer claim against a guarantor because such claims were not assignable under O.C.G.A. § 44-12-24 ; therefore, the assignee could not prevail on a legal malpractice action against attorneys who failed to timely assert a fraudulent transfer claim. O.C.G.A. § 44-12-24 was not preempted by 12 U.S.C. § 1821 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) or by O.C.G.A. § 11-1-103 of the Uniform Commercial Code. RES-GA McDonough, LLC v. Taylor English Duma LLP, 302 Ga. 444 , 807 S.E.2d 381 (2017).

Fraudulent transfer claim could not be assigned. - Georgia's bar against the assignment of fraud claims applies to claims under the former Uniform Fraudulent Transfers Act (UFTA); an issue of whether federal law preempted that bar as to direct assignees of the Federal Deposit Insurance Corporation was not resolved and was remanded to the trial court. Cmty. & S. Bank v. Lovell, 302 Ga. 375 , 807 S.E.2d 444 (2017).

Assignee of debt could bring fraudulent transfer claim. - Judgment creditor had standing to pursue its claim against a judgment debtor and the transferees, although the judgment creditor was the assignee of the debt leading to the judgment, because it did not seek a remedy for an injury stemming from the previous holder of the note, but for an injury that was committed directly against it; O.C.G.A. § 44-12-24 did not apply. RES-GA YPL, LLC v. Rowland, 340 Ga. App. 713 , 798 S.E.2d 315 (2017).

Fraud claims not assignable. - Trial court did not err in granting summary judgment on the fraud claims brought by the investor's son because claims for fraud were not assignable, even when the claims involved a right of property and, thus, the son lacked standing to bring the claims in the son's individual capacity. Patel v. Diplomat 1419va Hotels, Ga. App. , S.E.2d (Mar. 5, 2021).

OPINIONS OF THE ATTORNEY GENERAL

Federal preemption as to employee welfare benefit plans. - The federal Employment Retirement Income Security Act of 1974 (ERISA), preempts the application of O.C.G.A. § 44-12-24 to employee welfare benefit plans regulated by ERISA. 1989 Op. Att'y Gen. 89-40.

RESEARCH REFERENCES

C.J.S. - 6A C.J.S., Assignments, §§ 7, 30.

ALR. - Assignability of right of action ex delicto for injury to property, as affected by statute, 5 A.L.R. 130 .

Priority as between one who redelivers papers or securities not transferable by endorsement or delivery to pledgor or assignee and a bona fide purchaser from the latter, 37 A.L.R. 1540 .

Priority of assignment of chose in action over subsequent garnishment as affected by lack of notice to debtor of assignment, 52 A.L.R. 109 .

Assignability of claim against officers or directors of corporation for breach of duty, 74 A.L.R. 200 ; 80 A.L.R. 875 ; 80 A.L.R. 875 .

Survivability or assignability of action or cause of action in tort for damages for fraudulently procuring purchaser or sale of property, 76 A.L.R. 403 .

Meaning and scope of covenant in assignment of claim as regards legality or quality of claim, 91 A.L.R. 548 .

Assignability or survivability of cause of action in tort against third person for procuring breach of contract, 93 A.L.R. 1133 .

Scope and extent of subrogation in favor of one entitled to be subrogated to mortgage lien, 107 A.L.R. 785 .

Assignability of right to rescind or of right to return of money or other property as incident of rescission, 110 A.L.R. 849 ; 162 A.L.R. 743 .

Attorney's contract for contingent fee as amounting to an equitable assignment of interest in cause of action, or proceed settlement thereof, 124 A.L.R. 1508 .

Right of one whose property without his consent was fraudulently or mistakenly applied to an indebtedness for which was not responsible, to be subrogated to creditor's rights or security held by him, 129 A.L.R. 196 .

Rights and remedies incident to subrogation to one but not both elements of a single cause of action for injury to person damage to property, 140 A.L.R. 1241 .

Assignment of, or succession to, statutory right of action for recovery of money lost at gambling, 18 A.L.R.2d 999.

Assignability of claim for personal injury or death, 40 A.L.R.2d 500; 33 A.L.R.4th 82.

Judgment debtor's personal injury claims against third person or latter's liability insurer as subject to creditor's bill, 51 A.L.R.2d 595.

Assignability of claim in tort for damage to personal property, 57 A.L.R.2d 603.

Assignability of claim for malicious prosecution, 76 A.L.R.2d 1286.

Rights and remedies of property insurer as against third-person tort-feasor who has settled with insured, 92 A.L.R.2d 102.

Intervenor's right to disqualify judge, 92 A.L.R.2d 1110.

Assignability of insured's right to recover over against liability insurer for rejection of settlement offer, 12 A.L.R.3d 1158.

Validity and effect of "loan receipt" agreement between injured party and one tort-feasor, for loan repayable to extent of injured party's recovery from a cotort-feasor, 62 A.L.R.3d 1111.

Right of "Blue Cross" or "Blue Shield," or similar hospital or medical service organization, to be subrogated to certificate holder's claims against tort-feasor, 73 A.L.R.3d 1140.

Right of provider of health or medical services, as assignee of claim under ERISA (Employment Retirement Income Security Act of 1974), to maintain action against plan payor, 133 A.L.R. Fed. 109.

ARTICLE 3 BAILMENTS

Cross references. - Liens of pawnbrokers, factors, bailees, acceptors, and depositories, § 44-14-400 et seq.

RESEARCH REFERENCES

ALR. - Negligent entrustment: bailor's liability to bailee injured through his own negligence or incompetence, 12 A.L.R.4th 1062.

PART 1 I N GENERAL

RESEARCH REFERENCES

ALR. - Acceptance of receptacle as charging one as bailee of contents, 1 A.L.R. 272 ; 18 A.L.R. 87 .

Bailment: what amounts to delivery of, or assumption of control over, property essential to a bailment, 1 A.L.R. 394 .

Duty and liability of gratuitous bailee or mandatory, 4 A.L.R. 1196 ; 96 A.L.R. 909 .

Respective rights of carrier, or of one in similar relation to owner, and to finder of property lost or mislaid, 9 A.L.R. 1388 ; 170 A.L.R. 706 .

Liability of bailor for personal injuries due to defects in subject of bailment, 12 A.L.R. 774 ; 61 A.L.R. 1336 ; 131 A.L.R. 845 .

Validity of agreement by bailee of instrumentality to purchase his supplies from bailor, 14 A.L.R. 114 ; 17 A.L.R. 392 .

Liability of bank for loss of Liberty bonds, 17 A.L.R. 1217 ; 31 A.L.R. 703 ; 40 A.L.R. 899 .

Right to recover back cash bail taken without authority, 26 A.L.R. 211 ; 44 A.L.R. 1499 ; 48 A.L.R. 1430 .

Liability of bailee where subject of bailment is stolen, 26 A.L.R. 223 ; 48 A.L.R. 378 .

Duty and liability of farm tenant in respect to livestock leased with farm, 32 A.L.R. 857 .

Bailor's action against third person for damage to, or destruction or conversion of, bailed property as affected by defendant's settlement with, release by, or judgment liability to bailee for same wrongful act, 118 A.L.R. 1338 .

Liability of laundry, clothes presser, dyer, or dry cleaner or third person by whom the work is actually done, for loss of or damage to customer's goods, 130 A.L.R. 1359 .

Taxation of property the subject of bailment, 135 A.L.R. 597 .

Measure and elements of damages recoverable against bailee of automobile in case of loss or theft, 135 A.L.R. 1198 .

Liability of warehouseman for injury to stored goods as result of failure to maintain proper temperatures, 92 A.L.R.2d 1298.

Construction and effect of motor vehicle leasing contracts, 43 A.L.R.3d 1283.

Employer's liability for theft or disappearance of employee's property left at place of employment, 46 A.L.R.3d 1306.

Liability of warehouseman or other bailee for loss of goods stored at other than agreed-upon place, 76 A.L.R.4th 883.

44-12-40. "Bailment" defined.

A bailment is a delivery of goods or property upon a contract, express or implied, to carry out the execution of a special object beneficial either to the bailor or bailee or both and to dispose of the property in conformity with the purpose of the trust.

(Orig. Code 1863, § 2031; Code 1868, § 2032; Code 1873, § 2058; Code 1882, § 2058; Civil Code 1895, § 2894; Civil Code 1910, § 3467; Code 1933, § 12-101.)

Law reviews. - For comment on Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570 , 49 S.E.2d 184 (1948), see 11 Ga. B.J. 229 (1948).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Bailment is similar in nature to contract of hiring. Queen v. Patent Scaffolding Co., 46 Ga. App. 364 , 167 S.E. 789 (1933).

Lease and bailment distinguished. - A lease may refer to a contract involving realty or personalty, or both, whereas a bailment involves the custody of personalty. Buena Vista Loan & Sav. Bank v. Bickerstaff, 121 Ga. App. 470 , 174 S.E.2d 219 (1970).

Lease and bailment are not necessary mutually exclusive terms; both are indicative of a contractual relationship. Buena Vista Loan & Sav. Bank v. Bickerstaff, 121 Ga. App. 470 , 174 S.E.2d 219 (1970).

Notes pledged as collateral security. - Where notes of a third party are pledged as collateral security, the creditor, in the absence of special contractual provision, is entitled to retain possession of the notes so deposited until the purpose for which they were deposited is at an end, that is, until the payment of the debt secured. Johnson v. Hinson, 188 Ga. 639 , 4 S.E.2d 561 (1939).

Customer's assent to limitations on warehouse receipt a jury question. - In a dispute over a storage facility's storage of a customer's seed, in which the facility sought to bind the customer to limitations printed on the reverse of the facility's warehouse receipts, the trial court erred by concluding that evidence that the facility routinely mailed warehouse receipts to the facility's customers was sufficient to bind the customer as a matter of law; because the customer denied receiving the receipts, the customer's assent was a question for the jury. Turfgrass Group v. Ga. Cold Storage Co., 346 Ga. App. 659 , 816 S.E.2d 716 (2018).

Cited in Baugh v. McDaniel & Strong, 42 Ga. 641 (1871); Cabaniss v. Ponder, 65 Ga. 134 (1880); Massillon Engine & Thresher Co. v. Akerman, 110 Ga. 570 , 35 S.E. 635 (1900); Atlantic Coast Line R.R. v. Baker, 118 Ga. 809 , 45 S.E. 673 (1903); Haines v. Chappell, 1 Ga. App. 480 , 58 S.E. 220 (1907); Jenkins v. Seaboard Air-Line Ry., 3 Ga. App. 381 , 59 S.E. 1120 (1908); Howell v. Luttrell, 55 Ga. App. 627 , 190 S.E. 813 (1937); Millender v. Looper, 82 Ga. App. 563 , 61 S.E.2d 573 (1950); Heughan v. State, 82 Ga. App. 640 , 61 S.E.2d 685 (1950); United States v. One 1946 Mercury Sedan Auto., 100 F. Supp. 957 (N.D. Ga. 1951); Tyner & Blackmon v. Fryer Truck & Tractor Co., 85 Ga. App. 518 , 69 S.E.2d 793 (1952); Gillham v. Federal Express Money Order, Inc., 112 Ga. App. 171 , 144 S.E.2d 557 (1965); Saunders v. Vikers, 116 Ga. App. 733 , 158 S.E.2d 324 (1967); Brock v. Patterson, 128 Ga. App. 257 , 196 S.E.2d 351 (1973); Alley v. Great Am. Ins. Co., 160 Ga. App. 597 , 287 S.E.2d 613 (1981); Northside Motors, Inc. v. O'Berry, 167 Ga. App. 155 , 305 S.E.2d 894 (1983); Citizens Jewelry Co. v. Walker, 178 Ga. App. 897 , 345 S.E.2d 106 (1986); Harper v. Mayor of Savannah, 190 Ga. App. 637 , 380 S.E.2d 78 (1989); South Ga. Pecan Co. v. Alimenta Processing Corp., 195 Ga. App. 688 , 394 S.E.2d 545 (1990); Park 'N Go of Ga., Inc. v. United States Fid. & Guar. Co., 266 Ga. 787 , 471 S.E.2d 500 (1996).

Types of Bailments

Loan is bailment of O.C.G.A. Art. 3, Ch. 12, T. 44 for a certain time to be used by the borrower without paying for its use. Industrial Lumber Co. v. Strickland, 71 Ga. App. 298 , 30 S.E.2d 792 (1944).

Conditional sale is species of bailment whereby the vendee unconditionally promises to pay the purchase price and the vendor reserves title personally until such payment is made. Nix v. Farmers Mut. Exch. of Calhoun, Inc., 218 F.2d 642 (5th Cir. 1955).

Relationship between automobile dealer and prospective purchaser is that of bailor and bailee, not principal and agent or master and servant. Harris v. Whitehall Chevrolet Co., 55 Ga. App. 130 , 189 S.E. 392 (1936).

Where an automobile dealer lends a demonstrator automobile to a prospective purchaser for the purpose of allowing such purchaser to test and operate it, under an oral agreement that the purchaser is to return the automobile at the end of two days in the same condition, less reasonable wear and tear, as it was when delivered to the purchaser, this constitutes the purchaser being a bailee. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935).

Creation of Bailments
1. Requirements

Assent to bailment required to create duty. - Before the bailee is charged with the duty of safekeeping property the bailee must assent to the bailment, either expressly or impliedly. Davidson v. Ramsby, 133 Ga. App. 128 , 210 S.E.2d 245 (1974).

Delivery essential to bailment contract. - Delivery, under which the bailee acquires an independent and temporarily exclusive possession, is essential to a contract of bailment. Hartley v. Robinson, 78 Ga. App. 594 , 51 S.E.2d 617 (1949).

A bailment is not created unless there is a delivery of the article to be accepted by the bailee. Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570 , 49 S.E.2d 184 (1948), commented on in 11 Ga. B.J. 229 (1948).

To create a bailment, express or implied, there must be an actual or constructive delivery of goods with an actual or constructive possession in the bailee, exclusive and independent of the bailor and all other persons. Davidson v. Ramsby, 133 Ga. App. 128 , 210 S.E.2d 245 (1974).

An essential element of the bailor-bailee relationship is the actual or constructive delivery of property to the bailee who thereby acquires independent and temporarily exclusive possession of the delivered property. McDaniel v. American Druggists Ins. Co. (In re Nat'l Buy-Rite, Inc.), 11 Bankr. 196 (Bankr. N.D. Ga. 1981).

Independent and temporarily exclusive possession of property required. - In order to constitute a bailment, it is essential that the bailee acquire an independent and temporarily exclusive possession of the property. Elliott v. Levy, 77 Ga. App. 562 , 49 S.E.2d 179 (1948); A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578 , 149 S.E.2d 255 (1966); Buckley v. Colorado Mining Co., 163 Ga. App. 431 , 294 S.E.2d 665 (1982).

A bailee acquires no title to the property held as bailee; the interest is limited to a right of possession for which the bailee may maintain an action if this right is impaired. McDaniel v. American Druggists Ins. Co. (In re Nat'l Buy-Rite, Inc.), 11 Bankr. 196 (Bankr. N.D. Ga. 1981).

2. Activities Establishing Bailor-Bailee Relationship

Transfer of property by seller to prospective purchaser on approval clearly creates bailment under O.C.G.A. § 44-12-40 . Stephens v. Thompson, 177 Ga. App. 528 , 339 S.E.2d 784 (1986).

Purpose of transaction determines existence of bailment. - If the furnishing of an automobile is within what may be said to be a "business" of the owner, one to whom the car is entrusted for such purpose is not a bailee, as in a case of lending, but is a servant or agent; if, on the other hand, the car is entrusted by the owner merely as an accommodation, with no interest or concern in the purpose for which the car will be used, then its use, whether for recreation or otherwise, is not within the business of the owner, and the transaction is a mere bailment. Hubert v. Harpe, 181 Ga. 168 , 182 S.E. 167 , answer conformed to, 52 Ga. App. 262 , 183 S.E. 98 (1935).

Permission to use employer's truck after working hours creates bailment. - Where the defendant, employed to pick up and deliver dry cleaning and laundry, drives the employer's truck in doing this work, uses the truck, with the employer's permission, after the employee finishes work in going to and from home and, where the defendant is to keep the truck in proper repair with the employer paying for such repairs, the status of bailor and bailee exists between the employer and the defendant with reference to the use of the truck by the defendant after the employee finishes work. Smith v. Burks, 89 Ga. App. 278 , 79 S.E.2d 52 (1953).

Bailment creating liability of employer for tractor carrying trash. - Because an employer, as bailor, sent the employer's own employee with the thing bailed, a tractor with attached trash trailer, under O.C.G.A. § 44-12-62(b) , a contractor, as the hirer, was liable only for the consequences of the hirer's own directions or for the hirer's gross negligence; the trial court erred in concluding that the contractor was entitled to summary judgment on the basis that the employee was not a borrowed servant because the evidence presented at least a factual issue regarding whether the employee was the contractor's borrowed servant since there was evidence that the contractor alone supervised the employee's work hauling debris, that the contractor controlled the employee's schedule for each day, and that the contractor dictated which landfill would receive the debris and when a load was ready. Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777 , 709 S.E.2d 324 (2011).

Also contract for car storage in garage. - Where the owner of an automobile enters into an oral contract, for the storage of a car, with the operator of a storage and service garage of automobiles, the relationship of bailor-bailee is created. Bunn v. Broadway Parking Ctr., Inc., 116 Ga. App. 85 , 156 S.E.2d 464 (1967).

Acceptance of car for repairs and adjustments. - Where a driver hired by plaintiff took plaintiff's car, on orders from plaintiff, to defendant's garage and delivered it to the master mechanic to make repairs and adjustments, and where the master mechanic worked on the car and asked the driver to test-drive the car, along with the master mechanic, the existence of bailor and bailee relationship between the parties is established. Tyner & Blackmon v. Fryer Truck & Tractor Co., 83 Ga. App. 393 , 63 S.E.2d 695 (1951).

Bailment denied where owner retains right to remove stored article at will without the knowledge of the person in charge of the premises and no bailment arises. Mossie v. Pilgrim Self-Service Storage, 150 Ga. App. 715 , 258 S.E.2d 548 (1979).

Leaving of musical equipment in restaurant. - Evidence could have authorized jury to find that bailment was in effect as to plaintiff's musical equipment left at defendant's restaurant and damaged in fire occurring when restaurant was closed. Buckley v. Colorado Mining Co., 163 Ga. App. 431 , 294 S.E.2d 665 (1982).

No bailment created between insured and insurer. - Court of appeals did not err in affirming an order granting an insured summary judgment in the insured's action against an insurer to recover indemnity under the insured's commercial general liability insurance policy for property damage to a company's commercial peanut cleaner because the care, custody, and control exclusion of the policy did not apply when the peanut cleaner was not in the insured's care, custody, or control; it could not be said either that a bailment of the peanut cleaner was created or that the insured had exclusive "care, custody, or control" of the cleaner at the time that the cleaner was damaged because the insured was operating as an instrumentality of the company, moving the company's peanut cleaner to serve the company's purposes while under the company's direction and control. Owners Ins. Co. v. Smith Mech. Contrs., Inc., 285 Ga. 807 , 683 S.E.2d 599 (2009).

When the debtor was granted bare legal title to a residential loan package for purposes of resale as a bailment under O.C.G.A. § 44-12-40 , but had no equitable interest in the loan, the loan was not property of the debtor's estate under 11 U.S.C. § 541(d), and the creditor's interest was not avoidable under 11 U.S.C. § 544(a)(1). HSBC Mortg. Servs. v. Pettigrew (In re Southstar Funding, LLC), Bankr. (Bankr. N.D. Ga. Oct. 4, 2008)(Unpublished).

Duty of Care

Borrower of loan is bound to take good care of thing borrowed, to use it according to the intention of the lender, and to restore it in the proper condition. Industrial Lumber Co. v. Strickland, 71 Ga. App. 298 , 30 S.E.2d 792 (1944).

Bailee to act in good faith. - A bailee is an agent who is required not only to use the property for the special object only for which the bailee was entrusted with it, and in conformity with the purposes of the trust, but to act in good faith where the interests of the principal are concerned. Industrial Lumber Co. v. Strickland, 71 Ga. App. 298 , 30 S.E.2d 792 (1944).

Object of bailment mutually beneficial to both parties. - Where the object of the bailment is beneficial to both parties, the degree of diligence required of the bailee is ordinary care. Elliott v. Levy, 77 Ga. App. 562 , 49 S.E.2d 179 (1948).

Bailor entrusting defective automobile to another. - Where bailor entrusts a defective automobile to another, or entrusts an automobile to an incompetent driver, the bailor must exercise ordinary care to prevent injuries to persons within the range of foreseeable operation of the automobile. Medlock v. Barfield, 90 Ga. App. 759 , 84 S.E.2d 113 (1954).

Liability

Bailee's knowledge of automobile contents required for liability. - A bailee for hire as to an automobile is not liable for the contents thereof unless the bailee has actual or implied knowledge or notice as to such contents. Davidson v. Ramsby, 133 Ga. App. 128 , 210 S.E.2d 245 (1974).

Reasonable expectation of car contents is sufficient notice. - Sufficient notice of the contents of a car exists if the articles are such as the bailee might reasonably expect to be therein. Davidson v. Ramsby, 133 Ga. App. 128 , 210 S.E.2d 245 (1974).

Bailor's liability determined by bailment contract and doctrine of proximate cause. - The bailor's liability is not determined alone by the provisions and warranties of the bailment contract, but also by the limits imposed by the doctrine of proximate cause; that is, whether the defendant should have foreseen the consequences of defendant's negligence as a natural and probable result. Medlock v. Barfield, 90 Ga. App. 759 , 84 S.E.2d 113 (1954).

Automobile dealer not liable for prospective purchaser's negligent operation of car. - Since the relationship between an automobile dealer and a prospective purchaser is that of bailor and bailee, the dealer is not liable for injuries accruing to a third person by reason of the negligent operation of the automobile by the prospective purchaser while trying it out. Harris v. Whitehall Chevrolet Co., 55 Ga. App. 130 , 189 S.E. 392 (1936).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 1 et seq.

C.J.S. - 8 C.J.S., Bailments, §§ 1, 14 et seq.

ALR. - Respective rights of carrier, or of one in similar relation to owner, and of finder of property lost or mislaid, 9 A.L.R. 1388 ; 170 A.L.R. 706 .

Acceptance of receptacle as charging one as bailee of contents, 18 A.L.R. 87 .

Character of contract to raise seed, 29 A.L.R. 647 .

Relationship of bailor and bailee as between owner of goods in bonded warehouse and proprietor of warehouse, 77 A.L.R. 1502 .

"Warehouse purchaser receipt" as bailment or contract of sale, 91 A.L.R. 907 .

Storage contract as a bailment of chattels, or lease of place where chattels are stored, 138 A.L.R. 1137 .

Bailee's liability as affected by bailment condition that bailor procure insurance, 83 A.L.R.3d 519.

44-12-41. Bailment contract as entire; performance as condition precedent to action upon it.

As a general rule, the contract of bailment is an entire contract and a full performance is a condition precedent to an action upon it.

(Orig. Code 1863, § 2081; Code 1868, § 2076; Code 1873, § 2102; Code 1882, § 2102; Civil Code 1895, § 2920; Civil Code 1910, § 3493; Code 1933, § 12-105.)

Cross references. - Tender of delivery of goods possessed by bailee for delivery under contract of sale, § 11-2-503 .

JUDICIAL DECISIONS

Bailor's refusal to allow remedy of defects grounds for bailee's suit. - Where a bailee made repairs alleged to be unsatisfactory by the bailor and offered within a reasonable time to remedy the defects, time not being of the essence of the contract, upon the bailor's refusal to allow the corrections to be made, the bailee was entitled under O.C.G.A. § 44-12-41 to sue upon the contract for the full contract price. Byck v. Weiler Co., 3 Ga. App. 387 , 59 S.E. 1126 (1908).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 38 et seq.

C.J.S. - 8 C.J.S., Bailments, § 105.

ALR. - Recovery back of amount paid to bailee for repairs of no benefit to bailor, 31 A.L.R. 698 .

Validity and effect of acceleration clause in lease or bailment, 58 A.L.R. 300 ; 128 A.L.R. 750 .

Construction and application of provision of bailment or lease contract relating to cost of repairs or replacements, or damage to chattel, 129 A.L.R. 460 .

Bailee's express agreement to return property, or to return it in a specified condition, as enlarging his common-law liability, 150 A.L.R. 269 .

Seller's, bailor's, lessor's, or lender's knowledge of the other party's intention to put the property or money to an illegal use as defense to action for purchaser price, rent, or loan, 166 A.L.R. 1353 .

Bailee's liability as affected by bailment condition that bailor procure insurance, 83 A.L.R.3d 519.

Measure and elements of damages in action against garageman based on failure to properly perform repair or service on motor vehicle, 1 A.L.R.4th 347.

44-12-42. Rights of bailee in bailed property; actions to enforce rights.

During the bailment, in all cases the bailee has a right to the possession of the property and in most cases a special right of property in the thing bailed. For a violation of these rights by anyone he has a cause of action.

(Orig. Code 1863, § 2032; Code 1868, § 2033; Code 1873, § 2059; Code 1882, § 2059; Civil Code 1895, § 2895; Civil Code 1910, § 3468; Code 1933, § 12-102.)

Cross references. - Right of action of bailee and bailor for interference with possession of bailed property, § 51-10-4 .

JUDICIAL DECISIONS

Agreement for car storage in garage creates bailment. - Where the owner of an automobile enters into an oral contract for the storage of a car with the operator of a storage and service garage for automobiles, the relationship of bailor-bailee is created. Bunn v. Broadway Parking Ctr., Inc., 116 Ga. App. 85 , 156 S.E.2d 464 (1967).

Delivery and possession required for bailment. - To create a bailment, express or implied, there must be an actual or constructive delivery of the goods with actual or constructive possession in the bailee, exclusive and independent of the bailor and all other persons. Davidson v. Ramsby, 133 Ga. App. 128 , 210 S.E.2d 245 (1974).

Bailee of property is entitled to its exclusive possession. Mossie v. Pilgrim Self-Service Storage, 150 Ga. App. 715 , 258 S.E.2d 548 (1979).

Creditor retains possession of notes pledged as collateral security. - Where notes of a third party are pledged as collateral security, the creditor, in the absence of special contractual provision, is entitled to retain possession of the notes so deposited until the purpose for which they were deposited is at an end, that is, until the payment of the debt is secured. Johnson v. Hinson, 188 Ga. 639 , 4 S.E.2d 561 (1939).

Degree of diligence required of bailee where object of bailment is beneficial to both parties is that of ordinary care. Elliott v. Levy, 77 Ga. App. 562 , 49 S.E.2d 179 (1948).

Suit in trover maintainable by bailee for hire since the bailee has such title and right of possession. McWhorter & Armour v. Moore, 7 Ga. App. 439 , 67 S.E. 115 (1910); Macon, D. & S.R.R. v. Heard Bros., 27 Ga. App. 382 , 108 S.E. 481 (1921).

Cited in Ford & Co. v. Atlantic Compress Co., 138 Ga. 496 , 75 S.E. 609 , 1913D Ann. Cas. 226 (1912); Lang v. Hitt, 24 Ga. App. 714 , 102 S.E. 136 (1920); AAA Parking, Inc. v. Black, 110 Ga. App. 554 , 139 S.E.2d 437 (1964).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 1 et seq., 63 et seq.

C.J.S. - 8 C.J.S., Bailments, §§ 28, 29.

ALR. - Estoppel to assert title to personal chattel by permitting another to use it in his business, 7 A.L.R. 676 .

Seizure of subject of bailment under process issued at instance of bailee as excuse for latter's failure to redeliver bailor, 139 A.L.R. 1146 .

44-12-43. Care required of bailees.

All bailees are required to exercise care and diligence to protect the thing bailed and to keep it safe. Different degrees of diligence are required according to the nature of the bailments.

(Orig. Code 1863, § 2033; Code 1868, § 2034; Code 1873, § 2060; Code 1882, § 2060; Civil Code 1895, § 2897; Civil Code 1910, § 3470; Code 1933, § 12-103.)

Cross references. - Placement of risk of loss where goods are held by bailee for delivery under contract of sale, § 11-2-509 .

JUDICIAL DECISIONS

Nothing in O.C.G.A. T. 11 repeals or affects O.C.G.A. § 44-12-43 . A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578 , 149 S.E.2d 255 (1966).

Whether a bailment exists depends upon the relationship between the owner of the property and the possessor of the property as to the disposition of the property. Bohannon v. State, 251 Ga. App. 771 , 555 S.E.2d 112 (2001).

Loan is bailment of article for certain time, to be used by the borrower without paying for its use. Industrial Lumber Co. v. Strickland, 71 Ga. App. 298 , 30 S.E.2d 792 (1944).

Bailor entitled to election of remedies. - A bailor, setting up a breach of the duty of the bailee, may elect as to the bailor's remedy and may rely upon either his right under the contract or proceed for damages as in a case of tort. AAA Parking, Inc. v. Black, 110 Ga. App. 554 , 139 S.E.2d 437 (1964).

"Safekeeping" construed. - The word "safekeeping" in an agreement for storage of goods in a warehouse does not imply a much higher degree of care than the law requires of a defendant nor does the word imply a guarantee against damage or harm. Harper Whse., Inc. v. Henry Chanin Corp., 102 Ga. App. 489 , 116 S.E.2d 641 (1960).

Standard of care. - If the bailment is for the exclusive benefit of the bailor, only slight diligence is required; if the bailment is for the mutual benefit of the parties, ordinary diligence is required; and if the bailment is for the exclusive benefit of the bailee, extraordinary diligence is required. Gooden v. Day's Inn, 196 Ga. App. 324 , 395 S.E.2d 876 (1990).

The degree of negligence required to impose liability upon a bailee is generally a question of law to be determined by the court. Gooden v. Day's Inn, 196 Ga. App. 324 , 395 S.E.2d 876 (1990).

Borrower is bound to take good care of thing borrowed, to use it according to the intention of the lender, and to restore it at the proper condition. Industrial Lumber Co. v. Strickland, 71 Ga. App. 298 , 30 S.E.2d 792 (1944).

Bailee in mutual benefit bailment is not insurer of bailed property, in the absence of clear contractual provisions to the contrary. Gillham v. Federal Express Money Order, Inc., 112 Ga. App. 171 , 144 S.E.2d 557 (1965).

Ordinary diligence required of bailee in mutual benefit bailment. - Where the object of the bailment is beneficial to both parties, the degree of diligence required of the bailee is ordinary care. Elliott v. Levy, 77 Ga. App. 562 , 49 S.E.2d 179 (1948); Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570 , 49 S.E.2d 184 (1948); Gillham v. Federal Express Money Order, Inc., 112 Ga. App. 171 , 144 S.E.2d 557 (1965); Skinner v. Humble Oil & Ref. Co., 145 Ga. App. 372 , 243 S.E.2d 732 (1978).

A borrower, where the bailment is for the mutual benefit of both the bailor and bailee, is bound to exercise ordinary care and diligence in regard to the article borrowed. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935).

Extraordinary care and diligence required if borrower benefits entirely. - In a loan entirely for the benefit of the borrower, the borrower is usually bound to exercise extraordinary care and diligence, and is liable for slight neglect concerning the thing borrowed; if a loan is for the joint benefit of the lender and the borrower, the responsibility of the borrower is varied and less stringent, according to the circumstances and purposes of the loan. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935).

Presumption of negligence arises, if alleged, where possession is shown in the bailee at the time of damage to the property. United States Sec. Whse., Inc. v. Brooks, 115 Ga. App. 834 , 156 S.E.2d 217 (1967); Scott v. Purser Truck Sales, Inc., 198 Ga. App. 611 , 402 S.E.2d 354 (1991).

Mere showing of loss or injury will entitle bailor to recover unless this showing is offset by evidence adduced by the bailee. Bailey v. Insurance Co. of N. Am., 80 Ga. App. 521 , 56 S.E.2d 848 (1949).

Loss of property after its delivery to another authorizes an inference that the loss was occasioned by negligence of the person receiving it. Elliott v. Levy, 77 Ga. App. 562 , 49 S.E.2d 179 (1948).

Bailee may overcome prima facie case made out on the part of the bailor by proving affirmatively that the bailee exercised that degree of care which the bailment called for, or that the loss or injury was due to causes in no way connected with the lack of proper care on the bailee's part. Bailey v. Insurance Co. of N. Am., 80 Ga. App. 521 , 56 S.E.2d 848 (1949).

A bailee, who has exercised the proper degree of care and diligence in protecting and keeping safely the thing that is bailed, is relieved from any liability for its loss or destruction. Gillham v. Federal Express Money Order, Inc., 112 Ga. App. 171 , 144 S.E.2d 557 (1965).

Bailee not liable for unintentional invasion of bailor's interest with third persons. - A bailee who is negligent with respect to bailed goods is not liable for the unintentional invasion of the interest of the bailor in the bailor's contractual or employment relationships with third persons. Morse v. Piedmont Hotel Co., 110 Ga. App. 509 , 139 S.E.2d 133 (1964).

Exercise of required diligence is matter of defensive pleading and proof by bailee where the failure of the bailee to use the required degree of care is in issue; it is not a matter for allegation and proof by the bailor. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578 , 149 S.E.2d 255 (1966).

Only slight diligence required by hotel in holding jewelry. - Because the hotel gratuitously agreed to store the guest's jewelry when the guest refused to allow the jewelry to be mailed to the guest, the hotel was only required to show slight diligence for purposes of the bailment claim. Jordan v. Marriott International, Inc., 346 Ga. App. 706 , 816 S.E.2d 822 (2018).

Jury determines questions of diligence and negligence. - Ordinarily in bailment all questions of diligence and negligence are questions of fact for determination by the jury. Loeb v. Whitton, 77 Ga. App. 753 , 49 S.E.2d 785 (1948); Gillham v. Federal Express Money Order, Inc., 112 Ga. App. 171 , 144 S.E.2d 557 (1965).

Cited in Morris Storage & Transf. Co. v. Wilkes, 1 Ga. App. 751 , 58 S.E. 232 (1907); Hall & Ham v. Stone, 11 Ga. App. 269 , 75 S.E. 140 (1912); Pickering v. Anderson, 12 Ga. App. 61 , 76 S.E. 754 (1912); Park v. Swann, 20 Ga. App. 39 , 92 S.E. 398 (1917); Richter v. Atlantic Co., 65 Ga. App. 605 , 16 S.E.2d 259 (1941); Smith v. Burks, 89 Ga. App. 278 , 79 S.E.2d 52 (1953); Buena Vista Loan & Sav. Bank v. Bickerstaff, 121 Ga. App. 470 , 174 S.E.2d 219 (1970); Kamensky v. Southern Oxygen Supply Co., 127 Ga. App. 343 , 193 S.E.2d 164 (1972); Knox Jewelry Co. v. Cincinnati Ins. Co., 130 Ga. App. 519 , 203 S.E.2d 739 (1974); Northside Motors, Inc. v. O'Berry, 167 Ga. App. 155 , 305 S.E.2d 894 (1983); Citizens Jewelry Co. v. Walker, 178 Ga. App. 897 , 345 S.E.2d 106 (1986); South Ga. Pecan Co. v. Alimenta Processing Corp., 195 Ga. App. 688 , 394 S.E.2d 545 (1990).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 83 et seq., Carriers et seq.

C.J.S. - 8 C.J.S., Bailments, § 46 et seq.

ALR. - Liability of a bailee of money who commingles it with his own funds, 20 A.L.R. 378 .

Law of general average as affected by fact that necessity for sacrifice or expenditure was due to negligent navigation, 25 A.L.R. 154 .

Imputing negligence of bailee to bailor where subject of bailment is damaged by third person, 30 A.L.R. 1248 .

Duty and liability of farm tenant in respect to livestock leased with farm, 32 A.L.R. 857 .

Right of bailee by notice or contract to limit care to less than that fixed by statute, 34 A.L.R. 169 .

Rights and liability of bailee where there is an adverse hostile title, 43 A.L.R. 149 .

Liability of bailee where subject of bailment is stolen, 48 A.L.R. 378 .

Relation between customer and broker receiving bonds or other securities for sale or exchange, 52 A.L.R. 501 .

Liability of bailee for damage to or destruction of subject of bailment by servant acting for his own purposes or in violation of his instructions, 52 A.L.R. 711 .

Liability of carrier or other bailee because of misinformation as to time or place of arrival or storage of goods, 56 A.L.R. 1382 .

Duty and liability of gratuitous bailee or mandatory bailee, 96 A.L.R. 909 .

Liability for loss of or damage to automobile left in parking lot, 131 A.L.R. 1175 ; 7 A.L.R.3d 927; 13 A.L.R.4th 362; 13 A.L.R.4th 442.

Duty and liability of fair association, or other bailee, as regards articles entrusted to it for exhibition or display, 139 A.L.R. 931 .

Bailee's express agreement to return property, or to return it in a specified condition, as enlarging his common-law liability, 150 A.L.R. 269 .

Liability of attorney for loss of client's money or personal property in his possession or entrusted to him, 26 A.L.R.2d 1340.

Liability of bailee for hire of automobile for loss of, or damage to, contents, 27 A.L.R.2d 796.

Stockyard operator's liability for injury to or death of stock, 40 A.L.R.2d 988.

Liability of garageman for theft or unauthorized use of motor vehicle, 43 A.L.R.2d 403.

Presumption and burden of proof in action for injury to or loss of ship or vessel during bailment or charter, 65 A.L.R.2d 1228.

Bailee's duty to insure bailed property, 28 A.L.R.3d 513.

Sufficiency of warehouseman's precautions to protect goods against fire, 42 A.L.R.3d 908.

Liability of bailee of airplane for damage thereto, 44 A.L.R.3d 862.

Liability of operator of marina or boatyard for loss of or injury to pleasure boat left for storage or repair, 44 A.L.R.3d 1332.

Liability of savings bank for payment to person presenting lost or stolen passbook or savings account card, 68 A.L.R.3d 1080.

Liability of owner or operator of parking lot or garage for loss of or damage to contents of parked motor vehicle, 78 A.L.R.3d 1057.

Bailee's liability for bailor's expense of recovering stolen subject of bailment, 80 A.L.R.3d 264.

Liability of owner of motor vehicle for negligence of garageman or mechanic, 8 A.L.R.4th 265.

Liability for loss of hat, coat, or other property deposited by customer in place of business, 54 A.L.R.5th 393.

44-12-44. Burden on bailee after loss; proper diligence standard.

In all cases of bailment, after proof of loss by the bailor, the burden of proof is on the bailee to show proper diligence.

(Orig. Code 1863, § 2037; Code 1868, § 2038; Code 1873, § 2064; Code 1882, § 2064; Civil Code 1895, § 2896; Civil Code 1910, § 3469; Code 1933, § 12-104.)

Cross references. - Placement of risk of loss where goods are held by bailee for delivery under contract of sale, § 11-2-509 .

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Nothing in O.C.G.A. T. 11 repeals or affects O.C.G.A. § 44-12-44 . A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578 , 149 S.E.2d 255 (1966).

O.C.G.A. § 44-12-44 establishes rule for shifting of burden of introducing evidence or of going forward with the evidence. Deloach v. Automatic Transmission & Brake Shop, Inc., 106 Ga. App. 797 , 128 S.E.2d 512 (1962).

O.C.G.A. § 44-12-44 means that, after the bailor proves the bailment and that there was loss to the property bailed, the burden is then placed upon the bailee to show that the exercise of proper diligence according to the nature of the bailment. Deloach v. Automatic Transmission & Brake Shop, Inc., 106 Ga. App. 797 , 128 S.E.2d 512 (1962).

The burden referred to in O.C.G.A. § 44-12-44 is the burden of introducing evidence or of going forward with the evidence. Ammari v. Sohn, 197 Ga. App. 486 , 398 S.E.2d 804 (1990).

O.C.G.A. § 44-12-44 is rule of evidence rather than rule of pleading, thus, in an action ex delicto to recover for a breach of duty resulting in damage to the bailed property, it may be proper to allege the contract in order to show a duty but it is always necessary to allege negligence of the bailee as the proximate cause of the injury. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578 , 149 S.E.2d 255 (1966).

"Loss" defined. - Loss, as used in O.C.G.A. § 44-12-44 , does not mean merely a casual losing of the thing bailed, but is used in the sense of damage or injury. Western Union Tel. Co. v. Fontaine, 58 Ga. 433 (1877); Hawkins v. Haynes, 71 Ga. 40 (1883); Richmond & D.R.R. v. White & Co., 88 Ga. 805 , 15 S.E. 802 (1892); Central R.R. v. Hasselkus & Stewart, 91 Ga. 382 , 17 S.E. 838 , 44 Am. St. R. 37 (1892); Allen v. Southern Ry., 33 Ga. App. 209 , 126 S.E. 722 (1924).

"Safekeeping" construed. - The word "safekeeping" in an agreement for storage of goods in a warehouse does not imply a much higher degree of care than the law requires of a defendant nor does the word imply a guarantee against damage or harm. Harper Whse., Inc. v. Henry Chanin Corp., 102 Ga. App. 489 , 116 S.E.2d 641 (1960).

Before bailee is charged with duty of safekeeping property, bailee must assent to bailment, either expressly or impliedly. Davidson v. Ramsby, 133 Ga. App. 128 , 210 S.E.2d 245 (1974).

O.C.G.A. § 44-12-44 applies to carriers. Central R.R. & Banking Co. v. Anderson, 58 Ga. 393 (1877); Rome R.R. v. Wimberly, 75 Ga. 316 , 58 Am. R. 468 (1885); Holly v. Southern Ry., 119 Ga. 767 , 47 S.E. 188 (1904); Southern Ry. v. Edmundson, 123 Ga. 287 , 51 S.E. 474 , 107 Am. St. R. 85 (1905). See also Western Union Tel. Co. v. Blanchard, Williams & Co., 68 Ga. 299 , 45 Am. R. 480 (1882).

Bailor may elect remedy. - A bailor, setting up a breach of the duty of bailee, may elect as to the remedy and may rely upon either the bailor's right under the contract or proceed for damages as in a case of tort. AAA Parking, Inc. v. Black, 110 Ga. App. 554 , 139 S.E.2d 437 (1964).

A bailor who elects to proceed in tort must allege specific acts of negligence, even though the bailor need not prove these allegations at the trial in order to show a prima facie case under O.C.G.A. § 44-12-44 . AAA Parking, Inc. v. Black, 110 Ga. App. 554 , 139 S.E.2d 437 (1964).

Bailor's contributory negligence. - Where the plaintiff leased an airplane to the defendant, and sent with the airplane a co-pilot employed by the plaintiff, and the airplane was subsequently damaged due to a steering mechanism malfunction, the evidence created a jury question as to the plaintiff's contributory negligence. Plaintiff was not entitled to a directed verdict. Jet Air, Inc. v. EPPS Air Serv., Inc., 194 Ga. App. 829 , 392 S.E.2d 245 (1990).

Bailee not liable for unintentional invasion of bailor's third-party interests. - A bailee who is negligent with respect to bailed goods is not liable for the unintentional invasion of the interest of the bailor in the bailee's contractual or employment relationships with third persons. Morse v. Piedmont Hotel Co., 110 Ga. App. 509 , 139 S.E.2d 133 (1964).

Jury instruction on the duties of bailor and bailee, which comported word for word with O.C.G.A. § 44-12-44 and with the standard instruction appearing at p. 39 of Suggested Pattern Jury Instructions, I (2d ed.), Council of Superior Court Judges of Ga. (Civil Cases), 1984, was not in error. Custom Coating, Inc. v. Parsons, 188 Ga. App. 506 , 373 S.E.2d 291 (1988).

Questions of diligence and negligence determined by jury. - Ordinarily in bailment all questions of diligence and negligence are questions of fact for determination by the jury. Loeb v. Whitton, 77 Ga. App. 753 , 49 S.E.2d 785 (1948).

Cited in Almand v. Georgia R.R. & Banking Co., 95 Ga. 775 , 22 S.E. 674 (1895); Concord Variety Works v. Beckham, 112 Ga. 242 , 37 S.E. 392 (1900); Wilensky v. Martin, 4 Ga. App. 187 , 60 S.E. 1074 (1908); Johnson v. Perkins, 4 Ga. App. 633 , 62 S.E. 152 (1908); Netzow Mfg. Co. v. Southern Ry., 7 Ga. App. 163 , 66 S.E. 399 (1909); Atlantic Compress Co. v. Central of Ga. Ry., 135 Ga. 140 , 68 S.E. 1028 (1910); Southern Ry. v. Prescott, 240 U.S. 632, 36 S. Ct. 469 , 60 L. Ed. 836 (1916); McDonald v. Hardee, 22 Ga. App. 96 , 95 S.E. 320 (1918); Renfroe v. Fouche, 26 Ga. App. 340 , 106 S.E. 303 (1921); Central of Ga. Ry. v. Owens, 28 Ga. App. 140 , 110 S.E. 339 (1922); Davis v. Pearlman, 29 Ga. App. 12 , 113 S.E. 44 (1922); Atlanta Cadillac Co. v. Manley, 29 Ga. App. 522 , 116 S.E. 35 (1923); Red-Cross Laundry v. Tuten, 31 Ga. App. 689 , 121 S.E. 865 (1924); Parker Motor Co. v. Spiegal, 33 Ga. App. 795 , 127 S.E. 797 (1925); Southeastern Air Servs., Inc. v. Edwards, 74 Ga. App. 582 , 40 S.E.2d 572 (1946); Smith v. Burks, 89 Ga. App. 278 , 79 S.E.2d 52 (1953); Holmes v. Harden, 96 Ga. App. 365 , 100 S.E.2d 101 (1957); Wynn v. Johns, 97 Ga. App. 605 , 104 S.E.2d 150 (1958); Lee v. Creaty, 104 Ga. App. 429 , 121 S.E.2d 841 (1961); Nelliger v. Atlanta Baggage & Cab Co., 109 Ga. App. 863 , 137 S.E.2d 566 (1964); Buena Vista Loan & Sav. Bank v. Bickerstaff, 121 Ga. App. 470 , 174 S.E.2d 219 (1970); Stovall Tire & Marine, Inc. v. Fowler, 135 Ga. App. 26 , 217 S.E.2d 367 (1975); Electro-Medical Devices, Inc. v. Urban Medical Servs., Inc., 140 Ga. App. 776 , 232 S.E.2d 106 (1976); Delta Air Lines v. Isaacs, 141 Ga. App. 209 , 233 S.E.2d 212 (1977); Camp v. T.E. Cline, Inc., 141 Ga. App. 328 , 233 S.E.2d 280 (1977); Rhodes v. Duarte, 142 Ga. App. 885 , 237 S.E.2d 212 (1977); Skinner v. Humble Oil & Ref. Co., 145 Ga. App. 372 , 243 S.E.2d 732 (1978); Stephens v. Thompson, 177 Ga. App. 528 , 339 S.E.2d 784 (1986); Citizens Jewelry Co. v. Walker, 178 Ga. App. 897 , 345 S.E.2d 106 (1986); Johnson v. Hardwick, 212 Ga. App. 44 , 441 S.E.2d 450 (1994); Villanueva v. First Am. Title Ins. Co., 292 Ga. 630 , 740 S.E.2d 108 (2013).

Bailor's Burden of Proof

Burden of proof required before presumption of bailee's negligence arises. - The burden is on the bailor to prove the loss, destruction, disappearance of or injury to the property while it was in the bailee's possession and exclusive control, before the presumption that the loss was occasioned by the bailee's negligence arises. Millender v. Looper, 86 Ga. App. 430 , 71 S.E.2d 724 (1952).

Presumption of negligence arises, if alleged, where possession is shown in the bailee at the time of damage to the property. United States Sec. Whse., Inc. v. Brooks, 115 Ga. App. 834 , 156 S.E.2d 217 (1967).

Proof of loss or damage achieved by direct or circumstantial evidence. - Proof of loss or damage to property while under a bailee's control may be done by either direct or circumstantial evidence. Walker Elec. Co. v. Sullivan, 79 Ga. App. 13 , 52 S.E.2d 477 (1949).

Defendant's failure to deliver stored property on demand establishes prima facie case for the plaintiff. Washburn Storage Co. v. Mobley, 94 Ga. App. 113 , 94 S.E.2d 37 (1956); Harper Whse., Inc. v. Henry Chanin Corp., 102 Ga. App. 489 , 116 S.E.2d 641 .

A parking lot operator, charging the public for the operator's services in caring for customers' cars, cannot escape liability for the loss of a car stolen from the operator's parking lot, in the absence of clear and satisfactory proof showing diligence on the operator's part throughout the bailment. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578 , 149 S.E.2d 255 (1966).

Bailee's Burden of Proof

Burden on bailee to rebut presumption. - A presumption of negligence arises where possession is shown in the bailee at the time of damage to the property. The burden then is on the bailee to prove that the injury to the property was not occasioned by negligence on the bailee's part. Scott v. Purser Truck Sales, Inc., 198 Ga. App. 611 , 402 S.E.2d 354 (1991).

In order to rebut the evidentiary presumption, the bailee must negate every inference of negligence on its part, as the presumption in itself is sufficient to support a verdict in favor of the bailor, and it is only after the bailee has met its burden of proof by showing it exercised the required standard of diligence that the burden of going forward with the evidence shifts back to the bailor, who then has the burden of producing evidence to show negligence on the part of the bailee. Scott v. Purser Truck Sales, Inc., 198 Ga. App. 611 , 402 S.E.2d 354 (1991).

Once prima facie case for plaintiff is established, defendant can prevail only by establishing that defendant exercised ordinary care to prevent the loss or destruction of the plaintiff's property. Harper Whse., Inc. v. Henry Chanin Corp., 102 Ga. App. 489 , 116 S.E.2d 641 (1960).

A bailee cannot be exculpated from the liability of loss by failing to allege and prove affirmative showings of diligence. Light v. Smith, 86 Ga. App. 591 , 71 S.E.2d 844 (1952).

Once the bailor has proved loss or damage to property while it is under the control of the bailee, there is a presumption that the bailee was negligent unless the bailee shows to the satisfaction of the jury that the bailee exercised proper diligence. Walker Elec. Co. v. Sullivan, 79 Ga. App. 13 , 52 S.E.2d 477 (1949).

Bailee must establish absence of contributory negligence. - Although a bailee need not necessarily prove that the loss was occasioned by a particular exception, the bailee must establish that the bailee's own negligence did not contribute thereto. Haynie v. A & H Camper Sales, Inc., 233 Ga. 654 , 212 S.E.2d 825 (1975).

Evidence was sufficient to find that the defendant construction company bailee failed to carry its burden of showing that it exercised the requisite degree of care for a laser surveying unit where there was evidence that the defendant had been experiencing burglary problems, that its job superintendent had been taking the previously loaned prototype home for safekeeping, and that the plaintiff's representative advised the superintendent that the superintendent should similarly take the replacement unit home because it was more expensive than the prototype. Frontier Contracting Co. v. L.S.R., Inc., 174 Ga. App. 478 , 330 S.E.2d 414 (1985).

Bailee's knowledge of automobile contents required for liability. - A bailee for hire as to an automobile is not liable for the contents thereof unless the bailee has actual or implied knowledge or notice as to such contents. Davidson v. Ramsby, 133 Ga. App. 128 , 210 S.E.2d 245 (1974).

Reasonable expectation of car contents is sufficient notice. - Sufficient notice of the contents of a car exists if the articles are such as the bailee might reasonably expect to be therein. Davidson v. Ramsby, 133 Ga. App. 128 , 210 S.E.2d 245 (1974).

It is reversible error for trial judge to relieve defendant of this affirmative duty of producing evidence of diligence and to charge the jury in effect that the defendant was under no duty of making any defense until the plaintiff had proved all of the essential facts of its case, including negligence, by evidence. Richter Bros. v. Atlantic Co., 59 Ga. App. 137 , 200 S.E. 462 (1938), later appeal, 65 Ga. App. 605 , 16 S.E.2d 259 (1941).

It is reversible error for the trial judge to relieve the defendant of the duty imposed by O.C.G.A. § 44-12-44 , and to so charge the jury as to put the burden of showing negligence on the plaintiff. Elliott v. Levy, 77 Ga. App. 562 , 49 S.E.2d 179 (1948); Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570 , 49 S.E.2d 184 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 252, 254, 255 et seq.

C.J.S. - 8 C.J.S., Bailments, § 110 et seq.

ALR. - Right of bailee by notice or contract to limit care to less than that fixed by statute, 34 A.L.R. 169 .

Liability of bailee where subject of bailment is stolen, 48 A.L.R. 378 .

Duty and liability of fair association, or other bailee, as regards articles entrusted to it for exhibition or display, 139 A.L.R. 931 .

Liability of bailee for hire of automobile for loss of, or damage to, contents, 27 A.L.R.2d 796.

Presumption and burden of proof in action for injury to or loss of ship or vessel during bailment or charter, 65 A.L.R.2d 1228.

Presumption and burden of proof where subject of bailment is destroyed or damaged by windstorm or other meteorological phenomena, 43 A.L.R.3d 607.

Presumption and burden of proof where subject of bailment is destroyed or damaged by fire, 44 A.L.R.3d 171.

Liability of bailee of airplane for damage thereto, 44 A.L.R.3d 862.

Liability of operator of marina or boatyard for loss of or injury to pleasure boat left for storage or repair, 44 A.L.R.3d 1332.

Liability of owner or operator of parking lot or garage for loss of or damage to contents of parked motor vehicle, 78 A.L.R.3d 1057.

Liability of one undertaking to develop or to otherwise process already developed photographic film for its loss or destruction, 6 A.L.R.4th 934.

Liability for loss of hat, coat, or other property deposited by customer in place of business, 54 A.L.R.5th 393.

44-12-45. When act of God or contract exception available as defense.

In order for a bailee to avail himself of an act of God or an exception under the contract as a defense, he must establish not only that the act of God or excepted fact ultimately occasioned the loss but that his own negligence did not contribute to the loss.

(Civil Code 1895, § 2265; Civil Code 1910, § 2713; Code 1933, § 12-106.)

History of section. - This section is derived from the decision in Richmond & D.R.R. v. White & Co., 88 Ga. 805 , 15 S.E. 802 (1892).

Cross references. - Placement of risk of loss where goods are held by bailee for delivery under contract of sale, § 11-2-509 .

JUDICIAL DECISIONS

O.C.G.A. § 44-12-45 's inapplicable to disclaimer containing absolution of liability from all perils. White v. Atlanta Parking Serv. Co., 139 Ga. App. 243 , 228 S.E.2d 156 , cert. dismissed, 238 Ga. 18 , 231 S.E.2d 73 (1976).

Diligence required to preserve shipment from loss by fire. - The diligence required of a common carrier in regard to preserving goods in the course of transportation by the carrier from loss by fire is not limited to the avoidance of setting fire to such goods, but extends also to protecting and preserving them from destruction after a peril from fire has become apparent. Atlanta & W.P.R.R. v. Jacobs' Pharmacy Co., 135 Ga. 113 , 68 S.E. 1039 (1910).

Bailee must prove absence of its contributory negligence. - Although a bailee need not necessarily prove that the loss was occasioned by a particular exception, the bailee must establish that personal negligence did not contribute thereto. Haynie v. A & H Camper Sales, Inc., 233 Ga. 654 , 212 S.E.2d 825 (1975).

The defense of a carrier would be complete, where the damage was the result of some vis major, upon proof being made that its own negligence did not contribute to the loss caused by an occurrence over which it had no control. Southern Ry. v. Standard Growers Exch., 34 Ga. App. 534 , 130 S.E. 373 , cert. denied, 34 Ga. App. 836 (1925).

If a common carrier relies upon the defense that the loss was occasioned by the fault of the shipper or the shipper's agent, the shipper must bring self within the defense by negativing contributing fault on the shipper's own part. Atlanta & W.P.R.R. v. Jacobs' Pharmacy Co., 135 Ga. 113 , 68 S.E. 1039 (1910).

Where a carrier is sued for loss or destruction of goods in transit, resulting from unreasonable delay in delivery, the defense that the delay was caused by an unprecedented flood or some other act of God will not avail where it appears that the delay was attributable not merely to this cause, but largely to the negligence of the carrier. Lamb v. Mitchell & Co., 15 Ga. App. 759 , 84 S.E. 213 (1915).

Where goods are shipped "released," the burden is upon the carrier to show that the loss was within an exemption and not occasioned by negligence. Georgia S. & F. Ry. v. Johnson, King & Co., 121 Ga. 231 , 48 S.E. 807 (1904).

Proof that goods damaged by inherent qualities rebuts carrier's negligence. - When the goods composing a shipment are of such intrinsic character as to be self-destructive or incapable of safe transportation, the presumption that damage which occurred in the course of the transportation is due to the negligence of the carrier is rebutted by showing that the damage is due to the inherent qualities of the shipment. Capital City Oil Co. v. Central of Ga. Ry., 16 Ga. App. 750 , 86 S.E. 57 (1915).

Cited in Central of Ga. Ry. v. Hall, 124 Ga. 322 , 52 S.E. 679 , 110 Am. St. R. 170 , 4 L.R.A. (n.s.) 898, 4 Ann. Cas. 128 (1905); Southern Ry. v. Montag, 1 Ga. App. 649 , 57 S.E. 933 (1907); Atlanta & W.P.R.R. v. Broome, 3 Ga. App. 641 , 60 S.E. 355 (1908); Southern Ry. v. Frank & Co., 5 Ga. App. 574 , 63 S.E. 656 (1909); Payne v. West Point Whsle. Grocery Co., 151 Ga. 46 , 105 S.E. 608 (1921); Bugg v. Perry & Faircloth, 42 Ga. App. 523 , 156 S.E. 708 (1931); Richter v. Atlantic Co., 65 Ga. App. 605 , 16 S.E.2d 259 (1941); Stovall Tire & Marine, Inc. v. Fowler, 135 Ga. App. 26 , 217 S.E.2d 367 (1975).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 134, 136, 157.

C.J.S. - 8 C.J.S., Bailments, § 56.

ALR. - Law of general average as affected by fact that necessity for sacrifice or expenditure was due to negligent navigation, 25 A.L.R. 154 .

Liability of bailee where subject of bailment is stolen, 26 A.L.R. 223 ; 48 A.L.R. 378 .

Bailee's express agreement to return property, or to return it in a specified condition, as enlarging his common-law liability, 124 A.L.R. 186 ; 150 A.L.R. 269 .

Presumption and burden of proof where subject of bailment is destroyed or damaged by windstorm or other meteorological phenomena, 43 A.L.R.3d 607.

Liability of hotel, motel, or similar establishment for damage to or loss of guest's automobile left on premises, 52 A.L.R.3d 433.

PART 2 H IRING

JUDICIAL DECISIONS

Cited in Carter Hawley Hale Stores, Inc. v. Saxon, 156 Ga. App. 488 , 274 S.E.2d 833 (1980).

RESEARCH REFERENCES

ALR. - Validity of agreement by bailee of instrumentality to purchase his supplies from bailor, 14 A.L.R. 114 ; 17 A.L.R. 392 .

Liability of bailee for loss of or injury to goods kept at a place other than that originally intended, 17 A.L.R. 979 .

Imputing negligence of bailee to bailor where subject of bailment is damaged by third person, 30 A.L.R. 1248 .

Duty and liability of farm tenant in respect to livestock leased with farm, 32 A.L.R. 857 .

Right of a factor, commission merchant, or produce broker to sell property to protect advances, 40 A.L.R. 387 .

Liability of one contracting to make repairs for damages for improper performance of the work, 44 A.L.R. 824 .

Relationship of bailor and bailee as between owner of goods in bonded warehouse and proprietor of warehouse, 77 A.L.R. 1502 .

Liability of one furnishing lockers for hire or to patrons for loss of packages or goods placed therein, 19 A.L.R.2d 331.

Liability of warehouseman for injury to stored goods as result of failure to maintain proper temperatures, 92 A.L.R.2d 1298.

Bailee's duty to insure bailed property, 28 A.L.R.3d 513.

Construction and effect of motor vehicle leasing contracts, 43 A.L.R.3d 1283.

Liability of hotel, motel, or similar establishment for damage to or loss of guest's automobile left on premises, 52 A.L.R.3d 433.

44-12-60. "Hiring" defined.

The term "hiring" means a contract by which one person grants to another either the enjoyment of a thing or the use of the labor and industry of himself during a certain time and for a stipulated compensation or by which one person contracts for the labor or services of another person with regard to a thing bailed to such other person for a specified purpose.

(Orig. Code 1863, § 2056; Code 1868, § 2059; Code 1873, § 2085; Code 1882, § 2085; Civil Code 1895, § 2903; Civil Code 1910, § 3476; Code 1933, § 12-201.)

JUDICIAL DECISIONS

Services performed for wages or under any contract of hire are one and same as a matter of law. National Trailer Convoy, Inc. v. Undercofler, 109 Ga. App. 703 , 137 S.E.2d 328 (1964).

Lease agreement as contract for hire. - Where it was clear from the terms of an automobile lease agreement that a contract for hire was created, with lessor as bailor and lessee as bailee, the relationship between the parties was governed by the lease terms, and by the statutory obligations of a bailor under O.C.G.A. § 44-12-63 . Mark Singleton Buick, Inc. v. Taylor, 194 Ga. App. 630 , 391 S.E.2d 435 (1990).

A ski rental agreement established the relationship of bailor-bailee which was governed by the terms of the agreement and the obligations of a bailor under O.C.G.A. § 44-12-63 . Benford v. RDL, Inc., 223 Ga. App. 800 , 479 S.E.2d 110 (1996).

Where bailment for mutual benefit exists. - Where an article is bailed to another for the purpose of making repairs on it for a consideration, the bailment is in its inception for the mutual benefit of both the bailor and the bailee. Shropshire v. Caylor, 94 Ga. App. 37 , 93 S.E.2d 586 (1956).

Cited in Western Union Tel. Co. v. Fontaine, 58 Ga. 433 (1877); Cabaniss v. Ponder, 65 Ga. 134 (1880); Dilberto v. Harris, 95 Ga. 571 , 23 S.E. 112 (1894); Massillon Engine & Thrasher Co. v. Akerman, 110 Ga. 570 , 35 S.E. 635 (1900); Arrington Bros. & Co. v. Fleming, 117 Ga. 449 , 43 S.E. 691 , 97 Am. St. R. 169 (1903); Wilensky v. Martin, 4 Ga. App. 187 , 60 S.E. 1074 (1908); McDonald v. Hardee, 22 Ga. App. 96 , 95 S.E. 320 (1918); Queen v. Patent Scaffolding Co., 46 Ga. App. 364 , 167 S.E. 789 (1933); White v. American Ins. Co., 53 Ga. App. 320 , 185 S.E. 605 (1936); Heughan v. State, 82 Ga. App. 640 , 61 S.E.2d 685 (1950); James v. Mack Trucks, Inc., 146 Ga. App. 689 , 247 S.E.2d 215 (1978); Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777 , 709 S.E.2d 324 (2011).

RESEARCH REFERENCES

ALR. - Bailment: effect of failure to reply to notice of rate at which goods then on premises may be left, 24 A.L.R. 968 .

Character of contract to raise seed, 29 A.L.R. 647 .

Character of contract for use of chattels with agreement for replacements, 38 A.L.R. 175 .

44-12-61. Qualified ownership and rights of hirer.

The hirer of things acquires a qualified ownership of them for the time specified, which qualified ownership entitles him to all their increase and to the possession and enjoyment of them during the period of bailment against everyone else, including the owner himself.

(Orig. Code 1863, § 2057; Code 1868, § 2060; Code 1873, § 2086; Code 1882, § 2086; Civil Code 1895, § 2904; Civil Code 1910, § 3477; Code 1933, § 12-202.)

JUDICIAL DECISIONS

"Increase" defined. - The word "increase" means the issue of animals, or that which issues from a principal. Jackson v. Maddox, 136 Ga. 31 , 70 S.E. 865 , 1912B Ann. Cas. 1216 (1911).

Cited in Hill Aircraft & Leasing Corp. v. Simon, 122 Ga. App. 524 , 177 S.E.2d 803 (1970).

RESEARCH REFERENCES

ALR. - Duty and liability of farm tenant in respect to livestock leased with farm, 32 A.L.R. 857 .

44-12-62. Duties of hirer; liability for acts of bailor's agents.

  1. The duties of the hirer of things are:
    1. To put the thing to no other use than that for which it is hired;
    2. To take ordinary care in its use;
    3. To redeliver the thing at the expiration of the bailment; and
    4. To comply generally with the terms of the hiring.
  2. If the bailor sends his own agents with the thing bailed, the hirer shall not be liable for the acts of such agents but shall only be liable either to the bailor or to third persons for the consequences of his own directions and for gross neglect.

    (Orig. Code 1863, § 2060; Code 1868, § 2063; Code 1873, § 2089; Code 1882, § 2089; Civil Code 1895, § 2907; Civil Code 1910, § 3480; Code 1933, § 12-203.)

Cross references. - Theft by conversion, § 16-8-4 .

JUDICIAL DECISIONS

Lessee of personal property is termed bailee for hire. Goger v. United States, 4 Bankr. 4 (N.D. Ga. 1979).

Hirer is bound only for ordinary diligence in a contract of mutual benefit and is responsible only for ordinary negligence, or for that degree of care and diligence which the generality of mankind use in keeping their own goods of the same kind. Malone v. Robinson, 77 Ga. 719 (1886); Evans & Pennington v. Nail, 1 Ga. App. 42 , 57 S.E. 1020 (1907); Brannan & Holder v. Moore, 135 Ga. 517 , 69 S.E. 820 (1910).

Bailee's control and responsibility is limited in respect to conduct of servant furnished to operate chattel. Hill Aircraft & Leasing Corp. v. Simon, 122 Ga. App. 524 , 177 S.E.2d 803 (1970).

Where the plaintiff leased an airplane to the defendant, and sent with the airplane a co-pilot employed by the plaintiff, and the airplane was subsequently damaged due to a steering mechanism malfunction, the evidence created a jury question as to the plaintiff's contributory negligence, and the plaintiff was not entitled to a directed verdict. Jet Air, Inc. v. EPPS Air Serv., Inc., 194 Ga. App. 829 , 392 S.E.2d 245 (1990).

Owner of vehicle who employs driver is responsible for driver's negligence, rather than the hirer where the hirer has no supervision or control of the servant's mechanical operation of the vehicle and no right to discharge the driver and take over the operation of the vehicle personally or put it in the hands of another to operate. Montgomery Trucking Co. v. Black, 231 Ga. 211 , 200 S.E.2d 882 (1973).

Liability of party hiring crane for operator's negligence. - For a discussion of the liability of a hirer of a crane for the negligence of the crane operator in lifting a concrete hopper, see Sims Crane Serv., Inc. v. Ideal Steel Prods., Inc., 750 F.2d 884 (11th Cir. 1985).

Because a contract between a crane owner and a general contractor stated that the owner's employee was a borrowed servant, a trial court correctly granted summary judgment in a negligence action arising from injuries resulting from the crane operation. Tim's Crane & Rigging, Inc. v. Gibson, 278 Ga. 796 , 604 S.E.2d 763 (2004).

Trial court erred in granting summary judgment to the Georgia Ports Authority on the issue of liability in its breach of contract action against a lessee because neither the parties' contract for the lease of a gantry crane, nor the other evidence before the trial court, established that a crane operator was the lessee's borrowed servant as a matter of law under O.C.G.A. § 44-12-62(b) . Cooper/T. Smith Stevedoring Co. v. State of Ga., 317 Ga. App. 362 , 730 S.E.2d 168 (2012), cert. denied, No. S12C2016, S12C2023, 2013 Ga. LEXIS 34, 51 (Ga. 2013).

Liability of employer for tractor carrying trash. - Because an employer, as bailor, sent the employer's own employee with the thing bailed, a tractor with attached trash trailer, under O.C.G.A. § 44-12-62(b) , a contractor, as the hirer, was liable only for the consequences of the hirer's own directions or for the hirer's gross negligence; the trial court erred in concluding that the contractor was entitled to summary judgment on the basis that the employee was not a borrowed servant because the evidence presented at least a factual issue regarding whether the employee was the contractor's borrowed servant since there was evidence that the contractor alone supervised the employee's work hauling debris, that the contractor controlled the employee's schedule for each day, and that the contractor dictated which landfill would receive the debris and when a load was ready. Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777 , 709 S.E.2d 324 (2011).

Status as employee or servant genuine issue of material fact. - Whether a backhoe operator remained an employee of the defendant contractor or became a servant of the plaintiff's employer upon renting the backhoe from the defendant is a genuine issue of material fact. Mitchell v. Burden Bros., 126 Ga. App. 75 , 189 S.E.2d 909 (1972).

Cited in Tyner & Blackmon v. Fryer Truck & Tractor Co., 83 Ga. App. 393 , 63 S.E.2d 695 (1951); Ray Wright Enters., Inc. v. Reaves, 128 Ga. App. 745 , 197 S.E.2d 856 (1973); Dove v. National Freight, Inc., 138 Ga. App. 114 , 225 S.E.2d 477 (1976); Camp v. T.E. Cline, Inc., 141 Ga. App. 328 , 233 S.E.2d 280 (1977); Reliance Ins. Co. v. Bridges, 168 Ga. App. 874 , 311 S.E.2d 193 (1983).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 83 et seq.

C.J.S. - 8 C.J.S., Bailments, § 31.

ALR. - Relation between customer and broker receiving bonds or other securities for sale or exchange, 52 A.L.R. 501 .

Liability of bailee for damage to or destruction of subject of bailment by servant acting for his own purposes or in violation of his instructions, 52 A.L.R. 711 .

Duty and liability of fair association, or other bailee, as regards articles entrusted to it for exhibition or display, 139 A.L.R. 931 .

Who is member of the immediate family within automobile lease provision restricting use of rented automobile to customer and members of his immediate family, 80 A.L.R.3d 1170.

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 A.L.R.4th 358.

44-12-63. Obligations of bailor.

The obligations of the bailor of things are:

  1. To do no act to deprive the hirer of the use and enjoyment of the chattel during the period of the bailment;
  2. To keep the thing in suitable order and repair for the purposes of the bailment; and
  3. To warrant the right of possession and that the thing bailed is free from any secret fault rendering it unfit for the purposes for which it is hired.

    (Orig. Code 1863, § 2059; Code 1868, § 2062; Code 1873, § 2088; Code 1882, § 2088; Civil Code 1895, § 2906; Civil Code 1910, § 3479; Code 1933, § 12-204.)

Cross references. - Liability of motor vehicle owner for traffic or parking violations occurring while motor vehicle leased to another, § 40-6-207 .

Law reviews. - For comment on Redfern Meats, Inc. v. Hertz Corp., see 27 Mercer L. Rev. 347 (1975).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Applicability of this section. - O.C.G.A. § 44-12-63 applies to warranties under O.C.G.A. Art. 2, Pt. 3, T. 11. Redfern Meats, Inc. v. Hertz Corp., 134 Ga. App. 381 , 215 S.E.2d 10 (1975), commented on in 27 Mercer L. Rev. 347 (1975).

Due care on part of bailor requires bailor to examine thing bailed for the purpose of seeing that it has no hidden defects which would render it unsuitable for the purposes for which it was hired. Parker v. G.O. Loving & Co., 13 Ga. App. 284 , 79 S.E. 77 (1913); Hertz Driv-Ur-Self Stations, Inc. v. Benson, 83 Ga. App. 866 , 65 S.E.2d 191 (1951); Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480 , 164 S.E.2d 318 (1968).

Scope of bailor's duty of care. - A bailor for hire, entrusting an automobile to another for immediate operation, has a duty of using ordinary care to ascertain that the automobile has no hidden defects rendering it dangerous, and this duty extends to those persons within the range of foreseeable operation of the automobile, such as someone on or near the highways on which the vehicle with defective brakes was to be operated. Hertz Driv-Ur-Self Stations, Inc. v. Benson, 83 Ga. App. 866 , 65 S.E.2d 191 (1951).

While it is the duty of the bailor to warrant against latent defects, much more is it the duty of the bailor to see that the bailed article is free from patent defects which render it unfit and unsuitable for the purposes for which it is hired. Parker v. G.O. Loving & Co., 13 Ga. App. 284 , 79 S.E. 77 (1913); Queen v. Patent Scaffolding Co., 46 Ga. App. 364 , 167 S.E. 789 (1933).

Where it is clear from the terms of an automobile lease agreement that a contract for hire as defined in O.C.G.A. § 44-12-60 was created, with lessor as bailor and lessee as bailee, the relationship between the parties was governed by the lease terms, and by the statutory obligations of a bailor under O.C.G.A. § 44-12-63 . Mark Singleton Buick, Inc. v. Taylor, 194 Ga. App. 630 , 391 S.E.2d 435 (1990).

A ski rental agreement established the relationship of bailor-bailee which was governed by the terms of the agreement and the obligations of a bailor under O.C.G.A. § 44-12-63 . Benford v. RDL, Inc., 223 Ga. App. 800 , 479 S.E.2d 110 (1996).

In renting a bicycle, a motel acted as a bailor for hire, and the relationship caused certain duties requiring the exercise of ordinary care that rose to a greater level than that owed to the general public. Perton v. Motel Properties, Inc., 230 Ga. App. 540 , 497 S.E.2d 29 (1998).

Exculpation of bailor's liability by exculpatory clause. - The liability of a bailor under O.C.G.A. § 44-12-63 may be exculpated by an exculpatory clause, even when the damage is caused by the lessor's own negligence, as long as the exculpatory clause is not contrary to public policy and explicitly shows an intent to include the lessor's own negligence, and that negligence does not amount to willful and wanton misconduct. Hall v. Gardens Servs., Inc., 174 Ga. App. 856 , 332 S.E.2d 3 (1985).

A contract in which a lessor or bailor is exculpated himself from liability with a disclaimer clause is not prohibited by law or public policy. Mercedes-Benz Credit Corp. v. Shields, 199 Ga. App. 89 , 403 S.E.2d 891 (1991).

A covenant not to sue in ski rental lease agreement barred the renter's claim of breach of warranty or contract in the absence of a showing of any latent defect in the skis or bindings. Benford v. RDL, Inc., 223 Ga. App. 800 , 479 S.E.2d 110 (1996).

Exculpatory clause void. - Portion of bailment contract which stated that the customer "by his acceptance and removal" of the skates agreed that they "are in acceptable operating condition, and that lessor makes no warranties, express or implied, in connection therewith," was void. Hall v. Skate Escape, Ltd., 171 Ga. App. 178 , 319 S.E.2d 67 (1984).

Bailor warrants soundness and suitableness of thing bailed, and is liable for any injury or damage which may result from a latent defect of which the bailee has no knowledge and the consequences of which the bailee could not avoid by the exercise of ordinary care. Queen v. Patent Scaffolding Co., 46 Ga. App. 364 , 167 S.E. 789 (1933).

What would be ordinary care depends upon particular business in hand, the circumstances surrounding the particular transaction, and the situation of the parties. Hertz Driv-Ur-Self Stations, Inc. v. Benson, 83 Ga. App. 866 , 65 S.E.2d 191 (1951).

Amount of care bailee ought to have used to discover defect is question of fact for jury. Parker v. G.O. Loving & Co., 13 Ga. App. 284 , 79 S.E. 77 (1913).

No duty to maintain imposable upon gratuitous bailor. - As a gratuitous bailor, defendant soda bottling company had no legal duty to maintain properly the area surrounding a refreshment wagon where plaintiff had allegedly slipped, particularly after the wagon was delivered and placed under the bailee's control for its use. Prince v. Atlanta Coca-Cola Bottling Co., 210 Ga. App. 108 , 435 S.E.2d 482 (1993).

Scope of bailor's liability. - Since the bailor's duty extends to persons other than the parties to the actual bailment contract, the limits of the bailor's liability are not to be determined alone by the provisions and warranties of the contract of bailment, but also by the limits imposed by the doctrine of proximate cause, that is, whether the bailor should have foreseen the consequences of negligence as a natural and probable result. Hertz Driv-Ur-Self Stations, Inc. v. Benson, 83 Ga. App. 866 , 65 S.E.2d 191 (1951).

Bailor's liability is not determined alone by the provisions and warranties of the bailment contract, but also by the common law rules of negligence. Seaboard Coast Line R.R. v. Mobil Chem. Co., 172 Ga. App. 543 , 323 S.E.2d 849 (1984).

Bailment for hire. - In an action in which an insurance company filed suit against a company in a subrogation action to recover money paid by the insurance company to a restaurant in Norcross, Georgia, after a fire destroyed the restaurant, the company's motion for summary judgment was denied as to the bailment claim; the bailment was for hire because: (1) the company leased the soda dispensing equipment at no cost to the restaurant because the restaurant then purchased the company's syrup for use in the equipment; and (2) the fact that the syrup was purchased through a third-party vendor did not lessen the benefit of the sale to the company, as the company was the sole supplier of the company's syrup. Colony Ins. Co. v. Coca-Cola Co., 239 F.R.D. 666 (N.D. Ga. 2007).

Bailor's anticipation of particular ensuing consequences unnecessary for liability. - In order for a bailor to be liable as for negligence, it is not necessary that the bailor should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence the bailor might have foreseen that some injury would result from the bailor's act or omission, or that consequences of a generally injurious nature might result. Hertz Driv-Ur-Self Stations, Inc. v. Benson, 83 Ga. App. 866 , 65 S.E.2d 191 (1951).

Foreseeability of resulting injury from bailor's act sufficient. - It is sufficient if, in ordinary prudence, bailor might have foreseen that some injury would result from the bailor's act or omission, or that consequences of a generally injurious nature might result. Hertz Driv-Ur-Self Stations, Inc. v. Benson, 83 Ga. App. 866 , 65 S.E.2d 191 (1951).

Bailor's knowledge of defect waives right to claim damages. - If the bailee knows of the defect or in the exercise of ordinary care ought to discover it and, notwithstanding the bailee's actual or implied knowledge, the bailee uses the thing and injury results on account of the defect, the bailee will be held to have waived the right to claim damages since, by the exercise of ordinary care, the bailee could have avoided the consequences of the bailor's neglect. Parker v. G.O. Loving & Co., 13 Ga. App. 284 , 79 S.E. 77 (1913).

Cited in Brannan & Holder v. Moore, 135 Ga. 715 , 69 S.E. 820 (1910); Southeastern Air Serv., Inc. v. Crowell, 88 Ga. App. 820 , 78 S.E.2d 103 (1953); England v. United States, 405 F.2d 862 (5th Cir. 1968); Hill Aircraft & Leasing Corp. v. Simon, 122 Ga. App. 524 , 177 S.E.2d 803 (1970); Southern Protective Prods. Co. v. Leasing Int'l, Inc., 134 Ga. App. 945 , 216 S.E.2d 725 (1975); Dixie Groceries, Inc. v. Albany Bus. Machs., Inc., 156 Ga. App. 36 , 274 S.E.2d 81 (1980); Citicorp Indus. Credit, Inc. v. Rountree, 185 Ga. App. 417 , 364 S.E.2d 65 (1987); Ledbetter v. Delight Whsle. Co., 191 Ga. App. 64 , 380 S.E.2d 736 (1989).

Manufacturer's Liability

Lessor not liable where manufacturer not liable. - If the evidence does not authorize a finding that allegedly defective leased equipment was in fact defective so as to permit a recovery against the manufacturer under O.C.G.A. § 51-1-11(b) , it clearly does not authorize a finding that it was defective so as to permit a recovery under O.C.G.A. § 44-12-63(3) against the lessor. Fortner v. W.C. Cayne & Co., 184 Ga. App. 187 , 360 S.E.2d 920 (1987).

Manufacturer of appliance for rent has duty to know whether appliance was constructed defectively or not. Queen v. Patent Scaffolding Co., 46 Ga. App. 364 , 167 S.E. 789 (1933).

Liability of maker or vendor of article harmless in kind, but dangerous through defect, is under a duty to make the article carefully where its nature is such that it is reasonably certain to place life and limb in peril when negligently made and, where there is knowledge that the article will be so used by persons other than the purchaser, such maker or vendor is liable for an injury to a person resulting from a failure to perform this duty. Queen v. Patent Scaffolding Co., 46 Ga. App. 364 , 167 S.E. 789 (1933).

Manufacturer is not liable where purchaser had knowledge of defect before injury. Queen v. Patent Scaffolding Co., 46 Ga. App. 364 , 167 S.E. 789 (1933).

Manufacturer may be liable for injury arising from defect which the manufacturer ought to have discovered, such as one which the manufacturer could have ascertained by proper care and attention, or by making a reasonable test or inspection. Queen v. Patent Scaffolding Co., 46 Ga. App. 364 , 167 S.E. 789 (1933).

Liability exists where manufacturer fails to warn of known defect. - A manufacturer of an article which is not inherently dangerous, but which is rendered dangerous by a defect therein, is liable for an injury to a third person arising from the defect, where the manufacturer had knowledge of the defect and failed to give notice or warning thereof to the purchaser. Queen v. Patent Scaffolding Co., 46 Ga. App. 364 , 167 S.E. 789 (1933).

Third Party

Bailor's knowledge of animal's vicious nature required for third person's recovery. - When a third person, other than bailor and bailee, is injured by a dangerous animal, that third party cannot recover from the owner unless that party shows that the owner knew or had reasonable grounds to know of the vicious propensities of the animal and was wanting in ordinary care. Reed v. Southern Express Co., 95 Ga. 108 , 22 S.E. 133 , 51 Am. St. R. 62 (1894).

Bailee's discovery of defect no insulation from third person's injury. - One who furnishes a motor vehicle to another in a defective condition is not as a matter of law insulated against liability to third persons because the bailee continues to operate the vehicle after discovery of the defect. Yale & Towne, Inc. v. Sharpe, 118 Ga. App. 480 , 164 S.E.2d 318 (1968).

Bailor's negligence superseded by unauthorized criminal acts. - Any negligence on the part of the owner/bailor of an automobile in failing to inquire as to the driving records of the bailee or another listed driver, or their intended use of the vehicle, was superseded by the unauthorized criminal acts of a third party who had borrowed the vehicle from the bailee. Alamo Rent-A-Car, Inc. v. Hamilton, 216 Ga. App. 659 , 455 S.E.2d 366 (1995).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 100 et seq.

C.J.S. - 8 C.J.S., Bailments, §§ 31, 33, 37 et seq.

ALR. - Recovery back of amount paid to bailee for repairs of no benefit to bailor, 31 A.L.R. 698 .

Liability of bailor for personal injuries due to defects in subject of bailment, 61 A.L.R. 1336 ; 131 A.L.R. 845 .

Construction and application of provision of bailment or lease contract relating to cost of repairs or replacements, or damage to chattle, 129 A.L.R. 460 .

Liability of bailor for personal injuries or death due to defects in subject of bailment, 131 A.L.R. 845 .

Liability for loss of or damage to automobile left in parking lot or garage, 7 A.L.R.3d 927; 13 A.L.R.4th 362; 13 A.L.R.4th 442.

Tort liability of one renting or loaning airplane to another, 4 A.L.R.2d 1306.

Liability of bailor of automotive vehicle or machine for personal injury or death due to defects therein, 46 A.L.R.2d 404.

Warranties in connection with leasing or hiring of chattels, 68 A.L.R.2d 850.

Liability of pawnbroker or pledgee for theft by third person of pawned or pledged property, 68 A.L.R.2d 1259.

Application of warranty provisions of Uniform Commercial Code to bailments, 48 A.L.R.3d 668.

Products liability: application of strict liability is tort doctrine to lessor of personal property, 52 A.L.R.3d 121.

Liability of owner or bailor of horse for injury by horse to hirer or bailee thereof, 6 A.L.R.4th 358.

Liability in negligence for death or injury related to rented bicycle, scooter, or segway, 48 A.L.R.7th Art. 3.

44-12-64. Duty to return property; assumption of risks; time of return.

The contract of hire may call for the return of the thing or of like property of the same kind and quality. If the return of the thing is specified, the risk of death or inevitable accident is with the bailor and he can retake possession immediately at the expiration of the time of hiring. If the return of like property of the same kind and quality is specified, the risk is with the bailee and he must redeliver the thing hired before the bailor's interest is revested.

(Orig. Code 1863, § 2058; Code 1868, § 2061; Code 1873, § 2087; Code 1882, § 2087; Civil Code 1895, § 2905; Civil Code 1910, § 3478; Code 1933, § 12-205.)

Cross references. - Theft by conversion, § 16-8-4 .

JUDICIAL DECISIONS

Duty of redelivery of leased item means only a duty to tender possession of the item at the premises of the bailee, in the absence of an agreement to the contrary. Goger v. United States, 4 Bankr. 4 (N.D. Ga. 1979).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 103 et seq.

C.J.S. - 8 C.J.S., Bailments, § 86 et seq.

ALR. - Law of general average as affected by fact that necessity for sacrifice or expenditure was due to negligent navigation, 25 A.L.R. 154 .

Recovery back of amount paid to bailee for repairs of no benefit to bailor, 31 A.L.R. 698 .

Duty and liability of farm tenant in respect to livestock leased with farm, 32 A.L.R. 857 .

Deposit of grain without obligation to return identical grain as a bailment or a sale, 54 A.L.R. 1166 .

Liability for loss of or damage to automobile left in parking lot, 131 A.L.R. 1175 ; 7 A.L.R.3d 927; 13 A.L.R.4th 362; 13 A.L.R.4th 442.

Status, rights, and liability of parties to bailment for hire where bailee continues in possession after bailment has ensued, 144 A.L.R. 1024 .

Liability of pawnbroker or pledgee for theft by third person of pawned or pledged property, 68 A.L.R.2d 1259.

Bailee's duty to insure bailed property, 28 A.L.R.3d 513.

44-12-65. Effect of breach of contract; action for conversion by bailor.

If either party violates the terms of the hiring, the other party may abandon the contract. If the hirer puts the thing to a different use than is specified in the contract, the bailor may bring an action as for a conversion even if the hirer is a minor.

(Orig. Code 1863, § 2061; Code 1868, § 2064; Code 1873, § 2090; Code 1882, § 2090; Civil Code 1895, § 2908; Civil Code 1910, § 3481; Code 1933, § 12-206.)

JUDICIAL DECISIONS

Allegation required for infant bailee's liability for damages. - An infant bailee of a borrowed automobile is not liable for damages to the automobile caused by the bailee's reckless driving, in the absence of an allegation either that the bailee departed from the object of the bailment or that the bailee intentionally caused the damage. Jones v. Milner, 53 Ga. App. 304 , 185 S.E. 586 (1936).

Cited in Northside Motors, Inc. v. O'Berry, 167 Ga. App. 155 , 305 S.E.2d 894 (1983).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 230 et seq.

C.J.S. - 8 C.J.S., Bailments, §§ 35, 99 et seq.

ALR. - Appropriation by carrier for its own use of coal or other commodity shipped over its line, 29 A.L.R. 1241 .

Recovery back of amount paid to bailee for repairs of no benefit to bailor, 31 A.L.R. 698 .

Relation between customer and broker receiving bonds or other securities for sale or exchange, 52 A.L.R. 501 .

Validity and effect of acceleration clause in lease or bailment, 58 A.L.R. 300 ; 128 A.L.R. 750 .

44-12-66. Effect of loss or destruction of thing hired; liability of hirer.

The loss or destruction of the thing hired without fault on the part of the hirer puts an end to the bailment, and the hirer is required to pay only for the time it was enjoyed.

(Orig. Code 1863, § 2063; Code 1868, § 2066; Code 1873, § 2092; Code 1882, § 2092; Civil Code 1895, § 2910; Civil Code 1910, § 3483; Code 1933, § 12-207.)

Law reviews. - For annual survey of law of contracts, see 38 Mercer L. Rev. 107 (1986).

JUDICIAL DECISIONS

Provisions of O.C.G.A. § 44-12-66 must control, in the absence of a clear expression of intention by the parties that some other rule would govern their rights in the matter. Dearing Leasing Co. v. Harmon, Inc., 107 Ga. App. 682 , 131 S.E.2d 128 (1963).

Where leased personal property is destroyed, without fault of the lessee, the lease is terminated, and so are future payments under the lease. Marjon Assocs. v. Leasing Int'l, Inc., 174 Ga. App. 679 , 331 S.E.2d 20 (1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 157.

C.J.S. - 8 C.J.S., Bailments, § 106.

ALR. - Duty and liability of farm tenant in respect to livestock leased with farm, 32 A.L.R. 857 .

Liability of bailee where subject of bailment is stolen, 48 A.L.R. 378 .

Bailee's reimbursement of bailor as affecting latter's right of action against tort-feasor for damaging subject of bailment, 166 A.L.R. 206 .

Liability of pawnbroker or pledgee for theft by third person of pawned or pledged property, 68 A.L.R.2d 1259.

44-12-67. When hirer may relet; effect of reletting without consent of bailor.

No hirer of a thing has a right to hire out the thing bailed to him to another person except with the consent, express or implied, of the bailor. If the hirer relets to another person without the consent of the bailor, the bailor may either take immediate possession of the thing bailed or waive this right and hold the hirer bound to extraordinary care and diligence on the part of himself and the hirer from him.

(Orig. Code 1863, § 2073; Code 1868, § 2068; Code 1873, § 2094; Code 1882, § 2094; Civil Code 1895, § 2912; Civil Code 1910, § 3485; Code 1933, § 12-208.)

JUDICIAL DECISIONS

Cited in Butts Bros. v. Ennis, 148 Ga. 153 , 96 S.E. 131 (1918).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 51 et seq.

C.J.S. - 8 C.J.S., Bailments, § 36.

44-12-68. Consent required for removal of hired thing from state or hazardous use.

No hirer of things has a right to remove such things beyond the jurisdiction of this state except by consent of the bailor nor to put the thing hired to any hazardous use unless such use was specially contracted for.

(Orig. Code 1863, § 2072; Code 1868, § 2067; Code 1873, § 2093; Code 1882, § 2093; Civil Code 1895, § 2911; Civil Code 1910, § 3484; Code 1933, § 12-209; Ga. L. 1982, p. 3, § 44.)

44-12-69. Rights of action of hirer and bailor.

For an interference with the possession of the thing hired, the right of action is in the hirer; for an injury to the property and for any interference with his property rights, the bailor has a right of action.

(Orig. Code 1863, § 2062; Code 1868, § 2065; Code 1873, § 2091; Code 1882, § 2091; Civil Code 1895, § 2909; Civil Code 1910, § 3482; Code 1933, § 12-210.)

JUDICIAL DECISIONS

Rights of action given by O.C.G.A. § 44-12-69 to bailor and bailee are concurrent. Lockhart v. Western & Atl. R.R., 73 Ga. 472 , 54 Am. R. 883 (1884).

At common law basis of allowing bailee to recover was possession, not interest. Small v. Wilson, 20 Ga. App. 674 , 93 S.E. 518 (1917).

A mere borrower may maintain an action only for interference with the borrower's possession; an action for damages for the destruction of the property in which a case should be brought by the owner. Lockhart v. Western & Atl. R.R., 73 Ga. 472 , 54 Am. R. 883 (1884).

Bailee of mule from day to day may maintain action against third person for animal's death; the bailee may recover the full value of the animal for the use of the owner and any damages to the bailee's rights of possession incurred by the injury resulting from a tortious act. Marietta Ice & Coal Co. v. Western & Atl. R.R., 24 Ga. App. 725 , 102 S.E. 182 (1920).

Bailor has right of action against third party for damage to bailed property resulting in injury to bailor's rights of general property or reversion. Cincinnati, N.O. & Tex. Pac. Ry. v. Hilley, 121 Ga. App. 196 , 173 S.E.2d 242 (1970).

Effect of subsequent repair of bailed property by bailee. - A bailor's right of action against a third party for damage to bailed property is not affected by the subsequent repairing of the bailed property by the bailee, whether gratuitous or not. Cincinnati, N.O. & Tex. Pac. Ry. v. Hilley, 121 Ga. App. 196 , 173 S.E.2d 242 (1970).

Subsequent repair of bailed property by bailee does not affect the grounds or the measure of liability of a third-party tort-feasor by whose neglect the property was damaged. Cincinnati, N.O. & Tex. Pac. Ry. v. Hilley, 121 Ga. App. 196 , 173 S.E.2d 242 (1970).

Cited in James v. Mack Trucks, Inc., 146 Ga. App. 689 , 247 S.E.2d 215 (1978).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 205 et seq.

C.J.S. - 8 C.J.S., Bailments, § 93 et seq.

ALR. - Estoppel to assert title to personal chattel by permitting another to use it in his business, 7 A.L.R. 676 .

Bailee's reimbursement of bailor as affecting latter's right of action against tort-feasor for damaging subject of bailment, 166 A.L.R. 206 .

Bailee's liability for bailor's expense of recovering stolen subject of bailment, 80 A.L.R.3d 264.

44-12-70. Liability of thing hired to execution and levy; forthcoming bond.

When the period of the hiring does not exceed one year, the thing hired shall not be subject to sale under a judgment against the owner of the thing which was obtained subsequent to the contract of hire; but the thing may be levied on and a bond for its delivery at the expiration of the time for which it is hired may be demanded of the hirer.

(Orig. Code 1863, § 2074; Code 1868, § 2069; Code 1873, § 2095; Code 1882, § 2095; Civil Code 1895, § 2913; Civil Code 1910, § 3486; Code 1933, § 12-211.)

JUDICIAL DECISIONS

"Levied" construed. - The word "levied" is to be given its technical meaning, that is, an actual seizure of the property by a levying officer under a process. Southern Flour & Grain Co. v. Northern Pac. Ry., 127 Ga. 626 , 56 S.E. 742 , 119 Am. St. R. 356 , 9 Ann. Cas. 437 (1907).

Right of domestic railway company superior to attaching creditor's right. - The right of a domestic railway company to use a freight car owned by a foreign railway company, for which use the domestic railway pays a stated sum, is superior by virtue of O.C.G.A. § 44-12-70 to the right of an attaching creditor, who, without any other lien seeks to subject the freight car to attachment by service of the summons of garnishment upon the domestic company. Southern Flour & Grain Co. v. Northern Pac. Ry., 127 Ga. 626 , 56 S.E. 742 , 119 Am. St. R. 356 , 9 Ann. Cas. 437 (1907). See also Southern Ry. v. Brown, 131 Ga. 245 , 62 S.E. 177 (1908).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 223 et seq.

ALR. - Right of obligor in action on forthcoming bond or receipt for return of property seized under process to set up title in himself, 37 A.L.R. 1402 .

44-12-71. Hire of labor or services - Standard of care.

The hire of labor or services is the essence of every bailment in which goods are delivered to another and compensation is paid for the care, attention, or labor bestowed upon them. It includes the contracts of forwarding and commission merchants, factors, keepers of wharves, mechanics, and all agents in such transactions. In all such cases, the bailee is not only bound to exercise skill in the labor and work bestowed but it is a part of his contract that he shall exercise ordinary care and diligence in keeping and protecting the articles entrusted to him.

(Orig. Code 1863, §§ 2075, 2076; Code 1868, §§ 2070, 2071; Code 1873, §§ 2096, 2097; Code 1882, §§ 2096, 2097; Civil Code 1895, §§ 2914, 2915; Civil Code 1910, §§ 3487, 3488; Code 1933, §§ 12-407, 12-408.)

JUDICIAL DECISIONS

Cited in Miller v. Ben H. Fletcher Co., 142 Ga. 668 , 83 S.E. 521 (1914); Chatham Abattoir & Packing Co. v. Painter Eng'r Co., 28 Ga. App. 788 , 113 S.E. 94 (1922); Layton v. Central of Ga. Ry., 40 Ga. App. 330 , 149 S.E. 431 (1929); Haynie v. A & H Camper Sales, Inc., 233 Ga. 654 , 212 S.E.2d 825 (1975); Turner v. Jackson, 157 Ga. App. 31 , 276 S.E.2d 92 (1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 158, 179, 189.

C.J.S. - 8 C.J.S., Bailments, §§ 46 et seq., 75.

ALR. - Liability of bailee for loss of or injury to goods kept at a place other than that originally intended, 12 A.L.R. 1322 ; 17 A.L.R. 979 .

Liability of a bailee of money who commingles it with his own funds, 20 A.L.R. 378 .

Duty and liability of gratuitous bailee or mandatory, 96 A.L.R. 909 .

Liability of owner of motor vehicle for negligence of garageman or mechanic, 8 A.L.R.4th 265.

Liability of warehouseman or other bailee for loss of goods stored at other than agreed-upon place, 76 A.L.R.4th 883.

44-12-72. Hire of labor or services - Title to article on which labor bestowed.

In cases of hire of labor or services, if the identical article, though materially changed by the labor bestowed, is to be returned, the title remains in the bailor. If the bailee furnishes a portion of the materials, the title to the entire structure is in the party furnishing the larger portion of the materials. If the bailor furnishes materials but the contract does not contemplate the use of that material specially, the title to the article constructed is in the bailee until it is delivered. If materials are furnished to the bailee for manufacture and the bailee and the bailor will each receive a share of the manufactured goods, the title remains in the bailor until the delivery to him of his portion of the manufactured goods.

(Orig. Code 1863, §§ 2077, 2078; Code 1868, §§ 2072, 2073; Code 1873, §§ 2098, 2099; Code 1882, §§ 2098, 2099; Civil Code 1895, §§ 2916, 2917; Civil Code 1910, §§ 3489, 3490; Code 1933, §§ 12-409, 12-410.)

44-12-73. Hire of labor or services - Right to possession.

The bailee for hire of labor and services is entitled to the possession of the thing bailed during the bailment.

(Orig. Code 1863, § 2079; Code 1868, § 2074; Code 1873, § 2100; Code 1882, § 2100; Civil Code 1895, § 2918; Civil Code 1910, § 3491; Code 1933, § 12-411.)

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 57.

C.J.S. - 8 C.J.S., Bailments, § 28 et seq.

44-12-74. Hire of labor or services - Loss or destruction of property; right of bailee to compensation.

If the thing bailed for labor and services is destroyed without fault on the part of the bailee, the loss falls upon the bailor; and the bailee may demand compensation for the labor expended and materials used upon it.

(Orig. Code 1863, § 2080; Code 1868, § 2075; Code 1873, § 2101; Code 1882, § 2101; Civil Code 1895, § 2919; Civil Code 1910, § 3492; Code 1933, § 12-412.)

JUDICIAL DECISIONS

After loss of thing labored on employee must look to employer for compensation. Atlantic Coast Line R.R. v. Baker, 118 Ga. 809 , 45 S.E. 673 (1903).

Bailee is not liable for depreciation of securities after tender to bailor. J.A. Ansley & Co. v. Anderson, Adair & Co., 35 Ga. 8 (1866).

Cited in Cordell Ford Co. v. Mullis, 121 Ga. App. 123 , 173 S.E.2d 120 (1970).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 117, 189.

C.J.S. - 8 C.J.S., Bailments, § 106.

ALR. - Imputing negligence of bailee to bailor where subject to bailment is damaged by third person, 6 A.L.R. 316 ; 30 A.L.R. 1248 .

Liability for loss of or damage to property delivered on trial or with privilege of return, 31 A.L.R. 1365 .

Liability of pawnbroker or pledgee for theft by third person of pawned or pledged property, 68 A.L.R.2d 1259.

Liability of warehouseman for injury to stored goods as result of failure to maintain proper temperatures, 92 A.L.R.2d 1298.

Presumption and burden of proof where subject of bailment is destroyed or damaged by fire, 44 A.L.R.3d 171.

Liability of bailee of airplane for damage thereto, 44 A.L.R.3d 862.

Liability of operator of marina or boatyard for loss of or injury to pleasure boat left for storage or repair, 44 A.L.R.3d 1332.

44-12-75. Exercise of discretion by factor; diligence.

Since peculiar confidence is reposed in a factor, he may, in the absence of instructions, exercise his discretion according to the general usages of the trade. In return, greater and more skillful diligence and the most active good faith are required of him.

(Orig. Code 1863, § 2090; Code 1868, § 2085; Code 1873, § 2111; Code 1882, § 2111; Civil Code 1895, § 2929; Civil Code 1910, § 3502; Code 1933, § 12-401.)

JUDICIAL DECISIONS

Express contract binds factor. - If there is an express contract whereby goods will be held until a sale is authorized, the factor is bound by the terms of the agreement as actually made, and is liable to the owner for any damages which may be sustained by reason of an unauthorized sale. Wood & Bro. v. Jones & Son, 10 Ga. App. 735 , 73 S.E. 1099 (1912); Campbell v. Redwine Bros., 22 Ga. App. 455 , 96 S.E. 347 (1918).

O.C.G.A. § 44-12-75 inapplicable to accounts receivable factor. - O.C.G.A. § 44-12-75 was originally intended to apply to a factor as bailee of merchantable goods, a practice rarely followed in modern day commerce, and thus it would be inappropriate to apply O.C.G.A. § 44-12-75 to an accounts receivable factor. Rather, the relationship between the parties to an accounts receivable factoring agreement must be governed by their contractual agreements and, to the extent applicable, the provisions of Title 9 of the Uniform Commercial Code. CC Fin., Inc. v. Ross, 250 Ga. 832 , 301 S.E.2d 262 (1983).

Statutory duties of a factor do not apply to an accounts receivable factor. American Spacers, Ltd. v. Ross, 166 Ga. App. 829 , 305 S.E.2d 659 (1983).

Cited in Burrus & Williams v. Kyle & Co., 56 Ga. 24 (1876); Hatcher & Baldwin v. Comer & Co., 73 Ga. 418 (1884); Willingham v. Rushing, 105 Ga. 72 , 31 S.E. 130 (1898); Layton v. Central of Ga. Ry., 40 Ga. App. 330 , 149 S.E. 431 (1929); American Spacers, Ltd. v. Ross, 164 Ga. App. 341 , 296 S.E.2d 176 (1982).

RESEARCH REFERENCES

ALR. - Account stated as between principal and factor, 3 A.L.R. 293 .

Right of a factor, commission merchant, or produce broker to sell property to protect advances, 40 A.L.R. 387 .

Relation between customer and broker receiving bonds or other securities for sale or exchange, 52 A.L.R. 501 .

Purchaser's right to protection under factor's act where transaction involves exchange of goods, 132 A.L.R. 525 .

Stockyard operator's liability for injury to or death of stock, 40 A.L.R.2d 988.

Factor's liability based on delay in marketing and selling principal's goods, 3 A.L.R.3d 815.

44-12-76. Keeper of livery stable; diligence.

The keeper of a livery stable is a depository for hire and is bound to use the same diligence as an innkeeper.

(Orig. Code 1863, § 2102; Code 1868, § 2097; Code 1873, § 2124; Code 1882, § 2124; Civil Code 1895, § 2943; Civil Code 1910, § 3515; Code 1933, § 12-402.)

JUDICIAL DECISIONS

Keeper of livery stable is bound to extraordinary diligence in protecting property which is committed to the keeper's care when O.C.G.A. § 44-12-76 is construed in light of O.C.G.A. § 43-21-8 . Burns v. Reese, 7 Ga. App. 387 , 66 S.E. 982 (1910); Wood v. Clary, 143 Ga. 495 , 85 S.E. 694 (1915).

Cited in Colquitt & Baggs v. Kirkman, 47 Ga. 555 (1875); Domestic Sewing Mach. Co. v. Watters, 50 Ga. 573 (1874); Turner v. Priest, 48 Ga. App. 109 , 171 S.E. 881 (1933).

RESEARCH REFERENCES

ALR. - Bailment: effect of failure to reply to notice of rate at which goods then on premises may be left, 24 A.L.R. 968 .

Stockyard operator's liability for injury to or death of stock, 40 A.L.R.2d 988.

44-12-77. Garage owner; diligence.

The relationship of the owner of an automobile and the owner of the garage in which the automobile is stored is that of bailor and bailee. The bailee is bound to use ordinary care for the safekeeping and return of the automobile.

(Code 1933, § 12-403.)

History of section. - This section is derived from the decision in Hight Accessory Place v. Lam, 26 Ga. App. 163 , 105 S.E. 872 (1921).

JUDICIAL DECISIONS

Nothing in O.C.G.A. Title 11 repeals or affects O.C.G.A. § 44-12-77 . A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578 , 149 S.E.2d 255 (1966).

Effect of O.C.G.A. § 44-12-77 . - O.C.G.A. § 44-12-77 does not purport to preempt the type of arrangement which the parties may agree upon; its effect is simply to provide what the relationship will be when there has been no contract otherwise. Brown v. Five Points Parking Ctr., 121 Ga. App. 819 , 175 S.E.2d 901 (1970).

Automobile as subject matter of bailment. - An automobile is just as capable of being the subject matter of a bailment as any other property where the facts and circumstances show or authorize an inference that the relationship of bailor and bailee exists between the parties concerned. Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570 , 49 S.E.2d 184 (1948).

Bailment is created when the owner of an automobile leaves the key with the operator of the garage or parking lot, or is required to do so absent a contract creating some different relationship. Brown v. Five Points Parking Ctr., 121 Ga. App. 819 , 175 S.E.2d 901 (1970).

Where an automobile owner enters into an oral contract with the operator of a garage to store and service the owner's car for consideration, the relationship of bailor-bailee is created. Bunn v. Broadway Parking Ctr., Inc., 116 Ga. App. 85 , 156 S.E.2d 464 (1967).

A bailment arose when an automobile owner's car was towed to a service station owner's facility for repair, and the station owner proved no viable defense to potential liability simply by showing that, after the car had been entrusted to that facility, the owner then entrusted it to another repair facility. Engram v. Sonny Campbell's Gulf, Inc., 200 Ga. App. 40 , 406 S.E.2d 551 (1991).

Before bailee is charged with duty of safekeeping property, bailee must assent to bailment, either expressly or impliedly. Davidson v. Ramsby, 133 Ga. App. 128 , 210 S.E.2d 245 (1974).

Duty of care begins with delivery of property to bailee. - The duty upon the bailee to exercise care and diligence in protecting and keeping safely the thing bailed begins with the delivery of the property to the bailee and continues until the object of the bailment has been carried out in conformity with the purpose of the trust. Loeb v. Whitton, 77 Ga. App. 753 , 49 S.E.2d 785 (1948).

Knowledge or notice of automobile's contents required for liability thereof. - A bailee for hire as to an automobile is not liable for the contents thereof unless the bailee has actual or implied knowledge or notice as to such contents. Davidson v. Ramsby, 133 Ga. App. 128 , 210 S.E.2d 245 (1974); White v. Atlanta Parking Serv. Co., 139 Ga. App. 243 , 228 S.E.2d 156 , cert. dismissed, 238 Ga. 18 , 231 S.E.2d 73 (1976).

Sufficient notice exists if the contents of an automobile are such as the bailee might "reasonably expect" to be therein. Davidson v. Ramsby, 133 Ga. App. 128 , 210 S.E.2d 245 (1974); White v. Atlanta Parking Serv. Co., 139 Ga. App. 243 , 228 S.E.2d 156 , cert. dismissed, 238 Ga. 18 , 231 S.E.2d 73 (1976).

Inference of negligence. - Loss of property after its delivery to another authorizes an inference that its loss was occasioned by the negligence of the person receiving it. Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570 , 49 S.E.2d 184 (1948).

Burden is on bailee to show bailed article was not injured by bailee's negligence, and that bailee used ordinary care and diligence to protect the property from damage or injury. National Bank v. Cut Rate Auto Serv., Inc., 133 Ga. App. 635 , 211 S.E.2d 895 (1974).

A parking lot operator, charging the public for the operator's services in caring for customers' cars, cannot escape liability for the loss of a car stolen from the parking lot, in the absence of clear and satisfactory proof showing diligence on the operator's part throughout the bailment. Loeb v. Whitton, 77 Ga. App. 753 , 49 S.E.2d 785 (1948).

An open-air parking lot is a garage and therefore a bailee of the vehicles parked at its facility. Park 'N Go of Ga., Inc. v. United States Fid. & Guar. Co., 266 Ga. 787 , 471 S.E.2d 500 (1996).

Effect of posting sign indicating "insured garage." - If the bailor can neither limit nor relieve self of personal responsibility by the posting of a sign because the sign does not become a part of the contract, the bailor should not be held to increased liability for posting a sign to the effect that bailor's garage is an "insured garage." Brown v. Five Points Parking Ctr., 121 Ga. App. 819 , 175 S.E.2d 901 (1970).

Safety measures for meeting duty of care and diligence. - A parking lot operator should provide a sufficient number of attendants to diligently keep watch over all the cars on an open lot at all hours, have the lot enclosed in such a manner that a small number of employees can with reasonable safety keep the cars from being stolen, require that all cars be locked or that the keys be kept in an office or other place of safety, or adopt other safety measures reasonably and fairly sufficient to meet the duty as to care and diligence established by O.C.G.A. § 44-12-77 . Loeb v. Whitton, 77 Ga. App. 753 , 49 S.E.2d 785 (1948).

Diminution of property value authorized award. - Evidence authorized the finding that, apart from failing to perform its obligation under the contract, the truck rebuilding company had breached a duty imposed by law not to cause the diminution of the truck's value; thus, because the company's breach of its duty to safe-keep the truck gave rise to a separate cause of action for conversion, there was no error in awarding additional damages for the loss of value to the truck. 4WD Parts Ctr., Inc. v. Mackendrick, 260 Ga. App. 340 , 579 S.E.2d 772 (2003).

Cited in Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935); White v. American Ins. Co., 53 Ga. App. 320 , 185 S.E. 605 (1936); Nelliger v. Atlanta Baggage & Cab Co., 109 Ga. App. 863 , 137 S.E.2d 566 (1964); Cordell Ford Co. v. Mullis, 121 Ga. App. 123 , 173 S.E.2d 120 (1970); Haynie v. A & H Camper Sales, Inc., 233 Ga. 654 , 212 S.E.2d 825 (1975); Turner v. Jackson, 157 Ga. App. 31 , 276 S.E.2d 92 (1981); Northside Motors, Inc. v. O'Berry, 167 Ga. App. 155 , 305 S.E.2d 894 (1983); United States Fid. and Guar. Co. v. Park 'N Go of Ga., Inc., 66 F.3d 273 (11th. Cir. 1995).

RESEARCH REFERENCES

12B Am. Jur. Pleading and Practice Forms, Garages and Filling and Parking Stations, § 3.

ALR. - Liability of owner for storage of, or services in connection with, automobile, under authority, actual or assumed, of public officials, 36 A.L.R. 955 ; 50 A.L.R. 1309 .

Duty and liability of garage keeper to owner of cars, 42 A.L.R. 135 ; 65 A.L.R. 431 .

Liability of owner to indemnify garage keeper against damages to third persons, 44 A.L.R. 1183 .

Validity of public regulations as to garages, 84 A.L.R. 1147 .

Liability for loss of or damage to automobile left in parking lot, 131 A.L.R. 1175 ; 7 A.L.R.3d 927; 13 A.L.R.4th 362; 13 A.L.R.4th 442.

Measure and elements of damages recoverable against bailee of automobile in case of loss or theft, 135 A.L.R. 1198 .

Liability of garageman, service or repair station, or filling station operator for destruction or damage of motor vehicle by fire, 16 A.L.R.2d 799.

Liability of bailee for hire of automobile for loss of, or damage to, contents, 27 A.L.R.2d 796.

Liability of garageman for theft or unauthorized use of motor vehicle, 43 A.L.R.2d 403.

Liability of garageman to one ordering repair of motor vehicle, for defective work, 92 A.L.R.2d 1408; 1 A.L.R.4th 347; 23 A.L.R.4th 274.

Liability insurance of garages, motor vehicle repair shops and sales agencies, and the like, 93 A.L.R.2d 1047.

Liability of hotel, motel, or similar establishment for damage to or loss of guest's automobile left on premises, 52 A.L.R.3d 433.

Liability of owner or operator of parking lot or garage for loss of or damage to contents of parked motor vehicle, 78 A.L.R.3d 1057.

Measure and elements of damages in action against garageman based on failure to properly perform repair or service on motor vehicle, 1 A.L.R.4th 347.

Liability of owner of motor vehicle for negligence of garageman or mechanic, 8 A.L.R.4th 265.

44-12-78. Keeper of wharf; liability.

One who keeps a wharf is a depository for hire and is liable upon the same principles as a warehouseman.

(Orig. Code 1863, § 2092; Code 1868, § 2087; Code 1873, § 2113; Code 1882, § 2113; Civil Code 1895, § 2931; Civil Code 1910, § 3504; Code 1933, § 12-406.)

RESEARCH REFERENCES

ALR. - Liability of warehouseman for injury to stored goods as result of failure to maintain proper temperatures, 92 A.L.R.2d 1298.

PART 3 D EPOSITS

RESEARCH REFERENCES

ALR. - Liability of bailee for loss of or injury to goods kept at a place other than that originally intended, 17 A.L.R. 979 .

Acceptance of receptacle as charging one as bailee of contents, 18 A.L.R. 87 .

Bank deposit for purpose of meeting certain checks or classes of checks, 39 A.L.R. 1138 ; 56 A.L.R. 1110 ; 86 A.L.R. 375 .

Liability for loss of contents of safe deposit box, 40 A.L.R. 874 ; 42 A.L.R. 1304 ; 133 A.L.R. 279 .

44-12-90. Definitions.

As used in this part, the term:

  1. "Deposit" means the delivery of chattels by one person to another to keep for the use of the bailor.
  2. "Depository for hire" means a depository who receives or expects a reward or hire for undertaking to keep chattels for another.
  3. "Naked deposit" means an undertaking whereby a depository keeps chattels for another gratuitously.

    (Orig. Code 1863, § 2082; Code 1868, § 2077; Code 1873, § 2103; Code 1882, § 2103; Civil Code 1895, § 2921; Civil Code 1910, § 3494; Code 1933, § 12-301.)

Cross references. - Deposits of valuables with innkeepers, § 43-21-10 et seq.

JUDICIAL DECISIONS

Bank is "depository for hire" where customer rents safety deposit box. Buena Vista Loan & Sav. Bank v. Bickerstaff, 121 Ga. App. 470 , 174 S.E.2d 219 (1970).

Hotel landlord is naked depository if one has left a valise in the office of a hotel without calling attention thereto, and a clerk, without knowing the identity of the owner, places the valise in a room where baggage is kept. Stewart & Powell v. Head, 70 Ga. 449 (1883).

Recycler of shipping pallets did not establish status as a naked depository since it was unclear whether the recycler held the pallets gratuitously and for the benefit of the putative owner and lessor of the pallets; the recycler purchased the pallets from an entity which had no contractual relationship with the lessor, and the evidence also permitted the conclusions that the recycler claimed ownership of the pallets and that the pallets were held with an expectation of payment. CHEP USA v. Mock Pallet Co., F.3d (11th Cir. 2005)(Unpublished).

Cited in Georgia R.R. & Banking Co. v. Thompson, 86 Ga. 327 , 12 S.E. 640 (1890); Merchants Nat'l Bank v. Guilmartin, 88 Ga. 797 , 15 S.E. 831 , 14 L.R.A. 322 (1892); White v. American Ins. Co., 53 Ga. App. 320 , 185 S.E. 605 (1936); Postell v. Val-Lite Corp., 78 Ga. App. 199 , 51 S.E.2d 63 (1948); Dalton Textile Corp. v. Cooper, 82 Ga. App. 232 , 60 S.E.2d 529 (1950); Brooks v. Holman, 121 Ga. App. 720 , 175 S.E.2d 131 (1970); Glennville Hatchery, Inc. v. Thompson, 164 Ga. App. 819 , 298 S.E.2d 512 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 3 et seq., 54 et seq.

C.J.S. - 26B C.J.S., Depositaries, § 1 et seq.

ALR. - Acceptance of receptacle as charging one as bailee of contents, 18 A.L.R. 87 .

Liability of hotel, motel, or similar establishment for damage to or loss of guest's automobile left on premises, 52 A.L.R.3d 433.

44-12-91. Voluntary or involuntary depositories; liability for naked deposit.

A person may voluntarily undertake to be a depository or may become so involuntarily, as by finding chattels. For a naked deposit, the depository is responsible only for gross negligence.

(Orig. Code 1863, § 2083; Code 1868, § 2078; Code 1873, § 2104; Code 1882, § 2104; Civil Code 1895, § 2922; Civil Code 1910, § 3495; Code 1933, 12-302.)

JUDICIAL DECISIONS

Finder of property is involuntary bailee for true owner. Groover v. Tippins, 51 Ga. App. 47 , 179 S.E. 634 (1935).

Finder gains title as to third parties. Groover v. Tippins, 51 Ga. App. 47 , 179 S.E. 634 (1935).

Cited in Self v. Dunn & Brown, 42 Ga. 528 , 5 Am. R. 544 (1871); Salant & Salant v. Dannenberg Co., 10 Ga. App. 263 , 73 S.E. 426 (1912).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 8, 164, 165 et seq.

C.J.S. - 26B C.J.S., Depositaries, § 4 et seq.

ALR. - Liability of a bailee of money who commingles it with his own funds, 20 A.L.R. 378 .

Duty and liability of one in possession of real property in respect of personal property which he finds thereon belonging to another, 131 A.L.R. 165 .

Liability of hotel, motel, or similar establishment for damage to or loss of guest's automobile left on premises, 52 A.L.R.3d 433.

Presumption of payment as applicable to bank deposit, 69 A.L.R.3d 1311.

Liability of warehouseman or other bailee for loss of goods stored at other than agreed-upon place, 76 A.L.R.4th 883.

44-12-92. Liability of depositories for hire.

Depositories for hire are bound to exercise ordinary care and diligence and are liable as in other cases of bailment for hire.

(Orig. Code 1863, § 2089; Code 1868, § 2084; Code 1873, § 2110; Code 1882, § 2110; Civil Code 1895, § 2928; Civil Code 1910, § 3501; Code 1933, § 12-404.)

Cross references. - Warehouseman's duty of care, § 11-7-204 .

Liability of innkeeper for goods stolen while entrusted to his care, § 43-21-8 .

JUDICIAL DECISIONS

Nothing in O.C.G.A. Title 11 repeals or affects O.C.G.A. § 44-12-92 . A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578 , 149 S.E.2d 255 (1966).

Defendant storage company is bound to exercise ordinary care to protect plaintiff's property, and the storage company's failure to deliver the goods on demand establishes a prima facie case for the plaintiff. Washburn Storage Co. v. Mobley, 94 Ga. App. 113 , 94 S.E.2d 37 (1956).

Bailee can prevail only by establishing that bailee exercised ordinary care to prevent the loss or destruction of the bailor's property, once a prima face case is made against the bailee for failure to deliver the bailed goods on demand. Harper Whse., Inc. v. Henry Chanin Corp., 102 Ga. App. 489 , 116 S.E.2d 641 (1960).

Bank must prove that it exercised ordinary care upon proof of loss by customer who rents a safety deposit box. Buena Vista Loan & Sav. Bank v. Bickerstaff, 121 Ga. App. 470 , 174 S.E.2d 219 (1970).

Cited in Pennsylvania Steel Co. v. Georgia R.R. & Banking Co., 94 Ga. 636 , 21 S.E. 577 (1894); Dixon v. Central of Ga. Ry., 110 Ga. 173 , 35 S.E. 369 (1900); Seaboard Air-Line Ry. v. Shackelford, 5 Ga. App. 395 , 63 S.E. 252 (1908); Jeems v. Lewis, 13 Ga. App. 456 , 79 S.E. 235 (1913); Vandalsem v. Caldwell, 33 Ga. App. 88 , 125 S.E. 716 (1924); Turner v. Priest, 48 Ga. App. 109 , 171 S.E. 881 (1933); Richter v. Atlantic Co., 65 Ga. App. 605 , 16 S.E.2d 259 (1941); Southeastern Air Servs., Inc. v. Edwards, 74 Ga. App. 582 , 40 S.E.2d 572 (1946); Brooks v. Holman, 121 Ga. App. 720 , 175 S.E.2d 131 (1970); Pastis v. Cobb Exch. Bank, 142 Ga. App. 519 , 236 S.E.2d 279 (1977).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 158 et seq.

C.J.S. - 26B C.J.S., Depositaries, § 11 et seq.

ALR. - Relationship of bailor and bailee as between owner of goods in bonded warehouse and proprietor of warehouse, 77 A.L.R. 1502 .

Liability of warehouseman for injury to stored goods as result of failure to maintain proper temperatures, 92 A.L.R.2d 1298.

Liability of savings bank for payment to person presenting lost or stolen passbook or savings account card, 68 A.L.R.3d 1080.

44-12-93. Liability for gratuitously transporting deposits.

If one, in addition to safekeeping, undertakes gratuitously to carry money or other articles to another place, his liability is the same as that of a naked depository.

(Orig. Code 1863, § 2085; Code 1868, § 2080; Code 1873, § 2106; Code 1882, § 2106; Civil Code 1895, § 2924; Civil Code 1910, § 3497; Code 1933, § 12-304.)

JUDICIAL DECISIONS

Cited in Gleaton v. Aultman, 150 Ga. 768 , 105 S.E. 445 (1920).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 164, 165 et seq.

C.J.S. - 26B C.J.S., Depositaries, § 11 et seq.

ALR. - Liability of warehouseman or other bailee for loss of goods stored at other than agreed-upon place, 76 A.L.R.4th 883.

44-12-94. Termination of bailment of naked deposit.

One who holds a naked deposit may at any time terminate the bailment by a redelivery of the chattels to the bailor.

(Orig. Code 1863, § 2086; Code 1868, § 2081; Code 1873, § 2107; Code 1882, § 2107; Civil Code 1895, § 2925; Civil Code 1910, § 3498; Code 1933, § 12-305.)

JUDICIAL DECISIONS

Cited in Dalton Textile Corp. v. Cooper, 82 Ga. App. 232 , 60 S.E.2d 529 (1950).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 103 et seq.

C.J.S. - 8 C.J.S., Bailments, § 99 et seq. 26B C.J.S., Depositaries, § 3.

44-12-95. Effect of use of naked deposit on liability.

One who holds a naked deposit may not use such deposit without increasing his responsibility unless the use is necessary to preserve the deposit or, from the circumstances, the consent of the depositor may be reasonably presumed.

(Orig. Code 1863, § 2087; Code 1868, § 2082; Code 1873, § 2108; Code 1882, § 2108; Civil Code 1895, § 2926; Civil Code 1910, § 3499; Code 1933, § 12-306.)

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 60 et seq.

C.J.S. - 26B C.J.S., Depositaries, § 11 et seq.

ALR. - Liability of a bailee of money who commingles it with his own funds, 20 A.L.R. 378 .

44-12-96. Reimbursement of expenses incurred by reason of naked deposit; retention of possession.

One who holds a naked deposit is entitled to be reimbursed for all charges and expenses which he incurs by reason of the deposit, and he may retain possession of the deposit until such charges and expenses are paid.

(Orig. Code 1863, § 2088; Code 1868, § 2083; Code 1873, § 2109; Code 1882, § 2109; Civil Code 1895, § 2927; Civil Code 1910, § 3500; Code 1933, § 12-307.)

JUDICIAL DECISIONS

Profit and overhead not recoverable. - Naked depository is entitled to reimbursement only for amounts paid out or labor expended by reason of the deposit, and such reimbursement does not include profit or a pro rata portion of general overhead expenses. CHEP USA v. Mock Pallet Co., F.3d (11th Cir. 2005)(Unpublished).

Cited in Postell v. Val-Lite Corp., 78 Ga. App. 199 , 51 S.E.2d 63 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 115, 117.

C.J.S. - 26B C.J.S., Depositaries, § 11 et seq.

PART 4 L OANS OF PROPERTY

RESEARCH REFERENCES

ALR. - Liability of bailee for loss of or injury to goods kept at a place other than that originally intended, 17 A.L.R. 979 .

Liability of warehouseman or other bailee for loss of goods stored at other than agreed-upon place, 76 A.L.R.4th 883.

44-12-110. Kinds of loans; nature of loan for consumption.

Loans may be either for consumption or for use. A loan for consumption is a loan of an article which is not to be returned in specie, but in kind; this is a sale and not a bailment.

(Orig. Code 1863, § 2103; Code 1868, § 2098; Code 1873, § 2125; Code 1882, § 2125; Civil Code 1895, § 2944; Civil Code 1910, § 3516; Code 1933, § 12-501.)

JUDICIAL DECISIONS

Purpose of O.C.G.A. § 44-12-110 . - O.C.G.A. § 44-12-110 is specially designed for the protection of lenders as to the enforcement of their rights. Skinner v. State, 97 Ga. 690 , 25 S.E. 364 (1896).

Loan of demonstrator automobile by dealer to prospective purchaser creates bailment. - Where an automobile dealer lends a demonstrator automobile to a prospective purchaser for the purpose of allowing such purchaser to test and operate it, under an oral agreement that the purchaser is to return the automobile at the end of two days in the same condition, less reasonable wear and tear, as the automobile was when delivered to the potential purchaser, this constitutes the purchaser being a bailee. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935).

Loan of whiskey on promise of similar return is sale. - The loan of a specified quantity of whiskey obtained by the borrower for the borrower's own consumption, on a promise to return to the lender a similar quantity of the same kind of liquor, is a "sale" rather than a mere bailment. Skinner v. State, 97 Ga. 690 , 25 S.E. 364 (1896); Huby v. State, 111 Ga. 842 , 36 S.E. 301 (1900).

Failure to define terms in jury charge not error. - Failure to explain in a charge to the jury the meanings of the terms "for consumption," "specie," and "in kind" as used in O.C.G.A. § 44-12-110 is not an error. Foote v. Kelley, 126 Ga. 799 , 55 S.E. 1045 (1906).

Cited in Spiegel v. Hays, 103 Ga. App. 293 , 119 S.E.2d 123 (1961).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 33 et seq.

C.J.S. - 8 C.J.S., Bailments, §§ 18, 86 et seq.

44-12-111. Nature of loan for use.

A loan for use is the gratuitous grant of an article to another for his use with the expectation that the article will be returned in specie. A loan for use may be made either for a definite time or for an indefinite time and is at the will of the grantor.

(Orig. Code 1863, § 2104; Code 1868, § 2099; Code 1873, § 2126; Code 1882, § 2126; Civil Code 1895, § 2945; Civil Code 1910, § 3517; Code 1933, § 12-502.)

JUDICIAL DECISIONS

Loan of demonstrator automobile by dealer to prospective purchaser creates bailment. - Where an automobile dealer lends a demonstrator automobile to a prospective purchaser for the purpose of allowing such purchaser to test and operate it, under an oral agreement that the purchaser is to return the automobile at the end of two days in the same condition, less reasonable wear and tear, as the automobile was when delivered to the potential purchaser, this constitutes the purchaser being a bailee. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935).

Degree of care required where bailment is for sole benefit of bailee is great care or extraordinary diligence, and the bailee is responsible for slight neglect in relation to the subject matter of the bailment. Raines v. Rice, 65 Ga. App. 68 , 15 S.E.2d 246 (1941).

If animal is loaned without compensation, the bailee is bound to exercise extraordinary diligence, such as the most prudent man would use toward that man's own property. Raines v. Rice, 65 Ga. App. 68 , 15 S.E.2d 246 (1941).

Cited in Cabaniss v. Ponder, 65 Ga. 134 (1880).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 3.

C.J.S. - 8 C.J.S., Bailments, § 18.

44-12-112. Liability of borrower - Duty of extraordinary care.

The borrower is usually bound to exercise extraordinary care and diligence and is liable for slight neglect.

(Orig. Code 1863, § 2106; Code 1868, § 2101; Code 1873, § 2128; Code 1882, § 2128; Civil Code 1895, § 2947; Civil Code 1910, § 3519; Code 1933, § 12-504.)

JUDICIAL DECISIONS

Borrower is liable for any neglect in failing to care for thing borrowed. Bulloch v. Hutcheson, 49 Ga. App. 171 , 174 S.E. 645 (1934).

Exercise of extraordinary care required where benefit entirely for borrower. - In a loan entirely for the benefit of the borrower, the borrower is usually bound to exercise extraordinary care and diligence, and is liable for slight neglect concerning the thing borrowed. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935).

Ordinary care required in mutual benefit bailment. - A borrower, where the bailment is for the mutual benefit of both the bailor and bailee, is bound to exercise ordinary care and diligence in regard to the article borrowed. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 161.

C.J.S. - 8 C.J.S., Bailments, § 18.

ALR. - Duty and liability of fair association, or other bailee, as regards articles intrusted to it for exhibition or display, 139 A.L.R. 931 .

Liability of bailee of airplane for damage thereto, 44 A.L.R.3d 862.

Validity and construction of contract exempting agricultural fair or similar bailee from liability for articles delivered for exhibition, 69 A.L.R.3d 1025.

44-12-113. Liability of borrower - Effect of intended benefit of loan.

A loan is generally entirely for the benefit of the borrower, but sometimes it is for the joint benefit of the lender and the borrower and occasionally it is for the exclusive benefit of the lender. Where the loan is for the joint benefit of the lender and the borrower or is for the exclusive benefit of the lender, the responsibility of the borrower is varied and less stringent according to the circumstances and purpose of the loan.

(Orig. Code 1863, § 2105; Code 1868, § 2100; Code 1873, § 2127; Code 1882, § 2127; Civil Code 1895, § 2946; Civil Code 1910, § 3518; Code 1933, § 12-503.)

JUDICIAL DECISIONS

Exercise of extraordinary care required where benefit entirely for borrower. - In a loan entirely for the benefit of the borrower, the borrower is usually bound to exercise extraordinary care and diligence, and is liable for slight neglect concerning the thing borrowed. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935).

Ordinary care required in mutual benefit bailment. - A borrower, where the bailment is for the mutual benefit of both the bailor and bailee, is bound to exercise ordinary care and diligence in regard to the article borrowed. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 6, 161.

C.J.S. - 8 C.J.S., Bailments, § 46 et seq.

44-12-114. Right of borrower to possession; action for interference.

The borrower acquires no property right in the thing loaned but only the right to possess and use it. The borrower may bring an action for any interference with that right.

(Orig. Code 1863, § 2107; Code 1868, § 2102; Code 1873, § 2129; Code 1882, § 2129; Civil Code 1895, § 2948; Civil Code 1910, § 3520; Code 1933, § 12-505.)

JUDICIAL DECISIONS

Borrower's actions against third persons for bailor's benefit. - Borrower may institute actions against third person interfering with borrower's right of possession but these actions are for the benefit of the bailor. United States v. One 1946 Mercury Sedan Auto., 100 F. Supp. 957 (N.D. Ga. 1951), aff'd sub nom. United States v. Frank Graham Co., 199 F.2d 499 (5th Cir. 1952).

Bailor's assertion of rights prohibits gratuitous bailee's recovery. - A mere gratuitous bailee cannot recover against a third person for the conversion of bailed property where the bailor or owner has intervened and asserted rights thereto. United States v. One 1946 Mercury Sedan Auto., 100 F. Supp. 957 (N.D. Ga. 1951); United States v. Frank Graham Co., 199 F.2d 499 (5th Cir. 1952).

Cited in Warren v. Mitchell Motors, Inc., 52 Ga. App. 58 , 182 S.E. 205 (1935).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 60 et seq.

C.J.S. - 8 C.J.S., Bailments, §§ 28, 29.

44-12-115. When borrower may transfer thing loaned; liability of article to levy and sale.

If a loan is for the personal benefit and use of the borrower, he cannot transfer the possession of the thing loaned to another without the consent, express or implied, of the lender. If the loan is for a definite time, the borrower has no such interest in the thing loaned as it may be subject to levy and sale.

(Orig. Code 1863, § 2108; Code 1868, § 2103; Code 1873, § 2130; Code 1882, § 2130; Civil Code 1895, § 2949; Civil Code 1910, § 3521; Code 1933, § 12-506.)

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 51.

C.J.S. - 8 C.J.S., Bailments, § 36.

44-12-116. Revocability of loans.

The lender may not revoke a loan which is made for a definite time so long as the borrower meets fully his engagements with respect to such loan. A loan at will or a loan made for an indefinite time may be revoked at any time.

(Orig. Code 1863, § 2109; Code 1868, § 2104; Code 1873, § 2131; Code 1882, § 2131; Civil Code 1895, § 2950; Civil Code 1910, § 3522; Code 1933, § 12-507.)

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 230 et seq.

C.J.S. - 8 C.J.S., Bailments, § 99 et seq.

44-12-117. Liability for necessary and extraordinary charges and expenses.

Since a loan is gratuitous, the borrower must pay all necessary charges and expenses in preserving and taking care of the property during the time of the loan. If, however, extraordinary expenses are necessary to protect the property from destruction, the lender must reimburse the borrower for such expenses.

(Orig. Code 1863, § 2110; Code 1868, § 2105; Code 1873, § 2132; Code 1882, § 2132; Civil Code 1895, § 2951; Civil Code 1910, § 3523; Code 1933, § 12-508.)

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 117.

C.J.S. - 8 C.J.S., Bailments, §§ 75, 79.

44-12-118. Ownership of increase in loaned property.

The increase of loaned property, except property loaned by special contract, belongs to the lender.

(Orig. Code 1863, § 2111; Code 1868, § 2106; Code 1873, § 2133; Code 1882, § 2133; Civil Code 1895, § 2952; Civil Code 1910, § 3524; Code 1933, § 12-509.)

44-12-119. How loaned property used; acts considered as conversion.

The property loaned must be used strictly for the purpose and in the manner contemplated by the parties. A violation by the borrower is a conversion.

(Orig. Code 1863, § 2113; Code 1868, § 2108; Code 1873, § 2135; Code 1882, § 2135; Civil Code 1895, § 2953; Civil Code 1910, § 3525; Code 1933, § 12-510.)

JUDICIAL DECISIONS

Applicability of O.C.G.A. § 44-12-119 . - O.C.G.A. § 44-12-119 is applicable to money loaned for a specific purpose. Fischesser v. Heard, 42 Ga. 531 (1871).

Cited in Raines v. Rice, 65 Ga. App. 68 , 15 S.E.2d 246 (1941).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 180 et seq.

C.J.S. - 8 C.J.S., Bailments, § 35.

ALR. - Time and place with reference to which damages for conversion of chattel are to be determined as against one not a party to the original conversion, 80 A.L.R. 613 .

Nature of property or rights other than tangible chattels which may be subject of conversion, 44 A.L.R.2d 927.

44-12-120. When death of parties terminates loans.

The death of the lender terminates all indefinite loans or loans at will or pleasure. It does not terminate a loan for a definite time. The death of the borrower terminates all loans to him.

(Orig. Code 1863, § 2114; Code 1868, § 2109; Code 1873, § 2136; Code 1882, § 2136; Civil Code 1895, § 2954; Civil Code 1910, § 3526; Code 1933, § 12-511.)

JUDICIAL DECISIONS

Cited in Cutcliffe v. Chesnut, 126 Ga. App. 378 , 190 S.E.2d 800 (1972).

PART 5 P AWNBROKERS

RESEARCH REFERENCES

ALR. - Duty of pledgee of chattels to sell them on failure of debtor to pay debt, 77 A.L.R. 379 ; 140 A.L.R. 1390 .

Conversion by pledgee of subject of pledge as extinguishing pledgor's entire indebtedness to him, 87 A.L.R. 586 .

Other debts or liabilities within contemplation of pledge to secure particular debt and other debts or liabilities to pledgee, 87 A.L.R. 615 .

Rights and remedies as between pledgor and pledgee of choses in action as affected by latter's renewal, extension, or other modification thereof, 103 A.L.R. 1408 .

Taking and pledging or pawning, another's property as larceny, 82 A.L.R.2d 863.

44-12-130. Definitions.

As used in this part, the term:

  1. "Month" means that period of time from one date in a calendar month to the corresponding date in the following calendar month, but if there is no such corresponding date, then the last day of such following month.
  2. "Pawnbroker" means any person engaged in whole or in part in the business of lending money on the security of pledged goods, or in the business of purchasing tangible personal property on the condition that it may be redeemed or repurchased by the seller for a fixed price within a fixed period of time, or in the business of purchasing tangible personal property from persons or sources other than manufacturers or licensed dealers as a part of or in conjunction with the business activities described in this paragraph.
  3. "Pawn transaction" means any loan on the security of pledged goods or any purchase of pledged goods on the condition that the pledged goods may be redeemed or repurchased by the pledgor or seller for a fixed price within a fixed period of time.
  4. "Person" means an individual, partnership, corporation, joint venture, trust, association, or any other legal entity however organized.
  5. "Pledged goods" means tangible personal property, including, without limitation, all types of motor vehicles or any motor vehicle certificate of title, which property is purchased by, deposited with, or otherwise actually delivered into the possession of a pawnbroker in connection with a pawn transaction.  However, for purposes of this Code section, possession of any motor vehicle certificate of title which has come into the possession of a pawnbroker through a pawn transaction made in accordance with law shall be conclusively deemed to be possession of the motor vehicle, and the pawnbroker shall retain physical possession of the motor vehicle certificate of title for the entire length of the pawn transaction but shall not be required in any way to retain physical possession of the motor vehicle at any time. "Pledged goods" shall not include choses in action, securities, or printed evidences of indebtedness.

    (Ga. L. 1977, p. 1194, § 1; Ga. L. 1989, p. 819, § 1; Ga. L. 1992, p. 3245, §§ 1, 2.)

Law reviews. - For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 323 (1992).

JUDICIAL DECISIONS

Construction with §§ 44-12-131 and 44-12-137 . - In resolving a statutory conflict between O.C.G.A. §§ 44-12-130(1) and 44-12-137 (a)(7) with respect to the one-month duration for a pawn transaction and O.C.G.A. § 44-12-131 (a)(1) which required a duration of 30 days, it was determined that the criminal penalty in § 44-12-137(a)(7) was inapplicable to a customer's pawn transaction that satisfied the 30-day requirement of § 44-12-131(a)(1); the customer's action against the pawnbroker based on an illegal duration accordingly failed. Marshall v. Speedee Cash, 292 Ga. App. 790 , 665 S.E.2d 888 (2008).

Pawnbroker's right to self-help. - Although O.C.G.A. §§ 44-12-130(5) and 44-12-131(a)(3) grant the pawnbroker the right to self-help repossession upon default without the necessity of filing a lien, this remedy is intended to apply to the defaulting pledgor, not a bona fide purchaser for value with no notice of the pawnbroker's claim. Cobb Ctr. Pawn & Jewelry Brokers, Inc. v. Gordon, 242 Ga. App. 73 , 529 S.E.2d 138 (2000).

Debtor without interest in property not redeemed from pawnbroker. - The automatic stay did not apply to a pawnbroker as: (1) the debtor filed a 2016 case one day before the redemption period for a title pawn transaction expired, and the redemption period was extended to 60 days from the petition date; (2) the debtor failed to redeem the vehicle when the redemption period expired and on the redemption date, the vehicle belonged to the pawnbroker and the debtor's ownership interest in the vehicle was automatically extinguished; (3) the debtor had no interest in the vehicle when the 2018 bankruptcy case was filed that could become property of the bankruptcy estate; and (4) the 2018 Chapter 13 Plan's treatment of the vehicle as the debtor's property was immaterial as the redemption period had expired pre-petition and the vehicle belonged to the pawnbroker. TitleMax of Georgia, Inc. v. Thorpe (In re Thorpe), 612 Bankr. 463 (Bankr. S.D. Ga. 2019).

County ordinance not in conflict. - Since the stated purpose of Gwinnett County, Ga., Ord. No. 82-11 was to impede the sale of stolen property, and its requirements were designed to achieve that end, it was a proper use of the county's police power, and was not in conflict with O.C.G.A. § 44-12-130 et seq. Pawnmart, Inc. v. Gwinnett County, 279 Ga. 19 , 608 S.E.2d 639 (2005).

Cited in Bell v. Instant Car Title Loans (In re Bell), 279 Bankr. 890 (Bankr. N.D. Ga. 2002); In re Chastagner, 498 Bankr. 376 (Bankr. S.D. Ga. 2013).

RESEARCH REFERENCES

Am. Jur. 2d. - 54 Am. Jur. 2d, Moneylenders and Pawnbrokers, §§ 6, 7.

C.J.S. - 70 C.J.S., Pawnbrokers, § 2.

ALR. - Validity of statutes, ordinances, and regulations governing pawn shops, 16 A.L.R.6th 219.

44-12-131. Duration of pawn transactions; lease-back of motor vehicles prohibited; taking possession of motor vehicles; restrictions on interest, fees, or charges; action to recover excessive or undisclosed charges; consequences of excessive charges.

    1. All pawn transactions shall be for 30 day periods but may be extended or continued for additional 30 day periods.
    2. A pawnbroker shall not lease back to the seller or pledgor any motor vehicle during a pawn transaction or during any extension or continuation of the pawn transaction.
    3. Unless otherwise agreed, a pawnbroker has upon default the right to take possession of the motor vehicle.  In taking possession, the pawnbroker or his agent may proceed without judicial process if this can be done without breach of the peace or may proceed by action.
      1. During the first 90 days of any pawn transaction or extension or continuation of the pawn transaction, a pawnbroker may charge for each 30 day period interest and pawnshop charges which together equal no more than 25 percent of the principal amount advanced, with a minimum charge of up to $10.00 per 30 day period.
      2. On any pawn transaction which is continued or extended beyond 90 days, a pawnbroker may charge for each 30 day period interest and pawnshop charges which together equal no more than 12.5 percent of the principal amount advanced, with a minimum charge of up to $5.00 per 30 day period.
      3. In addition to the charges provided for in subparagraphs (A) and (B) of this paragraph, in a pawn transaction or in any extension or continuation of a pawn transaction involving a motor vehicle or a motor vehicle certificate of title, a pawnbroker may charge the following:
        1. A fee equal to no more than any fee imposed by the appropriate state to register a lien upon a motor vehicle title, but only if the pawnbroker actually registers such a lien;
        2. No more than $5.00 per day in storage fees, but only if an actual repossession pursuant to a default takes place on a vehicle which was not already in the pawnbroker's possession and only for each day the pawnbroker must actually retain possession of the motor vehicle; and
        3. A repossession fee of $50.00 within 50 miles of the office where the pawn originated, $100.00 within 51 to 100 miles, $150.00 within 101 to 300 miles and a fee of $250.00 beyond 300 miles, but only if an actual repossession pursuant to a default takes place on a vehicle which was not already in the pawnbroker's possession.
      4. If a pledgor or seller requests that the pawnbroker mail or ship the pledged item to the pledgor or seller, a pawnbroker may charge a fee for the actual shipping and mailing costs, plus a handling fee equal to not more than 50 percent of the actual shipping and mailing costs.
      5. In the event the pledgor or seller has lost or destroyed the original pawn ticket, a pawnbroker may, at the time of redemption, charge a fee equal to not more than $2.00.
    5. No other charge or fee of any kind by whatever name denominated, including but not limited to any other storage fee for a motor vehicle, shall be made by a pawnbroker except as set out in paragraph (4) of this subsection.
    6. No fee or charge provided for in this Code section may be imposed unless a disclosure regarding that fee or charge has been properly made as provided for in Code Section 44-12-138.
      1. Any interest, fees, or charges collected which are undisclosed, improperly disclosed, or in excess of that allowed by this subsection may be recovered by the pledgor or seller in an action at law in any superior court of appropriate jurisdiction.
      2. In any such action in which the pledgor or seller prevails, the court shall also award reasonable attorneys' fees, court costs, and any expenses of litigation to the pledgor or seller.
      3. Before filing an action under this Code section, the pledgor or seller shall provide the pawnbroker with a written notice by certified mail or statutory overnight delivery, return receipt requested, that such an action is contemplated, identifying any fees or charges which the pledgor or seller contends are undisclosed, improperly disclosed, or in excess of the fees and charges allowed by this Code section.  If the court finds that during the 30 days following receipt of this notice the pawnbroker made a good faith offer to return any excess, undisclosed, or improperly disclosed charges, the court shall award reasonable attorneys' fees, court costs, and expenses of litigation to the pawnbroker.
      4. No action shall be brought under this Code section more than two years after the pledgor or seller knew or should have known of the excess, undisclosed, or improperly disclosed charges.
  2. Any interest, charge, or fees contracted for or received, directly or indirectly, in excess of the amounts permitted under subsection (a) of this Code section shall be uncollectable and the pawn transaction shall be void. All interest and the pawnshop charge allowed under subsection (a) of this Code section shall be deemed earned, due, and owing as of the date of the pawn transaction and a like sum shall be deemed earned, due, and owing on the same day of the succeeding month.

    (Code 1933, § 12-612, enacted by Ga. L. 1945, p. 189, § 1; Ga. L. 1989, p. 819, § 2; Ga. L. 1992, p. 3245, § 3; Ga. L. 2000, p. 1589, § 3.)

The 2000 amendment, effective July 1, 2000, and applicable with respect to notices delivered on or after July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the first sentence of subparagraph (a)(7)(C).

Cross references. - Criminal penalty for excessive interest, § 7-4-18 .

Law reviews. - For note discussing transfer fees in home loan assumptions in reference to the Georgia usury laws, see 9 Ga. L. Rev. 454 (1975). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 323 (1992).

JUDICIAL DECISIONS

The terms "interest" and "pawnshop charges" are not synonymous or interchangeable, and both terms must be recognized as having individual importance within O.C.G.A. § 44-12-131 . Fryer v. Easy Money Title Pawn, Inc., 183 Bankr. 654 (Bankr. S.D. Ga. 1995).

Construed with § 7-4-18 . - There is no conflict between O.C.G.A. §§ 7-4-18 and 44-12-131 since what is authorized by the pawnshop statute is a combination of charges up to 25% per month, not the imposition of interest alone at a rate of 25% per month. Fryer v. Easy Money Title Pawn, Inc., 183 Bankr. 654 (Bankr. S.D. Ga. 1995).

O.C.G.A. § 44-12-131 , not O.C.G.A. § 7-4-18 , the criminal usury statute, governs pawnshop transactions. Glinton v. And R, Inc., 271 Ga. 864 , 524 S.E.2d 481 (1999).

O.C.G.A. §§ 7-4-18 and 44-12-131 , the criminal usury statute, are in conflict and cannot be reconciled. Hooks v. Cobb Ctr. Pawn & Jewelry Brokers, Inc., 241 Ga. App. 305 , 527 S.E.2d 566 (1999).

The amount of interest on a pawn transaction was regulated by O.C.G.A. § 44-12-131 and was not governed by the five percent limit imposed on general loans by the usury statute, O.C.G.A. § 7-4-18 . Hooks v. Cobb Ctr. Pawn & Jewelry Brokers, Inc., 241 Ga. App. 305 , 527 S.E.2d 566 (1999).

Construction with §§ 44-12-130 and 44-12-137 . - In resolving a statutory conflict between O.C.G.A. §§ 44-12-130 (1) and 44-12-137 (a)(7) with respect to the one-month duration for a pawn transaction and O.C.G.A. § 44-12-131(a)(1) which required a duration of 30 days, it was determined that the criminal penalty in § 44-12-137(a)(7) was inapplicable to a customer's pawn transaction that satisfied the 30-day requirement of § 44-12-131(a)(1); the customer's action against the pawnbroker based on an illegal duration accordingly failed. Marshall v. Speedee Cash, 292 Ga. App. 790 , 665 S.E.2d 888 (2008).

Pawnshop charges are expenses actually incurred by the pawnbroker in providing a service in connection with the transaction. Fryer v. Easy Money Title Pawn, Inc., 183 Bankr. 322 (Bankr. S.D. Ga. 1995).

Service charge constituting interest. - Pawnshop charge which included a 23% service charge for the customers use of the pawned automobile, the risk to the lender of that continued use, checking and processing the title to the automobile apparently in addition to an itemized title fee charged under the contract, verifying insurance on the automobile and making a log for the sheriff's department, constituted interest rather than pawnshop charges since it did not reimburse specific expenses actually incurred by the pawnbroker. Fryer v. Easy Money Title Pawn, Inc., 183 Bankr. 322 (Bankr. S.D. Ga. 1995).

Unit period determination. - In single advance, single payment transactions in which the term is less than a year and equal to a whole number of months, pawnbroker-creditors may make the unit period determination in the alternative, that is, on the basis of the term as a number of months or on the basis of the term as a number of days. Hooks v. Cobb Ctr. Pawn & Jewelry Brokers, Inc., 241 Ga. App. 305 , 527 S.E.2d 566 (1999).

Pawnbroker's right to self-help. - Although O.C.G.A. §§ 44-12-130(5) and 44-12-131(a)(3) grant the pawnbroker the right to self-help repossession upon default without the necessity of filing a lien, this remedy is intended to apply to the defaulting pledgor, not a bona fide purchaser for value with no notice of the pawnbroker's claim. Cobb Ctr. Pawn & Jewelry Brokers, Inc. v. Gordon, 242 Ga. App. 73 , 529 S.E.2d 138 (2000).

Motor vehicle as subject of pawn transaction. - Bankruptcy court found that the creditor was not entitled to summary judgment regarding the debtor's repossessed vehicle action where the pawnshop agreement in issue violated the statutory requirements for automobile title pawns under Georgia law, O.C.G.A. § 44-14-130. Johnson v. Speedee Cash of Columbus, Inc. (In re Johnson), 289 Bankr. 251 (Bankr. M.D. Ga. 2002).

LLC that seized a Chapter 13 debtor's car 16 hours before the debtor declared bankruptcy, and sold the car without keeping records, was ordered to pay the debtor $6,579.57 for loss of the car, $300 for lost personal property that was in the car, $2,356.70 in emotional distress damages, and reasonable attorney's fees, pursuant to 11 U.S.C. § 362(k), because the evidence showed that the LLC knew the debtor declared bankruptcy before the LLC sold the car. Although the LLC claimed that the LLC was not liable under § 362 because the debtor forfeited rights in the car pursuant to the Georgia Pawnshop Act (GPA), O.C.G.A. § 44-14-403 , when the debtor failed to repay a debt, the court rejected that argument because the LLC assessed interest rates over the course of the contract that exceeded the rates allowed by the GPA, such that a Motor Vehicle Pawn Contract the debtor signed was void from the contract's inception pursuant to O.C.G.A. § 44-12-131 . Spinner v. Cash In A Hurry, LLC (In re Spinner), 398 Bankr. 84 (Bankr. N.D. Ga. 2008).

Class action against pawn shop failed. - Pawnshop customer's action, alleging that a pawnshop failed to disclose all of the interest and charges that it assessed against the customer and against purported class members who were similarly situated, as required by O.C.G.A. § 44-12-138(b)(6) and (8), failed upon a finding that the pawnshop had made a good faith offer to avoid litigation by tendering to the customer a check in the amount collected beyond the principal, as required by O.C.G.A. § 44-12-131(a)(7)(A); accordingly, the court found that the customer had not sufficiently complied with the ante litem notice provisions with respect to the other members of the class, who were not sufficiently identified in order to allow a good faith offer to be made to them. Mack v. Ga. Auto Pawn, Inc., 262 Ga. App. 277 , 585 S.E.2d 661 (2003).

Cited in Bell v. Instant Car Title Loans (In re Bell), 279 Bankr. 890 (Bankr. N.D. Ga. 2002); In re Chastagner, 498 Bankr. 376 (Bankr. S.D. Ga. 2013).

OPINIONS OF THE ATTORNEY GENERAL

Motor vehicle as subject of pawn transaction. - When a motor vehicle is the subject of a pawn transaction, O.C.G.A. § 44-12-131(a) as it existed prior to the 1992 amendment authorized pawnbrokers to receive interest up to the rate of two percent per month on the principal, a pawnshop charge not limited by the "one-fourth of the principal amount" ceiling applicable to other pawn transactions, and a motor vehicle storage fee not to exceed $30.00 per day. 1989 Op. Att'y Gen. No. U89-28.

RESEARCH REFERENCES

Am. Jur. 2d. - 53A Am. Jur. 2d, Moneylenders and Pawnbrokers, § 46 et seq.

C.J.S. - 70 C.J.S., Pawnbrokers, § 5.

44-12-132. Permanent records - Required; content.

Every pawnbroker shall maintain a permanent record book in which shall be entered in legible English at the time of each loan, purchase, or sale:

  1. The date of the transaction;
  2. The name of the person conducting the transaction;
  3. The name, age, and address of the customer; a description of the general appearance of the customer; and the distinctive number from the customer's driver's license or other similar identification card;
  4. An identification and description of the pledged or purchased goods, including, if reasonably available, the serial, model, or other number, and all identifying marks inscribed thereon;
  5. The number of the receipt or pawn ticket;
  6. The price paid or the amount loaned;
  7. If payment is made by check, the number of the check issued for the purchase price or loan;
  8. The maturity date of the transaction; and
  9. The signature of the customer.

    (Ga. L. 1977, p. 1194, § 2.)

Cross references. - Regulation of sales of used watches, Ch. 49, T. 43.

JUDICIAL DECISIONS

County ordinance not in conflict. - Since, inter alia, parts of Gwinnett County, Ga., Ord. No. 82-11 merely strengthened the requirements of O.C.G.A. § 44-12-132 as to the records that pawnbrokers were required to keep, the ordinance was not in conflict with O.C.G.A. § 44-12-130 et seq. Pawnmart, Inc. v. Gwinnett County, 279 Ga. 19 , 608 S.E.2d 639 (2005).

Cited in Howell v. Roberts, 656 F. Supp. 1150 (N.D. Ga. 1987); Rogers v. State, 285 Ga. App. 568 , 646 S.E.2d 751 (2007).

RESEARCH REFERENCES

Am. Jur. 2d. - 54 Am. Jur. 2d, Moneylenders and Pawnbrokers, §§ 6, 7.

C.J.S. - 70 C.J.S., Pawnbrokers, § 2.

44-12-133. Permanent records - Manner of recording entry; corrections; inspection.

Entries shall appear in ink and shall be in chronological order. No blank lines may be left between entries. No obliterations, alterations, or erasures may be made. Corrections shall be made by drawing a line of ink through the entry without destroying its legibility. The book shall be open to the inspection of any duly authorized law enforcement officer during the ordinary hours of business or at any reasonable time.

(Ga. L. 1977, p. 1194, § 3.)

JUDICIAL DECISIONS

Constitutionality. - O.C.G.A. §§ 44-12-133 and 44-12-137 , authorizing a warrantless inspection of pawnshop records, do not violate the fourth amendment. Howell v. Roberts, 656 F. Supp. 1150 (N.D. Ga. 1987).

The law regulating pawnshops does not lack a rational basis. Howell v. Roberts, 656 F. Supp. 1150 (N.D. Ga. 1987).

Due process is not violated simply because a local authority arguably misapplies or exceeds its authority under the relevant state statutes, as where a police officer from one county seeks to inspect a pawnshop record book in another county under O.C.G.A. §§ 44-12-133 and 44-12-137 . Howell v. Roberts, 656 F. Supp. 1150 (N.D. Ga. 1987).

RESEARCH REFERENCES

Am. Jur. 2d. - 54 Am. Jur. 2d, Moneylenders and Pawnbrokers, §§ 6, 7.

C.J.S. - 70 C.J.S., Pawnbrokers, § 2.

44-12-134. Permanent records - Maintained for four years.

The record of each pawn or purchase transaction provided for in Code Sections 44-12-132 and 44-12-133 shall be maintained for a period of not less than four years.

(Ga. L. 1977, p. 1194, § 5.)

RESEARCH REFERENCES

Am. Jur. 2d. - 54 Am. Jur. 2d, Moneylenders and Pawnbrokers, §§ 6, 7.

C.J.S. - 70 C.J.S., Pawnbrokers, § 2.

44-12-135. Effect of part on local laws.

Nothing in this part shall supersede existing local laws nor relieve a pawnbroker from the necessity of complying with them. The requirements of local laws shall be construed as cumulative to this part.

(Ga. L. 1977, p. 1194, § 6.)

Law reviews. - For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005).

JUDICIAL DECISIONS

County ordinance not in conflict. - Since the stated purpose of Gwinnett County, Ga., Ord. No. 82-11 was to impede the sale of stolen property, and its requirements were designed to achieve that end, it was a proper use of the county's police power; further, by expressly preserving local laws in O.C.G.A. § 44-12-135 , which included county ordinances, the legislature had in effect "authorized" them, and so Gwinnett County, Ga., Ord. No. 82-11 did not conflict with O.C.G.A. § 44-12-138 . Pawnmart, Inc. v. Gwinnett County, 279 Ga. 19 , 608 S.E.2d 639 (2005).

RESEARCH REFERENCES

Am. Jur. 2d. - 54 Am. Jur. 2d, Moneylenders and Pawnbrokers, §§ 6, 7.

C.J.S. - 70 C.J.S., Pawnbrokers, § 2.

44-12-136. Supervision of pawnbrokers by municipalities.

Municipal authorities may license pawnbrokers, define their powers and privileges by ordinance, impose taxes upon them, revoke their licenses, and exercise such general supervision as will ensure fair dealing between the pawnbroker and his customers.

(Ga. L. 1868, p. 136, § 1; Code 1873, § 2137; Code 1882, § 2137; Civil Code 1895, §§ 755, 2955; Civil Code 1910, §§ 904, 3527; Code 1933, § 12-611.)

JUDICIAL DECISIONS

Municipal corporation not empowered to allow pawnbrokers to charge usury. Lockwood v. Muhlberg, 124 Ga. 660 , 53 S.E. 92 (1906).

Cited in Phillips v. City of Atlanta, 78 Ga. 773 , 3 S.E. 431 (1887); Howell v. Roberts, 656 F. Supp. 1150 (N.D. Ga. 1987).

RESEARCH REFERENCES

Am. Jur. 2d. - 54 Am. Jur. 2d, Moneylenders and Pawnbrokers, § 5 et seq.

C.J.S. - 70 C.J.S., Pawnbrokers, §§ 2-4.

ALR. - Necessity of dealer's license to authorize sale of articles taken as security for or to satisfy a debt, 36 A.L.R. 685 .

Constitutionality of statutes regulating business of making small loans, 125 A.L.R. 743 ; 149 A.L.R. 1424 .

44-12-137. Prohibited acts; penalties; presumption as to pledgor; replacement of lost or damaged goods.

  1. Any pawnbroker and any clerk, agent, or employee of such pawnbroker who shall:
    1. Fail to make an entry of any material matter in his permanent record book;
    2. Make any false entry therein;
    3. Falsify, obliterate, destroy, or remove from his place of business such permanent record book;
    4. Refuse to allow any duly authorized law enforcement officer who is certified by the Georgia Peace Officer Standards and Training Council or who is a federal officer to inspect his permanent record book or any goods in his possession during the ordinary hours of business or at any reasonable time;
    5. Fail to maintain a record of each pawn transaction for at least four years;
    6. Accept a pledge or purchase property from a person under the age of 18 years or who the pawnbroker knows is not the true owner of such property;
    7. Make any agreement requiring the personal liability of a pledgor or seller or waiving any of the provisions of this part or providing for a maturity date less than one month after the date of the pawn transaction; or
    8. Fail to return or replace pledged goods to a pledgor or seller upon payment of the full amount due the pawnbroker unless the pledged goods have been taken into custody by a court or a law enforcement officer or agency,

      shall be guilty of a misdemeanor.

  2. Any person properly identifying himself and presenting a pawn ticket to the pawnbroker shall be presumed to be the pledgor or seller and shall be entitled to redeem the pledged goods described in such ticket. In the event such pledged goods are lost or damaged while in the possession of the pawnbroker, it shall be the responsibility of the pawnbroker to replace the lost or damaged goods with like kinds of merchandise and proof of replacement shall be a defense to prosecution. For the purposes of this subsection, "lost" includes destroyed or having disappeared because of any cause, whether known or unknown, that results in the pledged goods being unavailable for return to the pledgor.

    (Ga. L. 1977, p. 1194, § 4; Ga. L. 1989, p. 819, § 3.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1989, a comma was added following "subsection" in the last sentence of subsection (b).

JUDICIAL DECISIONS

Constitutionality. - O.C.G.A. §§ 44-12-133 and 44-12-137 , authorizing a warrantless inspection of pawnshop records, do not violate the fourth amendment. Howell v. Roberts, 656 F. Supp. 1150 (N.D. Ga. 1987).

The law regulating pawnshops does not lack a rational basis. Howell v. Roberts, 656 F. Supp. 1150 (N.D. Ga. 1987).

Due process is not violated simply because a local authority arguably misapplies or exceeds its authority under the relevant state statutes, as where a police officer from one county seeks to inspect a pawnshop record book in another county under O.C.G.A. §§ 44-12-133 and 44-12-137 . Howell v. Roberts, 656 F. Supp. 1150 (N.D. Ga. 1987).

Construction with §§ 44-12-130 and 44-12-131 . - In resolving a statutory conflict between O.C.G.A. §§ 44-12-130 (1) and 44-12-137(a)(7) with respect to the one-month duration for a pawn transaction and O.C.G.A. § 44-12-131 (a)(1) which required a duration of 30 days, it was determined that the criminal penalty in § 44-12-137(a)(7) was inapplicable to a customer's pawn transaction that satisfied the 30-day requirement of § 44-12-131(a)(1); the customer's action against the pawnbroker based on an illegal duration accordingly failed. Marshall v. Speedee Cash, 292 Ga. App. 790 , 665 S.E.2d 888 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Authority of law enforcement officer as to inspection and seizure of stolen property. 1996 Op. Att'y Gen. No. 96-24.

RESEARCH REFERENCES

Am. Jur. 2d. - 54 Am. Jur. 2d, Moneylenders and Pawnbrokers, §§ 6, 7.

C.J.S. - 70 C.J.S., Pawnbrokers, § 2.

44-12-138. Restrictions on advertising; disclosure tickets or statements.

    1. Any pawnbroker as defined in paragraph (2) of Code Section 44-12-130 shall include most prominently in any and all types of advertisements the word "pawn" or the words "pawn transaction."  A pawnbroker shall not use the term "loan" in any advertisements or in connection with any advertising of the business of the pawnbroker; provided, however, that the provisions of this sentence shall not apply to a pawnbroker in business on March 1, 1992, which uses the term "loan" in connection with the name of the business or with advertising of the business.
    2. On any sign advertising a pawnbroker's business, the words on such sign shall be in at least 24 inch high letters.  On any other sign on the property where the pawnbroker's business is located which advertises any other activities or business engaged in by the person who is a pawnbroker, the words on such sign shall be in 12 inch high letters or smaller; provided, however, that the provisions of this paragraph shall not apply to signs of pawnbrokers which signs are in existence on March 1, 1992.
  2. Every pawnbroker in every pawn transaction shall present the pledgor or seller with a written disclosure ticket or statement in at least nine-point type, appropriately completed, with no other written or pictorial matter except as provided in subsection (c) of this Code section, containing the following information:
    1. Information identifying the pawnbroker by name and address;
    2. A statement as follows:

      "This is a pawn transaction. Failure to make your payments as described in this document can result in the loss of the pawned item. The pawnbroker can sell or keep the item if you have not made all payments by the specified maturity date.";

    3. If the pawned item is a motor vehicle or motor vehicle certificate of title, a statement as follows:

      "Failure to make your payment as described in this document can result in the loss of your motor vehicle. The pawnbroker can also charge you certain fees if he or she actually repossesses the motor vehicle.";

    4. A statement that the length of the pawn transaction is 30 days and that it can only be renewed with the agreement of both parties and only for 30 day incremental periods;
    5. The annual percentage rate, computed in accordance with the federal Truth in Lending Act and regulations under the federal Truth in Lending Act, for the first 30 days of the transaction, computed as if all interest and pawnshop charges were considered to be interest;
    6. The annual percentage rate, computed in accordance with the federal Truth in Lending Act and regulations under the federal Truth in Lending Act, for each 30 day period in which the pawn transaction might be continued or extended, computed as if all interest and pawnshop charges were considered to be interest. For purposes of identifying the annual percentage rate after the second continuation or extension, a single statement which identifies an annual percentage rate for each possible 30 day period thereafter shall meet the requirements of this Code section;
    7. A statement in dollar amounts of how much it will cost the seller or pledgor to redeem the merchandise in the first 30 day period of the transaction;
    8. A statement in dollar amounts of how much it will cost the seller or pledgor to redeem the merchandise in any 30 day period after the first 30 day period of the pawn transaction, provided that all fees and charges have been kept current;
    9. A statement of the specific maturity date of the pawn transaction;
    10. A statement of how long, the grace period, the pledged goods may be redeemed after the specific maturity date and the dollar amount which will be required to redeem the pledged goods after the specific maturity date;
    11. A statement that after the grace period the pledged goods become the property of the pawnbroker;
    12. If the pawn transaction involves a motor vehicle or motor vehicle certificate of title, a statement that the pawnbroker may not charge a storage fee for the motor vehicle unless the pawnbroker repossesses the motor vehicle pursuant to a default;
    13. If the pawn transaction involves a motor vehicle or motor vehicle certificate of title, a statement that the pawnbroker may charge a storage fee for a repossessed motor vehicle not to exceed $5.00 per day, but only if the pawnbroker actually repossesses and actually must store the motor vehicle;
    14. If the pawn transaction involves a motor vehicle or motor vehicle certificate of title, a statement that the pawnbroker may charge a repossession fee, not to exceed $50.00, but only if the pawnbroker actually repossesses the motor vehicle;
    15. If the pawn transaction involves a motor vehicle or motor vehicle certificate of title, a statement that the pawnbroker may charge a fee to register a lien upon the motor vehicle certificate of title, not to exceed any fee actually charged by the appropriate state to register a lien upon a motor vehicle certificate of title, but only if the pawnbroker actually places such a lien upon the motor vehicle certificate of title;
    16. A statement that any costs to ship the pledged items to the pledgor or seller can be charged to the pledgor or seller, along with a handling fee to equal no more than 50 percent of the actual costs to ship the pledged items; and
    17. A statement that a fee of up to $2.00 can be charged for each lost or destroyed pawn ticket.
  3. In addition to the information required by subsection (b) of this Code section, the pawnbroker may, but is not required to, include the following information on the same disclosure ticket or statement, provided that such information is not used to obscure or obfuscate the information required by subsection (b) of this Code section:
    1. Information identifying the pledgor or seller;
    2. Any logo which the pawnbroker may desire to use;
    3. Any numbers or characters necessary for the pawnbroker to identify the merchandise or goods associated with the pawn transaction;
    4. Any other information required to be disclosed to consumers by any other law, rule, or regulation of the United States or of the State of Georgia;
    5. Information identifying or describing the pledged item;
    6. Information which is only for the internal business use of the pawnbroker;
    7. The hours of operation of the pawnbroker;
    8. The time of day of the pawn transaction; and
    9. Any agreement between the pledgor or seller and the pawnbroker which does not controvert the provisions of this part, of Part 5 of Article 8 of Chapter 14 of this title, or of Part 2 of Article 15 of Chapter 1 of Title 10.
  4. The pawnbroker shall have the pledgor or seller sign the disclosure statement and shall furnish a completed copy to the pledgor or seller.  The pawnbroker shall maintain a completed and signed copy of the disclosure statement on file for two years subsequent to the maturity date of the pawn transaction.  Failure to maintain such a copy shall be conclusive proof that the pawnbroker did not furnish such a statement to the pledgor or seller.
  5. Notwithstanding anything to the contrary contained elsewhere in this Code section, no municipality or local government may impose any requirements upon a pawnbroker regarding the disclosures which must be made to a pledgor or seller or which must be made in the pawn ticket, other than those requirements contained in this Code section. (Code 1981, § 44-12-138 , enacted by Ga. L. 1992, p. 3245, § 4.)

Law reviews. - For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005). For note on 1992 enactment of this Code section, see 9 Ga. St. U.L. Rev. 323 (1992).

JUDICIAL DECISIONS

Unit period determination. - In single advance, single payment transactions in which the term is less than a year and equal to a whole number of months, pawnbroker-creditors may make the unit period determination in the alternative, that is, on the basis of the term as a number of months or on the basis of the term as a number of days. Hooks v. Cobb Ctr. Pawn & Jewelry Brokers, Inc., 241 Ga. App. 305 , 527 S.E.2d 566 (1999).

Registration of lien against automobile title. - O.C.G.A. § 44-12-138(b)(15) regulates the fees a pawnbroker may charge to register a lien against an automobile title and clearly evinces the legislature's intent to require pawnbrokers to record their liens in order to put innocent third parties on notice of their claims. Cobb Ctr. Pawn & Jewelry Brokers, Inc. v. Gordon, 242 Ga. App. 73 , 529 S.E.2d 138 (2000).

Class action against pawn shop failed. - Pawnshop customer's action, alleging that a pawnshop failed to disclose all of the interest and charges that it assessed against the customer and against purported class members who were similarly situated, as required by O.C.G.A. § 44-12-138(b)(6) and (8), failed upon a finding that the pawnshop had made a good faith offer to avoid litigation by tendering to the customer a check in the amount collected beyond the principal, as required by O.C.G.A. § 44-12-131(a)(7)(A); accordingly, the court found that the customer had not sufficiently complied with the ante litem notice provisions with respect to the other members of the class, who were not sufficiently identified in order to allow a good faith offer to be made to them. Mack v. Ga. Auto Pawn, Inc., 262 Ga. App. 277 , 585 S.E.2d 661 (2003).

County ordinance not in conflict. - Since the stated purpose of Gwinnett County, Ga., Ord. No. 82-11 was to impede the sale of stolen property, and its requirements were designed to achieve that end, it was a proper use of the county's police power; further, by expressly preserving local laws in O.C.G.A. § 44-12-135 , which included county ordinances, the legislature had in effect "authorized" them, and so Gwinnett County, Ga., Ord. No. 82-11 did not conflict with O.C.G.A. § 44-12-138 . Pawnmart, Inc. v. Gwinnett County, 279 Ga. 19 , 608 S.E.2d 639 (2005).

ARTICLE 4 TROVER

Cross references. - Form to be used in action for recovery of personal property, § 9-10-201 .

JUDICIAL DECISIONS

Cited in Arnold v. Wilson, 156 Ga. App. 448 , 274 S.E.2d 804 (1980).

PART 1 I N GENERAL

JUDICIAL DECISIONS

When action for trover lies. - An action for trover lies where there is an unauthorized assumption and exercise of the right of ownership over personal property belonging to another in hostility to the owner's rights - an act of dominion over the personal property of another inconsistent with the owner's rights, or an unauthorized appropriation. Boatright v. Padgett Motor Sales, Inc., 117 Ga. App. 578 , 161 S.E.2d 402 (1968).

Conversion is a tort for which the action in trover is maintainable. Carithers v. Maddox, 80 Ga. App. 230 , 55 S.E.2d 775 (1949).

No trover action permitted against sheriff to recover illegal gambling devices. - Where a sheriff finds articles kept for the purpose of gambling, an action of trover by the owner against the sheriff for their recovery will not lie, since courts are created for the upholding of the law and of morals, and will therefore decline to allow their processes used to further the maintenance of crimes and public evils, by assisting or protecting such an owner in recovering the implements of crime or illegal paraphernalia. Elder v. Camp, 193 Ga. 320 , 18 S.E.2d 622 (1942).

Regardless of where seized. - Regardless of the nature of the place where a portion of illegal instrumentalities is seized, a court does not err in granting the interlocutory injunction and in continuing in force the writ of prohibition, sought by the sheriff and the solicitor general (now district attorney) against the owner who is suing to regain possession of the seized devices, since the courts will not lend their aid to assist or protect an owner seeking to retain implements of crime such as gaming or lottery paraphernalia. Elder v. Camp, 193 Ga. 320 , 18 S.E.2d 622 (1942).

Remedy where vendor repudiates executory agreement to sell. - Where the contract, which the plaintiff relied on to show title and right of possession personally, was a mere executory agreement to sell, not passing title to the personalty in question, and where the vendor, repudiating the contract, declined plaintiff's tender and refused delivery, trover would not lie against the vendor, but the plaintiff's remedy would be an action for damages for breach of the contract. McEntire v. Naylor, 47 Ga. App. 752 , 171 S.E. 387 (1933).

Recipient of gift from intestate has right of possession which defeats trover action by administrator. - Where an intestate does in truth execute and deliver a gift, the recipient thereby obtains such a right of possession as would defeat the administrator's action of trover, regardless of whether the recipient may have acquired such legal title as would authorize the recipient to proceed by action in the recipient's own name against the obligors in the choses in action. Underwood v. Underwood, 43 Ga. App. 643 , 159 S.E. 725 (1931).

Party who has right to bring action for personalty. - The right to sue in an action of trover is in the party in whom the title to the personalty was at the time of the conversion. And where such party sues in trover for the use of another, the name of the usee may be treated as surplusage. Poland Laundry Mach. Co. v. Pyle, 50 Ga. App. 453 , 178 S.E. 474 (1935).

Person whose right was affected is proper plaintiff. - Trover is an action ex delicto. It is a suit brought for a tort; and the rule is that the proper person to bring an action ex delicto or for a tort is the person in whom the legal right or property was vested, and whose legal right has been affected by the injury complained of. Poland Laundry Mach. Co. v. Pyle, 50 Ga. App. 453 , 178 S.E. 474 (1935).

Where property is subject to a security interest, an exercise of dominion or control over the property which is inconsistent with the rights of the secured party constitutes, as to him, a conversion of the property; and there may be conversion by a secured party where that party's acts are in defiance of the rights of others in the property. Trust Co. v. Associated Grocers Coop., 152 Ga. App. 701 , 263 S.E.2d 676 (1979).

Buyer and seller both liable where sale of collateral is conversion. - Where a sale of collateral is, with respect to the secured party, a conversion of the collateral, there is a conversion on the part of the one who sells, as well as on the part of the one who purchases, and the purchaser may be liable regardless of intent and regardless of lack of actual knowledge of the rights of the secured party. Trust Co. v. Associated Grocers Coop., 152 Ga. App. 701 , 263 S.E.2d 676 (1979).

Substitution of name of holder of legal title for holder of equitable title. - An action in trover instituted by the holder of the equitable title or the beneficial interest in personal property may not be amended by substituting the name of the holder of the legal title bringing an action for use. Poland Laundry Mach. Co. v. Pyle, 50 Ga. App. 453 , 178 S.E. 474 (1935).

Sufficiency of "Jack Jones" forms, see Greenwood v. Stewart, 86 Ga. App. 764 , 72 S.E.2d 539 (1952).

Phrase "to which your petitioner claims title" is sufficient. - The phrase "to which your petitioner claims title" in a statutory trover form is a simple, direct statement of the ultimate fact which is determinative of the whole case, and is sufficient. Greenwood v. Stewart, 86 Ga. App. 764 , 72 S.E.2d 539 (1952).

Plaintiff in action of trover must show title or possession. - The plaintiff in an action of trover must show title, either general or special, in the plaintiff at the time of the institution of the action, actual possession or right of immediate possession to the property sought to be recovered. Hise v. Morgan, 91 Ga. App. 555 , 86 S.E.2d 374 (1955).

In order to recover in an action of trover, the plaintiff is required to show either title or right of possession in the plaintiff to the property sought to be recovered. Raines v. Graham, 85 Ga. App. 815 , 70 S.E.2d 125 (1952).

What bailor must show as condition precedent to recovery. - In a trover action against a bailee for hire it is a condition precedent to the bailor's right to recover, that it be shown that with the demand there was an offer to pay storage charges and surrender or account for any negotiable receipt given by the bailee for the property. Steadham v. Baskin, 51 Ga. App. 36 , 179 S.E. 636 (1935).

Plaintiff cannot recover in trover without proof of conversion. Funsten v. Muse, 86 Ga. App. 759 , 72 S.E.2d 504 (1952).

Description of property required. - In an action of trover, the complaint must definitely identify the property by a particular description, or by a general description coupled with such additional allegations as to the time and place or manner of the taking or conversion as plainly to isolate the thing or things sued for from the general class to which it belongs. Seaboard Sec. Co. v. Goodson, 51 Ga. App. 512 , 180 S.E. 858 (1935).

Failure to describe goods with particularity. - In an action in trover with a bail proceeding for a money judgment, failure to describe the goods with particularity is harmless where there is no injury to the defendant. Teal v. Equitable Loan Co., 43 Ga. App. 673 , 159 S.E. 904 (1931).

Defeat of trover and conversion claims. - Trial court erred by denying the used car dealer's motion for summary judgment on the dealer's counterclaims for trover and conversion because the undisputed evidence showed that the dealer held the title to the car but that the finance company was in possession and refused to return the car upon demand. Cars v. W. Funding II, 349 Ga. App. 517 , 826 S.E.2d 370 (2019).

Sufficiency of allegation of value. - In complaint in trover action, where several articles of property are sought to be recovered and each article is described with sufficient particularity, an allegation as to the aggregate value of all the property is a sufficient allegation as to value. Seaboard Sec. Co. v. Goodson, 51 Ga. App. 512 , 180 S.E. 858 (1935).

Reason for proof of demand and refusal. - Where the defendant is in possession of property sued for at the time of the institution of an action in trover, proof of demand and refusal is necessary only to save the plaintiff the costs of court in case the defendant should disclaim title to the property. Anchor Duck Mills v. Harp, 40 Ga. App. 563 , 150 S.E. 572 (1929).

Discharge of defendant in bankruptcy pending proceeding is no defense. - In an action of trover the issue is one of title, and not of debt. Consequently, neither the defendant in such an action wherein bail is required nor the surety on the bond can set up as a defense the discharge of the defendant in bankruptcy pending the action. This is true although the plaintiff elected to take a money verdict for the damages alleged to have been sustained. Van Pelt v. Family Loan Soc'y, Inc., 179 Ga. 787 , 177 S.E. 595 (1934).

Effect of judgment rendered on basis of plea of impending bankruptcy. - Where a plea to a trover action was filed, setting up pending bankruptcy of the debtor, and judgment was rendered and not excepted to, such judgment becomes the law of the case. On subsequent enforcement of the judgment by summons of garnishment, a complaint for injunction prohibiting the garnishment from proceeding is properly stricken on demurrer (now motion to dismiss). Van Pelt v. Family Loan Soc'y, Inc., 179 Ga. 787 , 177 S.E. 595 (1934).

Cited in Eades v. Wheeler, 74 Ga. App. 333 , 39 S.E.2d 573 (1946); Jernigan v. Economy Exterminating Co., 327 F. Supp. 24 (N.D. Ga. 1971).

OPINIONS OF THE ATTORNEY GENERAL

Trover resembles common-law action except that plaintiff can make election of verdict during trial. - In this state, trover embraces the common-law sections of trover, replevin and detinue. It is therefore essentially a common-law action, differing only to the extent that under the law of this state, a plaintiff may bring an action and, by making an election of verdict on or before the trial and thereby cause the action to assume the character of one of the three common-law forms. Consequently, the only basic difference between the common-law practice and present practice is that under the former, the plaintiff was required to make an election before bringing the action, and to frame the pleadings accordingly. 1957 Op. Att'y Gen. p. 72.

RESEARCH REFERENCES

ALR. - Appropriation by carrier for its own use of coal or other commodity shipped over its line, 29 A.L.R. 1241 .

Deductions on account of labor or expenditures in fixing damages for conversion, 44 A.L.R. 1321 .

Previous demand as a condition of replevin or trover against innocent purchaser of stolen chattels, 51 A.L.R. 1465 .

Negative conduct as basis of claim of conversion, 116 A.L.R. 870 .

What amounts to conversion of former tenant's goods by landlord not entitled to any lien or right in respect thereto, 148 A.L.R. 649 .

Mere assertion of unfounded lien as constituting conversion, 169 A.L.R. 100 .

Delivery of bailed property by bailee to third person for accomplishment of bailment purpose, as a conversion, 174 A.L.R. 1436 .

Right of action for conversion as affected by assertion of rights or pursuit of remedies founded on continued ownership of the property, 3 A.L.R.2d 218.

44-12-150. Effect of defendant's possession on necessity of proof of conversion.

In actions to recover the possession of chattels, it shall not be necessary to prove any conversion of the property if the defendant is in possession when the action is brought.

(Orig. Code 1863, § 2967; Code 1868, § 2974; Code 1873, § 3028; Code 1882, § 3028; Civil Code 1895, § 3887; Civil Code 1910, § 4483; Code 1933, § 107-101.)

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Action of trover is for recovery of possession of chattels belonging to the plaintiff, not an action on account for a debt. Youngblood v. Duncan, 49 Ga. App. 300 , 175 S.E. 411 (1934).

Statutory action of trover contains characteristics of common-law actions of replevin, detinue, and trover. Livingston v. Epsten-Roberts Co., 50 Ga. App. 25 , 177 S.E. 79 (1934).

Conversion not prevented by acquisition in good faith. - The fact that possession of stolen property, unlawful as against the true owner, may have been acquired in good faith will not prevent such possession from operating as a conversion against the true owner. Lovinger v. Hix Green Buick Co., 110 Ga. App. 698 , 140 S.E.2d 83 (1964).

Evidence of defendant's possession may be inferential when the action is brought and it need not be strong enough to prevent a nonsuit. Robson v. Rawlings, 79 Ga. 354 , 7 S.E. 212 (1887).

Proof that the property, for which an action is brought, was at the home of the defendant is evidence of possession in the defendant. Mercier v. Mercier, 43 Ga. 323 (1871).

Whether facts support allegation of ownership is question of law. - Where the plaintiff in a trover action does allege facts upon which plaintiff bases title, it becomes a question of law whether or not the facts alleged support the allegation of ownership. Livingston v. Epsten-Roberts Co., 50 Ga. App. 25 , 177 S.E. 79 (1934).

Jury instructions. - Where a plaintiff brought suit against an insurance company for conversion of an automobile and its contents after the car was involved in an accident with the insurance company's insured, and the insurance company moved it to a free storage location, the trial court did not err in giving a jury charge which tracked the provisions of O.C.G.A. § 44-12-150 but inserted the word "unlawful" in front of "possession." Connors v. Omni Ins. Co., 195 Ga. App. 607 , 394 S.E.2d 402 (1990).

Cited in Braswell & Son v. McDaniel, 74 Ga. 319 (1884); Allen v. Brown, 83 Ga. 161 , 9 S.E. 674 (1889); Ocean S.S. Co. v. Southern States Naval Stores Co., 145 Ga. 798 , 89 S.E. 838 (1916); Napier v. Bank of La Fayette, 31 Ga. App. 703 , 121 S.E. 694 (1924); Haas & Howell v. Godby, 33 Ga. App. 218 , 125 S.E. 897 (1924); Hoffman v. Lynch, 23 F.2d 518 (N.D. Ga. 1928); Dasher v. International Harvester Co. of Am., 42 Ga. App. 130 , 155 S.E. 211 (1930); Cook v. Pollard, 50 Ga. App. 752 , 179 S.E. 264 (1935); Crews v. Roberson, 62 Ga. App. 855 , 10 S.E.2d 114 (1940); Keel v. Attaway, 65 Ga. App. 172 , 15 S.E.2d 562 (1941); Commercial Bank v. Pharr, 75 Ga. App. 364 , 43 S.E.2d 439 (1947); Stanley v. Ellis, 77 Ga. App. 12 , 47 S.E.2d 776 (1948); C & H Air Conditioning Fan Co. v. Haffner, 216 F.2d 256 (5th Cir. 1954); Sizemore v. Beeler, 94 Ga. App. 414 , 94 S.E.2d 773 (1956); Stephens v. Millirons Garage, Inc., 109 Ga. App. 832 , 137 S.E.2d 563 (1964); McGlamory v. Marcum, 118 Ga. App. 516 , 164 S.E.2d 274 (1968); Johnson v. Glenn's Furn. Co., 372 F. Supp. 56 (N.D. Ga. 1972); Charles S. Martin Distrib. Co. v. Indon Indus., Inc., 134 Ga. App. 179 , 213 S.E.2d 900 (1975); Evans v. Equico Lessors, 140 Ga. App. 583 , 231 S.E.2d 534 (1976); Patterson v. Loggins, 142 Ga. App. 868 , 237 S.E.2d 469 (1977); Personal Thrift Plan of Perry, Inc. v. Georgia Power Co., 242 Ga. 388 , 249 S.E.2d 72 (1978).

Prerequisites to Trover Action

In order to recover in a trover case it is essential that the plaintiff show either title or right of possession, and in some cases it is necessary to establish both; and, although title is presumed to follow possession of the property, such presumption is rebuttable. Kornegay v. Thompson, 157 Ga. App. 558 , 278 S.E.2d 140 (1981).

In order to prevail, where title is claimed, plaintiff must present proof of legal rather than equitable title. Kornegay v. Thompson, 157 Ga. App. 558 , 278 S.E.2d 140 (1981); Alpert v. Wickes Cos., 182 Ga. App. 51 , 354 S.E.2d 674 (1987).

In order to present a cause of action for conversion, an act of dominion over the personal property of another inconsistent with the owner's rights or by an unauthorized appropriation must be shown. Kornegay v. Thompson, 157 Ga. App. 558 , 278 S.E.2d 140 (1981); Alpert v. Wickes Cos., 182 Ga. App. 51 , 354 S.E.2d 674 (1987).

In order to be chargeable with conversion, technically it is not necessary that the defendant assert any right of ownership over the property; it is sufficient if the defendant wrongfully assumes dominion over the property inconsistent with the owner's right. Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259 , 356 S.E.2d 877 (1987).

Mere possession of property will support trover action. - As against a wrongdoer, mere possession of property by one in own right (not merely as agent of another) will support an action of trover. Livingston v. Epsten-Roberts Co., 50 Ga. App. 25 , 177 S.E. 79 (1934).

Plaintiff must show title personally at the time of the institution of the action either general or special and actual possession or a right of immediate possession. Livingston v. Epsten-Roberts Co., 50 Ga. App. 25 , 177 S.E. 79 (1934).

Ordinarily plaintiff must show conversion in order to recover in trover. McDaniel v. White, 140 Ga. App. 118 , 230 S.E.2d 500 (1976).

Exception to conversion applies if defendant acquires possession of property lawfully. Brooks v. Fincher, 150 Ga. App. 201 , 257 S.E.2d 326 (1979).

While it is provided by O.C.G.A. § 44-12-150 that it shall not be necessary to prove a conversion of the property in an action of trover where the defendant is in possession when the action is brought, this rule does not apply where the defendant's possession is lawfully acquired. Wood v. Sanders, 87 Ga. App. 84 , 73 S.E.2d 55 (1952).

If the defendant acquired possession of the property lawfully, then it is necessary to prove either actual conversion or a demand for return of the property and defendant's failure or refusal to redeliver. McDaniel v. White, 140 Ga. App. 118 , 230 S.E.2d 500 (1976).

Where the defendants disclaimed title to the property sued for in their plea, and as they had lawfully acquired possession of the property as bailees, it is necessary for the plaintiff to prove an actual conversion of the goods or a demand for and a refusal to redeliver them. Wood v. Sanders, 87 Ga. App. 84 , 73 S.E.2d 55 (1952).

It is necessary to prove either actual conversion or a demand for return of the property and defendant's failure or refusal to redeliver. Graham v. State St. Bank & Trust Co., 111 Ga. App. 416 , 142 S.E.2d 99 (1965).

Unless actual conversion by bailee is shown, action of trover against the bailee will not lie, without a previous demand for the goods and failure to redeliver. Wood v. Sanders, 87 Ga. App. 84 , 73 S.E.2d 55 (1952).

If actual conversion is shown no demand is necessary. Lovinger v. Hix Green Buick Co., 110 Ga. App. 698 , 140 S.E.2d 83 (1964).

Section not applicable where property lawfully acquired by defendant. - While it would appear from O.C.G.A. § 44-12-150 that it would not be necessary to prove a conversion of property in a trover action where the defendant is in possession when the action is brought, that section has been held not applicable where the property has been lawfully acquired by the defendant. Kornegay v. Thompson, 157 Ga. App. 558 , 278 S.E.2d 140 (1981).

Issue as to who has legal title to property is for jury. - Although defendant is the possessor of the personal property in question, where plaintiff's testimony goes beyond presenting some suggestion of an equitable title in plaintiff but also presents an issue of material fact as to whether it was the intent of the parties at the time of the transfer of the personal property that the legal title to the personal property vest in defendant, the resolution of this conflict in the evidence, as to who has legal title to the property, is for the jury. Kornegay v. Thompson, 157 Ga. App. 558 , 278 S.E.2d 140 (1981).

Demand and wrongful refusal. - Where there is an agreement and the plaintiff relinquishes lawful possession to the defendant, demand and a wrongful refusal are prerequisites to a trover action. Brooks v. Fincher, 150 Ga. App. 201 , 257 S.E.2d 326 (1979).

Since mere default in the payment of a debt does not alone constitute conversion, demand and refusal are conditions precedent to the institution of a trover action brought on property conveyed in a bill of sale to secure debt. Robbins v. Welfare Fin. Corp., 95 Ga. App. 90 , 96 S.E.2d 892 (1957).

Proof of demand and refusal where required, is required only as evidence of a conversion; and where, a conversion has been shown by other evidence, such proof is not essential. James v. Newman, 73 Ga. App. 79 , 35 S.E.2d 581 (1945); Lovinger v. Hix Green Buick Co., 110 Ga. App. 698 , 140 S.E.2d 83 (1964).

Only purpose of demand in trover action is to show conversion. Eubanks v. Hilliard, 88 Ga. App. 106 , 76 S.E.2d 133 (1953).

Demand and refusal is necessary only when defendant comes into possession of property lawfully. What is meant by defendant coming lawfully into possession of the property is, where defendant finds it and retains it for the true owner; or where defendant obtains the possession of the property, by the permission or consent of the plaintiff. In this latter class of cases, a demand and refusal would be necessary, unless it could be shown the defendant had appropriated the article so found to defendant's own use, or had disposed of the property bailed, contrary to the terms and stipulations of the contract of bailment. Lovinger v. Hix Green Buick Co., 110 Ga. App. 698 , 140 S.E.2d 83 (1964).

Instances where proof of demand and refusal or conversion unnecessary. - Where a defendant in an action of trover admits in the plea or answer to possession of the property at the time of the action, under an adverse claim of title or right of possession, it is not necessary for the plaintiff to prove a demand and refusal or any other conversion of the property. C.I.T. Corp. v. Smith, 56 Ga. App. 544 , 193 S.E. 261 (1937), aff'd, 186 Ga. 199 , 197 S.E. 322 (1938).

No proof of demand is necessary where the defendant's answer admits the conversion. Coley v. Dortch & Co., 139 Ga. 239 , 77 S.E. 77 (1913); Smith v. Commercial Credit Co., 28 Ga. App. 403 , 111 S.E. 821 (1922); Whelchel v. Roark, 31 Ga. App. 75 , 119 S.E. 451 (1923).

In a conditional sale of machinery where the defendant refuses to pay the entire purchase price, proof of demand and refusal or conversion is unnecessary. Carter v. American Slicing Mach. Co., 23 Ga. App. 422 , 98 S.E. 365 (1919).

Where the defendant is in possession of the property sued for in a trover action and claims title thereto adversely to the plaintiff, it is unnecessary for the plaintiff to prove a conversion or a demand and refusal. Eubanks v. Hilliard, 88 Ga. App. 106 , 76 S.E.2d 133 (1953).

Proof of conversion unnecessary except to save plaintiff courts costs. - Where the defendant is in possession at the time the action is entered, proof of demand and refusal is necessary only to save the plaintiff the costs of court in case the defendant should disclaim title to the property. Pearson v. Jones, 18 Ga. App. 448 , 89 S.E. 536 (1916); C.I.T. Corp. v. Smith, 56 Ga. App. 544 , 193 S.E. 261 (1937), aff'd, 186 Ga. 199 , 197 S.E. 322 (1938).

Defendant is liable for costs where he does not disclaim, although the plaintiff has relevied the property. Wall v. Johnson, 88 Ga. 524 , 15 S.E. 15 (1892).

In addition to proof of demand and refusal or conversion, it is necessary for a plaintiff to prove title or right to possession in order to establish a prima facie trover case. McDaniel v. White, 140 Ga. App. 118 , 230 S.E.2d 500 (1976).

No contractual relationship between parties required. - There is no requirement that there be a contractual relationship between plaintiff and defendant before an action in trover can be maintained. Kelley v. Sheehan, 61 Ga. App. 714 , 7 S.E.2d 298 (1940).

In a trover action against a neighbor for return of a cow and damages, award of return of the cow but denial of damages was proper where plaintiff did not prove that defendant obtained the cow by an unlawful method and that plaintiff made a demand for return of the cow. Simmons v. Bearden, 222 Ga. App. 430 , 474 S.E.2d 250 (1996).

1. Acts Constituting Conversion

Possession of property with claim of title adverse to that of true owner constitutes conversion, and in such circumstances no demand is necessary to constitute conversion. Beaver v. Magid, 56 Ga. App. 272 , 192 S.E. 497 (1937).

Any distinct act of dominion wrongfully asserted over one's property, in denial of right or inconsistent with it, is a conversion. James v. Newman, 73 Ga. App. 79 , 35 S.E.2d 581 (1945); Lovinger v. Hix Green Buick Co., 110 Ga. App. 698 , 140 S.E.2d 83 (1964).

Employee commits wrongful conversion where, without the consent of the assignee, the employee collects wages assigned and converts them to the employee's own use. Bell Fin. Co. v. Johnson, 51 Ga. App. 350 , 180 S.E. 373 (1935).

Possession of stolen automobile constitutes conversion. - Acquiring possession of the plaintiff's automobile after it had been stolen was an act of dominion over the vehicle inconsistent with the right of the true owner, and the defendant's possession of the automobile constituted a conversion of the vehicle as against the plaintiff notwithstanding the issue of the defendant's good faith. Lovinger v. Hix Green Buick Co., 110 Ga. App. 698 , 140 S.E.2d 83 (1964).

2. Acts Not Constituting Conversion

No conversion exists where defendant lawfully acquires possession of property, in the absence of demand and refusal. Colonial Credit Co. v. Williams, 95 Ga. App. 76 , 97 S.E.2d 197 (1957); McDaniel v. White, 140 Ga. App. 118 , 230 S.E.2d 500 (1976).

Purchaser's default in payment of purchase money alone will not constitute conversion of the property. Colonial Credit Co. v. Williams, 95 Ga. App. 76 , 97 S.E.2d 197 (1957).

Intervening, criminal act. - Where the defendant is chargeable with conversion by reason of the fact that defendant wrongfully assumed possession of the property and moved it from one location to another where it was stolen by a third party, the defendant's conversion of the property is not the proximate cause of the loss unless the intervening criminal act was reasonably foreseeable. Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259 , 356 S.E.2d 877 (1987).

Parties Against Whom Trover Action Maintainable

Vendee in conditional sale contract may maintain trover against third person wrongfully depriving that third party of possession of such property. Livingston v. Epsten-Roberts Co., 50 Ga. App. 25 , 177 S.E. 79 (1934).

Plaintiff may institute action of trover against administrator, where administrator wrongfully withholds property belonging to the plaintiff, before the expiration of 12 months. Byrd v. Riggs, 87 Ga. App. 7 , 73 S.E.2d 35 (1952).

Trover lies against agent even though the agent does not purport to act personally, but wholly for another. Kelley v. Sheehan, 61 Ga. App. 714 , 7 S.E.2d 298 (1940).

Remedies

Owner's election of remedies. - Where timber is wrongfully cut from land and carried away, the owner has an election of remedies: the owner may sue in trespass quare clausam fregit; or, since the trees become personalty when severed, the owner may maintain trover or any other form of action appropriate to the recovering of the possession of personalty; or for damages for the injury to or conversion of that class of property. Rowland v. Gardner, 79 Ga. App. 153 , 53 S.E.2d 198 (1949).

Action of trespass to personalty is concurrent with action of trover and conversion, although the two actions are not entirely coextensive. Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259 , 356 S.E.2d 877 (1987).

Defeat of action of trover. - The right of possession, through some special title in property, such as the legal impounding of cattle by the defendant, and the detention of property by the defendant for charges as depository for hire will defeat an action of trover by the holder of the legal title to such property. Livingston v. Epsten-Roberts Co., 50 Ga. App. 25 , 177 S.E. 79 (1934).

RESEARCH REFERENCES

Am. Jur. 2d. - 18 Am. Jur. 2d, Conversion, § 51.

C.J.S. - 89 C.J.S., Trover and Conversion, § 117.

ALR. - May trover be predicated upon the mere act of purchasing property from someone other than the true owner, without taking actual possession, 38 A.L.R. 1096 .

Mere detention of or failure to deliver chattels after demand as conversion, 61 A.L.R. 621 ; 129 A.L.R. 638 .

Corporate stock or certificate thereof as subject of conversion, 83 A.L.R. 1199 .

Mere possession in plaintiff as basis of action for wrongfully taking or damaging personal property, 150 A.L.R. 163 .

Sufficiency of proof in replevin of defendant's possession at time of commencement of action, 2 A.L.R.2d 1043.

Identification of animals involved in conversion action, 51 A.L.R.2d 1154.

Replevin or claim-and-delivery: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail instalment sales contract, 45 A.L.R.3d 1233.

Garageman's lien for towing and storage of motor vehicle towed from private property on which vehicle was parked without permission, 85 A.L.R.3d 240.

44-12-151. Right of plaintiff to elect form of verdict.

In an action to recover personal property, the plaintiff may elect:

  1. To accept an alternative verdict for the property or for its value;
  2. To demand a verdict for the damages alone; or
  3. To demand a verdict for the property alone and its hire, if any.

    It shall be the duty of the court to instruct the jury to render the verdict as the plaintiff elects.

    (Ga. L. 1860, p. 43, § 1; Code 1863, § 5117; Code 1868, § 3506; Code 1873, § 3564; Code 1882, § 3564; Civil Code 1895, § 5335; Civil Code 1910, § 5930; Code 1933, § 107-105.)

Cross references. - Right of action for injuries to personalty generally, Ch. 10, T. 51.

Law reviews. - For article surveying torts law, see 34 Mercer L. Rev. 271 (1982).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Absolute title is not essential to maintenance of action of trover. - An interest less than the whole title will be sufficient where it is coupled with lawful possession or an immediate right thereto. Groover v. Savannah Bank & Trust Co., 186 Ga. 476 , 198 S.E. 217 (1938).

O.C.G.A. § 44-12-151 must be construed with O.C.G.A. § 44-12-153 . Trammel v. Mallory Bros. & Co., 115 Ga. 748 , 42 S.E. 62 (1902); Walton v. Henderson, 4 Ga. App. 173 , 61 S.E. 28 (1908).

In construing O.C.G.A. § 44-12-151 with O.C.G.A. § 44-12-153 , the plaintiff is limited to a recovery of the property under the tender, and is chargeable with the cost unless it is shown that a previous demand for the property had been made and refused. Downs Motor Co. v. Colbert, 34 Ga. App. 542 , 130 S.E. 592 (1925).

O.C.G.A. § 44-12-151 not inconsistent with O.C.G.A. §§ 53-6-34 and 53-7-93 (Pre 1998 Probate Code). - There is no inconsistency between O.C.G.A. § 44-12-151 , requiring selection of remedies, and O.C.G.A. §§ 53-6-34 and 53-7-93, requiring collection and preservation of assets of estate and just and timely payment of debts of estate. Howard v. Parker, 163 Ga. App. 159 , 293 S.E.2d 548 (1982).

Defendant not liable where theft not foreseeable. - The plaintiff may not, by election of remedies, hold the defendant strictly liable for the loss, where the defendant is unable to return the property as a result of a theft of the property by a third party, if the theft was not reasonably foreseeable by the defendant. Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259 , 356 S.E.2d 877 (1987).

Dividends. - A party entitled to dividend shares since a certain point in time is also entitled to any dividends attributable to those shares since that time. Drexel Burnham Lambert, Inc. v. Chapman, 174 Ga. App. 336 , 329 S.E.2d 595 (1985).

Where the property converted is money, the plaintiff must seek a money verdict; while money can earn interest, it is not personalty of a character for which hire may be recovered and, thus, a plaintiff suing for the conversion of money may recover the amount of money converted, plus interest from the date of conversion. Felker v. Chipley, 246 Ga. App. 296 , 540 S.E.2d 285 (2000).

O.C.G.A. § 44-12-151 entertains impartial reciprocity of protection as to rights of plaintiff and defendant in bail trover proceedings. McLaurin v. Henry, 90 Ga. App. 864 , 84 S.E.2d 713 (1954).

Where the plaintiff in trover elects to take an alternative verdict, the defendant has the right to rely upon such a verdict being rendered as may be discharged by the return of the property upon which the action is based. Tuller v. Carter, 59 Ga. 395 (1877).

Either party prevailing in trover proceedings has same right of election as to whether that party will recover damages, the value of the property, or the property and its hire. McLaurin v. Henry, 90 Ga. App. 864 , 84 S.E.2d 713 (1954).

Plaintiff is not required to make election, before conclusion of introduction of evidence, of the kind of verdict which plaintiff will take; therefore, it is not error to permit a plaintiff, after the close of the introduction of evidence, to elect to take a verdict for the property alone. Brooks v. Hartsfield Co., 56 Ga. App. 184 , 192 S.E. 459 (1937).

Plaintiff may elect verdict at any time before case is submitted to jury or before judgment is rendered by a judge without a jury. Where the plaintiff makes no such election, the judgment in trover is that the plaintiff shall have the property sued for. Phillips v. South Cobb Bank, 117 Ga. App. 137 , 159 S.E.2d 495 (1968).

Election of plaintiff is not required to be in writing. Livingston v. Berrien Wood Co., 228 Ga. 190 , 184 S.E.2d 458 (1971).

Where plaintiff makes no election, the judgment in trover is that plaintiff shall have the property for which plaintiff sues. Phillips v. South Cobb Bank, 117 Ga. App. 137 , 159 S.E.2d 495 (1968).

Sole issue in action of trover is that of title to property in dispute; and the fact that the plaintiff may elect to take a money verdict in lieu of the specific personalty claimed can in no event alter that issue. Citizens Bank v. Mullis, 161 Ga. 371 , 131 S.E. 44 (1925); Cook v. Pollard, 50 Ga. App. 752 , 179 S.E. 264 (1935).

Order of court rendered void and of no effect where order dismissed the plaintiff's action, insofar as plaintiff's right to elect a judgment, without notice to the plaintiff and without giving plaintiff an opportunity to be heard. Zachos v. Rowland, 80 Ga. App. 31 , 55 S.E.2d 166 (1949).

Cited in Willingham v. Hooven, Owens, Rentschler & Co., 74 Ga. 233 , 58 Am. R. 435 (1884); Malsby v. Young, 104 Ga. 205 , 30 S.E. 854 (1898); Southern Flour & Grain Co. v. Central Tex. Exch. Nat'l Bank, 27 Ga. App. 524 , 109 S.E. 685 (1921); Williams v. C.C. Baggs Auto Co., 32 Ga. App. 253 , 122 S.E. 805 (1924); Powers v. Franklin, 32 Ga. App. 641 , 124 S.E. 363 (1924); Graham v. Frazier, 84 Ga. App. 458 , 66 S.E.2d 77 (1951); Taylor v. Gill Equip. Co., 87 Ga. App. 309 , 73 S.E.2d 755 (1952); Banks v. Kilday, 88 Ga. App. 307 , 76 S.E.2d 642 (1953); Willis Lumber Co. v. Roddenbery, 88 Ga. App. 352 , 77 S.E.2d 110 (1953); Sudderth v. National Lead Co., 272 F.2d 259 (5th Cir. 1959); Stephens v. Southern Disct. Co., 105 Ga. App. 667 , 125 S.E.2d 235 (1962); Sisk v. Carney, 121 Ga. App. 560 , 174 S.E.2d 456 (1970); Pitts v. City of Macon, 134 Ga. App. 467 , 214 S.E.2d 720 (1975); Rent-A-Tool Co. v. Jackson, 142 Ga. App. 781 , 237 S.E.2d 14 (1977); Patterson v. Loggins, 142 Ga. App. 868 , 237 S.E.2d 469 (1977); Brooks v. Fincher, 150 Ga. App. 201 , 257 S.E.2d 326 (1979); Ford Motor Credit Co. v. Spicer, 156 Ga. App. 541 , 275 S.E.2d 116 (1980); Hanover Ins. Co. v. Nelson Conveyor & Mach. Co., 159 Ga. App. 13 , 282 S.E.2d 670 (1981); Fritts v. Mid-Coast Trading Corp., 166 Ga. App. 31 , 303 S.E.2d 148 (1983); Thomas Mote Trucking, Inc. v. PCL Civil Constructors, Inc., 246 Ga. App. 306 , 540 S.E.2d 261 (2000); Taylor v. Powertel, Inc., 250 Ga. App. 356 , 551 S.E.2d 765 (2001).

Verdict for Property or for Its Value

Right of election not lost by seizure of property. - In action to recover personal property, the plaintiff's right of election is not lost by suing out a bail process, pending the action, and causing the property to be seized. Hudson v. Goff, 77 Ga. 281 , 3 S.E. 152 (1886).

In conditional sale, part paid less reasonable sum for rent must be returned where the vendors elect to take the property. Hays v. Jordan & Co., 85 Ga. 741 , 11 S.E. 833 , 9 L.R.A. 373 (1890).

Plaintiff cannot recover more than amount of debt standing as security for the converted property when plaintiff elects to take a money verdict. Durden v. Durden, 58 Ga. App. 46 , 197 S.E. 493 (1938); Rose City Foods, Inc. v. Bank of Thomas County, 207 Ga. 477 , 62 S.E.2d 145 (1950).

Plaintiff may elect to take highest proved value of property between the date of the conversion and the trial. Durden v. Durden, 58 Ga. App. 46 , 197 S.E. 493 (1938).

Amount of recovery is limited to value laid in petition where the plaintiff chooses as the form of recovery the highest proved value of the property between the time of conversion and the date of the trial. Sappington v. Rimes, 21 Ga. App. 810 , 95 S.E. 316 (1918).

Highest proved value of property means the highest value which the jury, from consideration of all the proof, finds that the property was worth during the period of time between the date of conversion and the trial, if during that period there was a change in its value. Durden v. Durden, 58 Ga. App. 46 , 197 S.E. 493 (1938).

Agreed purchase price as stated in check is prima facie evidence of actual value of item at the time of the sale; and, where it appears that the conversion was committed within ten days thereafter, and there is no evidence showing a different value at the date of the conversion, the agreed purchase price should be taken as the value of the property at the time of the conversion. Stapleton v. Dismukes, 43 Ga. App. 611 , 159 S.E. 768 (1931).

Property value at conversion time plus additional damages allowed. - Where the value of the property at the time of the conversion may be reasonably determined, and there is no evidence as to the value of the property after the conversion, its value at the time of the conversion may be allowed by the jury, together with interest thereon as additional damages. Beaver v. Magid, 56 Ga. App. 272 , 192 S.E. 497 (1937).

Allowance of additional damages prohibited where the plaintiff elected to take a verdict for the highest proved value at any time between the date of the conversion and the trial. Beaver v. Magid, 56 Ga. App. 272 , 192 S.E. 497 (1937).

Recovery of both highest proved value and hire prohibited. - In an action to recover personal property, the plaintiff is not entitled to recover both the highest proved value at any time between the conversion and the trial and also hire. Hayes v. O'Shield Buick Co., 94 Ga. App. 177 , 94 S.E.2d 44 (1956).

Interest "eo nomine" is not recoverable in trover action. Beaver v. Magid, 56 Ga. App. 272 , 192 S.E. 497 (1937).

Effect of defendant's failure to deliver property within specified time. - Where, by election of the plaintiff, the jury returned an alternative verdict for a specified amount of money, to be discharged by the delivery of property within 20 days, and the defendant failed to deliver it within the specified time, the verdict becomes absolute for money. Southern Express Co. v. Lynch, 65 Ga. 240 (1880).

Election for money verdict denied. - A vendor by conditional sale who brings an action of trover against a vendee, and receives from the executing officer the property by giving bond, and who thereafter disposes of the property so as to put it beyond the vendor's power to produce, is not entitled to elect to take a money verdict. Mallary Bros. & Co. v. Moon, 130 Ga. 591 , 61 S.E. 401 (1908).

Instructed jury's failure to return money verdict ground for new trial. - Where the plaintiffs elected to have a money verdict as to the personal property sought to be recovered, and the court instructed the jury to return a money verdict, the failure to do so is a ground for new trial. Reed v. Reed, 217 Ga. 303 , 122 S.E.2d 253 (1961).

Verdict for Damages Alone

Plaintiff entitled to elect makeup of damages. - Having a right to elect between a verdict for damages and a verdict for the property, the plaintiff thus has a further right to elect the way damages shall be made up. O'Neill Mfg. Co. v. Woodley, 118 Ga. 114 , 44 S.E. 980 (1903).

Recovery options where plaintiff elects to take money verdict. - Plaintiff may recover the value of the property at the date of the conversion, with interest from that date; or plaintiff may recover the value of the property at the date of the conversion with a reasonable hire from that date to the date of the trial, if the property is of a character that hire may be recovered. Douglas Motor Co. v. Watson, 68 Ga. App. 335 , 22 S.E.2d 766 (1942); Rose City Foods, Inc. v. Bank of Thomas County, 207 Ga. 477 , 62 S.E.2d 145 (1950).

Where a prevailing party elects to take a money verdict, that party may recover the value of the property at the date of the conversion, with interest from that date, or the party may recover the value of the property at the date of the conversion, with a reasonable hire from that date to the date of the trial, if the property is of a character that hire may be recovered. Before the appropriate amount of damages recoverable can be determined, however, the party must choose between interest or hire from the date of conversion as the measure of damages. Homac, Inc. v. Fort Wayne Mtg. Co., 577 F. Supp. 1065 (N.D. Ga. 1983).

Rationale for allowance of additional damages where plaintiff elects to take money verdict, the equivalent of interest, is predicated on the ground that the plaintiff, having been unlawfully deprived of property, is entitled to be fully compensated for the wrong inflicted. Beaver v. Magid, 56 Ga. App. 272 , 192 S.E. 497 (1937).

Measure of damages where plaintiff's property interest at time of conversion is less than that of absolute ownership will be the value of the plaintiff's interest therein, whatever it may be. Douglas Motor Co. v. Watson, 68 Ga. App. 335 , 22 S.E.2d 766 (1942).

Commensuration between property value and purchase price for property not required. - In trover the property alone may be recovered, but if an alternative money verdict for damages is elected, the measure of damages is the value of the property, which need not be commensurate with the amount which the defendant may have paid to a third person as to purchase price. Cook v. Pollard, 50 Ga. App. 752 , 179 S.E. 264 (1935).

Verdict for principal and interest in separate stated amounts illegal. - Verdict for principal and interest in two separate stated amounts, instead of a lump sum representing the two, is illegal insofar as the interest is concerned. Beaver v. Magid, 56 Ga. App. 272 , 192 S.E. 497 (1937); Stephens v. Wilson, 58 Ga. App. 24 , 197 S.E. 350 (1938).

Allowance of interest as additional damages improper absent evidence as to value after the date of conversion. Beaver v. Magid, 56 Ga. App. 272 , 192 S.E. 497 (1937).

Verdict for Property Alone and Its Hire

Plaintiff can elect to take money verdict in an action for personal property and its hire. Twiggs v. Chambers, 56 Ga. 279 (1876).

Plaintiff must make known an election before court instructs jury. Wilson-Weesner-Wilkinson Co. v. Collier, 62 Ga. App. 457 , 8 S.E.2d 171 (1940).

Plaintiff is entitled to receive hire during entire period between conversion and verdict, etc., including that period of time during which the property was in the hands of a sheriff. McLaurin v. Henry, 90 Ga. App. 864 , 84 S.E.2d 713 (1954).

In a trover action where the bank wrongfully repossessed the injured party's trailer, there was evidence to support the trial court's award of hire damages under O.C.G.A. § 44-12-151(3) , where the injured party's husband testified that, after the trailer was seized, they were required to lease a trailer and that a fair rental value of the trailer was $100 per week; the trailer was seized on August 17, 1999, and trial began on March 20, 2001. Gateway Bank & Trust v. Timms, 259 Ga. App. 299 , 577 S.E.2d 15 (2003).

Defendant cannot restrict plaintiff's right of recovery. - A defendant in trover cannot, by a tender of the property to the plaintiff, together with reasonable hire as provided in O.C.G.A. § 44-12-153 , restrict the plaintiff to the right to recover for the property alone and its hire, and thereby prevent the plaintiff from recovering a money verdict in the event it is established upon the trial that there has been a conversion. Hanner v. Trust Co., 49 Ga. App. 867 , 176 S.E. 800 (1934).

Estoppel to claim hire. - Party to a trover action who actually had the property in possession would be estopped to claim hire during such period. McLaurin v. Henry, 90 Ga. App. 864 , 84 S.E.2d 713 (1954).

RESEARCH REFERENCES

ALR. - Right to maintain a bill for accounting or discovery against one who has stolen or converted goods or received the same, 58 A.L.R. 184 .

Time for exercise of option under a judgment in replevin for return of property or payment of specified sum, 67 A.L.R. 1497 .

Judgment in replevin as bar to action by plaintiff for consequential damages for wrongful seizure or conversion of property, 69 A.L.R. 655 .

Damages for wrongful removal or destruction of fixtures, 69 A.L.R. 914 .

Waiver of tort and recovery in assumpsit for conversion as dependent on or affected by sale of the goods by the converter, 97 A.L.R. 250 .

Judgment in action for conversion or to recover possession of personal property, resulting from defalcation or misappropriation, as res judicata of subsequent action for conversion or to recover possession, 106 A.L.R. 1425 .

Right to satisfy judgment requiring return of property in defendant's possession by payment of damages, where return would subject defendant to loss, 159 A.L.R. 546 .

Alternative judgment in replevin as giving option to either party in regard to payment of damages or return of property, 170 A.L.R. 122 .

Conclusive election of remedies as predicated of commencement of action, or its prosecution short of judgment on the merits, 6 A.L.R.2d 10.

44-12-152. Determination of value of property.

For personalty unlawfully detained, the plaintiff may recover a sum in the amount of the highest value which he is able to prove existed between the time of the conversion and the trial.

(Orig. Code 1863, § 3010; Code 1868, § 3022; Code 1873, § 3077; Code 1882, § 3077; Civil Code 1895, § 3917; Civil Code 1910, § 4514; Code 1933, § 107-103.)

Law reviews. - For comment on Rowland v. Gardner, 79 Ga. App. 153 , 53 S.E.2d 198 (1949), see 12 Ga. B.J. 79 (1949).

JUDICIAL DECISIONS

Applicability of section. - O.C.G.A. § 44-12-152 applies when the plaintiff elects under O.C.G.A. § 44-12-150 to demand a verdict for damages alone, where the proof shows a conversion, and where the plaintiff was the absolute owner of the property at the date of conversion. Dunn v. Young, 22 Ga. App. 17 , 95 S.E. 374 (1918).

Evidence regarding the original purchase is relevant for the jury to consider in arriving at their final figure. Hudson Properties, Inc. v. Citizens & S. Nat'l Bank, 168 Ga. App. 331 , 308 S.E.2d 708 (1983).

Plaintiff may recover highest proven value between time of conversion and trial. Bedgood v. Karp's U-Drive-It Co., 80 Ga. App. 216 , 55 S.E.2d 654 (1949).

Plaintiff may recover full value of property at date of conversion. Rowland v. Gardner, 79 Ga. App. 153 , 53 S.E.2d 198 (1949). For comment, see 12 Ga. B.J. 79 (1949).

Recovery of both highest proved value and hire prohibited. - A plaintiff is not entitled to recover both the highest proved value at any time between the conversion and the trial and also hire. Hayes v. O'Shield Buick Co., 94 Ga. App. 177 , 94 S.E.2d 44 (1956).

Term "highest proved value" means the highest value which the jury, from a consideration of all the proof, may fix. Sammons v. Copeland, 85 Ga. App. 318 , 69 S.E.2d 617 (1952).

The term "highest proved value" does not mean the highest estimate given by any witness as to its value during that period. Elder v. Woodruff Hdwe. & Mfg. Co., 9 Ga. App. 484 , 71 S.E. 806 (1911).

"Time of the conversion" is the time when the defendant converted another's property to own personal use. Woodham v. Cash, 15 Ga. App. 674 , 84 S.E. 142 (1915).

It is competent to show quantity of plaintiff's interest. Zugar v. Glen Falls Indem. Co., 63 Ga. App. 660 , 11 S.E.2d 839 (1940).

Amount of damages depends upon extent of right of possession. Zugar v. Glen Falls Indem. Co., 63 Ga. App. 660 , 11 S.E.2d 839 (1940).

Agreed price of sale is prima facie evidence of value of converted property. Young v. Durham, 15 Ga. App. 678 , 84 S.E. 165 (1915).

Corpse not subject to valuation. - In an action regarding the alleged removal of eye tissue from a corpse without permission, because plaintiff had no pecuniary interest in her husband's corpse, the corneal tissue was not subject to valuation in the context of O.C.G.A. § 44-12-152 . Bauer v. North Fulton Med. Ctr., Inc., 241 Ga. App. 568 , 527 S.E.2d 240 (1999).

Recovery of money damages cannot exceed amount alleged as value of articles, without an amendment covering the excess. Sappington v. Rimes, 21 Ga. App. 810 , 95 S.E. 316 (1918); Morris v. Sheppard, 22 Ga. App. 564 , 96 S.E. 505 (1918).

Measure of damages where property returned to owner prior to trial. - In an action for conversion, a party who had elected to sue for damages was entitled to recover for the diminution in value of the property only for the time period between the alleged conversion and the property's return, where the property had been returned prior to trial. Campbell v. Bausch, 195 Ga. App. 791 , 395 S.E.2d 267 (1990).

Proper damages calculus was applied based on the highest value between a conversion of a bank's security interest by a client of a securities broker and the trial since the bank did not regain the bank's collateral, regardless of whether the broker retained the property until the commencement of trial. Amegy Bank Nat'l Ass'n v. Deutsche Bank Alex.Brown, F.3d (11th Cir. Aug. 10, 2015)(Unpublished).

Measure of damage is value of special interest where the plaintiff has no title, only a special interest in the property. Zugar v. Glen Falls Indem. Co., 63 Ga. App. 839 , 11 S.E.2d 839 (1940).

Value of personalty including stock shares were recoverable. - Trial court was authorized to award a wife cash and stock as proceeds after a cooperative converted to a publicly held company, as: (1) the wife was entitled to receive the value of the equity account for the years 1987 to 1993 as consideration for the relinquishment of the interest the wife held in the real estate; (2) such was consistent with the intent and spirit of the final decree; and (3) to rule otherwise would have left the wife with an illusory or meaningless asset. Cason v. Cason, 281 Ga. 296 , 637 S.E.2d 716 (2006).

Value to buyers when sellers resume operation of restaurants. - In an action by the buyer of a restaurant against the sellers, alleging trespass, conversion, and breach of contract when the sellers re-entered the premises three months after the sale, changed the locks, and began operating the restaurant as the sellers' own, there was some evidence supporting the jury's award of $360,675 damages to the buyer. Caldwell v. Church, 353 Ga. App. 141 , 836 S.E.2d 594 (2019).

If plaintiff's property interest is less than that of absolute ownership, the measure of damages is the value of plaintiff's interest therein. Horne v. Guiser Mfg. Co., 74 Ga. 790 (1885); Bradley v. Burkett, 82 Ga. 255 , 11 S.E. 492 (1889); Holmes v. Langston & Woodson, 110 Ga. 861 , 36 S.E. 251 (1900).

One with qualified title recovers full value. - One having a right of possession may sue a stranger or mere wrongdoer in trover, and recover the full value of the property, though one's right of possession rests on only a qualified title. Chapes, Ltd. v. Anderson, 825 F.2d 357 (11th Cir. 1987).

Where title to property is held as security for debt, the plaintiff is entitled to recover only the amount of the debt. Elder v. Woodruff Hdwe. & Mfg. Co., 9 Ga. App. 484 , 71 S.E. 806 (1911).

Measure of damages where defendant recoups for conversion of property pledged to secure debt, in the absence of a special contract, is the actual value of the property at the time of the conversion with legal interest from the date of the conversion. Bennett v. Tucker & Pennington, 32 Ga. App. 288 , 123 S.E. 165 (1924).

Accounting for collateral prerequisite to recovery in conditional sale. - A conditional vendor, who has taken a note for the purchase price of the property, is not entitled to a money verdict unless the vendor has accounted for the note. Smith v. Commercial Credit Co., 28 Ga. App. 403 , 111 S.E. 821 (1922); Williams v. C.C. Baggs Auto Co., 32 Ga. App. 253 , 122 S.E. 805 (1924).

Stipulation in bill of lading disallowed. - A carrier cannot invoke a stipulation in a bill of lading that in the event of loss, the measure of damages shall be the value of the property at the time and place of shipment. Merchants' & Miners' Transp. Co. v. Moore & Co., 124 Ga. 482 , 52 S.E. 802 (1905).

Interest erroneously awarded written off verdict. - Where the plaintiff is not entitled to interest as part of his damages, the judgment will be reversed unless the plaintiff writes it off from the verdict. Barnett & Co. v. Thompson, 37 Ga. 335 (1867).

Cited in Bank of Blakely v. Cobb, 5 Ga. App. 289 , 63 S.E. 24 (1908); Way v. Bailey, 18 Ga. App. 57 , 88 S.E. 799 (1916); Knight v. Northey, 21 Ga. App. 46 , 93 S.E. 535 (1917); Koplin v. Shartle Bros. Mach. Co., 150 Ga. 509 , 104 S.E. 217 (1920); Smith v. Commercial Credit Co., 28 Ga. App. 403 , 111 S.E. 821 (1922); Briscoe v. Pool, 50 Ga. App. 147 , 177 S.E. 346 (1934); Cook v. Pollard, 50 Ga. App. 752 , 179 S.E. 264 (1935); White v. Dalton, 55 Ga. App. 768 , 191 S.E. 386 (1937); Sapp v. Howe, 79 Ga. App. 1 , 52 S.E.2d 571 (1949); Taylor v. Gill Equip. Co., 87 Ga. App. 309 , 73 S.E.2d 755 (1952); Sudderth v. National Lead Co., 272 F.2d 259 (5th Cir. 1959); United States v. Farmers Seed & Feed Co., 181 F. Supp. 475 (M.D. Ga. 1959); Ricketts v. Liberty Mut. Ins. Co., 127 Ga. App. 483 , 194 S.E.2d 311 (1972); Miller v. Self, 137 Ga. App. 717 , 224 S.E.2d 823 (1976); Rent-A-Tool Co. v. Jackson, 142 Ga. App. 781 , 237 S.E.2d 14 (1977); Taylor v. Powertel, Inc., 250 Ga. App. 356 , 551 S.E.2d 765 (2001); In re Estate of Tapley, 312 Ga. App. 234 , 718 S.E.2d 92 (2011).

RESEARCH REFERENCES

Am. Jur. 2d. - 18 Am. Jur. 2d, Conversion, § 138.

C.J.S. - 89 C.J.S., Trover and Conversion, § 136.

ALR. - Deductions on account of labor or expenditures in fixing damages for conversion, 44 A.L.R. 1321 .

Measure of damages for carrier's conversion of goods, 56 A.L.R. 1171 .

Allowance as damages for conversion of commodities or chattels of fluctuating value, or increase in market value after the time of conversion, 87 A.L.R. 817 .

Rights of owner of stolen money as against one who won it in gambling transaction from thief, 44 A.L.R.2d 1242.

Measure of damages for conversion or loss of commercial paper, 85 A.L.R.2d 1349.

Measure of damages for conversion of corporate stock or certificate, 31 A.L.R.3d 1286.

Valuation of wearing apparel or household goods kept by owner for personal use, in action for loss or conversion of, or injury to, such property, 34 A.L.R.3d 816.

Elements and measure of damages recoverable from bailee for loss, destruction, or conversion of personal papers, photographs, or paintings, 9 A.L.R.4th 1245.

44-12-153. Tender of property and hire; effect on costs.

In actions for the recovery of personal property, if the defendant disclaims all title and tenders the property to the plaintiff when he files his answer, together with reasonable hire for the same since the conversion, the costs of the action shall be paid by the plaintiff unless he proves a previous demand of the defendant and a refusal to deliver.

(Orig. Code 1863, § 2989; Code 1868, § 3002; Code 1873, § 3057; Code 1882, § 3057; Civil Code 1895, § 3897; Civil Code 1910, § 4494; Code 1933, § 107-104.)

JUDICIAL DECISIONS

Defendant has right to tender property at first term. Zachos v. Rowland, 80 Ga. App. 31 , 55 S.E.2d 166 (1949).

If defendant makes valid tender, defendant is entitled to be discharged and not subjected to a judgment for any sum, either hire, value, or costs. Harris v. Barry Fin. Co., 76 Ga. App. 663 , 47 S.E.2d 201 (1948).

Plaintiff's recovery rights unrestricted by tender after first term. - A defendant in trover cannot, after the first term, by a tender of the property to the plaintiff, together with reasonable hire, restrict the plaintiff to the right to recover for the property alone and its hire, and thereby prevent the plaintiff from recovering a money verdict in the event it is established upon trial that there has been a conversion. Hanner v. Trust Co., 49 Ga. App. 867 , 176 S.E. 800 (1934).

The plaintiff in a trover case, where the defendant does not at the first term tender the property to the plaintiff, has at his option the right to demand a verdict for the property alone, and its hire, if any, or for damages alone. White v. Dalton, 55 Ga. App. 768 , 191 S.E. 386 (1937).

An amendment after the first term, making a tender of the property, may be permitted, but it will not affect the payment of costs. Woodruff Mach. Mfg. Co. v. Griffin, 17 Ga. App. 529 , 87 S.E. 808 (1916).

Elements of damages. - Damages may consist of the highest proved value of the property between the date of the conversion and the date of the trial without hire or interest, or the value of the property at the date of the conversion with interest thereon from that date to the date of the trial. White v. Dalton, 55 Ga. App. 768 , 191 S.E. 386 (1937).

Tender of hire unnecessary where unrequested. - In an action to recover a truck, it was not necessary for the defendant to tender reasonable hire for the truck since the date of the conversion in order to comply with requirements of O.C.G.A. § 44-12-153 , since the plaintiff asked for no hire. Harris v. Barry Fin. Co., 76 Ga. App. 663 , 47 S.E.2d 201 (1948).

Tender of less than all of property is insufficient and will not prevent the plaintiff from proceeding with the action and electing a money verdict. Hogan v. Maxey, 121 Ga. App. 490 , 174 S.E.2d 208 (1970).

The requirements of O.C.G.A. § 44-12-153 cannot be taken as having been met when the alleged tender of the automobile consisted of an offer to return it stripped of various parts of the machinery with which it was equipped when received by the defendant, and likewise stripped of the various portions of the equipment which had been substituted for the original equipment by the defendant mechanic. Chalker & Russell v. Savannah Motor Car Co., 37 Ga. App. 532 , 140 S.E. 916 (1927).

Tender of property during closing argument too late. - Where, during the argument of the case by the plaintiff's counsel in conclusion, the defendant's attorney tendered back to plaintiff the property involved for the purpose of mitigating the damages, the tender was too late. Dugas Corp. v. Georgia Power Co., 43 Ga. App. 536 , 159 S.E. 592 (1931).

Proof of demand and refusal to deliver unnecessary where defendant admitted possession in defendant's answer and denied plaintiff's right of possession, contending unconditionally that such right was solely in defendant. Smith v. C.I.T. Corp., 186 Ga. 199 , 197 S.E. 322 (1938).

Money verdict denied where answer meets O.C.G.A. § 44-12-153 's requirements. - Where an answer meets the requirements of O.C.G.A. § 44-12-153 , the plaintiff cannot have a money verdict for the value of the property. Trammell v. Mallory Bros. & Co., 115 Ga. 748 , 42 S.E. 62 (1902).

Cited in Holmes v. Langston & Woodson, 110 Ga. 861 , 36 S.E. 251 (1900); Trammel v. Mallory Bros. & Co., 115 Ga. 748 , 42 S.E. 62 (1902); Walton v. Henderson, 4 Ga. App. 173 , 61 S.E. 28 (1908); Pearson v. Jones, 18 Ga. App. 448 , 89 S.E. 536 (1916); Securities Trust Co. v. Marshall, 30 Ga. App. 379 , 118 S.E. 478 (1923); Powers v. Franklin, 32 Ga. App. 641 , 124 S.E. 363 (1924); Downs Motor Co. v. Colbert, 34 Ga. App. 542 , 130 S.E. 592 (1925); Hoffman v. Lynch, 23 F.2d 518 (N.D. Ga. 1928); Stephens v. Southern Disct. Co., 105 Ga. App. 667 , 125 S.E.2d 235 (1962); Poss v. Hughes, 120 Ga. App. 293 , 170 S.E.2d 435 (1969).

RESEARCH REFERENCES

Am. Jur. 2d. - 18 Am. Jur. 2d, Conversion, § 93.

C.J.S. - 89 C.J.S., Trover and Conversion, § 186.

ALR. - Mere detention of or failure to deliver chattels after demand as conversion, 129 A.L.R. 638 .

44-12-154. Setoff and recoupment in action involving purchase money contract; judgment; lien of defendant.

When personal property is sold and the vendor retains the title until all the purchase money is paid, if the vendor or his assigns shall bring an action to recover the possession of such personal property, the defendant in the action may plead as a setoff any demand or claim that he may have against the plaintiff or may recoup any damages that he has sustained by reason of any failure of consideration, any defects in the personal property, or any breach of contract by the plaintiff whereby the defendant has in any way been injured or damaged. If the plaintiff elects to take a money judgment for the value of the property, the amount of the setoff or damages allowed the defendant by the jury shall be deducted from the value of the property and the amount allowed for the hire or use thereof and the plaintiff shall only recover the excess; but, if the amount of the setoff or damages allowed the defendant shall exceed the value of the property and the hire thereof, the defendant shall have judgment against the plaintiff for such excess. If the plaintiff elects to take a judgment for the property, the amount allowed the defendant as the setoff or damages shall be a lien on such property superior to all other liens except liens for taxes.

(Ga. L. 1903, p. 84, § 1; Civil Code 1910, § 4484; Code 1933, § 107-102.)

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Purpose of section. - O.C.G.A. § 44-12-154 seeks to establish a means of adjusting the equities between a purchaser and seller when goods are repossessed. Sizemore v. Beeler, 94 Ga. App. 414 , 94 S.E.2d 773 (1956).

Scope of section. - O.C.G.A. § 44-12-154 is limited to suits brought to recover personal property where the vendor retains title. Powers v. Wren, 198 Ga. 316 , 31 S.E.2d 713 (1944); Hayes v. O'Shield Buick Co., 94 Ga. App. 177 , 94 S.E.2d 44 (1956); Wilkes v. Sheppard, 104 Ga. App. 710 , 122 S.E.2d 534 (1961).

O.C.G.A. § 44-12-154 is sufficiently broad to include not only the immediate assignee of the vendor, but also the assignee of such assignee. Jordan v. Investment Corp., 39 Ga. App. 148 , 146 S.E. 498 (1929).

Conditional sale is created where a written agreement to purchase a herd of cattle is selected by the vendee, providing for installment payments and for the retention of the title in the vendor until full payment of the purchase price, accompanied by delivery of the cattle selected and part payment of the purchase money. Sizemore v. Beeler, 94 Ga. App. 414 , 94 S.E.2d 773 (1956).

Trover action maintainable upon default. - Where property is conveyed by a conditional sales contract the vendor retains title thereto until the purchase price is paid and, in case of default in the payment of the purchase price, the vendor, or the holder of the conditional sales contract, may maintain trover to obtain possession of the property from one in possession of the same. Stanfield v. Crawley, 74 Ga. App. 79 , 39 S.E.2d 88 (1946).

Trover action based upon retention-of-title contract of sale amounts to rescission of the contract insofar as the plaintiff is concerned, and the defendant or purchaser may elect to treat the proceeding as a rescission and recover what plaintiff has paid on the purchase price less hire or plaintiff may elect to stand on the contract. Columbia Loan Co. v. Parks, 213 Ga. 723 , 101 S.E.2d 720 (1958).

Rescission embraces accounting between parties. - A trover action based on rescission of a conditional sale contract necessarily embraces an accounting between the parties and is res judicata as to the equities between them. Sizemore v. Beeler, 94 Ga. App. 414 , 94 S.E.2d 773 (1956); J.G.T., Inc. v. Brunswick Corp., 119 Ga. App. 719 , 168 S.E.2d 847 (1969).

Issue in trover action is ordinarily one of title. J.G.T., Inc. v. Brunswick Corp., 119 Ga. App. 719 , 168 S.E.2d 847 (1969).

Cited in Rogers & Thornton v. Otto Gas Engine Works, 7 Ga. App. 587 , 67 S.E. 700 (1910); Spiers v. Hubbard, 12 Ga. App. 676 , 78 S.E. 136 (1913); City of Jeffersonville v. Cotton States Belting & Supply Co., 30 Ga. App. 470 , 118 S.E. 442 (1923); Jordan v. Investment Corp., 39 Ga. App. 144 , 146 S.E. 498 (1929); Cook v. Pollard, 50 Ga. App. 752 , 179 S.E. 264 (1935); Bray v. C.I.T. Corp., 51 Ga. App. 196 , 179 S.E. 925 (1935); Hall v. Southern Sales Co., 81 Ga. App. 392 , 58 S.E.2d 925 (1950); Mercer v. Shiver, 81 Ga. App. 815 , 60 S.E.2d 263 (1950); Parks v. Columbia Loan Co., 98 Ga. App. 713 , 106 S.E.2d 442 (1958); Hudgins & Co. v. Chesterfield Laundry, Inc., 109 Ga. App. 282 , 135 S.E.2d 906 (1964); Martin v. Phelps, 115 Ga. App. 552 , 155 S.E.2d 447 (1967); Hanover Ins. Co. v. Nelson Conveyor & Mach. Co., 159 Ga. App. 13 , 282 S.E.2d 670 (1981).

Setoff or Recoupment
1. In General

Procedure for pleading setoff is not limited to conditional vendees. J.G.T., Inc. v. Brunswick Corp., 119 Ga. App. 719 , 168 S.E.2d 847 (1969).

Condition of property relevant to setoff issue. - Testimony that cattle when repossessed were not as fat or in as good a condition as when they were sold to the defendants, is relevant on the issue made by the defendant in defendant's plea of setoff, as the plaintiff is entitled to credit for any extraordinary depreciation in the value of the herd. Sizemore v. Beeler, 94 Ga. App. 414 , 94 S.E.2d 773 (1956).

Amount of damages allowed on sustaining plea of recoupment may be in an amount greater than the defendant has paid to plaintiff under the contract although less than the combined sums paid by defendant to plaintiff and plaintiff's assignor under the contract. Columbia Loan Co. v. Parks, 213 Ga. 723 , 101 S.E.2d 720 (1958) (case decided prior to adoption of U.C.C.)

Measure of damages in retention-title contract. - In a suit in trover by the vendor to recover of the purchaser personalty sold to which the vendor has retained title, the measure of damages is the balance due on the contract, with interest, provided it does not exceed the value of the property at the time of the conversion, with interest or hire, or the highest proved value between the conversion and the trial. Dasher v. International Harvester Co. of Am., 42 Ga. App. 130 , 155 S.E. 211 (1930).

Insufficient plea of payment. - A plea of payment which fails to allege with reasonable certainty when, how, and to whom the payment was made is insufficient. Williford v. Phillips, 49 Ga. App. 223 , 174 S.E. 641 (1934).

Agreed purchase money expressed in contract is prima facie evidence of value of property. Dasher v. International Harvester Co. of Am., 42 Ga. App. 130 , 155 S.E. 211 (1930).

Amount of deductions for vendee's use of property is within sound discretion of triers of fact. Sizemore v. Beeler, 94 Ga. App. 414 , 94 S.E.2d 773 (1956).

Instruction proper absent plea of setoff or recoupment. - In trover action for value of automobile a charge to the effect that plaintiff might recover the highest value which plaintiff proves between the time of conversion and the trial is not erroneous as withdrawing from the consideration of the jury repairs made by a mechanic where no special plea of setoff or recoupment was filed by defendant. Meders v. Wirchball, 83 Ga. App. 408 , 63 S.E.2d 674 (1951).

Judgment authorizing recovery of property is bar to subsequent action of an accounting for payments made in excess of the rental value of the property by a vendee. Cowart v. Brigman Motors Co., 32 Ga. App. 123 , 122 S.E. 645 (1924).

2. Rights of Vendor

Vendor entitled to deduct property's rental value. - The vendor is entitled to deduct from installment payments the reasonable rental value while the property is in the hands of the vendee under the sale contract. Sizemore v. Beeler, 94 Ga. App. 414 , 94 S.E.2d 773 (1956).

Plaintiff entitled to judgment for unpaid balance with interest. - Where the defendant merely pleads that defendant has made certain payments, the plaintiff is entitled to a judgment for the unpaid balance of the principal debt with interest thereon. Smith v. Commercial Credit Co., 28 Ga. App. 403 , 111 S.E. 821 (1922).

Where the value of the property, as expressed in a contract, is uncontradicted by the evidence as to the value, the plaintiff is entitled to recover in an amount representing the balance due on the contract with interest. Dasher v. International Harvester Co. of Am., 42 Ga. App. 130 , 155 S.E. 211 (1930).

3. Rights of Vendee

Vendee entitled to accounting for return of purchase money paid by him. - Where the vendor in a conditional sale contract upon default of the purchaser brings trover and either elects or is by operation of law forced into the position of electing to take a judgment for the property itself, the vendee is entitled under proper pleading to an accounting for the purchase money paid by the vendee, less amounts covering the reasonable value of the use of the property while in the vendee's possession and any depreciation over and above ordinary wear and tear. Sizemore v. Beeler, 94 Ga. App. 414 , 94 S.E.2d 773 (1956).

Vendee must account for depreciation and the value of the property to vendee while it was in vendee's possession. Sizemore v. Beeler, 94 Ga. App. 414 , 94 S.E.2d 773 (1956).

Burden on defendant to file equitable plea where the defendant seeks to recover payments made toward the purchase price. Sizemore v. Beeler, 94 Ga. App. 414 , 94 S.E.2d 773 (1956).

Equity, once the defendant files a proper plea, will attempt to place the vendor and vendee in status quo by crediting the vendor with the rental value of the property and any damage sustained while in the vendee's hands, and crediting the vendee with payments made toward the purchase price. Sizemore v. Beeler, 94 Ga. App. 414 , 94 S.E.2d 773 (1956).

The defendants, in response to a trover action for the recovery of a herd of cattle purchased by defendants and in which title was retained by the vendor, has a right to plead and prove that by reason of a partial failure of consideration due to the fact that certain of the cows were diseased and had to be destroyed, and that by reason of having made part payment on the purchase price stated in the contract, they had paid the full value of the property and were entitled to retain it. Sizemore v. Beeler, 94 Ga. App. 414 , 94 S.E.2d 773 (1956).

Where the assignee of a purchase-money retention title contract and notes elects to rescind the contract and bring trover against the vendee upon the latter's failure to make the instalment payments, the defendant may plead and prove a failure of consideration as to the property purchased, and a partial failure of consideration will constitute a defense pro tanto to the action. Columbia Loan Co. v. Parks, 97 Ga. App. 76 , 102 S.E.2d 46 (1958).

RESEARCH REFERENCES

Am. Jur. 2d. - 18 Am. Jur. 2d, Conversion, § 89.

C.J.S. - 89 C.J.S., Trover and Conversion, §§ 180, 189.

ALR. - Indebtedness of plaintiff to defendant or latter's claim of indebtedness as defense or mitigation of damages in civil action for conversion or replevin, 100 A.L.R. 1376 .

Right of conditional buyer to maintain action for conversion and damages recoverable as affected by defendant's recognition conditional seller's title or rights, 116 A.L.R. 904 .

44-12-155. Alternative verdict; effect as first lien pending payment of judgment.

An alternative verdict in an action of trover vests the title to the property in the plaintiff to the extent that until the judgment is paid by the defendant such judgment shall constitute the first lien on the property to the exclusion of all other claims whatsoever.

(Laws 1830, Cobb's 1851 Digest, p. 500; Code 1863, § 3012; Code 1868, § 3024; Code 1873, § 3079; Code 1882, § 3079; Civil Code 1895, § 3920; Civil Code 1910, § 4517; Code 1933, § 107-106.)

JUDICIAL DECISIONS

Election of money judgment creates lien on property. - Where a money judgment is elected, this judgment becomes a special lien upon the property sued for, and a general lien upon all other property of the defendant. McWilliams v. Hemingway, 80 Ga. App. 843 , 57 S.E.2d 623 (1950).

Cited in Hudson v. Goff, 77 Ga. 281 , 3 S.E. 152 (1886); Frick & Co. v. Davis, 80 Ga. 482 , 5 S.E. 498 (1888); Bradley v. Burkett, 82 Ga. 255 , 11 S.E. 492 (1889); Whitehead v. Southern Disct. Co., 109 Ga. App. 126 , 135 S.E.2d 496 (1964).

RESEARCH REFERENCES

ALR. - Judgment in replevin as implying a direction for return of property, 144 A.L.R. 1149 .

44-12-156. Effect of judgment for damages in trover; priority.

When a verdict for damages is rendered in favor of a plaintiff in trover and a judgment is entered thereon, the verdict and judgment shall not have the effect of changing the property which is the subject matter of the action or of vesting the same in the defendant in the action until after the damages and costs recovered by the plaintiff in the action are paid off and discharged. However, the verdict and judgment shall subject the property to sale under and by virtue of an execution issuing upon the judgment in the action of trover and shall make the property liable to the payment of the damages and costs recovered in the action in preference to any other judgment, order, or decree against the defendant in such action.

(Laws 1830, Cobb's 1851 Digest, p. 499; Code 1863, § 3504; Code 1868, § 3527; Code 1873, § 3585; Code 1882, § 3585; Civil Code 1895, § 5358; Civil Code 1910, § 5953; Code 1933, § 110-514.)

JUDICIAL DECISIONS

Cited in McLin v. Williams, 28 Ga. 482 (1859); Frick & Co. v. Davis, 80 Ga. 482 , 5 S.E. 498 (1888); Stephens v. Southern Disct. Co., 105 Ga. App. 667 , 125 S.E.2d 235 (1962); Whitehead v. Southern Disct. Co., 109 Ga. App. 126 , 135 S.E.2d 496 (1964).

44-12-157. Effect of destruction of or injury to property on defendant's liability.

Pending a trover action, the death or destruction of or material injury to the property in dispute shall be no defense to a mere wrongdoer. If the defendant is a bona fide claimant and the injury arises from an act of God and is in no way the result of the defendant's conduct, the jury may take the death, destruction, or material injury of the property into consideration; but in no case shall such an event cast the costs upon the plaintiff.

(Orig. Code 1863, § 3011; Code 1868, § 3023; Code 1882, § 3078; Civil Code 1895, § 3919; Civil Code 1910, § 4516; Code 1933, § 107-107.)

JUDICIAL DECISIONS

Applicability of O.C.G.A. § 44-12-157 . - O.C.G.A. § 44-12-157 applies where one takes possession of livestock under a conditional bill of sale. Moon v. Wright, 12 Ga. App. 659 , 78 S.E. 141 (1913).

Cited in Burts v. Duncan, 36 Ga. 575 (1867); Smith v. Rosser, 37 Ga. 353 (1867); Carr v. Houston Guano & Whse. Co., 105 Ga. 268 , 31 S.E. 178 (1898).

RESEARCH REFERENCES

Am. Jur. 2d. - 18 Am. Jur. 2d, Conversion, § 55.

C.J.S. - 89 C.J.S., Trover and Conversion, § 83.

44-12-158. Fees and costs when $100.00 or less is involved.

In an action of trover or bail trover where the principal amount is $100.00 or less or where the value of the property sought to be recovered is $100.00 or less, the costs in such an action of trover or bail trover in the trial court shall be $5.00 which shall be equally divided to cover the services of the clerk of the court and the sheriff; provided, however, that the sheriff may also collect the additional amount of costs as provided by law for serving subpoenas upon witnesses; and provided, further, that clerks of the superior courts shall be entitled to receive the same fees as in other civil cases for performing the duties required of them in cases of trover or bail trover regardless of the amount involved in such cases of trover or bail trover.

(Ga. L. 1924, p. 85, § 1; Code 1933, § 107-207; Ga. L. 1972, p. 664, § 3.)

PART 2 B AIL IN TROVER PROCEEDINGS

JUDICIAL DECISIONS

Purpose of bail trover is to recover specific property, or for its conversion by the defendant. Harper v. Jeffers, 139 Ga. 756 , 78 S.E. 172 (1913).

Bail process is permitted in order that security may be had for the forthcoming of the property, or, in default thereof, that the specific property may be seized. Harper v. Jeffers, 139 Ga. 756 , 78 S.E. 172 (1913).

Applicability of O.C.G.A. § 44-12-158 . - Action of trover is not applicable to recovering a sum of money which may be due and unpaid. Harper v. Jeffers, 139 Ga. 756 , 78 S.E. 172 (1913).

Recovery of property sold where title retained as security. - One of the legal and legitimate purposes of a bail process in trover is to recover the property or its value, or, where the property has been sold by the plaintiff and title retained for security of the debt, recover the balance due on the debt, or where the property is not forthcoming, to arrest the defendant and incarcerate the defendant in jail. Powell v. E. Tris Napier Co., 50 Ga. App. 560 , 178 S.E. 761 (1935).

Bail trover as to automobile sold under conditional sales contract. - When a plaintiff brings a bail trover proceeding against a defendant and takes possession of an automobile sold to the defendant under the conditional sale contract, it rescinds the contract of sale between its transferor and the defendant, and the defendant is entitled to have restored to the amount paid on the purchase price of the automobile, less its hire for the time defendant had the use and possession thereof and less any damage to the same or depreciation thereof in value. GMAC v. Coggins, 49 Ga. App. 23 , 174 S.E. 260 (1934).

Malicious abuse of bail process in trover. - It is not a malicious abuse of bail process in trover that it was instituted and sued out for a purpose for which it was not lawfully and legitimately intended, where it was not put to such unlawful and unintended use. Powell v. E. Tris Napier Co., 50 Ga. App. 560 , 178 S.E. 761 (1935).

44-12-170. Sale of perishable or other property in absence of replevy; amount of money verdict for plaintiff.

Whenever any officer has taken possession of any property under process in any case of trover and the property remains in the hands of the officer because neither the plaintiff nor the defendant replevies the property, if the property is of a perishable nature or liable to deterioration from keeping or if there is expense involved in keeping the property, the property may be sold under Code Section 9-13-163; provided, however, if the property is sold, the plaintiff, in case of recovery, shall be entitled only to a money verdict for the amount of the proceeds of such sale together with any hire or interest from the date of conversion to the date of seizure found by the jury.

(Ga. L. 1887, p. 59, § 1; Civil Code 1895, § 4607; Civil Code 1910, § 5153; Code 1933, § 107-204.)

JUDICIAL DECISIONS

Applicability of O.C.G.A. § 44-12-170 . - O.C.G.A. § 44-12-170 applies only where the property is not replevied. Phillips v. Taber, 83 Ga. 565 , 10 S.E. 270 (1889).

Proceeds of sale stand in lien of property itself. Glissen v. Heggie Bros., 105 Ga. 30 , 31 S.E. 118 (1898).

Cited in Our Bank v. Corry, 145 Ga. 385 , 89 S.E. 365 (1916); Marshall v. Armour Fertilizer Works, 24 Ga. App. 402 , 100 S.E. 766 (1919); Smith v. Commercial Credit Co., 28 Ga. App. 403 , 11 S.E. 821 (1922); Harrison v. Central Ga. Automotive Co., 31 Ga. App. 603 , 121 S.E. 689 (1924); Branch v. Fisher, Lowrey & Fisher, 32 Ga. App. 126 , 122 S.E. 720 (1924); Standard Motors Fin. Co. v. O'Neal, 35 Ga. App. 727 , 134 S.E. 843 (1926); Davison-Paxon Co. v. Walker, 174 Ga. 532 , 163 S.E. 212 (1932); C.I.T. Corp. v. Carter, 61 Ga. App. 479 , 6 S.E.2d 409 (1939); Jernigan v. Economy Exterminating Co., 327 F. Supp. 24 (N.D. Ga. 1971).

RESEARCH REFERENCES

C.J.S. - 89 C.J.S., Trover and Conversion, § 222.

44-12-171. Recovery by defendant in trover action when plaintiff had replevied property.

When the plaintiff in a trover action has replevied the property and on the trial of the case fails to recover or dismisses his petition, the defendant may recover the property and its hire or the sworn value placed upon the property in the petition instead of suing on the replevy bond.

(Code 1933, § 107-209.)

History of section. - This section is derived from the decision in Marshall v. Livingston, 77 Ga. 21 (1886).

JUDICIAL DECISIONS

The law entertains an impartial reciprocity of protection as to the rights of the plaintiff and defendant. McLaurin v. Henry, 90 Ga. App. 864 , 84 S.E.2d 713 (1954).

Under the doctrine of reciprocity of protection, a recognizance given by either party should not be deemed a substitute for the property, and the giving or not giving of a bail bond should not affect the rights of the parties as to other features of the case. McLaurin v. Henry, 90 Ga. App. 864 , 84 S.E.2d 713 (1954).

Failure of plaintiff to recover means failure to recover on the merits of plaintiff's cause. Futch v. Automobile Fin., Inc., 89 Ga. App. 634 , 80 S.E.2d 697 (1954).

Either party prevailing in bail trover proceedings has the same right of election as to whether the party will recover damages, the value of the property, or the property and its hire. McLaurin v. Henry, 90 Ga. App. 864 , 84 S.E.2d 713 (1954).

Under O.C.G.A. § 44-12-171 , when the plaintiff has replevied the property and on the trial of the case fails to recover or dismisses the petition, the defendant has the same remedy, that is, of recovering the property and its hire or the sworn value thereof according to the petition. McLaurin v. Henry, 90 Ga. App. 864 , 84 S.E.2d 713 (1954).

If a defendant prevails and elects to take the property and its hire, defendant is entitled to hire during the time the property is in the sheriff's possession where it is levied upon under bail process and not replevied by either party. McLaurin v. Henry, 90 Ga. App. 864 , 84 S.E.2d 713 (1954).

If plaintiff fails in proceeding, all rights acquired by virtue of proceeding must fall with it. Stewart v. Hasty, 77 Ga. App. 524 , 48 S.E.2d 757 (1948).

Effect of dismissal of petition. - Although a dismissal may not preclude the plaintiff from gaining possession by another or from establishing a right to the property in some future proceeding, the necessary result is that the plaintiff is not entitled to hold the property under color of a process which no longer subsists. O.C.G.A. § 44-12-171 places the property back into the defendant's hands or requires the plaintiff to pay over its value. Stewart v. Hasty, 77 Ga. App. 524 , 48 S.E.2d 757 (1948).

Dismissal obtained by fraud or mutual mistake of law. - Although the defendant in an instance of voluntary dismissal by the plaintiff is ordinarily entitled to a restitution judgment ipso facto, where the dismissal is obtained by fraud, or is due to a mutual mistake of law upon the part of the counsels for both parties as to its effect, the only effect of the dismissal would be a mere failure by the plaintiff to recover. Stewart v. Hasty, 77 Ga. App. 524 , 48 S.E.2d 757 (1948).

Reinstatement of action. - If, as a result of fraud or a mutual mistake of law, the plaintiff makes a motion during the same term as the original action to reinstate the action for the purpose of having it tried upon its merits, the action will be reinstated. Stewart v. Hasty, 77 Ga. App. 524 , 48 S.E.2d 757 (1948).

Court lacks authority to reinstate dismissed action. - In the absence of a showing of fraud or of a mutual mistake of law, when a plaintiff voluntarily dismisses a petition, whether for good or bad reason, the court has no authority or discretion, over objection by defendant, to reinstate the action. Stewart v. Hasty, 77 Ga. App. 524 , 48 S.E.2d 757 (1948).

Judgment of dismissal is judgment for restoration of property. - When the plaintiff brings an action of bail trover and neither party replevies the property which remains in custodia legis, and the plaintiff dismisses the action, a judgment of dismissal is, in effect, a judgment for the restoration of the property. Household Fin. Corp. v. Pugmire Lincoln-Mercury, Inc., 123 Ga. App. 428 , 181 S.E.2d 292 (1971).

Petition, is fatally defective if it fails to allege that the plaintiff in the trover action had replevied the property, or that the plaintiff had dismissed the action or failed to recover on the merits. Futch v. Automobile Fin., Inc., 89 Ga. App. 634 , 80 S.E.2d 697 (1954).

Even if the defendant elects to take a money verdict for the value of the property, defendant will not be entitled to it where, in defendant's sworn petition, the plaintiff did not allege the separate value of the property recovered by the defendant and the jury made no finding as to its value. Betts v. Mathews, 72 Ga. App. 678 , 34 S.E.2d 729 (1945).

Presumption created when defendant fails to take verdict for property value. - Where defendant did not elect to take a verdict for the sworn value placed upon the property in the petition, and the verdict was for the defendant for some of the property, the presumption is that defendant so elected to take the property, and if defendant did not so elect before judgment, defendant waives the right by not speaking and having the verdict corrected before the jury dispersed. Betts v. Mathews, 72 Ga. App. 678 , 34 S.E.2d 729 (1945).

Cited in Briscoe v. Pool, 50 Ga. App. 147 , 177 S.E. 346 (1934); Sizemore v. Beeler, 94 Ga. App. 414 , 94 S.E.2d 773 (1956); Vann v. American Credit Co., 115 Ga. App. 559 , 155 S.E.2d 459 (1967).

RESEARCH REFERENCES

ALR. - Previous demand as a condition of replevin or trover against innocent purchaser of stolen chattels, 51 A.L.R. 1465 .

Judgment in replevin as implying a direction for return of property, 65 A.L.R. 1302 ; 144 A.L.R. 1149 .

Right of one joint owner of personal property to maintain against third person replevin, detinue, trover, or other action recover possession or damages, 110 A.L.R. 353 .

Setoff, counterclaim, and recoupment in replevin or other action for possession of personal property, 151 A.L.R. 519 .

Voluntary dismissal of replevin action by plaintiff as affecting defendant's right to judgment for the return or value of the property, 24 A.L.R.3d 768.

ARTICLE 5 DISPOSITION OF UNCLAIMED PROPERTY

Cross references. - Recovery of artifacts, treasure, etc., § 12-3-52 , § 12-3-80 et seq.

Disposition of abandoned motor vehicles, Ch. 11, T. 40.

Editor's notes. - Ga. L. 1990, p. 1506, § 1, effective July 1, 1990, repealed the Code sections formerly codified in this article and enacted the current article. The former article consisted of Code Sections 44-12-190 through 44-12-222 and was based on Ga. L. 1972, p. 762, §§ 1 through 31 and § 33; Ga. L. 1976, p. 203, § 1; Ga. L. 1976, p. 556, § 1; Ga. L. 1981, p. 977, §§ 1 and 3; Ga. L. 1981, p. 1330, § 1; Ga. L. 1982, p. 3, § 44; Ga. L. 1982, p. 1787, §§ 1, 2; Ga. L. 1984, p. 517, § 1; Ga. L. 1984, p. 575, §§ 1 through 5; Ga. L. 1985, p. 149, § 44; Ga. L. 1985, p. 283, § 1; Ga. L. 1985, p. 912, § 1; Ga. L. 1985, p. 1097, §§ 1, 2; Ga. L. 1986, p. 10, § 44; Ga. L. 1987, p. 541, § 1; Ga. L. 1989, p. 14, § 44; Ga. L. 1989, p. 946, § 111, and Ga. L. 1989, p. 1115, §§ 1 through 3.

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - Some of the decisions cited below were decided under former law.

Construction with rules of Federal Deposit Insurance Corporation. - This article is superseded insofar as it requires the payment of interest in violation of Federal Deposit Insurance Corporation Rules and the resultant disparity of treatment does not violate equal protection requirements. 1974 Op. Att'y Gen. No. 74-108.

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property, §§ 1 et seq., 6. 27 Am. Jur. 2d, Escheat, § 1,2,3,4 et seq.

C.J.S. - 1 C.J.S., Abandonment, § 1 et seq. 30A C.J.S., Escheat, § 1 et seq.

ALR. - Constitutionality, construction, and application of statutes relating to disposition of old bank deposits, 151 A.L.R. 836 .

Validity, construction, and application of lost or abandoned goods statutes, 23 A.L.R.4th 1025.

44-12-190. Short title.

This article shall be known and may be cited as the "Disposition of Unclaimed Property Act."

(Code 1981, § 44-12-190 , enacted by Ga. L. 1990, p. 1506, § 1.)

Law reviews. - For annual survey article discussing commercial and banking law, see 49 Mercer L. Rev. 95 (1997). For note analyzing Georgia's disposition of Unclaimed Property Act, see 24 Mercer L. Rev. 505 (1973).

RESEARCH REFERENCES

1 Am. Jur. Pleading and Practice Forms, Abandoned, Lost, and Unclaimed Property, §§ 2, 18.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 30.

ALR. - Rights in respect of lost, mislaid, or abandoned property as between finder and person upon whose property it is found, 170 A.L.R. 706 .

Validity, construction, and application of state statutes implementing the uniform unclaimed property act or its predecessor - modern status, 29 A.L.R.6th 507.

44-12-191. Construction of article.

This article shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.

(Code 1981, § 44-12-191 , enacted by Ga. L. 1990, p. 1506, § 1.)

44-12-192. Definitions.

As used in this article, the term:

  1. "Apparent owner" means the person whose name appears on the records of the holder as the person entitled to property held, issued, or owing by the holder.
  2. "Banking organization" means a bank, trust company, savings bank, industrial bank, land bank, safe-deposit company, private banker, or any other organization defined by federal law or the law of another state as a bank or banking organization.
  3. "Business association" means any corporation, other than a public corporation, a joint-stock company, an investment company, a business trust, or a partnership or association for business purposes of two or more individuals whether or not for profit, including a banking organization, financial organization, insurance company, or utility.
  4. "Commissioner" means the commissioner of revenue.
  5. "Domicile" means the state of incorporation, in the case of a corporation incorporated under the laws of a state, and the state of the principal place of business, in the case of a person not incorporated under the laws of a state.
  6. "Due diligence" means, but shall not be limited to, the mailing of a letter by first-class mail to the last known address of the owner as indicated on the records of the holder.
  7. "Financial organization" means any savings and loan association, cooperative bank, building and loan association, or credit union.
  8. "Holder" means a person, wherever organized or domiciled, who is:
    1. In possession of property belonging to another;
    2. A trustee in case of a trust; or
    3. Indebted to another on an obligation.
  9. "Insurance company" means an association, corporation, or fraternal or mutual benefit organization, whether or not for profit, which is engaged in providing insurance coverage of any type.
  10. "Intangible property" means and includes:
    1. Moneys, checks, drafts, deposits, interest, dividends, and income;
    2. Credit balances, customer overpayments, gift certificates, security deposits, refunds, credit memos, unpaid wages, and unidentified remittances;
    3. Stocks and other intangible ownership interests in business associations;
    4. Moneys deposited to redeem stocks, bonds, coupons, and other securities or to make distributions;
    5. Amounts due and payable under the terms of insurance policies; and
    6. Amounts distributable from a trust or custodial fund established under a plan to provide health, welfare, pension, vacation, severance, retirement, death, stock purchase, profit sharing, employee savings, supplemental unemployment insurance, or similar benefits.
  11. "Last known address" means a description of the location of the apparent owner sufficient for the purpose of the delivery of mail.
  12. "Owner" means a depositor in the case of a deposit, a beneficiary in the case of a trust other than a deposit in trust, a creditor, claimant, or payee in the case of other intangible property, or a person having a legal or equitable interest in property subject to this article or his legal representative.
  13. "Payable" means the earliest date upon which the owner of property could become entitled to the payments, possession, delivery, or distribution of such property from a holder.
  14. "Person" means an individual, business association, government, governmental subdivision or agency, public corporation, public authority, estate, trust, two or more persons having a joint or common interest, or any other legal or commercial entity.
  15. "State" means any state, district, commonwealth, territory, insular possession, or any other area subject to the authority of the United States.
  16. "Utility" means a person who owns or operates for public use any plant, equipment, property, franchise, or license for the transmission of communications or the production, storage, transmission, sale, delivery, or furnishing of electricity, water, steam, or gas. (Code 1981, § 44-12-192 , enacted by Ga. L. 1990, p. 1506, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "safe-deposit" was substituted for "safe deposit" in paragraph (2).

RESEARCH REFERENCES

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 1.

JUDICIAL DECISIONS

Gift certificates. - Assessment of dormancy fees on gift cards and certificates and refusal to honor them after one year did not violate O.C.G.A. § 44-12-205 of the Georgia Disposition of Unclaimed Property Act (DUPA), O.C.G.A. § 44-12-190 et seq; as the cards and certificates had not been unclaimed by the plaintiffs for more than five years when the complaint was filed, they were not presumed abandoned, and DUPA did not apply. Simon Prop. Group, Inc. v. Benson, 278 Ga. App. 277 , 628 S.E.2d 697 (2006), aff'd, remanded, 281 Ga. 744 , 642 S.E.2d 687 (2007).

44-12-193. When property held, issued, or owing in ordinary course of holder's business presumed abandoned.

Except as provided in Article 17B of Title 10, all tangible and intangible property, including any income or increment thereon, less any lawful charges, that is held, issued, or owing in the ordinary course of the holder's business and has remained unclaimed by the owner for more than five years after it became payable or distributable is presumed abandoned, except as otherwise provided by this article. Property is payable or distributable for the purpose of this article notwithstanding the owner's failure to make demand or to present any instrument or document required to receive payment.

(Code 1981, § 44-12-193 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 1; Ga. L. 2006, p. 720, § 3/SB 195.)

The 2006 amendment, effective July 1, 2006, substituted "Except as provided in Article 17B of Title 10, all" for "All" at the beginning of the Code section.

Cross references. - Disposition of personal property left with a financial institution possession of which is taken by Department of Banking and Finance, § 7-1-172 .

JUDICIAL DECISIONS

"Lawful charges" against dormant checks, money order, and drafts. - O.C.G.A. § 7-1-358 and a related regulation do not allow assessment of service charges only against dormant deposit accounts; thus, charges against dormant checks, money orders, and drafts qualified as "lawful charges" and were properly withheld from the Department of Revenue when funds were remitted under the Unclaimed Property Act, O.C.G.A. § 44-12-190 et seq. First Union Nat'l Bank v. Collins, 221 Ga. App. 442 , 471 S.E.2d 892 (1996).

Gift certificates not presumed abandoned. - Assessment of dormancy fees on gift cards and certificates and refusal to honor them after one year did not violate O.C.G.A. § 44-12-205 of the Georgia Disposition of Unclaimed Property Act (DUPA), O.C.G.A. § 44-12-190 et seq; as the cards and certificates had not been unclaimed by the plaintiffs for more than five years when the complaint was filed, they were not presumed abandoned, and DUPA did not apply. Simon Prop. Group, Inc. v. Benson, 278 Ga. App. 277 , 628 S.E.2d 697 (2006), aff'd, remanded, 281 Ga. 744 , 642 S.E.2d 687 (2007).

44-12-194. Conditions under which intangible property subject to custody of state as unclaimed property.

Unless otherwise provided in this article or by any other provision of law, intangible property is subject to the custody of this state as unclaimed property if the conditions leading to a presumption of abandonment as described in Code Section 44-12-193 are satisfied and:

  1. The last known address, as shown on the records of the holder, of the apparent owner is in this state;
  2. The records of the holder do not reflect the identity of the person entitled to the property and it is established that the last known address of the person entitled to the property is in this state;
  3. The records of the holder do not reflect the last known address of the apparent owner, and it is established that:
    1. The last known address of the person entitled to the property is in this state; or
    2. The holder is a domiciliary or a government or governmental subdivision or agency of this state and has not previously paid the property to the state of the last known address of the apparent owner or other person entitled to the property;
  4. The last known address, as shown on the records of the holder, of the apparent owner or other person entitled to the property is in a state that does not provide by law for the escheat or custodial taking of the property or its escheat or unclaimed property law is not applicable to the property and the holder is a domiciliary or a government or governmental subdivision or agency of this state;
  5. The last known address, as shown on the records of the holder, of the apparent owner is in a foreign nation and the holder is a domiciliary or a government or governmental subdivision or agency of this state; or
  6. The transaction out of which the property arose occurred in this state and:
    1. The last known address of the apparent owner or other person entitled to the property is unknown; or
    2. The last known address of the apparent owner or other person entitled to the property is in a state that does not provide by law for the escheat or custodial taking of the property or its escheat or unclaimed property law is not applicable to the property; and
    3. The holder is a domiciliary of a state that does not provide by law for the escheat or custodial taking of the property or its escheat or unclaimed property law is not applicable to the property. (Code 1981, § 44-12-194 , enacted by Ga. L. 1990, p. 1506, § 1.)

JUDICIAL DECISIONS

No presumption of abandonment. - Assessment of dormancy fees on gift cards and certificates and refusal to honor them after one year did not violate O.C.G.A. § 44-12-205 of the Georgia Disposition of Unclaimed Property Act (DUPA), O.C.G.A. § 44-12-190 et seq; as the cards and certificates had not been unclaimed by the plaintiffs for more than five years when the complaint was filed, they were not presumed abandoned, and DUPA did not apply. Simon Prop. Group, Inc. v. Benson, 278 Ga. App. 277 , 628 S.E.2d 697 (2006), aff'd, remanded, 281 Ga. 744 , 642 S.E.2d 687 (2007).

44-12-195. When sums payable on traveler's checks or money orders deemed abandoned; conditions under which same may be subjected to custody of state as unclaimed property.

  1. Except as otherwise provided in this Code section, any sum payable on a traveler's check that has been outstanding for more than 15 years after its issuance is presumed abandoned unless the owner, within 15 years, has communicated in writing with the issuer concerning it or otherwise indicated an interest as evidenced by a memorandum or other record on file prepared by an employee of the issuer.
  2. Except as otherwise provided in this Code section, any sum payable on a money order or similar written instrument, other than a third-party bank check, that has been outstanding for more than seven years after its issuance is presumed abandoned unless the owner, within seven years, has communicated in writing with the issuer concerning it or otherwise indicated an interest as evidenced by a memorandum or other record on file prepared by an employee of the issuer.
  3. Any sum payable on a traveler's check, money order, or similar written instrument, other than a third-party bank check, described in this Code section may not be subjected to the custody of this state as unclaimed property unless:
    1. The records of the issuer show that the traveler's check, money order, or similar written instrument was purchased in this state;
    2. The issuer has its principal place of business in this state and the records of the issuer do not show the state in which the traveler's check, money order, or similar written instrument was purchased; or
    3. The issuer has its principal place of business in this state, the records of the issuer show the state in which the traveler's check, money order, or similar written instrument was purchased, and the laws of the state of purchase do not provide for the escheat or custodial taking of the property or its escheat or unclaimed property law is not applicable to the property.
  4. Notwithstanding any other provision of this article, the provisions of subsection (c) of this Code section relating to the requirements for subjecting certain written instruments to the custody of the state shall apply to sums payable on traveler's checks, money orders, and similar written instruments presumed abandoned on or after February 1, 1965, except to the extent that those sums have been paid over to a state prior to January 1, 1973. (Code 1981, § 44-12-195 , enacted by Ga. L. 1990, p. 1506, § 1.)

44-12-196. When instruments on which banking or financial organization directly liable presumed abandoned; service charges.

Any sum payable on a check, draft, or similar instrument, except money orders, traveler's checks, and other similar instruments subject to Code Section 44-12-195, on which a banking or financial organization is directly liable, including but not limited to, cashier's checks and certified checks, which has been outstanding for more than five years after it was payable or after its issuance if payable on demand, is presumed abandoned unless the owner, within five years, has communicated in writing with the banking or financial organization concerning it or otherwise indicated an interest as evidenced by a memorandum or other record on file prepared by an employee of the banking or financial organization. Except for charges imposed with respect to issuance, no banking or financial organization shall deduct a service charge from, or otherwise impose a service charge on, any instrument described in this Code section unless such instrument is not presented for payment within two years of the date of issuance. Service charges may be imposed for each month of the 12 months following such two-year period.

(Code 1981, § 44-12-196 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 2; Ga. L. 1995, p. 1368, § 1.)

JUDICIAL DECISIONS

"Lawful charges" against dormant checks, money order, and drafts. - O.C.G.A. § 7-1-358 and a related regulation do not allow assessment of service charges only against dormant deposit accounts; thus, charges against dormant checks, money orders, and drafts qualified as "lawful charges" and were properly withheld from the Department of Revenue when funds were remitted under the Unclaimed Property Act, O.C.G.A. § 44-12-190 et seq. First Union Nat'l Bank v. Collins, 221 Ga. App. 442 , 471 S.E.2d 892 (1996).

44-12-197. When certain deposits or other interests in banking or financial organization presumed abandoned.

  1. Any demand, savings, or matured time deposit with a banking or financial organization, including deposits that are automatically renewable, and any funds paid toward the purchase of a share, a mutual investment certificate, or any other interest in a banking or financial organization is presumed abandoned unless the owner, within five years, has:
    1. In the case of a deposit, increased or decreased its amount or presented the passbook or other similar evidence of the deposit for the crediting of interest or negotiated a check in payment of interest on a time deposit;
    2. Communicated in writing with the banking or financial organization concerning the property;
    3. Otherwise indicated an interest in the property as evidenced by a memorandum or other record on file prepared by an employee of the banking or financial organization; for purposes of this paragraph, a record of the sending of a federal Internal Revenue Service Form 1099, or its equivalent, to the persons enumerated in this subsection and a record of its not being returned by the United States Postal Service or its successor shall be an indication of interest;
    4. Owned other property to which paragraph (1), (2), or (3) of this subsection is applicable if the banking or financial organization communicated in writing with the owner with regard to the property that would otherwise be presumed abandoned under this paragraph at the address to which communications regarding the other property regularly are sent;
    5. Had another relationship with the banking or financial organization concerning which the owner has communicated in writing with the banking or financial organization or has otherwise indicated an interest as evidenced by a memorandum or other record on file prepared by an employee of the banking or financial organization if the banking or financial organization communicates in writing with the owner with regard to property that would otherwise be abandoned under this paragraph at the address to which communications regarding the other relationship regularly are sent; or
    6. A deposit made with a banking or financial organization by a court or by a guardian pursuant to order of a court or by any other person for the benefit of a person who was a minor at the time of the making of such deposit, which deposit is subject to withdrawal only upon the further order of such court or such guardian or other person, shall not be subject to the provisions of this article until one year after such minor attains the age of 18 years or until one year after the death of such minor, whichever occurs sooner.  These accounts are not subject to dormant service charges.
  2. For purposes of this Code section, "property" includes any interest or dividends thereon.  No banking or financial organization shall deduct a service charge from any account on which there has been no deposit or withdrawal for 12 or more months or otherwise impose a service charge on any such account.  A service charge may be imposed for 12 months immediately following a deposit to or withdrawal from any such account.
  3. No banking or financial organization may cease to accrue interest on any account from the date the account is declared dormant or inactive by such organization except in conformity with cessation of interest generally assessed upon active accounts.  With respect to any property described in this subsection, a holder may not impose any charges due to dormancy or inactivity which differ from those imposed on active accounts or cease to pay interest unless:
    1. For property in excess of $50.00, the holder, no more than three months before the initial imposition of those charges or cessation of interest, has given written notice to the owner of the amount of those charges at the last known address of the owner stating that those charges will be imposed or that interest will cease, but the notice provided in this paragraph need not be given with respect to charges imposed or interest ceased before July 1, 1990; and
    2. The holder regularly imposes such charges or ceases payment of interest and does not regularly reverse or otherwise cancel them or retroactively credit interest with respect to such property.
  4. Any automatically renewable property to which this Code section applies is matured upon the expiration of its initial time period. However, in the case of any renewal to which the owner consents at or about the time of renewal by communicating in writing with the banking or financial organization or otherwise indicates consent as specified in subsection (a) of this Code section, the property is matured upon the expiration of the last time period for which consent was given.  If, at the time provided for delivery in subsection (e) of Code Section 44-12-214 , a penalty or forfeiture in the payment of interest would result from the delivery of the property, the time for delivery is extended until the time when no penalty or forfeiture would result. (Code 1981, § 44-12-197 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 3.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, a comma was inserted following "years" near the end of the introductory language in subsection (a).

OPINIONS OF THE ATTORNEY GENERAL

Bank reporting requirements. - If any particular bank were doing business both in Georgia and another state and the last known address of the person owning the abandoned property was in the other state, the bank should report to the Commissioner of Revenue of the other state, but if the last known address of the owner of the abandoned property was in Georgia, the bank should report to the Commissioner of Banking and Finance in Georgia; if the last known address of the depositor is in neither state the answer would have to depend on the particular state involved and its laws as to unclaimed and abandoned property. 1974 Op. Att'y Gen. No. 74-68.

Intangible property held or owing is included. - In light of the broad scope of the omnibus section (O.C.G.A. § 44-12-200 ) and the uniform nature of the interpretation of the 1972 and 1990 Disposition of Unclaimed Property Acts, the omnibus section of each respective Act includes intangible property held or owing in the ordinary course of the holder's business. 1993 Op. Att'y Gen. No. 93-2.

Noncash property presumed abandoned under O.C.G.A. § 44-12-197 need not be placed in an interest bearing savings account. 1974 Op. Att'y Gen. No. 74-108.

Proceeds of accounts not claimed during voluntary liquidation of a financial institution pass to the custody of the Department of Banking and Finance for ultimate disbursement pursuant to the Disposition of Unclaimed Property Act, O.C.G.A. § 44-12-190 et seq. 1975 Op. Att'y Gen. No. 75-135.

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property, § 35. 30 Am. Jur. 2d, Escheat, § 5 et seq.

C.J.S. - 1 C.J.S., Abandonment, § 8 et seq. 30A C.J.S., Escheat, § 4 et seq.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 2.

44-12-198. When fund under life or endowment insurance policy or annuity contract presumed abandoned.

  1. Funds held or owing under any life or endowment insurance policy or annuity contract which has matured or terminated are presumed abandoned if unclaimed for more than five years after the funds became due and payable as established from the records of the insurance company holding or owing the funds, except that property described in paragraph (2) of subsection (c) of this Code section is presumed abandoned if unclaimed for more than two years.
  2. If a person other than the insured or annuitant is entitled to the funds and no address of the person is known to the company or it is not definite and certain from the records of the company who is entitled to the funds, it is presumed that the last known address of the person entitled to the funds is the same as the last known address of the insured or annuitant according to the records of the company.
  3. For purposes of this Code section, a life or endowment insurance policy or annuity contract not matured by actual proof of the death of the insured or annuitant according to the records of the company is deemed matured and the proceeds due and payable if:
    1. The company knows that the insured or annuitant has died; or
    2. If all of the following conditions are met:
      1. The insured has attained, or would have attained if he were living, the limiting age under the mortality table on which the reserve is based;
      2. The policy was in force at the time the insured attained, or would have attained, the limiting age specified in subparagraph (A) of this paragraph; and
      3. Neither the insured nor any other person appearing to have an interest in the policy within the preceding two years, according to the records of the company concerning the policy or otherwise, indicated an interest as evidenced by a memorandum or other record on file prepared by an employee of the company.
  4. For purposes of this Code section, the application of an automatic premium loan provision or other nonforfeiture provision contained in an insurance policy does not prevent a policy from being matured or terminated under subsection (a) of this Code section if the insured has died or the insured or the beneficiaries of the policy otherwise have become entitled to the proceeds thereof before the depletion of the cash surrender value of a policy by the application of that provision.
  5. Notwithstanding any other provisions of law, if the company learns of the death of the insured or annuitant and the beneficiary has not communicated with the insurer within four months after the death, the company shall take reasonable steps to locate the beneficiary and pay the proceeds to the beneficiary.
  6. On and after January 1, 1991, every change of beneficiary form issued by an insurance company under any life or endowment insurance policy or annuity contract to an insured or owner who is a resident of this state must request the following information:
    1. The name of each beneficiary or, if a class of beneficiaries is named, the name of each current beneficiary in the class;
    2. The address of each beneficiary; and
    3. The relationship of each beneficiary to the insured. (Code 1981, § 44-12-198 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 4.)

OPINIONS OF THE ATTORNEY GENERAL

Intangible property held or owing is included. - In light of the broad scope of the omnibus section (O.C.G.A. § 44-12-200 ) and the uniform nature of the interpretation of the 1972 and 1990 Disposition of Unclaimed Property Acts, O.C.G.A. § 44-12-190 et seq., the omnibus section of each respective Act includes intangible property held or owing in the ordinary course of the holder's business. 1993 Op. Att'y Gen. No. 93-2.

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property, § 38. 27 Am. Jur. 2d, Escheat, § 5 et seq.

C.J.S. - 1 C.J.S., Abandonment, § 8 et seq. 30A C.J.S., Escheat, § 4 et seq.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 3.

44-12-199. When funds held or owing by utility presumed abandoned.

The following funds held or owing by any utility are presumed abandoned:

  1. Any deposit made by a subscriber with a utility to secure payment for or any sum paid in advance for utility services to be furnished in this state, less any lawful deductions, that has remained unclaimed by the person appearing on the records of the utility entitled thereto for more than five years after the termination of the services for which the deposit or advance payment was made; and
  2. Any sum which a utility has been ordered to refund and which was received for utility services rendered in this state, together with any interest thereon, less any lawful deductions, that has remained unclaimed by the person appearing on the records of the utility entitled thereto for more than five years after the date it became payable in accordance with the final determination or order providing for the refund unless the regulatory body having jurisdiction over the utility has provided by order for a different disposition of such unclaimed funds. (Code 1981, § 44-12-199 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 5.)

OPINIONS OF THE ATTORNEY GENERAL

Intangible property held or owing is included. - In light of the broad scope of the omnibus section (O.C.G.A. § 44-12-200 ) and the uniform nature of the interpretation of the 1972 and 1990 Disposition of Unclaimed Property Acts, O.C.G.A. § 44-12-190 et seq., the omnibus section of each respective Act includes intangible property held or owing in the ordinary course of the holder's business. 1993 Op. Att'y Gen. No. 93-2.

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property, § 39. 30 Am. Jur. 2d, Escheat, § 5 et seq.

C.J.S. - 1 C.J.S., Abandonment, § 8 et seq. 30A C.J.S., Escheat, § 4 et seq.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 4.

ALR. - Deposit required by public utility, 43 A.L.R.2d 1262.

44-12-200. When unclaimed court ordered refund from business association presumed abandoned.

Except to the extent otherwise ordered by a court or administrative agency of competent jurisdiction, any sum that a business association has been ordered to refund by a court or administrative agency which has remained unclaimed by the owner for more than five years after it became payable in accordance with the final determination or order providing for the refund, regardless of whether the final determination or order requires any person entitled to a refund to make a claim for it, is presumed abandoned.

(Code 1981, § 44-12-200 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 6.)

OPINIONS OF THE ATTORNEY GENERAL

Intangible property held or owing is included. - In light of the broad scope of the omnibus section (O.C.G.A. § 44-12-200 ) and the uniform nature of the interpretation of the 1972 and 1990 Disposition of Unclaimed Property Acts, O.C.G.A. § 44-12-190 et seq., the omnibus section of each respective Act includes intangible property held or owing in the ordinary course of the holder's business. 1993 Op. Att'y Gen. No. 93-2.

44-12-201. When undistributed dividends and distributions of business associations presumed abandoned; when intangible interest in business associations presumed abandoned.

  1. Pursuant to Code Section 44-12-193, any dividend, profit, distribution, interest, payment on principal, or other sum held or owing by a business association for or to its shareholder, certificate holder, member, bondholder, or other security holder, or a participating patron of a cooperative, who has not claimed it, corresponded in writing concerning it, or otherwise indicated an interest as evidenced by a memorandum or other record on file with the association within five years after the date prescribed for payment or delivery is presumed abandoned.
    1. Pursuant to Code Section 44-12-193, any intangible interest in a business association, as evidenced by the stock records or membership records of the association, is presumed abandoned if the interest in the association is owned by a person who for more than five years has neither claimed a dividend or other sum referred to in subsection (a) of this Code section nor corresponded in writing with the association and the association does not know the location of the owner at the end of such five-year period. With respect to such interest, the business association shall be deemed the holder.
    2. All intangible property, including but not limited to securities, principal, interest, dividends, or other earnings thereon, less any lawful charges, held by a business association; federal, state, or local government or governmental subdivision, agency, or entity; or any other person or entity, regardless of where the holder may be found, if the owner has not claimed such property or corresponded in writing with the holder concerning the property within five years after the date prescribed for payment or delivery by the issuer unless the holder is a state that has taken custody pursuant to its own unclaimed property laws, in which case no additional period of holding beyond that of such state is necessary pursuant to this subsection, is presumed abandoned and subject to the custody of this state as unclaimed property if:
      1. The last known address of the owner is unknown; and
      2. The person or entity originating or issuing the intangible property is this state or any political subdivision of this state or is incorporated, organized, created, or otherwise located in this state.
    3. The provisions of paragraph (2) of this subsection shall not apply to property which is or may be presumed abandoned and subject to the custody of this state pursuant to any other provision of law containing a dormancy period different from that prescribed in paragraph (2) of this subsection.
    4. The provisions of this subsection shall apply to all property held on April 13, 1992, or at any time thereafter, regardless of when such property became or becomes presumptively abandoned.
  3. Pursuant to Code Section 44-12-193, any dividends or other distributions held for or owing to a person at the time the stock or other security to which they attach are presumed abandoned also shall be presumed abandoned as of the same time.
  4. For the purposes of subsections (a) and (b) of this Code section, a record of the sending of a federal Internal Revenue Service Form 1099, or its equivalent, to the persons enumerated in those subsections and a record of its not being returned by the United States Postal Service, or its successor, shall be an indication of interest. (Code 1981, § 44-12-201 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 7.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, a comma was inserted following "the association" near the beginning of the first sentence of subsection (b).

Pursuant to Code Section 28-9-5, in 1992, "April 13, 1992," was substituted for "the effective date of this subsection" in paragraph (b)(4).

OPINIONS OF THE ATTORNEY GENERAL

Bank reporting requirements. - See 1973 Op. Att'y Gen. No. 73-11.

If any particular bank were doing business both in Georgia and another state and the last known address of the person owning the abandoned property was in the other state, the bank should report to the Commissioner of Revenue of the other state, but if the last known address of the owner of the abandoned property was in Georgia, the bank should report to the Commissioner of Banking and Finance in Georgia; if the last known address of the depositor is in neither state the answer would have to depend on the particular state involved and its laws as to unclaimed and abandoned property. 1974 Op. Att'y Gen. No. 74-68.

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property, § 37. 27 Am. Jur. 2d, Escheat, § 30.

C.J.S. - 1 C.J.S., Abandonment, § 8 et seq. 30A C.J.S., Escheat § 4 et seq.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 5.

44-12-202. When unclaimed property distributed in course of dissolution or liquidation of a person presumed abandoned.

All property distributable in the course of a voluntary or involuntary dissolution or liquidation of a person that remains unclaimed by the person entitled thereto, within one year after the date of final distribution or liquidation, shall be presumed abandoned.

(Code 1981, § 44-12-202 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 8.)

OPINIONS OF THE ATTORNEY GENERAL

Bank reporting requirements. - See 1973 Op. Att'y Gen. No. 73-11.

If any particular bank were doing business both in Georgia and another state and the last known address of the person owning the abandoned property was in the other state, the bank should report to the Commissioner of Revenue of the other state, but if the last known address of the owner of the abandoned property was in Georgia, the bank should report to the Commissioner of Banking and Finance in Georgia; if the last known address of the depositor is in neither state the answer would have to depend on the particular state involved and its laws as to unclaimed and abandoned property. 1974 Op. Att'y Gen. No. 74-68.

Proceeds of accounts not claimed during voluntary liquidation of a financial institution pass to the custody of the Department of Banking and Finance for ultimate disbursement pursuant to the Disposition of Unclaimed Property Act, O.C.G.A. § 44-12-190 et seq. 1975 Op. Att'y Gen. No. 75-135.

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property, § 37. 27 Am. Jur. 2d, Escheat, § 5 et seq.

C.J.S. - 1 C.J.S., Abandonment, § 8 et seq. 7 C.J.S., Associations, §§ 9, 10. 9 C.J.S., Banks and Banking, §§ 201, 226.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 6.

44-12-203. When intangible property held in fiduciary capacity for benefit of another, and income derived therefrom, presumed abandoned.

  1. Intangible property and any income or increment derived therefrom held in a fiduciary capacity for the benefit of another person is presumed abandoned unless the owner, within five years after it has become payable or distributable, has increased or decreased the principal, accepted payment of principal or income, communicated concerning the property, or otherwise indicated an interest as evidenced by a memorandum or other record on file prepared by the fiduciary.
  2. Funds in an individual retirement account or a retirement plan for self-employed individuals or similar account or plan established pursuant to the internal revenue laws of the United States are not payable or distributable within the meaning of subsection (a) of this Code section unless, under the terms of the account or plan, distribution of all or part of the funds would then be mandatory.
  3. For the purpose of this Code section, a person who holds property as an agent for a business association is deemed to hold the property in a fiduciary capacity for a business association alone, unless the agreement between him and the business association provides otherwise.
  4. For the purposes of this article, a person who is deemed to hold property in a fiduciary capacity for a business association alone is the holder of the property only insofar as the interest of the business association in the property is concerned, and the business association is the holder of the property insofar as the interest of any other person in the property is concerned. (Code 1981, § 44-12-203 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 9.)

OPINIONS OF THE ATTORNEY GENERAL

Bank reporting requirements. - See 1973 Op. Att'y Gen. No. 73-11.

If any particular bank were doing business both in Georgia and another state and the last known address of the person owning the abandoned property was in the other state, the bank should report to the Commissioner of Revenue of the other state, but if the last known address of the owner of the abandoned property was in Georgia, the bank should report to the Commissioner of Banking and Finance in Georgia; if the last known address of the depositor is in neither state the answer would have to depend on the particular state involved and its laws as to unclaimed and abandoned property. 1974 Op. Att'y Gen. No. 71-68.

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abandoned, Lost and Unclaimed Property, § 2 et seq. 27 Am. Jur. 2d, Escheat, § 6.

C.J.S. - 1 C.J.S., Abandonment, § 8 et seq. 1 C.J.S., Absentees, § 5 et seq.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 7.

44-12-204. When intangible property held for owner by state or federal entity presumed abandoned.

All intangible property held for the owner by any state or federal court, government, governmental subdivision or agency, public corporation, or public authority which remains unclaimed by the owner for more than five years after becoming payable or distributable is presumed abandoned.

(Code 1981, § 44-12-204 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 10.)

Cross references. - Escheat of property to state generally, Art. 5, Ch. 2, T. 53.

OPINIONS OF THE ATTORNEY GENERAL

Bank reporting requirements. - See 1973 Op. Att'y Gen. No. 73-11.

Disposition of restitution payments when victim cannot be located. - Restitution payments should not be returned to the probationer when the intended recipient cannot be located: instead, the funds should be retained for the benefit of the victim until the completion of the seven-year [now five-year] holding period, and at that point, the account should be reported and subsequently delivered to the State Revenue Commissioner in accordance with the laws of this state concerning disposition of unclaimed property. 1987 Op. Att'y Gen. No. U87-17.

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property, § 40.

C.J.S. - 1 C.J.S., Abandonment, § 8 et seq.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 8.

44-12-205. When gift certificate or credit memo presumed abandoned.

  1. A gift certificate or a credit memo issued in the ordinary course of an issuer's business which remains unclaimed by the owner for more than five years after becoming payable or distributable is presumed abandoned.
  2. In the case of a gift certificate, the amount presumed abandoned is the price paid by the purchaser for the gift certificate.  In the case of a credit memo, the amount presumed abandoned is the amount credited to the recipient of the memo. (Code 1981, § 44-12-205 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 11.)

Law reviews. - For comment, "Unwrapping Escheat: Unclaimed Property Laws and Gift Cards," see 60 Emory L. J. 971 (2011).

JUDICIAL DECISIONS

No presumption of abandonment. - Assessment of dormancy fees on gift cards and certificates and refusal to honor them after one year did not violate O.C.G.A. § 44-12-205 of the Georgia Disposition of Unclaimed Property Act (DUPA), O.C.G.A. § 44-12-190 et seq; as the cards and certificates had not been unclaimed by the plaintiffs for more than five years when the complaint was filed, they were not presumed abandoned, and DUPA did not apply. Simon Prop. Group, Inc. v. Benson, 278 Ga. App. 277 , 628 S.E.2d 697 (2006), aff'd, remanded, 281 Ga. 744 , 642 S.E.2d 687 (2007).

Law governing claims by owners against property holders. - O.C.G.A. § 44-12-205(b) , which simply provided that an amount equal to the price paid for an unclaimed card or certificate was to be paid to the state after five years, regardless of whether the card or certificate previously expired or otherwise lost value pursuant to contractual terms, did not provide a basis for the owners of certain gift cards and certificates to bring an action against the holder of the cards and certificates that claimed that the dormancy fees and expiration dates on the cards and certificates violated the Disposition of Unclaimed Property Act; the relationship between the owners and the holder was governed by Georgia contract law. Benson v. Simon Prop. Group, Inc., 281 Ga. 744 , 642 S.E.2d 687 (2007).

44-12-206. When unpaid wages presumed abandoned.

Unpaid wages, including wages represented by unpresented payroll checks owing in the ordinary course of the holder's business, that have remained unclaimed by the owner for more than one year after becoming payable are presumed abandoned.

(Code 1981, § 44-12-206 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 12.)

44-12-207. When employee benefit trust distributions and income thereon presumed abandoned; exceptions.

  1. All employee benefit trust distributions and any income or other increment thereon are abandoned to this state under the provisions of this article if the owner has not, within five years after it becomes payable or distributable, accepted such distribution, corresponded in writing concerning such distribution, or otherwise indicated an interest as evidenced by a memorandum or other record on file with the fiduciary of the trust or custodial fund or administrator of the plan under which such trust or fund is established.
  2. An employee benefit trust distribution and any income or other increment thereon shall not be presumed abandoned to this state under the provisions of this article if, at the time such distribution shall become payable to a participant in an employee benefit plan, such plan contains a provision for forfeiture, if the trustees of an employee benefit plan supported wholly or partially from public funds adopt a provision for forfeiture, or if such plan expressly authorizes the trustee to declare a forfeiture of a distribution to a beneficiary thereof who cannot be found after a period of time specified in such plan, and the trust or fund established under the plan has not terminated prior to the date on which such distribution would become forfeitable in accordance with such provision. (Code 1981, § 44-12-207 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 13.)

44-12-208. When funds held or owing by insurer or hospital, medical, or dental service corporation presumed abandoned; when sums payable on negotiable instrument for payment of claim under insurance contract presumed abandoned.

  1. Any funds held or owing by a fire, casualty, or any other insurer or surety as defined in Title 33 or a hospital, medical, or dental service corporation organized under Title 31 that are due and payable, as established from the records of the insurer or surety either to an insured, a principal, or other claimant under any insurance policy or contract shall be presumed abandoned if they have not been claimed or paid within five years after becoming due or payable.  Funds payable according to the insurer's or surety's records are deemed due and payable although the policy or contract has not been surrendered as required.
  2. If a person other than the insured, the principal, or the claimant is entitled to the funds and no address of the person is known to the insurer or surety or if it is not definite and certain from the records of the insurer or surety what person is entitled to the funds, it is presumed that the last known address of the person entitled to the funds is the same as the last known address of the insured, the principal, or the claimant according to the records of the insurer or surety.
  3. Any sum for the payment of a claim under an insurance policy or contract, which sum is payable on a negotiable instrument on which the insurer is the maker or drawer shall be presumed abandoned if, within five years from the date payable, or from the date of issuance, if payable on demand, the owner has not:
    1. Negotiated the instrument;
    2. Corresponded in writing with the insurer concerning it; or
    3. Otherwise indicated an interest by a writing on file with the insurer. (Code 1981, § 44-12-208 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 14.)

RESEARCH REFERENCES

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 16.

44-12-209. Rent due on safe-deposit boxes; notice of opening of box and sealing of contents when contents deemed abandoned; delivery to commissioner.

  1. If the rental due on a safe-deposit box has not been paid for one year, the lessor shall send a notice by registered mail or statutory overnight delivery to the last known address of the lessee stating that the safe-deposit box will be opened and its contents stored at the expense of the lessee unless payment of the rental is made within 30 days.  If the rental is not paid within 30 days from the mailing of the notice, the holder shall provide written notification to the commissioner of the drilling date not less than 30 days prior to this time. The commissioner may designate a representative to be present during the opening of the safe-deposit box.  The safe-deposit box shall be opened in the presence of an officer of the lessor. The contents shall be sealed in a package by the officer who shall write on the outside the name of the lessee and the date of the opening. The officer shall execute a certificate reciting the name of the lessee, the date of the opening of the safe-deposit box, and a list of its contents. The certificate shall be included in the package and a copy of the certificate shall be sent by registered mail or statutory overnight delivery to the last known address of the lessee. The package shall then be placed in the general vaults of the lessor at a rental not exceeding the rental previously charged for the safe-deposit box.
  2. If the contents of the safe-deposit box have not been claimed within two years of the mailing of the certificate, the lessor may send a further notice to the last known address of the lessee stating that, unless the accumulated charges are paid within 30 days, the contents of the safe-deposit box will be delivered to the commissioner as abandoned property under the provisions of Code Section 44-12-214.
  3. The lessor shall submit to the commissioner a verified inventory of all of the contents of the safe-deposit box upon delivery of the contents of the safe-deposit box or such part thereof as shall be required by the commissioner under Code Section 44-12-214, but the lessor shall not deduct from any cash of the lessee in the safe-deposit box an amount equal to accumulated charges for rental but shall submit to the commissioner a verified statement of such charges and deductions.  If there is no cash, or insufficient cash to pay accumulated charges, in the safe-deposit box, the commissioner shall remit to the lessor the charges or balance due, up to the value of the property in the safe-deposit box delivered to him, less any costs or expenses of sale; but, if the charges or balance due exceeds the value of such property, the commissioner shall remit only the value of the property, less costs or expenses of sale. Any accumulated charges for safe-deposit box rental paid by the commissioner to the lessor shall be deducted from the value of the property of the lessee delivered to the commissioner.
  4. On and after January 1, 1991, a copy of this Code section shall be printed on every contract for rental of a safe-deposit box. (Code 1981, § 44-12-209 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 2000, p. 1589, § 4.)

The 2000 amendment, effective July 1, 2000, substituted "registered mail or statutory overnight delivery" for "registered mail" in two places in subsection (a).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the Act is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Cited in Financial Sec. Assurance, Inc. v. Tollman-Hundley Dalton, 165 Bankr. 698 (N.D. Ga. 1994).

44-12-210. Commencement of abandonment for certain property described in Code Section 44-12-197.

The abandonment period of any property described in Code Section 44-12-197 that is automatically renewable shall commence upon the expiration of its initial time period except that, in the case of any renewal to which the owner consents at or about the time of renewal by communicating in writing with the person holding the property or otherwise indicating such consent as evidenced by a memorandum on file prepared by an employee, the abandonment period shall commence upon the expiration of the last time period for which consent was given.

(Code 1981, § 44-12-210 , enacted by Ga. L. 1990, p. 1506, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Escheat, § 43 et seq.

C.J.S. - 30A C.J.S., Escheat, §§ 9, 22, 23. 81A C.J.S., States, § 228.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 18.

44-12-211. When bequeathed property presumed abandoned; when person presumed dead without heirs or distributees and property presumed abandoned.

  1. Property which has been bequeathed to any person shall be presumed abandoned if not claimed by that person or his heirs, legatees, or distributees within five years after the death of the testator unless the will makes provision in case of a lapse, failure, or rejection of the bequest for the disposition of the property.
  2. When a person owning property is not known for five successive years to be living and neither the person named, his heirs, or distributees can be located or proved for five successive years to have been living, he shall be presumed to have died without heirs or distributees and his property shall be presumed abandoned. (Code 1981, § 44-12-211 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1992, p. 1237, § 15.)

44-12-211.1. Excess funds from sale of abandoned motor vehicle; claim for funds; definitions.

  1. Within 15 days of the sale of a motor vehicle pursuant to Article 1A of Chapter 11 of Title 40, "The Abandoned Motor Vehicle Act," and the satisfaction of the amounts owed for liens on such motor vehicle, any towing and storage firm, repair facility, or salvage dealer selling such motor vehicle shall provide to the commissioner any excess funds minus the allowable costs incurred for the public sale of such motor vehicle as set forth in subsection (b) of Code Section 40-11-19.2. The funds turned over to the department shall be accompanied by copies of the court order issued pursuant to Code Section 40-11-19.1, the bill of sale, and the receipt for the costs associated with the sale held pursuant to Code Section 40-11-19.2 on a form prescribed by the department for such purpose.
    1. Any person claiming a property interest in the motor vehicle sold pursuant to Article 1A of Chapter 11 of Title 40, "The Abandoned Motor Vehicle Act," and the excess funds from such sale may make such claim to the department upon a form provided for such purpose through rule or regulation within six months of the sale.
    2. If such excess funds remain unclaimed for more than six months, any person authorized to make a claim under paragraph (1) of this subsection, or the towing and storage firm, repair facility, or salvage dealer selling such motor vehicle may make a claim to the department for such excess funds. If more than one claim is made during this six month period, the party first making a claim determined by the department as authorized shall be entitled to the excess funds. No claim shall be authorized after one year from the date excess funds are provided to the commissioner.
  3. For purposes of this Code section, the terms "repair facility," "salvage dealer," and "towing and storage firm" shall have the same meanings as provided for in Code Section 40-11-13 . (Code 1981, § 44-12-211.1 , enacted by Ga. L. 2019, p. 872, § 6/HB 307.)

Effective date. - This Code section became effective May 7, 2019.

Editor's notes. - Ga. L. 2019, p. 872, § 8/HB 307, not codified by the General Assembly, provides: "This Act shall become effective upon approval by the Governor or upon its becoming law without such approval for purposes of developing the required forms and shall become effective on September 1, 2019, for all other purposes." The Governor signed this Act on May 7, 2019.

44-12-212. When property described in Code Section 44-12-193 not subject to this article.

If specific property which is subject to the provisions of Code Section 44-12-193 is held for or owed or distributable to an owner whose last known address is in another state by a holder who is subject to the jurisdiction of that state, the specific property is not presumed abandoned in this state and subject to this article if:

  1. It may be claimed as abandoned or escheated under the laws of such other state; and
  2. The laws of such other state make reciprocal provision that similar specific property is not presumed abandoned or escheatable by such other state when held for or owed or distributable to an owner whose last known address is within this state by a holder who is subject to the jurisdiction of this state. (Code 1981, § 44-12-212 , enacted by Ga. L. 1990, p. 1506, § 1.)

44-12-213. Cooperation with other states to audit or otherwise determine unclaimed property subject to claim; rules and procedure.

  1. The commissioner may enter into agreements with other states to exchange information needed to enable this or another state to audit or otherwise determine unclaimed property that is subject to a claim of custody. The commissioner by rule may require the reporting of information needed to enable compliance with agreements made pursuant to this Code section and may prescribe the form.
  2. To avoid conflicts between the commissioner's procedures and the procedures of administrators in other jurisdictions that enact the Uniform Unclaimed Property Act, the commissioner, so far as is consistent with the purposes, policies, and provisions of this article, before adopting, amending, or repealing rules, shall advise and consult with administrators in other jurisdictions that enact the Uniform Unclaimed Property Act and take into consideration the rules of administrators in other jurisdictions that enact the Uniform Unclaimed Property Act.
  3. The commissioner may join with other states to seek enforcement of this article against any person who is or may be holding property reportable under this article.
  4. At the request of another state, the Attorney General of this state may bring an action in the name of the administrator of the other state in any court of competent jurisdiction in this state to enforce the unclaimed property laws of the other state against the holder in this state of property subject to escheat or a claim of abandonment by the other state, if the other state has agreed to pay expenses incurred by the Attorney General in bringing that action.
  5. The commissioner may request that the attorney general of another state or any other person bring an action in the name of the commissioner in the other state.  This state shall pay all expenses including attorney's fees in any action under this subsection.  The commissioner may agree to pay the person bringing the action attorney's fees based in whole or in part on a percentage of the value of any property recovered in the action. Any expenses paid pursuant to this subsection may not be deducted from the amount that is subject to the claim by the owner under this article. (Code 1981, § 44-12-213 , enacted by Ga. L. 1990, p. 1506, § 1.)

44-12-214. Report and remittance of persons holding property presumed abandoned under this article.

  1. Except as provided in Article 17B of Title 10, every person holding funds or other property, tangible or intangible, presumed abandoned under this article shall report and remit to the commissioner with respect to the property as provided in this Code section.
  2. The report shall be verified and shall include:
    1. The name and social security or federal identification number, if known, and last known address, including ZIP Code, if any, of each person appearing from the records of the holder to be the owner of any property of the value of $50.00 or more presumed abandoned under this article;
    2. In case of unclaimed funds of insurance corporations, the full name of the insured or annuitant and any beneficiary, if known, and the last known address according to the insurance corporation's records;
    3. In the case of the contents of a safe-deposit box or other safekeeping repository or in the case of other tangible property, a description of the property and the place where it is held and may be inspected by the commissioner, and any amounts owing to the holder;
    4. The nature and identifying number, if any, or description of the property and the amount appearing from the records to be due, except that items of value under $50.00 each may be reported in aggregate;
    5. The date when the property became payable, demandable, or returnable, and the date of the last transaction with the owner with respect to the property; and
    6. Other information which the commissioner prescribes by rule as necessary for the administration of this article.
  3. If the person holding property presumed abandoned is a successor to other persons who previously held the property for the owner or if the holder has changed his name while holding the property, he shall file with his report all prior known names and addresses of each holder of the property.
  4. The report and remittance shall be filed before November 1 of each year as of June 30 next preceding, but the report and remittance of insurance corporations shall be filed before May 1 of each year as of December 31 next preceding.  When property is evidenced by certificate of ownership as set forth in Code Section 44-12-201, the holder shall deliver to the commissioner a duplicate of any such certificate registered in the name of the commissioner at the time of report and remittance.  The commissioner may postpone the reporting and remittance date upon written request by any person required to file a report.
  5. If the holder of property presumed abandoned under this article knows the whereabouts of the owner, the holder shall, before filing the annual report, communicate with the owner and take necessary steps to prevent abandonment from being presumed.  All holders shall exercise due diligence, as defined in Code Section 44-12-192, at least 60 days but no more than 120 days prior to the submission of the report to ascertain the whereabouts of the owner if the holder has in its records an address for the apparent owner which the holder's records do not disclose to be inaccurate and the property has a value of $50.00 or more.
  6. Verification, if made by a partnership, shall be executed by a partner; if made by an unincorporated association or private corporation, by an officer; and if made by a public corporation, by its chief fiscal officer.
  7. The initial report and remittance filed under this Code section shall include all items of property that would have been presumed abandoned if this article had been in effect during the 15 year period preceding January 1, 1973.
  8. Nothing in this Code section shall be construed to require a utility to include in its initial report any item of money or property as to which the name of the owner and his last known address do not appear in the records maintained by the utility in accordance with rules or practices sanctioned by any state or federal regulatory body having jurisdiction over the utility. (Code 1981, § 44-12-214 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 2006, p. 720, § 4/SB 195.)

The 2006 amendment, effective July 1, 2006, substituted "Except as provided in Article 17B of Title 10, every" for "Every" at the beginning of subsection (a).

Cross references. - Disposition of personal property left with a financial institution possession of which is taken by Department of Banking and Finance, § 7-1-172 .

Service charges on dormant accounts, § 7-1-358 .

OPINIONS OF THE ATTORNEY GENERAL

Bank reporting requirements. - See 1973 Op. Att'y Gen. No. 73-11.

Disposal of monies paid into court in condemnation cases. - See 1985 Op. Att'y Gen. No. U85-23.

Proceeds of accounts not claimed during voluntary liquidation of a financial institution pass to the custody of the Department of Banking and Finance for ultimate disbursement pursuant to the Disposition of Unclaimed Property Act, O.C.G.A. § 44-12-190 et seq. 1975 Op. Att'y Gen. No. 75-135.

Filing where records destroyed prior to Act. - Where, prior to the effective date of the Disposition of Unclaimed Property Act, O.C.G.A. § 44-12-190 et seq., a bank was allowed to destroy records containing information required by O.C.G.A. § 44-12-214 , the bank is responsible for filing such information as it can make available. 1973 Op. Att'y Gen. No. 73-11.

Service charge on dormant bank accounts. - O.C.G.A. § 7-1-358 repealed by implication the prohibition against the imposition of service charge on dormant bank accounts contained in the Disposition of Unclaimed Property Act, O.C.G.A. § 44-12-190 et seq. 1975 Op. Att'y Gen. No. 75-128.

Preemption by federal regulation. - The conflict between a rule or regulation of the Federal Home Loan Bank Board and O.C.G.A. § 44-12-214 , concerning the proper service charges which may be exacted from any inactive account, must be resolved in favor of the limitations imposed by the federal regulation, inasmuch as the state is prohibited from enacting legislation in areas preempted by federal law. 1974 Op. Att'y Gen. No. 74-30.

44-12-215. Publication of "Georgia Unclaimed Property List"; contents of notice.

  1. The commissioner shall electronically publish notice of the reports filed under Code Section 44-12-214 on the Department of Revenue's website.
  2. The published notice shall be entitled the "Georgia Unclaimed Property List" and shall contain the names in alphabetical order and the internal identification number of persons listed in the report and entitled to notice within the county as provided in Code Section 44-12-214.
  3. The notice shall contain a statement that information concerning the amount or description of the property and the name of the holder may be obtained by any persons possessing an interest in the property by addressing an inquiry to the commissioner. In cases of property submitted pursuant to Code Section 44-12-211.1, the notice shall also contain the year, make, model, and vehicle identification number of the motor vehicle sold pursuant to Article 1A of Chapter 11 of Title 40, "The Abandoned Motor Vehicle Act."
  4. The commissioner shall not be required to publish in such notice any item with a value of less than $50.00 unless the commissioner deems such publication to be in the public interest. (Code 1981, § 44-12-215 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 2015, p. 30, § 2/SB 82; Ga. L. 2019, p. 872, § 7/HB 307.)

The 2015 amendment, effective March 31, 2015, in subsection (a), substituted "electronically publish" for "cause to be published" near the beginning and substituted "on the Department of Revenue's website" for ", once a year in a newspaper of general circulation" at the end; and, in subsection (d), substituted "shall not be required" for "is not required" near the beginning and substituted "the commissioner" for "he" near the middle.

The 2019 amendment, effective May 7, 2019, added the second sentence in subsection (c).

Editor's notes. - Ga. L. 2019, p. 872, § 8/HB 307, not codified by the General Assembly, provides: "This Act shall become effective upon approval by the Governor or upon its becoming law without such approval for purposes of developing the required forms and shall become effective on September 1, 2019, for all other purposes." The Governor signed this Act on May 7, 2019.

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Escheat, § 33.

C.J.S. - 76 C.J.S., Records, §§ 60 et seq., 93 et seq.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) §§ 12, 23.

44-12-216. Assumption of custody by state; legal proceedings instituted by other state; reimbursements for costs to safe-deposit box holders.

  1. Upon payment or delivery of abandoned property to the commissioner, the state shall assume custody and shall be responsible for the safekeeping of the property.  Any person who pays or delivers abandoned property to the commissioner under this article is relieved of all liability, to the extent of the value of the property so paid or delivered, or for any claim which then exists or which thereafter may arise or be made with respect to the property. Any holder who has paid moneys to the commissioner pursuant to this article may reimburse any person appearing to such holder to be entitled thereto; and, upon proof of such payment and proof that the payee was entitled thereto, the commissioner shall forthwith reimburse the holder for the payment.
  2. In the event legal proceedings are instituted by any other state or states in any state or federal court with respect to unclaimed funds or abandoned property previously paid or delivered to the commissioner, the holder shall give written notification to the commissioner and the Attorney General of this state of such proceedings within ten days after service of process or at least ten days before the return date on which an answer or similar pleading is due or any extension thereof is secured by the holder. The Attorney General may take such action as he deems necessary or expedient to protect the interest of this state.  The Attorney General, by written notice prior to the return date on which an answer or similar pleading is due or any extension thereof is secured by the holder, but in any event in reasonably sufficient time for the holder to comply with the directions received, shall either direct the holder actively to defend in the proceedings or direct that no defense be entered into the proceedings. If a direction is received from the Attorney General that the holder need not make a defense, this shall not preclude the holder from entering a defense in his own name if he should so choose.  However, any defense made by the holder on his own initiative shall not entitle the holder to reimbursement for legal fees, costs, and other expenses as is provided in this Code section with respect to defenses made pursuant to the direction of the Attorney General.  After the holder has actively defended in the proceedings pursuant to the direction of the Attorney General or has been notified in writing by the Attorney General that no defense need be made with respect to such funds, if a judgment is entered against the holder for any amount paid to the commissioner under this article, the commissioner, upon being furnished either proof of payment or satisfaction of such judgment, shall reimburse the holder the amount so paid.  The commissioner shall also reimburse the holder for any legal fees, costs, and other directly related expenses incurred in legal proceedings undertaken pursuant to the direction of the Attorney General.
  3. Property removed from a safe-deposit box or other safekeeping repository that is received by the commissioner shall be subject to the holder's right under this Code section to be reimbursed for the actual cost of the opening and to any valid lien or contract providing for the holder to be reimbursed for unpaid rent or storage charges.  The commissioner shall make the reimbursement to the holder out of the proceeds remaining after the deduction of the commissioner's selling costs. (Code 1981, § 44-12-216 , enacted by Ga. L. 1990, p. 1506, § 1.)

44-12-217. Sale or destruction of property.

  1. All abandoned property, other than money delivered to the commissioner under this article, shall, within three years after the delivery, be sold by him to the highest bidder at public sale in whatever city in the state affords, in his judgment, the most favorable market for the property involved.  The commissioner may decline the highest bid and reoffer the property for sale if he considers the price bid insufficient. He need not offer any property for sale if, in his opinion, the probable cost of the sale exceeds the value of the property.
  2. Any sale held under this Code section shall be preceded by a single publication of notice thereof at least three weeks in advance of the sale in a newspaper of general circulation in the county where the property is to be sold.
  3. At any sale conducted by the commissioner pursuant to this article, the purchaser shall receive title to the property purchased free from all claims of the owner or prior holder thereof and of all persons claiming through or under them. The commissioner shall execute all documents necessary to complete the transfer of title.
  4. If the commissioner determines after investigation that any property delivered under this article has insubstantial commercial value of less than $100.00, he may destroy or otherwise dispose of the property at any time.  No action or proceeding may be maintained against the state or any officer or against any holder for or on account of any action taken by the commissioner pursuant to this subsection. (Code 1981, § 44-12-217 , enacted by Ga. L. 1990, p. 1506, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Transfer of abandoned stock certificates. - Under the Disposition of Unclaimed Property Act, O.C.G.A. § 44-12-190 et seq., stock certificates deemed abandoned should be tendered to the Department of Revenue, registered in the name of the state revenue commissioner. 1983 Op. Att'y Gen. No. 83-77.

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Escheat, § 45.

C.J.S. - 30A C.J.S., Escheat, §§ 9, 22, 23.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 17.

44-12-218. Disposition of funds received under article.

All funds received under this article, including the proceeds from the sale of abandoned property under Code Section 44-12-217, shall be deposited by the commissioner in the general fund; provided, however, that the commissioner may deduct moneys necessary to cover the direct administrative expenses required to identify, locate, secure, and transmit abandoned property prior to depositing such funds. Before making a deposit he or she shall record the name and last known address of each person appearing from the holders' reports to be entitled to the abandoned property and of the name and last known address of each insured person or annuitant and, with respect to each policy or contract listed in the report of an insurance corporation, its number, the name of the corporation, and the amount due.

(Code 1981, § 44-12-218 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 2013, p. 636, § 2/HB 359; Ga. L. 2015, p. 30, § 3/SB 82.)

The 2013 amendment, effective May 6, 2013, deleted the subsection (a) designation; in the first sentence of this Code section, deleted ", except that the commissioner shall retain in a separate trust fund a sum sufficient from which he shall make prompt payment of claims duly allowed by him as provided in Code Section 44-12-220" following "fund" at the end, and inserted "or she" near the beginning of the second sentence; and deleted former subsection (b), which read: "Before making any deposit to the credit of the general fund the commissioner may deduct:"

"(1) Any costs in connection with sale of abandoned property;

"(2) Any costs of mailing and publication in connection with any abandoned property;

"(3) Operating expenses;

"(4) Amounts required to make payments to other states, during the next fiscal year, through reciprocity agreements; and

"(5) Expenses for consulting services."

The 2015 amendment, effective March 31, 2015, in the first sentence, deleted "forthwith" following "shall" and added the proviso at the end.

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Escheat, § 43 et seq.

C.J.S. - 30A C.J.S., Escheat, §§ 9, 22, 23. 81A C.J.S., States, § 228.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) §§ 18, 26.

44-12-219. When commissioner may decline to receive certain property.

The commissioner, after receiving reports of property deemed abandoned pursuant to this article, may decline to receive any property reported which he deems to have a value less than the cost of giving notice and holding sale, or he may, if he deems it desirable because of the small sum involved, postpone taking possession until a sufficient sum accumulates. Unless the holder of the property is notified to the contrary within 120 days after filing the report required under Code Section 44-12-214, the commissioner shall be deemed to have elected to receive the custody of the property.

(Code 1981, § 44-12-219 , enacted by Ga. L. 1990, p. 1506, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 1 Am. Jur. 2d, Abandoned, Lost, and Unclaimed Property, §§ 30, 34. 27 Am. Jur. 2d, Escheat, § 46 et seq.

C.J.S. - 1 C.J.S., Abandonment, § 12. 30A C.J.S., Escheat, § 9 et seq.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 22.

44-12-220. Claims for property paid or delivered to commissioner; procedure; destruction of records after seven years.

  1. A person, excluding another state, claiming an interest in any property paid or delivered to the commissioner may file with him a claim on a form prescribed by him and verified by the claimant.
  2. The commissioner shall consider each claim within 90 days after it is filed and give written notice to the claimant if the claim is denied in whole or in part.  The notice may be given by mailing it to the last address, if any, stated in the claim as the address to which notices are to be sent.  If no address for notices is stated in the claim, the notice may be mailed to the last address, if any, of the claimant as stated in the claim.  No notice of denial need be given if the claim fails to state either the last address to which notices are to be sent or the address of the claimant.
  3. If a claim is allowed, the commissioner shall pay over or deliver to the claimant the property or the amount the commissioner actually received or the net proceeds if it has been sold by the commissioner.  The owner is not entitled to receive income or other increments accruing after remittance to the commissioner.
  4. The commissioner may, after seven years following the receipt of property, destroy such records related to the property as deemed necessary; and after said seven-year period any claim relating to such property must be fully substantiated by a claimant, without recourse to such records. (Code 1981, § 44-12-220 , enacted by Ga. L. 1990, p. 1506, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Escheat, § 46 et seq.

C.J.S. - 30A C.J.S., Escheat, §§ 22, 23. 81A C.J.S., States, § 269.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 19.

44-12-221. Appeal of commissioner's decision.

Any person aggrieved by a decision of the commissioner or whose claim the commissioner has failed to act upon within 90 days after the filing of the claim may appeal such decision or lack of decision to the Superior Court of Fulton County. The proceeding shall be brought within 90 days after the decision of the commissioner or within 180 days of the filing of the claim if the commissioner fails to act. The appeal shall be tried de novo without a jury.

(Code 1981, § 44-12-221 , enacted by Ga. L. 1990, p. 1506, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Escheat, § 46 et seq.

C.J.S. - 30A C.J.S., Escheat, §§ 9, 10. 81A C.J.S., States, § 297.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 21.

44-12-222. Determination of claim; hearing.

  1. The commissioner shall consider any claim filed under this article and may hold a hearing and receive evidence concerning it.  If a hearing is held, he shall prepare a finding and a decision in writing on each claim filed, stating the substance of any evidence heard by him and the reasons for his decision.  The decision shall be a public record.
  2. If the claim is allowed, the commissioner shall make payment forthwith.  The claim shall be paid without deduction for costs of notice. (Code 1981, § 44-12-222 , enacted by Ga. L. 1990, p. 1506, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 27 Am. Jur. 2d, Escheat, § 46 et seq.

C.J.S. - 30A C.J.S., Escheat, §§ 22, 23. 81A C.J.S., States, §§ 273, 278.

U.L.A. - Uniform Disposition of Unclaimed Property Act (U.L.A.) § 20.

44-12-223. Effect of periods of limitation.

The expiration of any period of time specified by statute or court order, during which an action or proceeding may be commenced or enforced to obtain payment of a claim for money or property, shall not prevent the money or property from being presumed abandoned property nor affect any duty to file a report required by this article or to pay or deliver abandoned property to the commissioner.

(Code 1981, § 44-12-223 , enacted by Ga. L. 1990, p. 1506, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Outstanding checks not abandoned property. - Outstanding checks may be evidence of abandoned deposits, but the checks themselves would not be abandoned property. 1981 Op. Att'y Gen. No. 81-16.

44-12-224. Agreement and fees for recovery or assistance in recovery of property reported and delivered to commissioner.

  1. All agreements to pay compensation to recover or assist in the recovery of property reported and delivered to the commissioner under this article shall be unenforceable for 24 months after the date of payment or the delivery of property to the commissioner.
  2. The fees charged by any person, firm, or corporation to recover or assist in the recovery for and on behalf of a claimant of property reported and delivered to the commissioner under this article shall not exceed 10 percent of the value of the property recovered.  All funds or property located by a person to be compensated by the payment of such a fee shall be paid or delivered directly to the owner and may not be paid or delivered to the person to receive the fee whether pursuant to a duly executed power of attorney or otherwise. (Code 1981, § 44-12-224 , enacted by Ga. L. 1990, p. 1506, § 1.)

JUDICIAL DECISIONS

Cap on compensation. - Court capped asset recovery specialist's compensation at 10% of the $65,000 recovered by the bankruptcy trustee pursuant to O.C.G.A. § 44-12-224(b) . Blocksom v. Brown (In re Brown), 555 Bankr. 854 (Bankr. S.D. Ga. 2016).

44-12-225. Confidentiality of information or records required by this article.

Any information or records required to be furnished to the commissioner shall be confidential except as otherwise necessary in the proper administration of this article.

(Code 1981, § 44-12-225 , enacted by Ga. L. 1990, p. 1506, § 1.)

44-12-226. Expiration of limitation specified by contract, statute, or court order not to affect duties required by this article.

The expiration, before or after July 1, 1990, of any period of time specified by contract, statute, or court order during which a claim for money or property can be made or during which an action or proceeding may be commenced or enforced to obtain payment of a claim for money or to recover property, does not prevent the money or property from being presumed abandoned nor affect any duty to file a report or to pay or deliver abandoned property to the commissioner as required by this article.

(Code 1981, § 44-12-226 , enacted by Ga. L. 1990, p. 1506, § 1.)

JUDICIAL DECISIONS

No presumption of abandonment. - Assessment of dormancy fees on gift cards and certificates and refusal to honor them after one year did not violate O.C.G.A. § 44-12-205 of the Georgia Disposition of Unclaimed Property Act (DUPA), O.C.G.A. § 44-12-190 et seq; as the cards and certificates had not been unclaimed by the plaintiffs for more than five years when the complaint was filed, they were not presumed abandoned, and DUPA did not apply. Simon Prop. Group, Inc. v. Benson, 278 Ga. App. 277 , 628 S.E.2d 697 (2006), aff'd, remanded, 281 Ga. 744 , 642 S.E.2d 687 (2007).

Law governing claims by owners against property holders. - O.C.G.A. § 44-12-226 , which simply ensured that a holder was not relieved of its obligation to deliver abandoned property to the state revenue commissioner, even though an owner's claim for possession against a holder was barred by the statute of limitations, did not provide a basis for the owners of certain gift cards and certificates to bring an action against the holder of the cards and certificates that claimed that the dormancy fees and expiration dates on the cards and certificates violated the Disposition of Unclaimed Property Act, O.C.G.A. Art. 5, Ch. 12, T. 44; the relationship between the owners and the holder was governed by Georgia contract law. Benson v. Simon Prop. Group, Inc., 281 Ga. 744 , 642 S.E.2d 687 (2007).

RESEARCH REFERENCES

ALR. - Regulation of pre-paid stored-value "gift cards", 46 A.L.R.6th 437.

44-12-227. Penalties.

  1. A person, firm, or corporation who willfully fails to render any report or perform other duties required under this article shall pay a civil penalty of $100.00 for each day the report is withheld or the duty is not performed, but not more than $5,000.00.
  2. A person, firm, or corporation who willfully fails to pay or deliver property to the commissioner as required under this article shall pay a civil penalty equal to 25 percent of the value of the property that should have been paid or delivered.
  3. A person, firm, or corporation who willfully refuses after written demand by the commissioner to pay or deliver as required by this article is guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000.00 or by imprisonment not to exceed six months or by both such fine and imprisonment. (Code 1981, § 44-12-227 , enacted by Ga. L. 1990, p. 1506, § 1.)

44-12-228. Maintenance and retention of records.

  1. Every financial institution, banking organization, and business association and all other holders required to file a report under Code Section 44-12-214 shall retain all books, records, and documents necessary to establish the accuracy and compliance of such report for ten years after the property becomes reportable, except to the extent that shorter time is provided in accordance with Article 5 of Chapter 18 of Title 50, the "Georgia Records Act," or in subsection (b) of this Code section or by rule of the commissioner.  As to any property for which it has obtained the last known address of the owner, the holder shall maintain a record of the name and last known address of the owner for the same ten-year period.
  2. Any business associations that sell in this state their traveler's checks, money orders, or other similar written instruments, other than third-party bank checks on which the business association is directly liable, or that provides such instruments to others for sale in this state shall maintain a record of those instruments while they remain outstanding, indicating the state and date of issue for three years after the date the property is reportable. (Code 1981, § 44-12-228 , enacted by Ga. L. 1990, p. 1506, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "their traveler's checks" was substituted for "its traveler's checks" near the beginning of subsection (b).

44-12-229. Commissioner may compel filing of report and may examine records; failure to maintain records.

  1. The commissioner may require any person who has not filed a report to file a verified report stating whether or not the person is holding any unclaimed property reportable or deliverable under this article.
  2. The commissioner may at reasonable times and upon reasonable notice examine the records of any person to determine whether the person has complied with the provisions of this article. The commissioner may conduct the examination even if the person believes it is not in possession of any property reportable or deliverable under this article.
  3. If a holder fails to maintain the records required by Code Section 44-12-228 and the records of the holder available for the periods subject to this article are insufficient to permit the preparation of a report, the holder shall be required to report and pay such amounts as may reasonably be estimated from any available records. (Code 1981, § 44-12-229 , enacted by Ga. L. 1990, p. 1506, § 1.)

44-12-230. Employment of independent consultant.

The commissioner may employ the services of such independent consultants, and other persons possessing specialized skills or knowledge as he shall deem necessary or appropriate for the administration of this article, including, but not limited to, valuation, maintenance, upkeep, management, sale and conveyance of property, and determination of sources of unreported abandoned property.

(Code 1981, § 44-12-230 , enacted by Ga. L. 1990, p. 1506, § 1.)

44-12-231. Enforcement of article; properties not paid over on a timely basis.

  1. The commissioner may bring an action in a court of competent jurisdiction to enforce this article. Notwithstanding the provisions of Code Section 44-12-214, the commissioner shall commence enforcement for the reporting, payment, or delivery of property presumed abandoned under this article, with the exception of property held in a fiduciary capacity, not later than seven years from the date the property is presumed abandoned.
  2. Properties due and owing under this Code section and not paid over to the commissioner on a timely basis shall be paid upon notice and demand by the commissioner or the commissioner's delegate and shall be assessed and collected in the manner provided for assessment and collection of state taxes in Chapters 2, 3, and 4 of Title 48.  The commissioner is authorized to issue an execution for the amounts due as provided in Code Section 48-3-1 .  The remedies specified in this subsection shall be in addition to all other remedies provided for in this article. (Code 1981, § 44-12-231 , enacted by Ga. L. 1990, p. 1506, § 1; Ga. L. 1993, p. 1813, § 1.)

44-12-232. Article does not relieve holder of duty that arose before July 1, 1990.

  1. This article does not relieve the holder of a duty that arose before July 1, 1990, to report, pay, or deliver property.  A holder who did not comply with the law in effect before July 1, 1990, is subject to the applicable enforcement and penalty provisions that then existed and they are continued in effect for the purpose of this subsection, subject to Code Section 44-12-227.
  2. The initial report filed under this article for property that was not required to be reported before July 1, 1990, but which is subject to this article must include all items of property that would have been presumed abandoned during the ten-year period preceding July 1, 1990, as if this article had been in effect during that period. (Code 1981, § 44-12-232 , enacted by Ga. L. 1990, p. 1506, § 1.)

44-12-233. Receipt of securities under this article.

Whenever the commissioner shall receive securities under this article in the name of the owner, he shall forthwith take appropriate action to transfer the record of ownership of said securities into the name of the commissioner.

(Code 1981, § 44-12-233 , enacted by Ga. L. 1990, p. 1506, § 1.)

44-12-234. Property in foreign country or arising out of foreign transaction.

This article does not apply to any property held, due, and owing in a foreign country and arising out of a foreign transaction.

(Code 1981, § 44-12-234 , enacted by Ga. L. 1990, p. 1506, § 1.)

44-12-235. Rules and regulations.

The commissioner may make necessary rules and regulations to carry out the provisions of this article.

(Code 1981, § 44-12-235 , enacted by Ga. L. 1990, p. 1506, § 1.)

44-12-236. Alternative method of disposition with respect to certain dividends or capital credits which are presumed abandoned; definitions; procedures.

  1. As used in this Code section, the term:
    1. "Approved uses" means:
      1. Donated to an Internal Revenue Code Section 501(c)(3) organization serving in the electric membership corporation's service area;
      2. Used in support of education in the electric membership corporation's service area; or
      3. Used for economic development purposes in the electric membership corporation's service area.
    2. "Electric membership corporation's service area" means any county in which the electric membership corporation provides electric service and any county adjacent thereto.
  2. All patronage dividends or capital credits presumed abandoned pursuant to this article in a given calendar year that are held by an electric membership corporation organized and operating pursuant to Article 4 of Chapter 3 of Title 46 may, in lieu of payment of delivery to the commissioner pursuant to this article, be donated for approved uses if the electric membership corporation has:
    1. Maintained for at least six months on the electric membership corporation's website or on a public posting in the electric membership corporation's main office a list of the names and last known addresses of all owners of property held by the electric membership corporation which has been presumed abandoned, together with instructions on how to claim such property; and
    2. Published in the legal organ in the county in which the electric membership corporation's main office is located notice of the last date to claim property that has been presumed abandoned. Such notice shall be published within three to six months prior to the last date to claim the property and shall state that the names of the owners may be found at the electric membership corporation's website or the main office. (Code 1981, § 44-12-236 , enacted by Ga. L. 2005, p. 792, § 1/HB 431; Ga. L. 2020, p. 493, § 44/SB 429.)

Effective date. - This Code section became effective May 4, 2005.

The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, substituted "this Code section" for "the Code section" in subsection (a).

44-12-236.1. Donation of abandoned dividends or capital credits by rural telephone cooperatives for certain purposes.

  1. As used in the Code section, the term:
    1. "Area" means any county in which a telephone cooperative provides telephone service and any county adjacent thereto.
    2. "Telephone cooperative" shall have the same meaning as provided for the term "cooperative" in Code Section 46-5-62.
    3. "Telephone service" shall have the same meaning as provided for in Code Section 46-5-62.
  2. All patronage dividends or capital credits held by a telephone cooperative that are presumed abandoned pursuant to this article in a given calendar year may, in lieu of payment of delivery to the commissioner pursuant to this article, be donated to a nonprofit organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code that supports education or economic development in the area if the telephone cooperative has:
    1. Maintained for at least six months on the telephone cooperative's website or on a public posting in the telephone cooperative's main office, a list of the names and last known addresses of all owners of property held by the telephone cooperative that have been presumed abandoned, together with instructions on how to claim such property; and
    2. Published in the legal organ in the county in which the telephone cooperative's main office is located notice of the last date to claim property that has been presumed abandoned. Such notice shall be published within three to six months prior to the last date to claim the property and shall state that the names of the owners may be found at the telephone cooperative's website or main office. (Code 1981, § 44-12-236.1 , enacted by Ga. L. 2017, p. 352, § 6/SB 46.)

Effective date. - This Code section became effective July 1, 2017.

44-12-237. Unclaimed United States Savings Bond.

  1. Notwithstanding the provisions of subsection (a) of Code Section 44-12-216, United States savings bonds which are unclaimed property and subject to the provisions of Code Section 44-12-190, et seq., the "Disposition of Unclaimed Property Act," shall escheat to the State of Georgia three years after becoming unclaimed property and subject to the provisions of Code Section 44-12-190, et seq., and all property rights to such United States savings bonds or proceeds from such bonds shall vest solely in the State of Georgia.
  2. If, within 180 days after the passage of three years pursuant to subsection (a) of this Code section, no claim has been filed in accordance with the provisions of Code Section 44-12-190, et seq., for such United States savings bonds, the commissioner shall commence a civil action in the Superior Court of Fulton County for a determination that such United States savings bonds shall escheat to the state. The commissioner may postpone the bringing of such action until sufficient United States savings bonds have accumulated in the commissioner's custody to justify the expense of such proceedings.
  3. If no person shall file a claim or appear at the hearing to substantiate a claim or if the court shall determine that a claimant is not entitled to the property claimed, then the court, if satisfied by evidence that the commissioner has substantially complied with the laws of this state, shall enter a judgment that the subject United States savings bonds have escheated to the state.
  4. The commissioner shall redeem such United States savings bonds, and the proceeds shall be deposited in the state general fund in accordance with the provisions of Code Section 44-12-218 . (Code 1981, § 44-12-237 , enacted by Ga. L. 2015, p. 937, § 2/HB 322.)

Effective date. - This Code section became effective July 1, 2015.

44-12-238. Claim for United States savings bonds escheated to state.

Any person making a claim for the United States savings bonds escheated to the state under Code Section 44-12-237, or for the proceeds from such bonds, may file a claim in accordance with the provisions of Code Section 44-12-190, et seq., the "Disposition of Unclaimed Property Act." Upon providing sufficient proof of the validity of such person's claim, the commissioner may pay such claim in accordance with the provisions of Code Section 44-12-190, et seq.

(Code 1981, § 44-12-238 , enacted by Ga. L. 2015, p. 937, § 2/HB 322.)

Effective date. - This Code section became effective July 1, 2015.

ARTICLE 6 FALLING PECANS

RESEARCH REFERENCES

ALR. - Ungathered fruit as subject of conversion or action of trover, 63 A.L.R. 230 .

JUDICIAL DECISIONS

Contract to harvest pecans anticipating future lease. - Contract for the harvest of pecans was enforceable, although the lessor had not yet purchased the orchard and the parties planned to sign a lease, because the contract identified the parties, the property, the consideration, and the lease term; the lessee therefore could not recover on theories of unjust enrichment or money had and received. Cook Pecan Co. v. McDaniel, 344 Ga. App. 370 , 810 S.E.2d 186 (2018).

44-12-240. Definitions.

As used in this article, the term:

  1. "Harvesting season" means that portion of each calendar year beginning on October 1 and ending on December 31.
  2. "Owner" means the person, firm, or corporation owning the land on which pecan trees are growing or the person, firm, or corporation having legal possession of the land.

    (Ga. L. 1976, p. 272, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63 Am. Jur. 2d, Property, § 31.

C.J.S. - 73 C.J.S., Property, § 24 et seq.

44-12-241. Pecans falling on public right of way - Ownership during harvest season; picking pecans from tree limbs without permission; penalty.

  1. When pecan trees are grown on private property and the branches of the trees extend over public roads, streets, or highway rights of way, any pecans falling from any such pecan trees onto the public rights of way shall be the property of the owner of the pecan trees until the end of the harvesting season; and it shall be unlawful for any person to remove the pecans from any public rights of way during the harvesting season without the permission of the owner of the trees.
  2. It shall be unlawful for any person, without the permission of the owner of pecan trees grown on private property, to pick or otherwise remove any pecans from the limbs or branches of the trees or to cause pecans to fall from the trees.
  3. Any person who violates this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1976, p. 272, §§ 1, 5; Ga. L. 1982, p. 3, § 44.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63 Am. Jur. 2d, Property, § 1.

C.J.S. - 73 C.J.S., Property, § 24 et seq.

44-12-242. Pecans falling on public right of way - Removal out of harvest season.

Any pecans remaining on public roads, streets, or highway rights of way during any portion of the calendar year except the harvesting season shall be deemed to be abandoned by the owner of the pecans; and it shall not be unlawful for any person to remove such pecans from such public rights of way.

(Ga. L. 1976, p. 272, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63 Am. Jur. 2d, Property, § 43.

C.J.S. - 73 C.J.S., Property, § 31 et seq.

44-12-243. Effect of article on maintenance of public rights of way; harvest on limited access highways.

This article shall not be construed to prohibit employees of the Department of Transportation or the employees of a county or municipality from engaging in normal activities of maintenance on the rights of way of public roads, streets, or highways; nor shall this article be construed to grant the owner of any pecan trees the right to harvest pecans from the right of way of any interstate or other limited access highway.

(Ga. L. 1976, p. 272, § 4.)

RESEARCH REFERENCES

Am. Jur. 2d. - 73 Am. Jur. 2d, Statutes, § 60 et seq.

C.J.S. - 82 C.J.S., Statutes, § 306 et seq.

ARTICLE 7 PROTECTION OF AMERICAN INDIAN HUMAN REMAINS AND BURIAL OBJECTS

Cross references. - Protection of archeological, aboriginal, prehistoric, and historic sites, § 12-3-620 et seq.

PART 1 A MERICAN INDIAN HUMAN REMAINS AND BURIAL OBJECTS HELD BY MUSEUMS

44-12-260. Definitions.

As used in this article, the term:

  1. "American Indian" means an individual who is a member of a nation, tribe, band, group, or community that was indigenous to Georgia; is a descendant of persons named as American Indians in the Georgia Senate Bill 89, enacted during the legislative session of 1839 (Ga. L. 1839, p. 374); or is a descendant of persons included in the United States Indian Claims Commission, Docket 21, 1962, and those sequel dockets pertaining to the Creek Nation east of the Mississippi River.
  2. "American Indian tribe" means any nation, tribe, band, group, or community that was indigenous to Georgia and is recognized as eligible for the special programs and services provided by the United States to Indians because of its status as Indian; or whose members are descendants of American Indians indigenous to Georgia.
  3. "Burial object" means an object that, as a part of the death rite or ceremony of a culture, is reasonably believed to have been placed with individual human remains either at the time of death or later.  Such term includes any item defined in paragraph (4) of Code Section 36-72-2 and may also include but not be limited to urns; whole or broken ceramic, metal, or glass vessels; chipped stone tools; ground stone tools; worked bone and shell items; clothing; medals; buttons; jewelry; firearms; edged weapons; and the caskets or containers for the human remains.
  4. "Burial site" or "burial ground" means an area dedicated to and used for interment of human remains. The fact that the area was used for burial purposes shall be evidence that it was set aside for burial purposes. Such a site may be any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which, as a part of the death rite or ceremony of a culture, individual human remains are deposited. Such term does not include any cemetery required to be registered with the Secretary of State pursuant to Code Section 10-14-4.
  5. "Council" means the Council on American Indian Concerns established by Code Section 44-12-280.
  6. "Cultural affiliation" means that there is a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe and an identifiable earlier group.
  7. "Human remains" means the bodies of deceased human beings in any stage of decomposition, including cremated remains.
  8. "Inventory" means a simple itemized list that summarizes the information called for by this article.
  9. "Museum" means any institution or state or local government agency or any institution of higher learning that is not included in paragraph (8) of Section 2 of Public Law 101-601. (Code 1981, § 44-12-260 , enacted by Ga. L. 1992, p. 1790, § 6; Ga. L. 1993, p. 91, § 44; Ga. L. 2000, p. 882, § 6.)

The 2000 amendment, effective July 1, 2000, substituted "Code Section 10-14-4" for "Code Section 44-3-134" at the end of paragraph (4).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1992, a superfluous "the" was deleted preceding "special" in paragraph (2).

44-12-261. Inventory of American Indian human remains or burial objects in possession of museum; additional documentation upon request of American Indian tribe; construction of part; extension of time to complete inventory and identification; notification of affected tribes.

  1. Any museum having possession or control over holdings or collections of American Indian human remains or burial objects shall compile an inventory of such items and, to the extent possible based on information possessed by such museum, identify the geographical and cultural affiliation of such items.
  2. The inventory and identification required under subsection (a) of this Code section shall be:
    1. Completed in consultation with American Indian tribes;
    2. Completed by not later than July 1, 1997; and
    3. Made available to the Secretary of State and the council both during the time conducted and afterward.
  3. Upon the request of any American Indian tribe, a museum shall supply additional available documentation to supplement the information required by subsection (a) of this Code section. Such documentation shall consist of a summary of existing museum records, including inventories or catalogs, relevant studies, and other pertinent data for the limited purpose of determining the geographical origin, cultural affiliation, and basic facts surrounding the acquisition and accession of American Indian human remains and burial objects subject to this Code section.
  4. This part shall not be construed to be an authorization for the initiation of new scientific studies of human remains and burial objects or the initiation of any other method of acquiring or preserving additional scientific information from such remains and objects.
  5. Any museum which has made a good faith effort to carry out an inventory and identification under this Code section, but which has been unable to complete the process, may appeal to the Secretary of State for an extension of the time requirement set forth in paragraph (2) of subsection (b) of this Code section.  The Secretary of State may once grant an extension of up to one year for any such museum upon a finding of good faith effort.  An indication of good faith shall include the development of a plan to carry out the inventory and identification process.
  6. If the cultural affiliation of any particular American Indian human remains or burial objects is determined pursuant to this Code section, the museum concerned shall not later than six months after the completion of the inventory notify the affected American Indian tribes.  The notice shall include information:
    1. Which identifies or describes each American Indian human remains or burial object and the circumstances surrounding its acquisition;
    2. Which lists the human remains or burial objects that are clearly identifiable as to tribal origin; and
    3. Which lists the American Indian human remains and burial objects that are not clearly identifiable as being culturally affiliated with that Indian tribe, but which, given the totality of circumstances surrounding acquisition of the remains or objects, are determined by a reasonable belief to be remains or objects culturally affiliated with the Indian tribe. A copy of each notice shall be sent to the Secretary of State and to the Council on American Indian Concerns. (Code 1981, § 44-12-261 , enacted by Ga. L. 1992, p. 1790, § 6.)

44-12-262. Return of human remains and burial objects upon request of known lineal descendant or tribe; immunity of museum for returns made in good faith; private collections of artifacts not containing burial objects.

  1. Upon the request of a known lineal descendant of the particular American Indian or, if a cultural affiliation is established between a particular American Indian tribe and particular human remains or burial objects, the request of the tribe, and pursuant to subsections (d) and (e) of this Code section, the museum shall expeditiously return such remains and objects.  However, no human remains or burial objects shall be repatriated outside of the State of Georgia unless claimed by a known lineal descendant of the deceased person, as proved by clear and convincing evidence.
  2. The return of human remains and burial objects covered by this part shall be in consultation with the requesting descendant or tribe to determine the place and manner of delivery of such items.
  3. Where cultural affiliation between an American Indian tribe and human remains or burial objects has not been established in an inventory prepared pursuant to Code Section 44-12-261, such American Indian tribe can establish cultural affiliation by a preponderance of the evidence based upon geographical, kinship, biological, archeological, anthropological, linguistic, folkloric, oral tradition, historical, or other relevant information or expert opinion.
  4. If either a lineal descendant of the deceased person or an American Indian tribe culturally affiliated with human remains or burial objects requests the return of such American Indian human remains or burial objects, the museum shall expeditiously return such items unless such items are indispensable for the completion of a specific scientific study, the outcome of which would be of major benefit to the State of Georgia, as determined by the Secretary of State and the council.  Such items shall be returned by no later than 120 days after the date on which scientific study is completed.  If the Secretary of State and the council cannot agree on the benefit of the scientific study, then they shall each appoint one representative to serve on a committee created and convened for the sole purpose of resolving the issue. The Governor shall appoint a person to chair the committee.  Such person may not be an employee of the Secretary of State or a member of the council.  The chairperson may vote to break a tie.
  5. When there are multiple requests for repatriation of any American Indian human remains or burial objects and after complying with the requirements of this part the museum cannot clearly determine which requesting party is the most appropriate claimant, the museum may retain such item until the requesting parties agree upon its disposition or the dispute is resolved pursuant to the provisions of this article or in a court of competent jurisdiction.
  6. Any museum which repatriates any American Indian human remains or burial objects in good faith pursuant to this part shall not be liable for claims by an aggrieved party or for claims of breach of fiduciary duty or public trust.
  7. Nothing in this Code section shall require private citizens to surrender artifact collections that do not contain burial objects. (Code 1981, § 44-12-262 , enacted by Ga. L. 1992, p. 1790, § 6.)

44-12-263. Monitoring and review of inventory, identification, and repatriation activities.

The council shall monitor and review the implementation of inventory and identification process and repatriation activities required under Code Sections 44-12-261 and 44-12-262 to ensure a fair, objective consideration and assessment of all available relevant information and evidence.

(Code 1981, § 44-12-263 , enacted by Ga. L. 1992, p. 1790, § 6.)

44-12-264. Penalties for violation of Code Sections 44-12-261 and 44-12-262.

  1. Any museum which fails to comply with the provisions of Code Section 44-12-261 or 44-12-262 shall be subject to a civil penalty to be imposed by the council. The amount of such penalty shall be based upon:
    1. The archeological, historical, or commercial value of the item involved;
    2. The damages suffered, both economic and noneconomic, by an aggrieved party; and
    3. The number of violations that have occurred

      but in no event shall the aggregate amount of such civil penalty exceed $5,000.00.

  2. Whenever the council proposes to subject a person to the imposition of a civil penalty under this Code section, the council shall notify such person in writing:
    1. Setting forth the date, facts, and nature of each act or omission with which the person is charged;
    2. Specifically identifying the particular provision or provisions of the Code section, rule, regulation, order, license, or registration certificate involved in the violation; and
    3. Advising of each penalty which the council proposes to impose and its amount.

      Such written notice shall be sent by registered or certified mail or statutory overnight delivery by the council to the last known address of such person. The person so notified shall be granted an opportunity to show in writing, within such reasonable period as the council shall by rule or regulation prescribe, why such penalty should not be imposed. The notice shall also advise such person that, upon failure to pay the civil penalty subsequently determined by the council, if any, the penalty may be collected by civil action. Any person upon whom a civil penalty is imposed may appeal such action pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

  3. A civil penalty finally determined under this Code section may be collected by civil action in the event that such penalty is not paid as required. On the request of the council, the Attorney General is authorized to institute a civil action to collect a penalty imposed pursuant to this Code section. The Attorney General shall have the exclusive power to compromise, mitigate, or remit such civil penalties as are referred to the Attorney General for collection.
  4. All moneys collected from civil penalties shall be paid to the state for deposit in the general fund. (Code 1981, § 44-12-264 , enacted by Ga. L. 1992, p. 1790, § 6; Ga. L. 2000, p. 1589, § 3; Ga. L. 2002, p. 632, § 1.)

The 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the first sentence in the last undesignated paragraph of subsection (b).

The 2002 amendment, effective July 1, 2002, substituted "council" for "Secretary of State" throughout this Code section and substituted "the council" for "he" in the introductory language of subsection (b).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the Act is applicable with respect to notices delivered on or after July 1, 2000.

PART 2 C OUNCIL ON AMERICAN INDIAN CONCERNS

44-12-280. Council on American Indian Concerns created; membership; assignment for administrative purposes; terms of office; removal for failure to attend meetings.

  1. As used in this Code section, the term:
    1. "Anthropologist" means a physical anthropologist who holds a Ph.D. in physical anthropology with demonstrated experience in on-site identification of human skeletal remains and who is currently active in the profession.
    2. "Archeologist" means any person who:
      1. Is a member of or meets the criteria for membership in the Society of Professional Archaeologists and can demonstrate experience or formal training in the excavation and interpretation of human graves; or
      2. Was employed on July 1, 1992, by the state or by any county or municipal governing authority as an archeologist.
  2. There is created the Council on American Indian Concerns, which shall consist of nine members to be appointed by the Governor. Five members shall be American Indians. Three members shall represent the scientific community and shall include at least one archeologist and one anthropologist; provided, however, that if no anthropologist can be identified who is willing to serve, then the membership reserved to an anthropologist shall be filled by a person who holds a master's degree or a higher degree in the field of anthropology and is currently active in the profession. One member shall be selected from the general public at large. All members of the council shall be legal residents of the State of Georgia. The Governor shall consult the tribal groups located in the state recognized by general law, the Human Relations Commission, the Georgia Council of Professional Archaeologists, the Society for Georgia Archaeology, and the Department of Natural Resources for recommendations before appointing members of the council.
  3. The council is assigned to the Department of Natural Resources for administrative purposes only, as specified in Code Section 50-4-3.
  4. The terms of appointment for members of the council shall be as follows: two American Indians, one scientist, and one representative of the general public shall be appointed for an initial term of three years; two American Indians, one scientist, and one representative of the general public shall be appointed for an initial term of two years; and one scientist shall be appointed for an initial term of one year. The member who represents the general public and who has the least time left in his or her term on July 1, 2002, shall cease to be a member on that date, and a member who is an American Indian shall be appointed to take office on that day for a term of three years. The Governor shall specify the length of the initial term of the councilmembers in their initial appointments. After such initial terms, all councilmembers shall be appointed for terms of three years. Active and continued participation by members of the council is needed. The Governor may remove any member who fails to attend three regularly scheduled consecutive meetings. Councilmembers may succeed themselves. (Code 1981, § 44-12-280 , enacted by Ga. L. 1992, p. 1790, § 6; Ga. L. 2002, p. 632, § 2; Ga. L. 2017, p. 212, § 1/HB 153.)

The 2002 amendment, effective July 1, 2002, in subsection (b), substituted "Five members" for "Four members" at the beginning of the second sentence, substituted "One member" for "Two members" at the beginning of the fourth sentence, and substituted "tribal groups located in the state recognized by general law" for "Georgia Tribes of Eastern Cherokee, Inc." in the last sentence; and added the second sentence in subsection (d).

The 2017 amendment, effective July 1, 2017, substituted "Department of Natural Resources" for "Governor's Office of Planning and Budget" in subsection (c).

Law reviews. - For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017).

44-12-281. Compensation and expenses.

Councilmembers shall receive no compensation for their services but shall be reimbursed for their actual travel and expenses necessarily incurred in the performance of their duties for each day such member of the council is in attendance at a meeting of the council.

(Code 1981, § 44-12-281 , enacted by Ga. L. 1992, p. 1790, § 6.)

44-12-282. Chairperson; meetings; quorum.

Annually, the councilmembers shall elect a chairperson for a term of one year. The council shall meet as frequently as needed to perform its duties, upon the call of the council chairperson. Five councilmembers shall constitute a quorum to conduct business.

(Code 1981, § 44-12-282 , enacted by Ga. L. 1992, p. 1790, § 6.)

44-12-283. Powers and duties of council.

The council shall have the following powers and duties:

  1. To serve as a resource for the notification of relatives under paragraph (4) of Code Section 36-72-5, relating to notification of relatives pursuant to obtaining a permit for land use change or disturbance; provided, however, that failure of the council to respond within 30 days to a request to serve as a resource for the notification shall not prevent the notification process or any permit process from taking place;
  2. To receive notice of permits issued and contracts issued under subsection (c) of Code Section 12-3-52 that affect aboriginal, prehistoric, or American Indian burial sites;
  3. To monitor the inventory and identification process conducted under Code Section 44-12-261 to ensure a fair, objective consideration and assessment of all available relevant information and evidence;
  4. To facilitate the resolution of disputes among American Indian tribes, lineal descendants of American Indians, and museums relating to the return of American Indian remains and burial objects pursuant to Code Section 44-12-262, including convening the parties to the dispute;
  5. To advise the Department of Natural Resources, the General Assembly, the Human Relations Commission, the Secretary of State, local political subdivisions, state and local law enforcement agencies, and other appropriate agencies and individuals regarding policy matters relating to issues affecting American Indians;
  6. To apply for and receive grants, gifts, and direct appropriations from the federal government; the state government; any county, municipal, or local government; any board, bureau, commission, agency, or establishment of any such government; any other organization, public or private; and any individual or groups of individuals; and
  7. To preserve and foster the culture and heritage of Indians and Indian descendants in this state and to be the agency to deal with specific federal programs which are required to be dealt with only by an Indian agency or organization. (Code 1981, § 44-12-283 , enacted by Ga. L. 1992, p. 1790, § 6; Ga. L. 2002, p. 632, § 3.)

The 2002 amendment, effective July 1, 2002, in paragraph (5), deleted "and" preceding "state and", inserted ", and other appropriate agencies and individuals", and deleted "and" at the end; substituted "; and" for a period at the end of paragraph (6); and added paragraph (7).

44-12-283.1. Additional powers of council.

In addition to any other powers granted by law, the council may, in its discretion, study, consider, accumulate, compile, assemble, and disseminate information on any aspect of Indian affairs; investigate relief needs of Indians in Georgia and provide technical assistance in the preparation of plans for the alleviation of such needs; confer with appropriate officials of local, state, and federal governments, and agencies of these governments, and with such congressional committees that may be concerned with Indian affairs, in order to encourage and implement coordination of applicable resources to meet the needs of Indians in Georgia; cooperate with and secure the assistance of the local, state, and federal governments, or any agencies thereof, in formulating any such programs and coordinate such programs with any programs regarding Indian affairs adopted or planned by the federal government, to the end that the department secures the full benefit of such programs; review all proposed or pending state legislation and amendments to existing state legislation affecting Indians in Georgia; conduct public hearings on matters relating to Indian affairs; study the existing status of recognition of all Indian groups, tribes, and communities presently existing in the state; expend funds in compliance with state regulations; and make legislative recommendations.

(Code 1981, § 44-12-283.1 , enacted by Ga. L. 2002, p. 632, § 3.)

Effective date. - This Code section became effective July 1, 2002.

44-12-283.2. Council authorized to promulgate rules and regulations; notification requirement.

The council is authorized to promulgate rules and regulations to accomplish the provisions of this article in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The council is expressly prohibited from engaging in any activity which would tend to assist the implementation of Indian gaming in this state, and the council shall immediately notify in writing the Governor, the President of the Senate, and the Speaker of the House of Representatives of any communication it may receive from any source relating to such subject.

(Code 1981, § 44-12-283.2 , enacted by Ga. L. 2002, p. 632, § 3.)

Effective date. - This Code section became effective July 1, 2002.

44-12-284. Delegation of duties; professional, technical, and clerical personnel.

The council may delegate duties to one or more councilmembers or agents. The council is authorized to obtain the services of such professional, technical, and clerical personnel as may be necessary to enable it to carry out its functions under this part and to contract for such services as may be necessary to enable the council to carry out its responsibilities.

(Code 1981, § 44-12-284 , enacted by Ga. L. 1992, p. 1790, § 6.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1992, "its responsibilities" was substituted for "it responsibilities".

44-12-285. Annual report.

The council shall make an annual report of its activities to the Governor.

(Code 1981, § 44-12-285 , enacted by Ga. L. 1992, p. 1790, § 6.)

PART 3 L EGITIMATE AMERICAN INDIAN TRIBES

Cross references. - Proceeding pertaining to Indian child exempted from Uniform Child Custody Jurisdiction and Enforcement Act, § 19-9-43 .

Law reviews. - For comment, "Lawless by Design: Jurisdiction, Gender and Justice in Indian Country," see 59 Emory L. J. 1515 (2010).

44-12-300. Tribes, bands, groups, or communities recognized by state as legitimate American Indian Tribes.

  1. The State of Georgia officially recognizes as legitimate American Indian tribes of Georgia the following tribes, bands, groups, or communities:
  2. The General Assembly may recognize tribes, bands, groups, or communities other than those stated in subsection (a) of this Code section as the General Assembly deems appropriate. (Code 1981, § 44-12-300 , enacted by Ga. L. 1993, p. 1813, § 2.)

The Georgia Tribe of Eastern Cherokee P.O. Box 1993 Dahlonega, Georgia 30533; (2) The Lower Muscogee Creek Tribe Route 2, Box 370 Whigham, Georgia 31797; and (3) The Cherokee of Georgia Tribal Council Saint George, Georgia 31646.

Law reviews. - For comment, "Lawless by Design: Jurisdiction, Gender and Justice in Indian Country," see 59 Emory L. J. 1515 (2010).

OPINIONS OF THE ATTORNEY GENERAL

Indian tribe not public entity. - The Georgia Tribe of Eastern Cherokee Indians is not a "public agency, public corporation, or public authority" as the phrase is used in Ga. Const. 1983, Art. IX, Sec. III, Para. I. 1995 Op. Att'y Gen. No. U95-21.

ARTICLE 8 DIE, MOLDS, FORMS, AND PATTERNS

Editor's notes. - Ga. L. 1999, p. 862, § 4, not codified by the General Assembly, provided that the Act shall not impair the obligation of any contract entered into prior to July 1, 1999.

PART 1 I N GENERAL

44-12-310. Definitions.

As used in this article, the term:

  1. "Customer" means any individual or entity who causes or caused a molder to fabricate, cast, or otherwise make a die, mold, form, or pattern or who provides a molder with a die, mold, form, or pattern to manufacture, assemble, cast, fabricate, or otherwise make a product or products for a customer.
  2. "Molder" means any individual or entity who fabricates, casts, or otherwise makes or uses a die, mold, form, or pattern for the purpose of manufacturing, assembling, casting, fabricating, or otherwise making a product or products for a customer. "Molder" includes, but is not limited to, a tool or die maker.
  3. "Within three years following the last prior use" shall include any three-year period following the last prior use of a die, mold, form, or pattern regardless of whether or not any portion of such period precedes July 1, 1999. (Code 1981, § 44-12-310 , enacted by Ga. L. 1999, p. 862, § 1; Ga. L. 2000, p. 136, § 44.)

The 2000 amendment, effective March 16, 2000, part of an Act to revise, modernize, and correct the Code, substituted "July 1, 1999" for "July 1, 1999" at the end of paragraph (3).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1999, "July 1, 1999" was substituted for "the effective date of this article" in paragraph (3).

44-12-311. Rights and title; transfer to molder.

  1. In the absence of any agreement to the contrary, the customer shall have all rights and title to any die, mold, form, or pattern in the possession of the molder.
  2. If a customer does not claim possession from a molder of a die, mold, form, or pattern within three years following the last prior use, all rights and title to any die, mold, form, or pattern shall be transferred by operation of law to the molder for the purpose of destroying or otherwise disposing of such die, mold, form, or pattern, consistent with this Code section.
  3. If a molder chooses to have all rights and title to any die, mold, form, or pattern transferred to the molder by operation of law, the molder shall send written notice by registered mail or statutory overnight delivery to the chief executive officer of the customer or, if the customer is not a business entity, to the customer at the customer's last known address, indicating that the molder intends to terminate the customer's rights and title by having all such rights and title transferred to the molder by operation of law pursuant to this Code section. Such notice shall include a statement of the customer's rights as set forth in subsection (d) of this Code section.
    1. If a customer does not respond in person or by mail to claim possession of the particular die, mold, form, or pattern within 120 days following the date the notice was sent, or does not make other contractual arrangements with the molder for storage of the die, mold, form, or pattern, all rights and title of the customer, except patents and copyrights, shall transfer by operation of law to the molder. Thereafter, the molder may destroy or otherwise dispose of the particular die, mold, form, or pattern as the molder's own property without any risk of liability to the customer.
    2. This Code section shall not in any manner affect any right of the customer under federal patent or copyright law or federal law pertaining to unfair competition. (Code 1981, § 44-12-311 , enacted by Ga. L. 1999, p. 862, § 1; Ga. L. 2000, p. 1589, § 4.)

The 2000 amendment, effective July 1, 2000, substituted "registered mail or statutory overnight delivery" for "registered mail" in subsection (c).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the Act is applicable with respect to notices delivered on or after July 1, 2000.

PART 2 M OLDERS' LIENS

44-12-320. Lien created; notice; enforcement; public auction authorized.

  1. Molders shall have a lien, dependent on possession, on all dies, molds, forms, or patterns in their hands belonging to a customer, for the balance due them from such customer for any manufacturing or fabrication work related to the property on which the molder claims the lien. Such liens shall attach upon the commencement of work by the molder and shall be subject to any prior perfected security interest in such property as of the commencement date. The molder may retain possession of the die, mold, form, or pattern until the charges are paid or until repossessed by a creditor with a prior perfected security interest.
  2. Before enforcing such lien, notice in writing shall be given to the customer, whether delivered personally or sent by registered mail or statutory overnight delivery to the last known address of the customer. Such notice shall state that a lien is claimed for the damages set forth in or attached to such writing for manufacturing or fabrication work contracted or performed for the customer. Such notice shall also include a demand for payment.
  3. A lien may not be enforced under this part if the customer, within the time period provided in subsection (d) of this Code section, notifies the molder that the products fail to meet an approved quality control plan, the products deviated from approved samples, or the products deviated from previously accepted parts and the customer returns the products within 60 days after the date on which the products are delivered to the customer.
  4. If the molder has not been paid the amount due within 60 days after the notice has been received by the customer as provided in subsection (b) of this Code section and the products have not been returned to the molder within 60 days after the date on which the products are delivered to the customer because of a defective condition as provided in subsection (c) of this Code section, the molder may sell the die, mold, form, or pattern at a public auction.
  5. In no event shall the amount of the lien established by this Code section exceed the contract price of services performed by the molder. (Code 1981, § 44-12-320 , enacted by Ga. L. 1999, p. 862, § 1; Ga. L. 2000, p. 1589, § 4.)

The 2000 amendment, effective July 1, 2000, substituted "registered mail or statutory overnight delivery" for "registered mail" in subsection (b).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1999, a comma was deleted in the last sentence of subsection (a).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the Act is applicable with respect to notices delivered on or after July 1, 2000.

44-12-321. Notice before sale of property; violation of certain rights prohibited.

  1. Before a molder may sell a die, mold, form, or pattern, pursuant to subsection (c) of Code Section 44-12-320, the molder shall notify the customer by registered mail or statutory overnight delivery, return receipt requested. The notice shall include the following information:
    1. The molder's intention to sell the die, mold, form, or pattern 30 days after the customer's receipt of the notice;
    2. A description of the die, mold, form, or pattern to be sold;
    3. The time and place of the sale; and
    4. An itemized statement for the amount due.
  2. If there is no return of the receipt of the mailing or if the postal service returns the notice as being nondeliverable, the molder shall publish notice of the molder's intention to sell the die, mold, form, or pattern in a newspaper of general circulation in the county of the customer's last known place of business. The notice shall include a description of the die, mold, form, or pattern.
  3. A sale shall not be made under this Code section if such sale would violate any right of a customer under federal patent or copyright law. (Code 1981, § 44-12-321 , enacted by Ga. L. 1999, p. 862, § 1; Ga. L. 2000, p. 1589, § 4.)

The 2000 amendment, effective July 1, 2000, substituted "registered mail or statutory overnight delivery" for "registered mail" in the introductory language of subsection (a).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the Act is applicable with respect to notices delivered on or after July 1, 2000.

44-12-322. Effect of part on other laws of this state.

In the event of any conflict between the provisions of this part and the provisions of Articles 7 and 8 of Chapter 14 of this title, the provisions of this part shall control.

(Code 1981, § 44-12-322 , enacted by Ga. L. 1999, p. 862, § 1.)

CHAPTER 13 EXEMPTIONS FROM LEVY AND SALE

Article 1

Constitutional Exemptions.

Part 1

I N GENERAL .

Part 2

W AIVER OF EXEMPTIONS .

Part 3

Levy on and Sale of Exempted Real

Property.

Part 4

Sale of Excess Property

by Receiver.

Article 2

Statutory Exemptions.

Article 3

Domesticated Judgment.

Cross references. - Exemptions from levy and sale, Ga. Const. 1983, Art. I, Sec. I, Para. XXVI.

Executions and judicial sales generally, Ch. 13, T. 9.

Exemption of homestead for ad valorem tax purposes, § 48-5-44 et seq.

Law reviews. - For article discussing homestead rights as a means of protecting decedent's surviving spouse and children, see 10 Ga. L. Rev. 447 (1976). For article, "Georgia's New Bankruptcy Exemptions," see 17 Ga. St. B.J. 37 (1980).

RESEARCH REFERENCES

ALR. - Enlarged Homestead Acts of 1909 and 1910, 8 A.L.R. 635 .

ARTICLE 1 CONSTITUTIONAL EXEMPTIONS

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, §§ 16-18, 33, 37-119, 142, 148 et seq., 153, 166, 175. 40 Am. Jur. 2d, Homestead, §§ 16, 19, 40-43, 82-85, 152, 168, 173-177.

C.J.S. - 40 C.J.S., Homesteads, § 23 et seq.

PART 1 I N GENERAL

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, repealed former Code Section 44-13-2, renumbered former Code Sections 44-13-3 through 44-13-22, and made various amendments to the renumbered Code sections in this part. The specific renumberings and amendments in this part effected by the 1983 Act appear in the editor's notes of the affected Code sections. Ga. L. 1983, p. 1170, § 1, not codified by the General Assembly, provided: "It is the intent of this Act to implement certain changes required by Article I, Section I, Paragraph XXVI of the Constitution of the State of Georgia."

JUDICIAL DECISIONS

Protection from execution sale of land on grounds of age and infirmity. - A person who has applied for an injunction to enjoin the sale of the land under an execution against him, in which land he claims a homestead on the ground of age and infirmity, is protected by giving notice of his application for homestead, provided, of course, it should be determined that he is entitled to the homestead. The purchaser of such property would buy the same subject to the right of the claimant to have the homestead set apart to him. Adams v. Grizzard, 171 Ga. 780 , 156 S.E. 689 (1931).

RESEARCH REFERENCES

ALR. - Exemption of proceeds of voluntary sale of homestead, 1 A.L.R. 483 ; 46 A.L.R. 814 .

Right of individual partner to exemption in partnership property, 4 A.L.R. 300 .

Imprisonment as effecting abandonment of homestead, 5 A.L.R. 259 .

Agreement by husband that wife shall receive proceeds of sale of homestead as fraud on his creditors, 6 A.L.R. 574 .

Loss of homestead rights by wife through absence enforced by act of husband, 42 A.L.R. 1162 ; 129 A.L.R. 305 .

Rule as to marshaling assets as affected by homestead law, 44 A.L.R. 758 ; 77 A.L.R. 371 .

Validity and effect of alienation or encumbrances of homestead without joinder or consent of wife, 45 A.L.R. 395 .

Attempt to resist enforcement of judgment or execution against real property on ground that it is exempt, as involving title to real property within contemplation of jurisdictional provision, 75 A.L.R. 1230 .

Homestead as subject to assessment for local improvements, 79 A.L.R. 712 .

Debtor's exemption of personalty as attaching to proceeds of sale or exchange thereof, 119 A.L.R. 467 .

Constitutionally permissible classification or discrimination in debtors' exemption statutes, 128 A.L.R. 107 .

Validity and effect of waiver of right to complain of acts impairing value of homestead property, without joinder or consent of both husband and wife, 142 A.L.R. 532 .

Rights of surviving spouse and children in proceeds of sale of homestead in decedent's estate, 6 A.L.R.2d 515.

Enforcement of claim for alimony, or support, or for attorneys' fees and costs incurred in connection therewith, against exemptions, 54 A.L.R.2d 1422.

44-13-1. Amount of exemption; who may claim exemption; what charges enforceable.

Except as otherwise provided in this article, there shall be exempt from levy and sale by virtue of any process whatever under the laws of this state any real or personal property or both of a debtor in the amount of $5,000.00 or $21,500.00 for real or personal property that is the debtor's primary residence. No court or ministerial officer in this state shall ever have jurisdiction or authority to enforce any judgment, execution, or decree against property set apart under this Code section, including such improvements as may be made thereon from time to time, except for taxes, for the purchase money of the property, for labor done on the property, for material furnished for the property, or for the removal of encumbrances on the property.

(Ga. L. 1868, p. 27, § 1; Code 1873, § 2002; Code 1882, § 2002; Civil Code 1895, § 2827; Civil Code 1910, § 3377; Code 1933, § 51-101; Ga. L. 1976, p. 346, § 1; Ga. L. 1983, p. 1170, § 2; Ga. L. 2012, p. 1030, § 1/SB 117.)

The 2012 amendment, effective May 2, 2012, added "or $21,500.00 for real or personal property that is the debtor's primary residence" at the end of the first sentence of this Code section.

Law reviews. - For note discussing property exempt from execution, see 12 Ga. L. Rev. 814 (1978). For comment on Roquemore v. Goldstein, 100 Ga. App. 591 , 112 S.E.2d 24 (1959), see 12 Mercer L. Rev. 280 (1960).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Not question respecting title to land. - The title to the property in which a homestead is sought to be set is not directly involved, and therefore, the question raised by the application and objections urged by a creditor of the applicant is not one respecting title to land, so as to confer jurisdiction on the Supreme Court as provided in the Constitution of this state. Adams v. Bishop, 174 Ga. 262 , 162 S.E. 531 (1932).

Effect of exemption on title. - When the exemption is set apart to the bankrupt by the bankruptcy court, the title is in the bankrupt precisely as it was before. Novak v. O'Neal, 201 F.2d 227 (5th Cir. 1953).

Effect of setting apart homestead is not to change the title but only the use during the life of the wife and the minority of the children; where in such circumstances the husband dies intestate before termination of the homestead, the property will remain his estate and descend to his heirs by inheritance, with the right of possession postponed until termination of the homestead. Donalson v. Yeates, 173 Ga. 30 , 159 S.E. 856 (1931).

Effect of assignment of homestead property. - When the property is set apart as exempt, the court of bankruptcy exhausts its jurisdiction over the property, and it remains the property of the bankrupt, unaffected by the bankruptcy proceedings and therefore an assignment thereof, whether before the bankrupt is adjudged a bankrupt, or pending the bankruptcy proceedings, will be unaffected by such proceedings. Novak v. O'Neal, 201 F.2d 227 (5th Cir. 1953).

Homestead contained in deed to secure debt. - A deed made to secure a debt conveys the title to land, and a homestead therein will avail nothing as against such title. There is nothing in the debtor upon which a homestead can operate save the equity of redemption; if he never redeems, there is nothing to which it can attach. Rose v. Crane Heating Co., 198 Ga. 295 , 31 S.E.2d 717 (1944).

Where bankrupt makes no claim to exemption, or claims only a partial exemption, there can be no proper basis for a determination by the court of bankruptcy which requires that the privilege of exemption be recognized and enforced where not claimed by the party for whose benefit the statute law establishes it. Novak v. O'Neal, 201 F.2d 227 (5th Cir. 1953).

Waiver. - When the debtor waives the homestead and exemption, the debtor means that all of debtor's property shall be a security to the creditor for the payment of that debt; and the creditor has a legal right to rely upon all of the debtor's property for the payment of the debt. Rosenthal v. Langley, 180 Ga. 253 , 179 S.E. 383 , appeal dismissed, 295 U.S. 720, 55 S. Ct. 916 , 79 L. Ed. 1674 (1935).

Homestead terminated. - Where a constitutional homestead on certain property was granted on the application of one individual and, on her death, the property passed by will to her son, who married sister of present owner, following which present owner and her son came to live in the home, no homestead presently exists in the property. Martin v. Fulton County, 213 Ga. 761 , 101 S.E.2d 716 (1958).

Jurisdiction of bankruptcy court. - The court of bankruptcy has jurisdiction to set apart, segregate, and deliver a homestead, but has no jurisdiction to adjudicate whether the property set apart is unencumbered or subject to liens, or to determine the respective priorities of liens, if any exist. Rosenthal v. Langley, 180 Ga. 253 , 179 S.E. 383 , appeal dismissed, 295 U.S. 720, 55 S. Ct. 916 , 79 L. Ed. 1674 (1935).

Sale for purchase price. - Where exempted property is sold under execution for the purchase price, a creditor not of the class expressly declared superior to homestead cannot claim the proceeds. Walker v. Johnson, 64 Ga. 363 (1879).

Cited in McWatty v. Jefferson County, 76 Ga. 352 (1886); Garmon v. Davis, 63 Ga. App. 815 , 12 S.E.2d 209 (1940); In re Dixon, 49 F. Supp. 977 (S.D. Ga. 1943); In re Harrison, 13 Bankr. 293 (Bankr. N.D. Ga. 1981).

What Constitutes Homestead Property

Purchase money. - The specific property for which purchase money is due is liable to a judgment therefor, notwithstanding the same has been set apart under the homestead law; other property exempted is not subject thereto. Loyless & Griffin v. Collins, 55 Ga. 370 (1876).

Where purchase money due. - A claimant not having paid the purchase money and having no title when claimant applied for the homestead, any homestead set apart to the claimant in this land was not binding upon the original vendor. Blackwell v. Aiken, 73 Ga. 55 (1884); Perdue v. Fraley, 92 Ga. 780 , 19 S.E. 40 (1894).

Property purchased with proceeds of homestead. - Where the property was purchased with the proceeds of a homestead, it was homestead property. Thornton v. Horton, 24 Ga. App. 92 , 100 S.E. 41 (1919); Amerson v. Cox, 173 Ga. 477 , 160 S.E. 506 (1931).

Money expended before exemption sought. - Though the exempted land is liable under O.C.G.A. § 44-13-1 for its purchase money, it is not liable for money expended, before any right of exemption was asserted, in paying for improvements and for work and labor done upon the premises. Builders' Lumber Co. v. Hunt, 179 Ga. 367 , 176 S.E. 11 (1934).

Improvements. - O.C.G.A. § 44-13-1 does not make improvements put upon property before the exemption is granted one of the exemptions, but expressly declares the improvements put upon the homestead shall not be subject to levy and sale. Builders' Lumber Co. v. Hunt, 179 Ga. 367 , 176 S.E. 11 (1934).

Debts incurred in removing encumbrances. - Purchase money and debts incurred in removing encumbrances have the same status. McConnell v. Gregory, 146 Ga. 475 , 91 S.E. 550 (1917).

The phrase "material furnished therefor," describing one class of debts for which a homestead may be liable, refers to material furnished for the homestead, that is, after the homestead has been set apart, and does not include material furnished to improve the property before it was set apart. Rose v. Crane Heating Co., 198 Ga. 295 , 31 S.E.2d 717 (1944).

Necessities. - Neither an article of necessity furnished for the use of the family nor even stock feed furnished to feed horses, which has been set apart as part of a homestead, comes within the constitutional exceptions under which homestead property may be subjected to sale. McLamb & Co. v. Lambertson, 4 Ga. App. 553 , 62 S.E. 107 (1908).

Exemption covering automobile. - The homestead exemption covering a "Ford automobile" can only have been allowed under the provisions of O.C.G.A. § 44-13-1 and could not be upheld as a statutory or "short" homestead. Gann v. McGee, 19 Ga. App. 13 , 90 S.E. 976 (1916).

Who May Claim Exemption

Husband cannot take a homestead in land belonging to his wife; a homestead so set apart is invalid as against a judgment creditor of the wife. Jackson v. Williams, 129 Ga. 716 , 59 S.E. 776 (1907).

Widow. - A widow may have set apart an exemption for herself and minor children from the property if her deceased husband devised to her for life and in trust for such minor children. Birdwell v. Birdwell, 76 Ga. 627 (1886).

A widow cannot as head of a family have land left by her husband set apart as homestead except as to her own interest therein. Madden v. Jones, 75 Ga. 680 (1885).

Aged and infirm person. - Land of an aged and infirm person set apart to him as a homestead under O.C.G.A. § 44-13-1 is not subject to levy and sale under an execution issued upon a general judgment for permanent alimony. Knox v. Knox, 148 Ga. 253 , 96 S.E. 337 (1918).

Guardian of one minor child is the head of a family of minor children. Rountree v. Dennard, 59 Ga. 629 , 27 Am. R. 401 (1877).

Unmarried person without dependents is not the "head of a household." Rietz v. Butler, 322 F. Supp. 1029 (N.D. Ga. 1971).

Bachelor, having no person depending on him for support and maintenance is not the head of a family, and not entitled to a homestead. Calhoun v. McLendon, 42 Ga. 405 (1871).

Partnership. - No individual exemption can be allowed out of the partnership estate at the expense of the joint creditors, in bankruptcy proceedings. In re Stewart, 23 F. Cas. 51 (D.C. Ga. 1875) (No. 13,420).

Where each partner has applied for and obtained a homestead in the partnership land, the same being assigned in separate parcels, a prior creditor of the partnership cannot enforce a judgment over the homestead right. Harris v. Visscher, 57 Ga. 229 (1876).

Abandoned family. - Property exempted under O.C.G.A. § 44-13-1 is for the use and benefit of the family of the debtor, to the extent that a member of the debtor's family may enjoy the benefit thereof even though he should abandon her. Rietz v. Butler, 322 F. Supp. 1029 (N.D. Ga. 1971).

OPINIONS OF THE ATTORNEY GENERAL

Homestead exemption must be applied for and is not granted solely on basis of information contained in tax return. 1957 Op. Att'y Gen. p. 292.

Levy for delinquent motor vehicle ad valorem taxes can be executed against the homestead. 1968 Op. Att'y Gen. No. 68-146.

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, §§ 1-12, 16, 26-32. 40 Am. Jur. 2d, Homestead, §§ 1-21, 23-26, 170.

13A Am. Jur. Pleading and Practice Forms, Homestead, § 2.

C.J.S. - 40 C.J.S., Homesteads, §§ 1 et seq., 11 et seq., 140 et seq.

ALR. - Exemption of proceeds of voluntary sale of homestead, 1 A.L.R. 483 ; 46 A.L.R. 814 .

Scope and import of term "owner" in statutes relating to real property, 2 A.L.R. 778 ; 95 A.L.R. 1085 .

Right of individual partner to exemption in partnership property, 4 A.L.R. 300 .

Action for damages against signing spouse for breach of contract to convey homestead signed by one spouse only, 4 A.L.R. 1272 ; 16 A.L.R. 1036 .

Availability of judgment under which exempt property has been seized as a setoff or counterclaim against claim based on the wrongful seizure, 20 A.L.R. 276 .

Lien of judgment on surplus in quantity or value of homestead, 32 A.L.R. 1333 .

Failure of head of family to claim homestead exemption as affecting other members of the family, 33 A.L.R. 611 .

Effect of divorce on homestead, 36 A.L.R. 431 ; 84 A.L.R.2d 703.

Loss of homestead rights by wife through absence enforced by act of husband, 42 A.L.R. 1162 ; 129 A.L.R. 305 .

What are "tools," "implements," "instruments," "utensils," or "apparatus," with the meaning of debtor's exemption laws, 52 A.L.R. 826 .

Right of creditor to attach bankrupt's exempt property after discharge in bankruptcy, 55 A.L.R. 303 .

Debtor's exemption of proceeds of insurance on property itself exempt, 63 A.L.R. 1286 .

Mechanic's or materialman's lien on homestead, 65 A.L.R. 1192 .

Deposit of exempt funds as affecting debtor's exemption, 67 A.L.R. 1203 .

Estate or interest in real property to which a homestead claim may attach, 89 A.L.R. 511 ; 74 A.L.R.2d 1355.

Availability of debtor's exemption to defeat counterclaim or setoff, 106 A.L.R. 1070 .

Character of judgment as "debt" within exemption law as affected by nature of cause of action upon which it was recovered, 108 A.L.R. 1042 .

Creation of homestead right in real estate as affecting existing judgment lien, 110 A.L.R. 883 .

Creation of homestead right in real estate as affecting existing attachment lien, 110 A.L.R. 904 .

Character of property as homestead as affected by its use for business as well as residence purposes, 114 A.L.R. 209 .

Who are within constitutional or statutory provisions subjecting homestead to claims of laborers, servants, or the like, 114 A.L.R. 767 .

One who supports (or is under a duty to support) in whole or part relatives who do not live with him as "head of family," "householder," etc., within homestead exemption statute, 118 A.L.R. 1386 .

Creation of homestead right in real estate as affecting previous mortgage, trust deed, or purchase money or vendor's license, 123 A.L.R. 427 .

Multiple dwelling house part of which is occupied by owner as subject of homestead, 128 A.L.R. 1431 .

Dower and homestead rights as affecting partition proceedings, 159 A.L.R. 1129 .

Purchase of homestead as fraud on creditors, 161 A.L.R. 1287 .

State law or state court decisions as governing, or as rule of decision in federal court, in passing upon question as to what property passes to trustee in bankruptcy under § 70(a)(5) of the Bankruptcy Act, 16 A.L.R.2d 839.

Operation and effect of antenuptial agreements to waive or bar surviving spouse's right to probate homestead or surviving family's homestead right or exemption, 65 A.L.R.2d 727.

Wife as head of family within homestead or other property exemption provision, 67 A.L.R.2d 779.

Validity of contractual stipulation or provision waiving debtor's exemption, 94 A.L.R.2d 967.

What is "necessary" furniture entitled to exemption from seizure for debt, 41 A.L.R.3d 607.

Recovery of damages for breach of contract to convey homestead where only one spouse signed contract, 5 A.L.R.4th 1310.

Lien of judgment on excess value of homestead, 41 A.L.R.4th 292.

What constitutes state or local law that is applicable on date of filing of bankruptcy petition for purposes of applying 11 U.S.C.A. § 522(b)(3)(A) or its predecessor in opt-out states, 76 A.L.R. Fed. 2d 333.

44-13-1.1. "Dependent" defined.

As used in this article, the term "dependent" means a person whom the debtor may claim as a dependent for income tax purposes pursuant to Code Section 48-7-26.

(Code 1981, § 44-13-1.1 , enacted by Ga. L. 1986, p. 10, § 44.)

JUDICIAL DECISIONS

Relationship to other provisions. - The Georgia Code does not define the term "dependent" for purposes of O.C.G.A. § 44-13-100(a)(11)(C), and although O.C.G.A. § 44-13-1.1 defines the term "dependent," that section is located in O.C.G.A. T. 44, Ch. 13, Art. 1, and defines the term "dependent" for purposes of "this article," and O.C.G.A. § 44-13- 100(a)(11)(C) is not found in T. 44, Ch. 13, Art. 1; accordingly, the definition of "dependent" provided by O.C.G.A. § 44-13-1.1 is not applicable to O.C.G.A. § 44-13-100(a)(11)(C). In re Bright, Bankr. (Bankr. N.D. Ga. July 16, 2007).

44-13-2. Application for exemption by spouse, minor children or representative of dependents upon debtor's refusal to apply.

Should a debtor refuse to apply for an exemption under this article, the debtor's spouse, any person acting on behalf of the minor children of the debtor, or any person acting on behalf of the dependents of the debtor may make such application; and it shall be as binding as if done by the debtor.

(Ga. L. 1868, p. 27, § 13; Code 1873, § 2022; Code 1882, § 2022; Civil Code 1895, § 2843; Civil Code 1910, § 3393; Code 1933, § 51-702; Code 1981, § 44-13-3 ; Code 1981, § 44-13-2 , as redesignated by Ga. L. 1983, p. 1170, § 2; Ga. L. 1986, p. 10, § 44.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-3 as this Code section and rewrote the Code section. The 1983 Act also repealed former Code Section 44-13-2, which was based on Ga. L. 1870, p. 70, § 4; Code 1873, § 2019; Code 1882, § 2019; Civil Code 1895, § 2842; Civil Code 1910, § 3392; Code 1933, § 51-701; and which contained provisions concerning a wife's homestead when separated from her husband.

JUDICIAL DECISIONS

Sufficiency of allegations. - Allegations in an application for homestead in behalf of the applicant and her minor children, that she is a resident of the county in which the application is filed, and that her husband, who is a resident of the county, refuses to apply, are sufficient to give the ordinary (now probate judge) jurisdiction. Long v. Bullard, 59 Ga. 355 (1877); Gann v. McGee, 19 Ga. App. 13 , 90 S.E. 976 (1916). See also Blacker v. Dunlop, 93 Ga. 819 , 21 S.E. 135 (1894); Hughes v. Purcell, 135 Ga. 174 , 68 S.E. 1111 (1910).

Alleging refusal of husband. - The wife must unequivocally allege that the husband had refused to make the application. It would not suffice to allege merely that the husband "neglected or refused." Hughes v. Purcell, 135 Ga. 174 , 68 S.E. 1111 (1910).

Where husband declared voluntary bankruptcy prior to the application by his wife, the homestead did not protect the land. Smith v. Roberts, 61 Ga. 223 (1878).

When husband's assent presumed. - There being no evidence that the husband appeared before the ordinary (now probate judge) and objected to an application by his wife, by plea or otherwise, his assent thereto is presumed. Blacker v. Dunlop, 93 Ga. 819 , 21 S.E. 135 (1894).

Former application of husband dismissed. - Where the ordinary (now probate judge) dismissed an application of a husband without stating any ground therefor, this did not estop the wife of the applicant from making another application for exemption of the same and other property at a later date, alleging that her husband refused to apply. S.G. Mozley & Co. v. Fontana, 124 Ga. 376 , 52 S.E. 443 (1905).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, § 30. 40 Am. Jur. 2d, Homestead, §§ 20, 21.

C.J.S. - 40 C.J.S., Homesteads, §§ 153, 158.

ALR. - Homestead rights of wife as affected by the fact that she does not live in state, 92 A.L.R. 1054 .

Loss of homestead rights by wife through absence enforced by act of husband, 129 A.L.R. 305 .

Wife as head of family within homestead or other property exemption provision, 67 A.L.R.2d 779.

Recovery of damages for breach of contract to convey homestead where only one spouse signed contract, 5 A.L.R.4th 1310.

44-13-3. Supplementation of exemption.

It shall be the right of the applicant to supplement his exemption by adding to an amount already set apart, which amount is less than the whole amount of the exemption allowed by this article, enough to make his exemption equal to the whole amount allowed by resorting to the methods for setting apart and valuation of the exemptions provided in this chapter. The proceedings shall be in all respects the same.

(Ga. L. 1878-79, p. 99, § 2; Code 1882, § 2039c; Civil Code 1895, § 2865; Civil Code 1910, § 3415; Code 1933, § 51-1201; Code 1981, § 44-13-4 ; Code 1981, § 44-13-3 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-4 as this Code section. The 1983 Act also redesignated former Code Section 44-13-3, relating to application for exemption by spouse, as present Code Section 44-13-2.

JUDICIAL DECISIONS

Definition. - A supplemental homestead is not realty after personalty, or personalty after realty, but both or either after both, or one after a previous one of like kind. Dickinson v. Haralson, 61 Ga. 526 (1878).

A second homestead is not valid as a supplemental exemption, under the provisions of O.C.G.A. § 44-13-3 . First Nat'l Bank v. Massengill, 80 Ga. 333 , 5 S.E. 100 (1887); Darlington v. Belt, 12 Ga. App. 522 , 77 S.E. 653 (1913).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, § 129.

44-13-4. Application for exemptions; to whom made; contents; schedule of property and list of creditors; effect of failure to comply; survey.

  1. Each person seeking the benefit of the exemptions provided in this article shall apply by petition to the judge of the probate court of the county in which he resides or in which the debtor's minor children or dependents reside when the application is made for their benefit. The petition shall state:
    1. The debtor for whom the exemption is claimed;
    2. The names and ages of minor children and dependents of the debtor; and
    3. Out of what and whose property exemptions are claimed.

      The petition shall comply with all the requirements of the laws for the setting apart and valuation of the exemptions provided by this article.

  2. The applicant shall accompany his petition with a schedule containing a minute and accurate description of all real and personal property belonging to the person from whose estate the exemption is to be made so that persons interested may know exactly what is exempted and what is not and also with a list of his creditors and their post office addresses, if known, which must be sworn to by the applicant or his agent.
  3. For a failure to comply with this Code section either in the original petition which may be amended at any time prior to the final proceedings before the judge of the probate court or in the amended petition, the judge shall dismiss the petition.
  4. The applicant shall apply to the judge of the probate court for an order to the county surveyor or, if there is none, to some other surveyor to lay off any real property of the applicant and to make a plat of the same, which order the judge shall issue at once and give to the applicant. (Ga. L. 1868, p. 27, § 2; Code 1873, § 2003; Ga. L. 1876, p. 48, § 1; Ga. L. 1878-79, p. 99, § 1; Code 1882, § 2003; Civil Code 1895, § 2828; Civil Code 1910, § 3378; Code 1933, § 51-201; Code 1981, § 44-13-5 ; Ga. L. 1982, p. 3, § 44; Code 1981, § 44-13-4 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Cross references. - Appointment of person to perform duties of county surveyor when no such office exists in county, § 36-7-13 .

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-5 as this Code section. The 1983 Act also redesignated former Code Section 44-13-4, relating to supplementation of exemption, as present Code Section 44-13-3.

JUDICIAL DECISIONS

List of property. - Whether all or only a part of the estate is to be exempt, the schedule must contain a list of all the property owned by the decedent. Blackstone v. Kritzer, 120 Ga. 78 , 47 S.E. 585 (1904).

No schedule. - Where there is no schedule of property, the homestead is void. Peterson v. Calhoun, 135 Ga. 103 , 68 S.E. 1022 (1910).

Schedule amendable. - The schedule is a part of the pleadings, and is amendable at any time prior to judgment. Davis v. James, 145 Ga. 325 , 89 S.E. 203 (1916).

Property included by mistake. - A petition for homestead may be amended by adding to the schedule something which has been omitted, but not by striking therefrom any article of property therein set forth. If the applicant has by mistake inserted property belonging not to the applicant but to another, the applicant should dismiss the application and file another one, omitting such articles of property not belonging to the applicant as were in the previous schedule. McWilliams v. Bones, 84 Ga. 199 , 10 S.E. 723 (1890); Smith v. Exchange Bank, 25 Ga. App. 278 , 103 S.E. 99 (1920).

Sale of article included in schedule. - The sale by the applicant, after making an application, of an article which the applicant had placed on the schedule, was sufficient to have defeated the application, unless the applicant accounted for the money and delivered up the same for the benefit of creditors. McWilliams v. Bones, 84 Ga. 199 , 10 S.E. 723 (1890).

Statutory exemptions inapplicable in federal bankruptcy cases. - O.C.G.A. §§ 44-13-4(b) and 44-13-7 deal with constitutional exemptions from the levy and sale of property, and these statutory provisions simply do not apply in the context of federal bankruptcy cases. Caruthers v. Fleet Fin., Inc., 87 Bankr. 723 (Bankr. N.D. Ga. 1988).

Wife not head of family. - A wife having children by a former as well as by a present husband cannot be said to be the head of a family, consisting of herself and her minor children by both husbands. Neal v. Sawyer, 62 Ga. 352 (1879).

Widow as head of family and guardian. - A widow in the character both of the head of a family and the guardian of her minor children, applied for and obtained homestead in the real estate of her husband. The effect of so doing was to obtain a homestead as the head of a family in her own undivided share, and a homestead as the guardian of her minor children in their undivided shares. Fountain v. Hendley, 82 Ga. 616 , 9 S.E. 666 (1889).

Wife failing to attach schedule as to personalty. - Where a wife made an application to the ordinary (now probate judge)for an exemption of realty out of land belonging to the husband, but not praying therein for any exemption of personalty, the exemption of realty, after being duly set apart and approved by the ordinary (now probate judge), was not void because of the applicant's failure to attach to her application a schedule of personal property belonging to the husband. Atwater v. Respess, 97 Ga. 283 , 22 S.E. 1000 (1895).

Dependent females. - O.C.G.A. § 44-13-4 does not contemplate a homestead or exemption for the benefit of dependent females, except in the property of the person upon whom they were dependent. Sutton v. Rosser, 109 Ga. 204 , 34 S.E. 346 , 77 Am. St. R. 367 (1899).

Showing beneficiaries. - A petition which stated that the applicant claimed a homestead as head of a family, and then stated of whom that family consisted, was sufficiently explicit in showing who were the beneficiaries for whom the homestead was asked. Roberts v. Cook, 68 Ga. 324 (1882).

A collateral attack on a judgment setting aside a constitutional homestead under O.C.G.A. § 44-13-4 is not allowable, though allowable as to a "short homestead." Gann v. McGee, 19 Ga. App. 13 , 90 S.E. 976 (1916).

After-acquired realty. - Where the head of a family asserts a homestead in personalty, not having any realty at that time, that person does not lose the right to a homestead in realty thereafter acquired. Dickinson v. Haralson, 61 Ga. 526 (1878).

The description of an automobile, in the application for homestead, as "one five-passenger Ford automobile," was sufficient to identify the property. Gann v. McGee, 19 Ga. App. 13 , 90 S.E. 976 (1916).

Fixing valuation. - It is not incumbent on the applicant for a homestead to fix the valuation of the real estate sought to be set apart; this duty devolves upon the surveyor, the surveyor's valuation being subject to review by appraisers. Wood & Bro. v. Collins, 111 Ga. 32 , 36 S.E. 423 (1900).

Signature to and verification of petition. - Where a petition for a homestead was signed by the attorney of the applicant, and verified by the affidavit of the latter, it was not void. Roberts v. Cook, 68 Ga. 324 (1882).

Alleging age of wife. - Where a homestead was asked for the benefit of a wife and children, a failure to allege the age of the wife did not render the proceeding void. Roberts v. Cook, 68 Ga. 324 (1882).

Approval of the schedule does not operate to set aside, as exempt, property described therein but omitted from that part of the petition stating out of what property the exemption is claimed. Blackstone v. Kritzer, 120 Ga. 78 , 47 S.E. 585 (1904).

Proceeding under O.C.G.A. § 44-13-16 . - A bankrupt debtor in perfecting an exemption of money, set aside to the debtor in a bankruptcy proceeding, in a proceeding before the ordinary (now probate judge) of the county of residence under the provisions of O.C.G.A. § 44-13-16 must comply with O.C.G.A. § 44-13-4 and §§ 44-13-7 through 44-13-9 , relating to the schedule to be attached to the application, the notice to be published by the ordinary (now probate judge), and the notice to be given creditors by the applicant or the applicant's agent. Lou Hill Co. v. Bjoralt, 103 Ga. App. 564 , 120 S.E.2d 39 (1961).

Presumption that proper order given. - As against a creditor who was duly served with notice of an application for a homestead, it will, though the homestead proceeding does not so disclose, be presumed that a proper order to the surveyor to lay off and plat the homestead was granted; nor as to such creditor will a homestead so approved be treated as invalid because the plats of two lots composing the same did not purport to be made by the county surveyor and were not sworn to, accompanied by an affidavit as the law requires. Dunagan v. Stadler, 101 Ga. 474 , 29 S.E. 440 (1897).

Plats made by other than county surveyor. - When it is shown that the plats were made by other than the county surveyor, the law will presume there was no county surveyor. Dunagan v. Stadler, 101 Ga. 474 , 29 S.E. 440 (1897).

Question for jury. - The sufficiency of identification of property in an application for homestead is a matter for the consideration of the jury. Gann v. McGee, 19 Ga. App. 13 , 90 S.E. 976 (1916).

Appellate review. - Power to act under O.C.G.A. § 44-13-4 is conferred upon the ordinary (now probate judge) of the county in which the applicant resided; and the ordinary's action must be reviewed by certiorari and not by appeal. Cunningham v. United States Sav. & Loan Co., 109 Ga. 616 , 34 S.E. 1024 (1900).

Cited in Sanders v. GMAC, 43 Ga. App. 374 , 158 S.E. 646 (1931); Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99 , 169 S.E. 700 (1933); Pass v. Pass, 195 Ga. 155 , 23 S.E.2d 697 (1942).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exceptions, §§ 16-18, 33, 36-119, 152, 159-161, 164, 177, 186. 40 Am. Jur. 2d, Homesteads, §§ 16, 18, 40 et seq., 78 et seq., 146, 162, 167 et seq.

ALR. - Estate or interest in real property to which a homestead claim may attach, 74 A.L.R.2d 1355.

44-13-5. Survey of lands in different county.

Whenever the applicant does not possess a sufficient amount of realty located in the county of his residence, he may include in his application tracts of land located in counties other than that of his residence. In such case, the judge of the probate court before whom the application is made shall cause the survey, valuation, and plat of the lands lying in counties other than the residence of the applicant to be made by the county surveyor of the county where the lands are located.

(Ga. L. 1869, p. 25, § 1; Code 1873, § 2004; Code 1882, § 2004; Civil Code 1895, § 2829; Civil Code 1910, § 3379; Code 1933, § 51-202; Code 1981, § 44-13-6 ; Code 1981, § 44-13-5 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-6 as this Code section. The 1983 Act also redesignated former Code Section 44-13-5, relating to application for exemptions, as present Code Section 44-13-4.

JUDICIAL DECISIONS

Personal property. - Where only personal property is set apart as a homestead under O.C.G.A. § 44-13-5 , no record of the application is required in any county other than that of the applicant's residence when the applicant applies. McLamb & Co. v. Lambertson, 4 Ga. App. 553 , 62 S.E. 107 (1908).

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Homesteads, §§ 36, 40.

44-13-6. Duty to provide full schedule of property; effect of fraudulent omissions.

It shall be the duty of any person who shall claim the benefit of the exemption allowed in this article to act in perfect good faith. As it is in the power of the debtor claiming an exemption of personal property to conceal part of his property or money and to claim the balance as exempt, it shall be the duty of the debtor, when he shall take steps in the probate court to have an exemption of personal property set off to him, to make a full and fair disclosure of all the personal property, including money, stocks, and bonds, which he may possess at the time. All such money or property which he may hold in excess of the exemption shall be subject to levy and sale for the payment of his just debts. If the money or other personal property which the debtor possesses at the time of his application or at the time he obtains the order of court setting off exempt property shall be fraudulently concealed or shall not be delivered up for the benefit of his creditors, no exemption shall be made in his favor until it shall be so delivered up. All orders of the court obtained by the fraudulent concealment of property or obtained while the debtor had personal property, money, stocks, or bonds which he kept out of the reach of the levying officer or did not in good faith deliver up for the benefit of his creditors shall be null and void and of no effect. In such event, the property set off to the debtor by such order or judgment shall be subject to levy and sale as if no such order or judgment had been rendered; and all property in which the debtor shall have invested the money, stocks, bonds, or personal property fraudulently concealed by him or kept out of the reach of his creditors shall be subject to levy and sale and liable to be sold for the payment of any debt then in existence. The debtor who is guilty of willful fraud in the concealment of part of his property which he possessed when he sought the benefit of the exemption shall on account of his fraud lose the benefit of the exemption, and his property shall be subject to the payment of all just debts which he owed at the time such fraud was committed; but the property, when once set off to him by order of the court, shall be exempt as against all debts contracted after that time.

(Ga. L. 1869, p. 23, § 1; Code 1873, § 2005; Code 1882, § 2005; Civil Code 1895, § 2830; Civil Code 1910, § 3380; Code 1933, § 51-203; Code 1981, § 44-13-7 ; Code 1981, § 44-13-6 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-7 as this Code section. The 1983 Act also redesignated former Code Section 44-13-6, relating to survey of lands in different county, as present Code Section 44-13-5.

JUDICIAL DECISIONS

Section refers to constitutional homestead. - The provision of O.C.G.A. § 44-13-6 , that "it shall be the duty of each and every person who claims the benefit of the exemption allowed in this article . . . to act in perfect good faith," and that the exemption shall not be allowed to a claimant who is guilty of fraud, has reference to the constitutional homestead exemption, and not to the statutory exemption. In re West, 116 F. 767 (N.D. Ga. 1902); In re Dobbs, 175 F. 319 (N.D. Ga. 1909).

Effect of fraud. - Under O.C.G.A. § 44-13-6 a bankrupt who does not make a full and fair disclosure of all the property owned by the bankrupt at the time of the filing of the petition in bankruptcy is not entitled to have any exemption set apart to the bankrupt by the trustee in bankruptcy. In re Waxelbaum, 101 F. 228 (N.D. 1900); In re Anderson, 224 F. 790 (N.D. Ga. 1915).

Duty of bankrupt. - Under O.C.G.A. § 44-13-6 a bankrupt seeking an exemption must deal with perfect frankness with creditors and disclose and deliver all property except the exemption, and a failure to do so defeats the bankrupt's application, and a bankrupt, who just before and at the time of the bankruptcy sought to get property out of the reach of the creditors, was not entitled to the exemption. In re Cochran, 185 F. 913 (N.D. Ga. 1911).

Good faith requirement. - The good faith required of a debtor by O.C.G.A. § 44-13-6 is to make a full and fair disclosure of property, and a court of bankruptcy is not justified in denying an exemption because of the debtor's fraud in other respects. In re Castleberry, 143 F. 1018 (N.D. Ga. 1905).

Time of disclosure. - The full and fair disclosure and surrender of personalty, required by O.C.G.A. § 44-13-6 , must be made at the time of the application, or at or before the order setting off the property exempt is granted. Any failure (until satisfactorily explained and accounted for, and the consequences repaired) is to be deemed intentional and, therefore, fraudulent. Torrance v. Boyd, 63 Ga. 22 (1879).

Prima facie case of concealment. - Where financial and schedule statements show a great depreciation in assets and increase in liabilities, the statements and schedules made a prima facie case of concealment on the part of the bankrupt under O.C.G.A. § 44-13-6 , and cast upon the bankrupt the burden of showing that the statements were false when made, or of explaining what became of the bankrupt's assets, and in the absence of such explanation it would be conclusively presumed that the bankrupt was concealing a portion of assets. In re Powell, 230 F. 316 (S.D. Ga. 1916).

Accounting for depreciation of assets. - A bankrupt claiming an exemption under O.C.G.A. § 44-13-6 must give a better explanation than that the bankrupt "sold a great deal of goods, and sold some of them at less than cost, to try to meet obligations," where the bankrupt's schedule in bankruptcy shows a great reduction in assets. In re Stephens, 114 F. 192 (N.D. Ga. 1902).

Clean hands of party seeking exemption. - A bankrupt, whose business is carried on in the name of the son, as agent, without the bankrupt having anything to do with it, cannot claim an exemption therefrom allowed by law, which requires the person claiming it to come into court with clean hands, practically all the indebtedness having been contracted within the five months preceding the petition in bankruptcy, and all the best of the stock having been sold off at auction during the last of said months, leaving old stock, which, with fixtures, is worth less than the amount of the exemption. In re Williamson, 114 F. 190 (N.D. Ga. 1901).

Reconveyance after evasive conveyance. - Under O.C.G.A. § 44-13-6 a bankrupt cannot be denied the right to a homestead exemption because he once conveyed the land claimed to his wife in a vain attempt to evade a debt, where it was reconveyed prior to the bankruptcy proceedings and was scheduled by him as his property. In re Thompson, 115 F. 924 (S.D. Ga. 1902).

Retention of money to pay fees and expenses. - A party seeking a homestead cannot retain any amount of money which the party may deem necessary and needful to employ attorneys, pay licenses, and carry on business, but instead the party must account for it. McNally v. Mulherin & Co., 79 Ga. 614 , 4 S.E. 332 (1887); In re Waxelbaum, 101 F. 228 (N.D. Ga. 1900).

Omission of property from wife's schedule. - If any property be left out of the wife's schedule through the fraud of the husband, even though the wife was no party to the fraud and was ignorant of it, she will have to suffer the penalty which the law imposes upon the husband when he is the applicant. Kirtland, Babcock & Bronson v. Davis, 43 Ga. 318 (1871); Wood & Bro. v. Collins, 111 Ga. 32 , 36 S.E. 423 (1900).

Gift to wife by insolvent. - Though a gift of money or other property by an insolvent to his wife would be void as to creditors, it would be good as to the wife; and if she had actually disposed of such money or property before applying for an exemption out of the husband's property, her failure to include what was given her in the schedule would not vitiate her application, when it did not appear that the gift was made in anticipation of the application and for the purpose of concealing the property. Wood & Bro. v. Collins, 111 Ga. 32 , 36 S.E. 423 (1900).

Person representing self to be head of family. - Where one is not entitled to the homestead, but represents himself to be the head of a family consisting of himself and daughter, when in fact he has no such family, this is a probable fraud, and he loses the benefit of the homestead. Walker v. Thomason, 77 Ga. 682 (1886).

Attack of exemption by creditor's executor. - Executors of a creditor may attack the exemption of a debtor as fraudulent, and they will not be estopped by the fact that, pending probate and qualification, they did not resist the application. Killen v. Marshall, 55 Ga. 340 (1875).

Collateral attack for insufficient description. - The schedule filed by the applicant for homestead and exemption, should describe the personal property with reasonable certainty, but if the creditor failed to appear and object, on the ground that the schedule was insufficient, and it gives a general description of the property, and no fraud or unfairness is alleged or shown, the creditor will not be permitted to attack the judgment. Bartlett v. Russell, 41 Ga. 196 (1870).

Ruling of referee as res judicata against discharge. - Ruling of referee in bankruptcy, on objections to allowance of homestead exemption, that bankrupt had concealed property is not res judicata against the bankrupt's right to discharge. In re Frosteg, 252 F. 199 (S.D. Ga. 1918).

Cited in In re Hardy, 229 F. 825 (S.D. Ga. 1916); Long v. Hayslip, 227 F.2d 555 (5th Cir. 1955).

RESEARCH REFERENCES

ALR. - Character of judgment as "debt" within exemption law as affected by nature of cause of action upon which it was recovered, 108 A.L.R. 1042 .

44-13-7. Publication of notice of application; form.

When the schedule has been filed and the application has been made, the judge of the probate court, in order that all persons may know when action will be taken on the petition, shall publish in the newspaper in which the legal advertisements of the county are published, not more than twice, a notice as follows:

"A.B. has applied for exemption of personalty, and setting apart and valuation of realty exempt from levy and sale under Article 1 of Chapter 13 of Title 44 of the Official Code of Georgia Annotated, and I will pass upon the same at ____ M., on the ____ day of ________________________, ________, at my office. C.D., Judge of the Probate Court."

(Ga. L. 1868, p. 27, § 3; Ga. L. 1871-72, p. 53, § 1; Code 1873, § 2006; Code 1882, § 2006; Civil Code 1895, § 2831; Civil Code 1910, § 3381; Code 1933, § 51-301; Code 1981, § 44-13-8 ; Code 1981, § 44-13-7 , as redesignated by Ga. L. 1983, p. 1170, § 2; Ga. L. 1999, p. 81, § 44.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-8 as this Code section. The 1983 Act also redesignated former Code Section 44-13-7, relating to duty to provide full schedule of property, as present Code Section 44-13-6.

JUDICIAL DECISIONS

Presumption. - The presumption is that the ordinary (now probate judge) has done all that is required by law before granting a homestead, and this presumption extends to the giving of notice of the application, where nothing appears to show absence thereof. Groover, Stubbs & Co. v. Brown, 69 Ga. 60 (1882).

Statutory exemptions inapplicable in federal bankruptcy cases. - O.C.G.A. §§ 44-13-4(b) and 44-13-7 deal with constitutional exemptions from the levy and sale of property, and these statutory provisions simply do not apply in the context of federal bankruptcy cases. Caruthers v. Fleet Fin., Inc., 87 Bankr. 723 (Bankr. N.D. Ga. 1988).

Notice for benefit of creditors. - The requirement as to notice is intended for the benefit of the creditors of the person out of whose estate the homestead is to be set apart, and a defect in the advertisement would not avail one for whose benefit the publication was not made. Gann v. McGee, 19 Ga. App. 13 , 90 S.E. 976 (1916).

Waiver of notice. - The mere presence of an attorney when the ordinary (now probate judge) acted upon and approved an application, was no waiver of notice or of legal publication as to client. Smith v. Lord & Dixon, 60 Ga. 462 (1878).

Misnomer. - Where there is a misnomer in the printed notice, a judgment granting a homestead is of no force as against a creditor. Smith v. Lord & Dixon, 60 Ga. 462 (1878); Gann v. McGee, 19 Ga. App. 13 , 90 S.E. 976 (1916).

Proceeding under O.C.G.A. § 44-13-16 . - A bankrupt debtor in perfecting an exemption of money, set aside to the debtor in a bankruptcy proceeding, in a proceeding before the ordinary (now probate judge) of the county of residence under the provisions of O.C.G.A. § 44-13-16 must comply with O.C.G.A. §§ 44-13-4 and 44-13-7 through 44-13-9 relating to the schedule to be attached to the application, the notice to be published by the ordinary (now probate judge), and the notice to be given creditors by the applicant or the applicant's agent. Lou Hill Co. v. Bjoralt, 103 Ga. App. 564 , 120 S.E.2d 39 (1961).

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Homesteads, § 144.

44-13-8. Written notice to creditors; how given.

In addition to the notice by publication required to be given by Code Section 44-13-7, the applicant or his agent shall give notice in writing of the filing of the application and of the day of hearing the same to each of his creditors residing in the county. Such notice shall be given at least five days before the hearing and shall be served personally or by leaving a copy at the residence or place of business of his creditor; and the fact that such notice has been given shall be verified by oath of the applicant or his agent. The applicant shall also notify creditors residing outside of the county of his application by preparing written notices of his application and the day of hearing, which notices shall be delivered by him to the judge of the probate court together with stamped envelopes and, if the residence of the creditors shall be known to the petitioner, shall be directed by the judge and mailed to the persons residing out of the county at least 15 days before the day of the hearing.

(Ga. L. 1876, p. 48, § 2; Code 1882, § 2006a; Civil Code 1895, § 2832; Civil Code 1910, § 3382; Code 1933, § 51-302; Code 1981, § 44-13-9 ; Code 1981, § 44-13-8 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-9 as this Code section. The 1983 Act also redesignated former Code Section 44-13-8, relating to publication of notice of application, as present Code Section 44-13-7.

JUDICIAL DECISIONS

Service by officer not required. - Service of notice by an officer is not required or contemplated by O.C.G.A. § 44-13-8 . Weekes & Son v. Edwards, 101 Ga. 314 , 28 S.E. 853 (1897).

Presumption. - If the record of a homestead proceeding shows that a non-resident creditor's name and address were returned by the applicant to the ordinary (now probate judge), and in proper time a notice with stamped envelope was delivered to the ordinary (now probate judge) for mailing, notice is sufficiently shown. The presumption is that the ordinary (now probate judge) did the ordinary's duty. Roberts v. Cook, 68 Ga. 324 (1882).

Service on partner. - Where the debtor of a firm sought to obtain a homestead, but instead of naming the firm in the schedule, named one of the partners as an individual creditor and served that partner alone with notice, such statement and notice did not include the firm upon the grant of the homestead. Boroughs v. White & Stone, 69 Ga. 841 (1883).

Time. - Where a homestead was applied for on December 4, 1877, and the return of the county surveyor laying off the homestead was made on December 14, 1877, the ordinary (now probate judge) was without authority of law to approve the homestead on December 15, 1877. A homestead thus approved was illegal and void. West v. McWhorter, 141 Ga. 590 , 81 S.E. 859 (1914).

Proceeding under O.C.G.A. § 44-13-16 . - A bankrupt debtor in perfecting an exemption of money, set aside to the debtor in a bankruptcy proceeding, in a proceeding under O.C.G.A. § 44-13-16 must comply with O.C.G.A. §§ 44-13-4 and 44-13-7 through 44-13-9 , relating to the schedule to be attached to his application, the notice to be published, and the notice to be given creditors by the applicant or his agent. Lou Hill Co. v. Bjoralt, 103 Ga. App. 564 , 120 S.E.2d 39 (1961).

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Homesteads, § 144 et seq.

44-13-9. Time fixed by notice for hearing.

The time fixed by the notice given pursuant to Code Sections 44-13-7 and 44-13-8 shall not be less than 20 nor more than 30 days from the date of the filing of the application and schedule.

(Ga. L. 1868, p. 27, § 4; Code 1873, § 2007; Ga. L. 1876, p. 48, § 2; Code 1882, § 2007; Civil Code 1895, § 2833; Civil Code 1910, § 3383; Code 1933, § 51-303; Code 1981, § 44-13-10 ; Code 1981, § 44-13-9 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-10 as this Code section. The 1983 Act also redesignated former Code Section 44-13-9, relating to written notice to creditors, as present Code Section 44-13-8.

JUDICIAL DECISIONS

Homestead void. - If more than 30 days intervene between the date of the order of the ordinary (now probate judge) to the surveyor and the time fixed in the notice, the homestead is void. Roberts v. Atlanta Cem. Ass'n, 146 Ga. 490 , 91 S.E. 675 (1917).

Proceeding under O.C.G.A. § 44-13-16 . - A bankrupt debtor in perfecting an exemption of money, set aside to the debtor in a bankruptcy proceeding, in a proceeding under O.C.G.A. § 44-13-16 must comply with O.C.G.A. §§ 44-13-4 and 44-13-7 through 44-13-9 relating to the schedule to be attached to his application, the notice to be published, and the notice to be given creditors by the applicant or his agent. Lou Hill Co. v. Bjoralt, 103 Ga. App. 564 , 120 S.E.2d 39 (1961).

44-13-10. Survey of exempted real property; affidavit of surveyor; return to probate court; objection to survey; failure of surveyor to comply as contempt.

  1. The surveyor to whom the applicant delivers the order pursuant to subsection (d) of Code Section 44-13-4 shall lay off the exempted real property on or out of the land claimed by the applicant and make a plat of the same and shall make an affidavit that the exempted real property is correctly platted and laid off and setting out its value. He shall return the affidavit to the judge of the probate court at least five days before the day appointed in the order for passing upon the application.
  2. It shall be a valid ground of objection to the propriety of any survey that it has been so made as to injure unjustly or needlessly the value of any land left unexempted by a disregard of the shape and location of the entire tract.
  3. Should any county surveyor fail to comply with his duty as prescribed by this Code section, he shall be punished for a contempt of court by the judge of the probate court. (Ga. L. 1868, p. 27, § 4; Code 1873, § 2008; Ga. L. 1878-79, p. 99, § 3; Code 1882, §§ 2008, 2010a; Civil Code 1895, §§ 2834, 2837; Civil Code 1910, §§ 3384, 3387; Code 1933, §§ 51-401, 51-404; Code 1981, § 44-13-11 ; Code 1981, § 44-13-10 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Cross references. - Authority of county surveyor to establish fee for making plat of homestead, affidavit, and return, § 36-7-9 .

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-11 as this Code section. The 1983 Act also redesignated former Code Section 44-13-10, relating to time fixed by notice for hearing, as present Code Section 44-13-9.

JUDICIAL DECISIONS

Sufficiency of affidavit. - The surveyor's affidavit that the plat "is a correct plat" means, in substance, that the land is correctly platted and laid off, and is a sufficient affidavit under O.C.G.A. § 44-13-10 . Timothy v. Chambers, 85 Ga. 267 , 11 S.E. 598 , 21 Am. St. R. 163 (1890).

Presumption that affidavit made. - When it is shown that no affidavit of the surveyor was attached, the law will presume nevertheless that the proper affidavit was made. Dunagan v. Stadler, 101 Ga. 474 , 29 S.E. 440 (1897).

Supplying affidavit by amendment. - The omission of the surveyor to make affidavit to the correctness of the plat and the value of the premises may be supplied by amendment. Burns v. Chandler, 61 Ga. 385 (1878).

Clerical error in affidavit. - A mere clerical error in the surveyor's affidavit will not invalidate the homestead papers. Baldwin Fertilizer Co. v. Merritt, 101 Ga. 387 , 29 S.E. 18 (1897).

Homestead granted before return made. - Where a bill was brought to recover certain property as being a homestead, and the proceedings exhibited thereto showed that the ordinary (now probate judge) had set apart the lands as a homestead before the surveyor had made the return and before the surveyor had sworn to the same, the bill was properly dismissed on demurrer (now motion to dismiss). Falls v. Crawford, 76 Ga. 35 (1885).

Return on day of hearing. - That the return of the surveyor on an application for homestead appeared to be on the day set for the hearing would have been good ground for allowing time to investigate the return, but did not render the proceeding void. Roberts v. Cook, 68 Ga. 324 (1882).

Purchaser having knowledge of homestead. - A defendant having purchased, with the approval of the ordinary (now probate judge) and knowledge of the homestead title which defendant bought, will not be heard to attack the homestead papers for want of regularity in the petition or plat, or in regard to the surveyor who acted in laying off and returning the homestead. Brown v. Driggers, 62 Ga. 354 (1879).

Fixing valuation. - It is not incumbent on the applicant for a homestead to fix the valuation of the real estate sought to be set apart. This duty devolves upon the surveyor, the surveyor's valuation being subject to review by appraisers. Wood & Bro. v. Collins, 111 Ga. 32 , 36 S.E. 423 (1900).

Proper order presumed. - As against a creditor who was duly served with notice of an application for a homestead, it will, though the homestead proceeding does not so disclose, be presumed that a proper order to the surveyor to lay off and plat the homestead was granted; nor as to such creditor will a homestead so approved be treated as invalid because the plats of two lots composing the same "did not purport to be made by the county surveyor and were not sworn to, accompanied by an affidavit as the law requires." Dunagan v. Stadler, 101 Ga. 474 , 29 S.E. 440 (1897).

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Homesteads, §§ 37, 146 et seq.

44-13-11. Approval of application; transmittal of copy of exempted real property to other counties; recordation.

If, at the time and place appointed for passing upon the application, no objection is raised by any creditor of the applicant, the judge of the probate court shall endorse upon the schedule and upon the plat: "Approved this the ____ day of ________________________, ________," filling the blanks, and shall sign the schedule and plat officially and hand such application to the clerk of the superior court of the clerk's county; and, when land out of the clerk's county is exempted, the judge shall transmit a certified copy of the exempted real property to the clerk of the superior court of each county in which exempted land is located. Each clerk of the superior court of a county in which exempted land is located shall record the exempted real property in a book to be kept for that purpose.

(Ga. L. 1868, p. 27, § 5; Code 1873, § 2009; Ga. L. 1877, p. 18, § 1; Code 1882, § 2009; Civil Code 1895, § 2835; Ga. L. 1898, p. 51, § 1; Civil Code 1910, § 3385; Code 1933, § 51-402; Code 1981, § 44-13-12 ; Ga. L. 1982, p. 3, § 44; Code 1981, § 44-13-11 , as redesignated by Ga. L. 1983, p. 1170, § 2; Ga. L. 1999, p. 81, § 44; Ga. L. 2011, p. 99, § 83/HB 24.)

The 2011 amendment, effective January 1, 2013, in the first sentence, substituted "such application" for "them" and twice substituted "the clerk's county" for "his county"; and deleted "in his office, which record or a certified transcript thereof shall be competent evidence in all the courts of this state" following "purpose" at the end of the last sentence. See Editor's notes for applicability.

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-12 as this Code section. The 1983 Act also redesignated former Code Section 44-13-11, relating to survey of exempted real property, as present Code Section 44-13-10.

Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews. - For article, "Evidence," see 27 Ga. St. U. L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 1 (2011).

JUDICIAL DECISIONS

In general. - Among other requisites to constitute a valid judgment setting aside a homestead to the head of a family, the ordinary (now probate judge) shall endorse the approval upon the schedule of property, and upon the plat of the surveyor. Larey v. Baker, 85 Ga. 687 , 11 S.E. 800 (1890); West v. McWhorter, 141 Ga. 590 , 81 S.E. 859 (1914); King v. King, 143 Ga. 385 , 85 S.E. 95 (1915); Cook v. Hendricks, 146 Ga. 63 , 90 S.E. 383 (1916).

Application itself need not be approved. Larey v. Baker, 85 Ga. 687 , 11 S.E. 800 (1890).

Presumptions. - Liberal presumptions are indulged in favor of the regularity of homestead proceedings. A proper order to the surveyor will be presumed where the ordinary has approved the plat returned; and approval of the "homestead" means substantially approval of the plat and the schedule conformably to O.C.G.A. § 44-13-11 . Timothy v. Chambers, 85 Ga. 267 , 11 S.E. 598 , 21 Am. St. R. 163 (1890).

Original papers as evidence. - The original homestead papers, not the record of them from the clerk's office, were proper evidence. Larey v. Baker, 85 Ga. 687 , 11 S.E. 800 (1890).

Proof of lost papers. - Proof being made by complainants of the loss of the original homestead papers by depositions of the head of the family, and of the clerk of the superior court and ordinary (now probate judge), a certified copy from the clerk's office was properly admitted. Brown v. Driggers, 62 Ga. 354 (1879).

Establishing lost papers. - The original schedule and plat are private papers and, if lost, may be established by the superior court where they had been approved and recorded. Paschal v. Turner, 116 Ga. 736 , 42 S.E. 1010 (1902).

Recordation required. - Homestead papers do not become muniments of title of those interested in the homestead until they have been duly recorded in the office of the clerk of the superior court. Paschal v. Hutchinson, 119 Ga. 243 , 46 S.E. 103 (1903).

Record by clerk. - Under O.C.G.A. § 44-13-11 the application as well as the schedule is to be recorded by the clerk. Paschal v. Hutchinson, 119 Ga. 243 , 46 S.E. 103 (1903).

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Homesteads, §§ 149, 150.

ALR. - Estate or interest in real property to which a homestead claim may attach, 89 A.L.R. 511 ; 74 A.L.R.2d 1355.

44-13-12. Objections to schedule.

Should any creditor of the applicant desire to object to the schedule for want of sufficiency and fullness or for fraud of any kind or to dispute the valuation of the personalty, the propriety of the survey, or the value of the premises so platted as the exempted real property, he shall specify his objections in writing at the time and place appointed for the hearing.

(Ga. L. 1868, p. 27, § 6; Code 1873, § 2010; Code 1882, § 2010; Civil Code 1895, § 2836; Civil Code 1910, § 3386; Code 1933, § 51-403; Code 1981, § 44-13-13 ; Code 1981, § 44-13-12 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-13 as this Code section. The 1983 Act also redesignated former Code Section 44-13-12, relating to approval of application and recordation of exempted real property, as present Code Section 44-13-11.

JUDICIAL DECISIONS

Purpose of objection to schedule for want of sufficiency and fullness is to prevent the allowance of the homestead, and it does not fail as an objection under O.C.G.A. § 44-13-12 merely because it may be described as an "objection to the homestead." Alday v. Spooner, 35 Ga. App. 614 , 134 S.E. 343 (1926).

Objection must be specific. - An amendment to objections, which in general terms alleged that the head of the family owned property not scheduled, some of which consisted of debts owing to that individual by persons unknown to the objector, without further specifying or describing the property charged to have been omitted, was properly disallowed for want of fullness and certainty in these respects. Wood & Bro. v. Collins, 111 Ga. 32 , 36 S.E. 423 (1900).

Objection that articles omitted from schedule. - A creditor who files objections to the allowance of an exemption on the ground that specified articles of personalty were omitted from the schedule, should on the trial be confined to the articles mentioned in the objections, and should not be allowed to show by evidence that other articles of personalty were omitted from the schedule. Wood & Bro. v. Collins, 111 Ga. 32 , 36 S.E. 423 (1900).

Objectors entitled to opening and conclusion. - Where an application for an exemption of personalty was made, and creditors of the applicant objected thereto on the ground of fraud, and the case was carried to the superior court by appeal, on the trial, the objectors were entitled to the opening and conclusion. McNally v. Mulherin & Co., 79 Ga. 614 , 4 S.E. 332 (1887).

Creditor bound by judgment. - A creditor is not obliged to contest the right of a debtor to a homestead on any other grounds then those stated in O.C.G.A. § 44-13-12 , but if the creditor appears voluntarily and raises questions which the ordinary (now probate judge) would not otherwise have power to pass upon, and they are passed upon, the creditor will be bound by the judgment. Patterson v. Wallace, 47 Ga. 452 (1872). See also Harris v. Colquitt & Baggs, 44 Ga. 663 (1872).

If the creditor failed to appear and object that the schedule was insufficient, and it gives a general description of the property, and no fraud or unfairness is alleged or shown, the creditor will not be permitted to attack the judgment of the ordinary (now probate judge) setting it apart, collaterally, in a claim case, on the ground that the schedule was not sufficiently descriptive. Bartlett v. Russell, 41 Ga. 196 (1870).

Effect in bankruptcy of failure to set aside exemption. - The fact that the bankrupts, as residents of Georgia, did not set apart exemptions in the manner provided did not preclude the allowance of exemptions in bankruptcy proceedings. Clark v. Nirenbaum, 8 F.2d 451 (5th Cir. 1925), cert. denied, 270 U.S. 649, 46 S. Ct. 349 , 70 L. Ed. 780 (1926).

Appeal. - Where a creditor filed objections, one of which was to the schedule for want of sufficiency and fullness in that the applicant had omitted certain personalty, appeal to the superior court lies. Alday v. Spooner, 35 Ga. App. 614 , 134 S.E. 343 (1926).

Appeal and certiorari. - An appeal to the superior court from the judgment of the ordinary (now probate judge), in setting apart or refusing to set apart a homestead, lies only where the objections interposed by creditors of the applicant are those provided for in O.C.G.A. § 44-13-12 . When objections other than those specified in O.C.G.A. § 44-13-12 are filed, the judgment of the ordinary (now probate judge) is reviewable by certiorari, an appeal is not the remedy. Fontano v. Mozley & Co., 121 Ga. 46 , 48 S.E. 707 (1904).

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Homesteads, § 149 et seq.

44-13-13. Appointment of appraisers upon filing of objections; examination and valuation of property; alterations in plat and schedule; approval and recordation; appeal.

Upon an objection being made as provided for in Code Section 44-13-12, unless the applicant shall so alter the schedule or plat or both as to remove the objections, the judge of the probate court shall appoint three disinterested appraisers to examine the property concerning which the objections are made and to value the same. On the appraisers' return under oath, if either the schedule or the plat shall be found to be too large, such alterations shall be made in the schedule and in the plat as the judge may deem proper to bring them within the limits of the value allowed by this article. Thereafter, the judge shall approve the schedule and the plat as required by Code Section 44-13-11 and shall cause the same to be delivered to the clerk of superior court of his or her county who shall record the schedule and plat as required by Code Section 44-13-11. Either party dissatisfied with the judgment shall have the right to appeal under the same rules, regulations, and restrictions as are provided by law in cases of appeals from the probate court.

(Ga. L. 1868, p. 27, § 6; Code 1873, § 2011; Code 1882, § 2011; Civil Code 1895, § 2838; Civil Code 1910, § 3388; Code 1933, § 51-405; Code 1981, § 44-13-14 ; Code 1981, § 44-13-13 , as redesignated by Ga. L. 1983, p. 1170, § 2; Ga. L. 2016, p. 193, § 10/HB 1004.)

The 2016 amendment, effective January 1, 2017, substituted "shall cause the same to be delivered to the clerk of superior court of his or her county" for "shall hand the same to the clerk of the superior court of his county" in the third sentence.

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-14 as this Code section. The 1983 Act also redesignated former Code Section 44-13-13, relating to objections to schedule, as present Code Section 44-13-12.

JUDICIAL DECISIONS

Objections not limited to schedule. - O.C.G.A. § 44-13-13 does not provide exclusively for objections to the schedule. The creditor is not required to object to the schedule, if the creditor desires to dispute "the propriety of the survey, or the value of the premises so platted as the homestead." Alday v. Spooner, 35 Ga. App. 614 , 134 S.E. 343 (1926).

Conclusiveness of return and approval. - A return of appraisers and approval of the ordinary (now probate judge) unappealed from, is conclusive upon the applicant. Thrasher v. Bettis, 53 Ga. 407 (1874).

An appeal does not lie to the superior court from a judgment sustaining a demurrer (now motion to dismiss) to an application for a homestead. In such a case the exclusive remedy for reviewing the judgment is by certiorari. Cunningham v. United States Sav. & Loan Co., 109 Ga. 616 , 34 S.E. 1024 (1900).

Certiorari. - The superior court has jurisdiction to correct errors by a writ of certiorari to the judgment of the ordinary (now probate judge), allowing a homestead. Lathrop v. Soldiers' Loan & Bldg. Ass'n, 45 Ga. 483 (1872).

Amending petition on appeal. - The applicant may amend the petition by inserting a new right on appeal to the superior court. Young v. N.B. Brown & Co., 45 Ga. 552 (1872).

De novo investigation on appeal. - When an appeal is taken from the judgment of the ordinary (now probate judge) in allowing or refusing a homestead under O.C.G.A. § 44-13-13 , the whole cause is brought up by the appeal, and either party may, in the appellate court, raise any objections or make any motion in relation thereto. Lynch v. Pace, 40 Ga. 173 (1869); Kirtland, Babcock & Bronson v. Davis, 43 Ga. 318 (1871).

Value or number of acres. - On appeal, it is discretionary with the jury to sustain the ordinary (now probate judge) in value or number of acres for homestead. Crawford v. Ward, 49 Ga. 40 (1873).

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Homesteads, § 146 et seq.

44-13-14. Procedure for exempting town realty valued in excess of exemption; order of probate court; reinvestment of sale proceeds; liability of judge or officer.

  1. If an applicant seeks to have an exemption set apart out of real property located in town which exceeds in value the amount of the exemption which he claims and to which he is entitled to complete his legal exemption and such realty cannot be so divided as to give an exemption of that value, the judge of the probate court may pass an order that, should such property be thereafter sold by virtue of any order, judgment, or decree of any court in this state, so much of the proceeds of the sale as may be necessary to make up, when added to the other exempted property of the applicant, if any, the full amount of the exemption allowed by law shall be paid over to the judge of the probate court by the officer making the sale to be invested in property selected by the applicant by some proper person appointed by such judge, which property shall constitute the exemption of the applicant or a part thereof, as the case may be, after the order of the probate court and the deed of reinvestment have been recorded by the clerk of the superior court.
  2. Should any ministerial officer of this state, upon being shown a certified copy of the order of the judge of the probate court provided for in subsection (a) of this Code section, fail to retain and pay over to such judge the proceeds as required or should any such judge receiving the proceeds fail to appoint the person required to have the proceeds invested and fail to turn over the proceeds to the person so appointed, such officer or judge and his sureties shall be liable to the applicant for the full amount of the money and 20 percent interest thereon for the period of time he wrongfully withholds the money or any part thereof. (Ga. L. 1868, p. 27, §§ 7, 8; Code 1873, §§ 2012, 2013; Code 1882, §§ 2012, 2013; Civil Code 1895, §§ 2839, 2840; Civil Code 1910, §§ 3389, 3390; Code 1933, §§ 51-501, 51-502; Code 1981, § 44-13-15 ; Code 1981, § 44-13-14 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-15 as this Code section. The 1983 Act also redesignated former Code Section 44-13-14, relating to examination and valuation of property by appraisers, as present Code Section 44-13-13.

JUDICIAL DECISIONS

Certiorari is the remedy to correct errors in proceedings under O.C.G.A. § 44-13-14 . Lathrop v. Soldiers' Loan & Bldg. Ass'n, 45 Ga. 483 (1872).

RESEARCH REFERENCES

Am. Jur. 2d. - 40 Am. Jur. 2d, Homesteads, § 30.

C.J.S. - 40 C.J.S., Homesteads, § 31 et seq.

44-13-15. How cash exempted; investment in personalty.

When any person applies for an exemption of personalty and the personalty sought to be exempted consists of cash in whole or in part, before the cash shall be allowed as an exemption, it shall, under the direction of the judge of the probate court, be invested in such articles of personal property as the applicant may desire; when so invested and returned by schedule with or without other property as required by this article, such property shall constitute the exemption of personalty. In no case shall the allowance of cash without such investment be a valid exemption.

(Ga. L. 1870, p. 70, § 1; Code 1873, § 2016a; Code 1882, § 2016a; Civil Code 1895, § 2841; Civil Code 1910, § 3391; Code 1933, § 51-601; Code 1981, § 44-13-16 ; Ga. L. 1982, p. 3, § 44; Code 1981, § 44-13-15 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-16 as this Code section. The 1983 Act also redesignated former Code Section 44-13-15, relating to procedure for exempting town realty valued in excess of exemption, as present Code Section 44-13-14.

Law reviews. - For comment on Roquemore v. Goldstein, 100 Ga. App. 591 , 112 S.E.2d 24 (1959) see 12 Mercer L. Rev. 280 (1960).

JUDICIAL DECISIONS

Interest in judgment. - O.C.G.A. § 44-13-15 is not applicable in a case where the property exempted was an interest owned and held by the debtor in a judgment. Such an interest is not cash. Johnson v. Redwine, 105 Ga. 449 , 33 S.E. 676 (1898).

Creditor holding waiver. - O.C.G.A. § 44-13-15 does not deal with, and does not affect, the rights of creditors under homestead exemptions holding a waiver. Posey v. Rome Oil & Fertilizer Co., 157 Ga. 44 , 121 S.E. 205 (1923).

Share of partner in money in the hands of a receiver of the partnership cannot be exempted for such partner until receivership expenses are paid. Hahn & Co. v. Allen, 93 Ga. 612 , 20 S.E. 74 (1894).

Partnership money in receiver's hands. - No member of a partnership is entitled to an exemption out of money arising from a sale of personal property by a duly appointed receiver, as against a judgment or decree founded on a firm waiver note. Hahn & Co. v. Allen, 93 Ga. 612 , 20 S.E. 74 (1894).

Cash proceeds from sale. - If indivisible town realty must be sold in order to sever the homestead, the cash arising from the sale must be invested. Roquemore v. Goldstein, 100 Ga. App. 591 , 112 S.E.2d 24 (1959).

Damages recovered for conversion of exempt personalty. - A converting creditor has no right to demand the investment of damages recovered for the conversion of exempt personalty. They should be paid to the beneficiaries of the homestead. Harrell v. Harrell, 77 Ga. 130 , 3 S.E. 12 , 3 S.E. 457 (1886).

Bankruptcy court. - It is probable that the bankruptcy court would not feel bound to superintend the investment provided for by O.C.G.A. § 44-13-15 , but, without it, would allow an exemption of money on hand. In re Friend, 9 F. Cas. 821 (S.D. Ga. 1877) (No. 5,120).

Bankrupt debtor perfecting exemption of money set aside to debtor in a bankruptcy proceeding must comply with O.C.G.A. §§ 44-13-5 , 44-13-8 , and 44-13-9 , relating to the schedule to be attached to the application, the notice to be published by the ordinary (now probate judge), and the notice to be given creditors by the applicant or the applicant's agent. Lou Hill Co. v. Bjoralt, 103 Ga. App. 564 , 120 S.E.2d 39 (1961).

Cited in Rosser, Harvey & Davis v. Florence, 119 Ga. 250 , 45 S.E. 975 (1903); Southall v. Blount, 182 Ga. 368 , 185 S.E. 321 (1936).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, §§ 36, 105. 40 Am. Jur. 2d, Homesteads, § 169.

C.J.S. - 35 C.J.S., Exemptions, §§ 1, 41. 40 C.J.S., Homesteads, § 1.

ALR. - Debtor's exemption of proceeds of insurance on property itself exempt, 63 A.L.R. 1286 .

Deposit of exempt funds as affecting debtor's exemption, 67 A.L.R. 1203 .

44-13-16. Sale of exempted property for reinvestment; procedure; effect.

  1. Whenever the debtor shall desire the exempted property, whether real or personal, to be sold for reinvestment, an application for the sale of the property must be made to the judge of the superior court of the county where the debtor resides or the property is situated unless the judge is disqualified, in which case application may be made to the judge of the superior court of an adjoining circuit. Upon proper showing, the judge may order a sale of the property; and the proceeds shall be reinvested upon the same uses.
  2. A sale ordered pursuant to subsection (a) of this Code section shall operate to pass to the purchaser the entire interest and title of the beneficiaries in the exempted property and also the entire interest and title owned, before the exemption was made, by the party out of whose estate the property was so exempted.
  3. The purchaser shall receive the property sold and shall hold the same, as to all liens thereon against the original debtor and with the same exemption therefrom, for the same length of time as was allowed to the original debtor before the sale; and, by consent of all lien creditors, the liens of such creditors may be divested and transferred to the newly acquired property by the order of the court pursuant to subsection (a) of this Code section.
  4. An applicant who has obtained an exemption for the spouse, minor children, or dependents of the debtor may apply for an order of sale under subsections (a) through (c) of this Code section. All persons interested shall be parties to the proceeding.
  5. The judge of the superior court shall order the entire proceedings recorded in the minutes by the clerk of the superior court of the county in which the parties applying for the order of sale reside and, when land is to be sold, in the county where the land is located; and the judge shall provide the means and mode of sale and reinvestment as provided in this Code section.
  6. This Code section shall apply to the sale of any real or personal property set apart under this article. (Ga. L. 1876, p. 48, § 7; Ga. L. 1878-79, p. 99, § 5; Code 1882, § 2025; Civil Code 1895, § 2847; Civil Code 1910, § 3397; Code 1933, § 51-801; Code 1981, § 44-13-17 ; Code 1981, § 44-13-16 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-17 as this Code section. The 1983 Act also redesignated former Code Section 44-13-16, relating to how cash exempted, as present Code Section 44-13-15.

JUDICIAL DECISIONS

Applicability. - O.C.G.A. § 44-13-16 applies to all homesteads, and in holding off creditors until the homestead term expires, it carries out the true intent of the constitution. Van Horn v. McNeill, 79 Ga. 121 , 4 S.E. 111 (1887).

Strict construction. - The policy of our law is not to alienate homesteads, and the statutes relating thereto including O.C.G.A. § 44-13-16 will be strictly construed, and the rights of the purchaser will be closely watched and never enlarged. Whittle v. Samuels, 54 Ga. 548 (1875).

Order of court required. - The head of the family cannot legally sell or dispose of the exempted property without first obtaining an order of court as prescribed by O.C.G.A. § 44-13-16 . Powers v. Rosenblatt & Co., 113 Ga. 559 , 38 S.E. 969 (1901).

Sale not in accord with order. - Where the sale was not in accord with the terms of the order, the purchaser did not acquire a valid title to the homestead property, and it was the right of the beneficiaries of the homestead to recover the same, together with mesne profits; but subject in equity to the right of the purchaser to offset against the same so much of the purchase money paid to the head of the family; and also to set off against such mesne profits any additional value to the homestead property brought about by reason of permanent improvements by the purchaser. Taylor v. James, 109 Ga. 327 , 34 S.E. 674 (1899).

Purchaser charged with notice. - An order having been granted by the judge of the superior court authorizing a sale of the homestead for reinvestment and distinctly providing that it would be sold at a designated price, one who undertook to purchase such homestead or a part thereof was chargeable with notice of the terms embraced in the judge's order. Taylor v. James, 109 Ga. 327 , 34 S.E. 674 (1899).

Liens not transferred to property purchased. - Where a homestead was sold for reinvestment under O.C.G.A. § 44-13-16 , under an order of the chancellor for that purpose, but the liens of creditors were not transferred to the property purchased, the purchaser of the homestead took it, as to lien creditors thereon against the original debtor, with the same exemption therefrom, and for the same length of time, as was allowed to the original debtor before such sale. Therefore, after the sale, a judgment creditor could not levy on and bring to sale the property, subject to the homestead charge or encumbrance, the object being to sell the reversionary interest in the hands of the purchaser before the termination of the homestead estate. Stephenson v. Eberhart & Son, 79 Ga. 116 , 3 S.E. 641 (1887).

Collateral understanding between parties. - Where the head of a family and his wife, being the sole remaining beneficiaries of a homestead apply for authority to sell the homestead property at private sale, for the purpose of reinvestment in other specified real estate, they will be estopped thereafter from moving to set aside the deeds executed between the parties on the ground that there was a collateral understanding between them, not disclosed to the judge, that the exchange of the property would be made merely for convenience to enable the grantee of the homestead property to sell it at a higher price, and, if he failed to make a sale, that the deeds should be canceled. Vaughn v. Vaughn, 152 Ga. 160 , 108 S.E. 541 (1921).

Upon removal of debtor from state, the debtor's homestead terminated, and a levy on and sale of the reversion would carry the entire title. City Bank v. Smisson, 73 Ga. 422 (1884).

Alienation by husband to wife. - A homestead set apart for the benefit of a wife and minor children was not subject to alienation by the husband to the wife any more than to anyone else without an order of the judge of the superior court for reinvestment, as prescribed in O.C.G.A. § 44-13-16 , even though at the time of the attempted alienation the wife was the sole beneficiary of the homestead, the minor children having then attained their majority. Love v. Anderson, 89 Ga. 612 , 16 S.E. 68 (1892).

Application by widow. - A widow, who is the head of a family, can make application under O.C.G.A. § 44-13-16 without joining her children therein. Deyton v. Bell, 81 Ga. 370 , 8 S.E. 620 (1889).

Application by trustee or guardian. - If the application is by a trustee or guardian for minors, to whom as such the homestead has been set apart, it is necessary to make the children parties. Deyton v. Bell, 81 Ga. 370 , 8 S.E. 620 (1889).

Joining wife in application. - It seems that where the head of a family applies under O.C.G.A. § 44-13-16 , it is necessary for his wife, if he has one, to join with him in the application. If he has no wife, he can make the application alone. Deyton v. Bell, 81 Ga. 370 , 8 S.E. 620 (1889).

Adult heirs acquiescing in setting apart homestead. - A widow as the head of a family consisting of herself and a minor child, having had a homestead set apart to her out of the lands of her deceased husband's estate, and the adult heirs having acquiesced in the same, and the lands so set apart having been subsequently sold by order of the judge in conformity to O.C.G.A. § 44-13-16 , the purchaser at such sale acquired, not only the title of the beneficiaries, but that of the estate, so as to bar the rights of the adult heirs and all persons claiming under them, their rights being transferred to the property in which the proceeds of the sale were invested. Fleetwood v. Lord, 87 Ga. 592 , 13 S.E. 574 (1891).

Pony homestead. - A pony homestead, by the provisions of O.C.G.A. § 44-13-16 may be sold by an order of the judge of the superior court; but the law does not contemplate the pledging of a homestead to secure a prospective loan. Powell v. Powell, 159 Ga. 837 , 127 S.E. 117 (1925).

Sale by wife after husband's death. - A wife may not sell the homestead after the husband's death, though the executor of the husband joins in the deed and is authorized by will to do so. VanDyke v. Kilgo, 54 Ga. 551 (1875).

Service where children parties. - Where widow's children were parties plaintiff in proceedings to sell a homestead under O.C.G.A. § 44-13-16 , no service on them was necessary. Deyton v. Bell, 81 Ga. 370 , 8 S.E. 620 (1889).

Cited in Broome v. Davis, 87 Ga. 584 , 13 S.E. 749 (1891); Pritchett v. Davis, 101 Ga. 236 , 28 S.E. 666 , 65 Am. St. R. 398 (1897); White v. Roper, 176 Ga. 180 , 167 S.E. 177 (1932).

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Homesteads, §§ 55, 68, 95, 153, 158, 176.

ALR. - Debtor's exemption of proceeds of insurance on property itself exempt, 63 A.L.R. 1286 .

Time as of which, and extent to which, homestead exemption attaches to property received in exchange for homestead, 83 A.L.R. 54 .

44-13-17. Sale for reinvestment when application made for debtor's children or dependents or by divorced spouse.

Whenever any property has been set apart for the debtor's minor children or dependents and they desire the same to be sold for reinvestment but the debtor fails or refuses to join with them in the application to have such property sold for reinvestment or whenever a divorce has been granted to the spouse of the debtor and the property exempted by this article and sought to be sold for reinvestment has been awarded to that spouse, the proceedings for reinvestment shall be in all respects as binding upon all parties as if the debtor had joined with the minor children, dependents, or spouse, respectively, in the application.

(Ga. L. 1894, p. 93, § 1; Civil Code 1895, § 2844; Civil Code 1910, § 3394; Code 1933, § 51-703; Code 1981, § 44-13-18 ; Code 1981, § 44-13-17 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-18 as this Code section. The 1983 Act also redesignated former Code Section 44-13-17, relating to sale of exempted property for reinvestment, as present Code Section 44-13-16.

RESEARCH REFERENCES

Am. Jur. 2d. - 40 Am. Jur. 2d, Homesteads, §§ 114, 148, 166, 188.

ALR. - Effect of divorce on homestead, 36 A.L.R. 431 ; 84 A.L.R.2d 703.

Debtor's exemption of proceeds of insurance on property itself exempt, 63 A.L.R. 1286 .

Time as of which, and extent to which, homestead exemption attaches to property received in exchange for homestead, 83 A.L.R. 54 .

44-13-18. Disposition of rents and profits arising from exempted property.

All produce, rents, or profits arising from property in this state which is exempted under this article shall be for the support of those persons allowed such exemption and shall be exempt from levy and sale except as otherwise provided in this article.

(Ga. L. 1869, p. 23, § 1; Code 1873, § 2026; Code 1882, § 2026; Civil Code 1895, § 2848; Civil Code 1910, § 3398; Code 1933, § 51-802; Code 1981, § 44-13-19 ; Code 1981, § 44-13-18 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-19 as this Code section. The 1983 Act also redesignated former Code Section 44-13-18, relating to sale for reinvestment when application made for debtor's children or dependents or by divorced spouse, as present Code Section 44-13-17.

JUDICIAL DECISIONS

Short homestead. - The provisions of O.C.G.A. § 44-13-18 apply to the statutory or "short" homestead as well as to the constitutional homestead. Russell v. Gilliland, 19 Ga. App. 676 , 91 S.E. 1065 (1917).

Exempted personalty. - Inasmuch as exempted personalty stands in all respects on the same footing as a homestead, and by O.C.G.A. § 44-13-18 seems to be included in the latter term, the declaration of the statute applies directly to property which has been set aside as exempt. Brand v. Clements, 116 Ga. 392 , 42 S.E. 711 , 94 Am. St. R. 133 (1902).

The accretions of homestead property are exempt from levy and sale under O.C.G.A. § 44-13-18 . Powers v. Rosenblatt & Co., 113 Ga. 559 , 38 S.E. 969 (1901); Russell v. Gilliland, 19 Ga. App. 676 , 91 S.E. 1065 (1917).

Crop produced by use of exempted personalty and supplies. - When cotton has been produced by the conjoint use of exempted property and supplies furnished by the head of the family and not connected with such property, the whole crop so produced is not subject to an individual debt of the head of the family. Brand v. Clements, 116 Ga. 392 , 42 S.E. 711 , 94 Am. St. R. 133 (1902).

Mortgaging crops for supplies. - Where a person, after a homestead in land has been set apart to that person, individually mortgages growing crops thereon in order to obtain supplies to be used in making such crops, the holder of this mortgage can by foreclosing it against the mortgagor as an individual, after the maturity of these crops, subject the same to the satisfaction of the mortgage execution. Under such circumstances, the crops are not subject to such execution. Martin v. Davis & Co., 104 Ga. 633 , 30 S.E. 753 (1898).

Forfeiture. - Where a portion of the land set apart as a homestead was leased by the head of the family with the stipulation that if the lessee failed to work it, such lessee should pay a certain forfeiture, such forfeiture was part of the profits of the homestead estate under O.C.G.A. § 44-13-18 . Larey v. Baker, 85 Ga. 687 , 11 S.E. 800 (1890).

Debts due physician. - Debts due a physician in the earning of which the physician's skill was the principal factor, and the use of exempted property, such as the living in a house set apart as a homestead and riding an exempted horse in paying the physician's calls, were merely incidents, were not exempt from garnishment on the ground that they were the proceeds of a homestead and exemption set apart to the physician as head of a family. Staples v. Keister, 81 Ga. 772 , 8 S.E. 421 (1888).

RESEARCH REFERENCES

Am. Jur. 2d. - 40 Am. Jur. 2d, Homesteads, §§ 41, 75, 76, 178.

C.J.S. - 40 C.J.S., Homesteads, §§ 44, 173.

44-13-19. Costs of proceedings.

Before the approval of the judge of the probate court may be demanded as provided in this article, the applicant shall pay to such judge the cost of the proceedings, including the clerk's cost for recording the same. The applicant shall be bound for such costs if the judge approves the application. If any person filing objections to the schedule or plat fails to have the same sustained, he shall pay the cost of the proceedings.

(Ga. L. 1868, p. 27, § 9; Ga. L. 1870, p. 70, § 6; Code 1873, § 2023; Code 1882, § 2023; Civil Code 1895, § 2845; Civil Code 1910, § 3395; Code 1933, § 51-704; Code 1981, § 44-13-20 ; Code 1981, § 44-13-19 , as redesignated by Ga. L. 1983, p. 1170, § 2.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-20 as this Code section. The 1983 Act also redesignated former Code Section 44-13-19, relating to disposition of rents and profits arising from exempted property, as present Code Section 44-13-18.

44-13-20. Reversion of property set apart for spouse, children, or dependents.

Property set apart pursuant to Code Section 44-13-2 for a spouse, for a spouse and minor children, for minor children alone, or for dependents of a debtor (1) upon the death of the spouse or the spouse's remarriage, when set apart to the spouse alone, (2) upon the attaining of the age of 18 by the minor children or their emancipation during minority, when set apart for the minor children, (3) upon the death or remarriage of the spouse and the attaining of the age of 18 by the minor children or the emancipation of the minor children, when set apart to the spouse and minor children, and (4) upon a former dependent person's no longer being eligible to be claimed by the debtor as a dependent for income tax purposes pursuant to Code Section 48-7-26, shall revert to the estate from which it was set apart unless it was sold or reinvested pursuant to this article, in which case this Code section shall apply to and follow all the reinvestments unless the fee simple has been sold as provided in this article.

(Ga. L. 1868, p. 27, § 10; Ga. L. 1869, p. 25, § 1; Code 1873, § 2024; Ga. L. 1876, p. 48, § 6; Code 1882, § 2024; Civil Code 1895, § 2846; Civil Code 1910, § 3396; Code 1933, § 51-705; Code 1981, § 44-13-21 ; Code 1981, § 44-13-20 , as redesignated by Ga. L. 1983, p. 1170, § 2; Ga. L. 2006, p. 141, § 8/HB 847.)

The 2006 amendment, effective July 1, 2006, near the middle of this Code section, substituted "18" for "majority" twice and substituted "emancipation" for "marriage" twice.

Cross references. - Emancipation of minors, Art. 6, Ch. 11, T. 15.

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-21 as this Code section. The 1983 Act also redesignated former Code Section 44-13-20, relating to costs of proceedings, as present Code Section 44-13-19.

Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 79 (2006).

JUDICIAL DECISIONS

In general. - Homestead property set apart to a wife, or wife and minor children, etc., upon the termination of the homestead estate reverts to the estate from which it was set apart unless it is sold or reinvested in pursuance of the provisions of O.C.G.A. § 44-13-20 . Griffin v. Griffin, 153 Ga. 547 , 113 S.E. 161 (1922).

Public policy favors support of minor children by the father's estate after his death. Russell v. Fulton Nat'l Bank, 247 Ga. 556 , 276 S.E.2d 641 (1981).

Homestead did not terminate so long as the daughters of the person who procured it and who were considered as beneficiaries of it, continued indigent and dependent, and remained with the homesteader, having no other home, and deriving support from the homesteader. Torrance v. Boyd, 63 Ga. 22 (1879).

Dependent females. - Where a man as the head of a family had set apart to himself as a homestead certain land, his family at that time consisting of a wife and several children, male and female, and where subsequently all of the children became of age, and all married except one daughter, who continued to live upon the land and to derive a support therefrom, upon the death of the man and his wife the homestead terminated, and the land was subject to be sold by his administrator for purposes of administration. Towns v. Mathews, 91 Ga. 546 , 17 S.E. 955 (1893); Haynes v. Schaefer, 96 Ga. 743 , 22 S.E. 327 (1895); Jones v. McCrary, 123 Ga. 282 , 51 S.E. 349 (1912); Bell v. Carter, 138 Ga. 530 , 75 S.E. 638 (1912); Vaughn v. Wheaton, 145 Ga. 311 , 89 S.E. 210 (1916).

Minor beneficiary ignoring homestead. - The mere fact that a minor who is the sole beneficiary of a homestead estate does not live upon the property, and leaves the head of the family to use the proceeds of the same in such a way as the minor desires for a period of ten years, without calling the minor to account, does not cause the homestead estate to terminate and become subject to levy and sale as the property of the head of the family. Sigman v. Austin, 112 Ga. 570 , 37 S.E. 894 (1901).

Death of second wife leaving no issue. - The wife, after the death of the husband, having continued to enjoy the benefit of the homestead up to the time of her own death was neither entitled to dower nor to a child's part, and at her death the property reverted to the husband's estate. Love v. Anderson, 89 Ga. 612 , 16 S.E. 68 (1892).

Cited in Hall v. Matthews, 68 Ga. 490 (1882); Gresham v. Johnson, 70 Ga. 631 (1883); Sutton v. Rosser, 109 Ga. 204 , 34 S.E. 346 , 77 Am. St. R. 367 (1899); Vaughn v. Wheaton, 145 Ga. 311 , 89 S.E. 210 (1916); Dudley v. Griggs, 150 Ga. 153 , 103 S.E. 89 (1920); Wardlaw v. Woodruff, 175 Ga. 515 , 165 S.E. 557 (1932); Clavin v. Clavin, 238 Ga. 421 , 233 S.E.2d 151 (1977).

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Homesteads, §§ 105, 170 et seq.

44-13-21. Effect of article on other exemptions.

Nothing contained in this article shall be construed to prevent any debtor who does not wish to avail himself of the benefits of this article from claiming the exemptions allowed by Code Section 44-13-100. No person who is allowed the exemptions under Code Section 44-13-100 shall take any benefit under this article; nor shall any person who is allowed the exemptions under this article be allowed the exemptions under Code Section 44-13-100 unless the exempted property so elected is lost by virtue of a sale under an outstanding claim, in which event the election shall not bar an application for an exemption under this article not liable to the outstanding claim.

(Ga. L. 1868, p. 27, § 14; Code 1873, § 2032; Ga. L. 1876, p. 48, § 8; Code 1882, § 2032; Civil Code 1895, § 2854; Civil Code 1910, § 3404; Code 1933, § 51-906; Code 1981, § 44-13-22; Code 1981, § 44-13-21 , as redesignated by Ga. L. 1983, p. 1170, § 1.)

Editor's notes. - Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-22 as this Code section. The 1983 Act also redesignated former Code Section 44-13-21, relating to reversion of property set aside for spouse, children, or dependents, as present Code Section 44-13-20.

JUDICIAL DECISIONS

Option as to homestead. - The insolvent debtor has an option, under the provisions of O.C.G.A. § 44-13-21 , to take the benefit of the constitutional homestead or to utilize the pony homestead. Powell v. Powell, 159 Ga. 837 , 127 S.E. 117 (1925). See also Connally v. Hardwick, 61 Ga. 501 (1878).

Cited in Darlington v. Belt, 12 Ga. App. 522 , 77 S.E. 653 (1913).

RESEARCH REFERENCES

C.J.S. - 35 C.J.S., Exemptions, § 1. 40 C.J.S., Homesteads, § 1.

ALR. - Availability of judgment under which exempt property has been seized as a set-off or counterclaim against claim based on wrongful seizure, 20 A.L.R. 276 .

PART 2 W AIVER OF EXEMPTIONS

Editor's notes. - Ga. L. 1983, p. 1170, § 1, which amended Code Sections 44-13-40 through 44-13-42 and enacted Code Section 44-14-43 in this part, provided in § 1, not codified by the General Assembly, that: "It is the intent of this Act to implement certain changes required by Article I, Section I, Paragraph XXVI of the Constitution of the State of Georgia."

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, § 143 et seq. 40 Am. Jur. 2d, Homesteads, §§ 20, 22, 66, 79, 119, 150, 158-161, 165, 166, 174, 178-180 et seq., 184-186, 188, 189, 206.

ALR. - Direction in will for payment of debts and expenses as subjecting exempt homestead to their payment, 103 A.L.R. 257 .

Validity and effect of waiver of right to complain of acts impairing value of homestead property, without joinder or consent of both husband and wife, 142 A.L.R. 532 .

Recovery of damages for breach of contract to convey homestead where only one spouse signed contract, 5 A.L.R.4th 1310.

44-13-40. Right of debtor to waive exemption.

Any debtor may, except as to wearing apparel and $300.00 worth of household and kitchen furniture and provisions, waive or renounce his right to the benefit of the exemption provided for by this article by a waiver, either general or specific, in writing simply stating that he does so waive or renounce such right, which waiver may be stated in the contract of indebtedness or may be made contemporaneously therewith or may be made subsequent to the execution of the contract of indebtedness in a separate paper.

(Ga. L. 1878-79, p. 99, § 6; Code 1882, § 2039a; Civil Code 1895, § 2863; Civil Code 1910, § 3413; Code 1933, § 51-1101; Ga. L. 1983, p. 1170, § 2.)

JUDICIAL DECISIONS

The policy behind O.C.G.A. § 44-13-40 is to permit a hard pressed debtor to use an exemption to obtain credit which in the debtor's extremity, may save the debtor. Mims v. Dixie Fin. Corp., 426 F. Supp. 627 (N.D. Ga. 1976), overruled on other grounds, Hamilton v. Southern Disct. Co., 656 F.2d 150 (5th Cir. 1981).

Benefit must be set apart. - In order for an exemption of the $300.00 of personal property allowed to a debtor under the provisions of the Constitution and O.C.G.A. § 44-13-40 to be effectual as against a waiver thereof, the debtor must have such personal property set apart to the debtor as exempt, in the same manner that the homestead allowed by the Constitution is set apart. Sasser v. Roberts, 68 Ga. 252 (1881); Miller v. Almon, 123 Ga. 104 , 50 S.E. 993 (1905).

The word "provisions" means something in condition to be consumed as food, such as meal, flour, lard, meat, and other articles of that kind. Cochran v. Harvey, 88 Ga. 352 , 14 S.E. 580 (1892); Hines v. Sam Weichselbaum Co., 18 Ga. App. 606 , 89 S.E. 1095 (1916).

Cotton is not "provisions" within the meaning of O.C.G.A. § 44-13-40 . Posey v. Rome Oil & Fertilizer Co., 157 Ga. 44 , 121 S.E. 205 (1923). See also Butler & Heath v. Shiver, 79 Ga. 172 , 4 S.E. 115 (1887).

Money. - Money, though less in amount than $300.00 which might be readily converted into any one of the classes of property mentioned in the Constitution and laws as exempt, does not belong to either of them, and is not protected against the waiver. Posey v. Rome Oil & Fertilizer Co., 157 Ga. 44 , 121 S.E. 205 (1923). See also Arnwine v. Beaver, 134 Ga. 377 , 67 S.E. 937 (1910).

Waiver in application for credit. - A general waiver of homestead under O.C.G.A. § 44-13-40 only operates in favor of the specific liability referred to in the waiver of obligation containing the waiver; a waiver of all homestead rights, in an application for a general line of credit, is not effectual to bar the debtor's right to homestead as against a debt thereafter contracted. Ragan, Malone & Co. v. Taff, 134 Ga. 835 , 68 S.E. 579 (1910); Frank & Co. v. Weiner, 167 Ga. 892 , 147 S.E. 51 (1929).

Waiver in financial statement. - A waiver of homestead in a requested statement as to the financial condition of the head of the family was made contemporaneously with the offer to buy and its acceptance, and was a valid contract of waiver. Pincus v. S. H. Meinhard & Bro., 139 Ga. 365 , 77 S.E. 82 (1913).

Waiver in promissory note. - The right to a homestead exemption may be waived by a provision in a promissory note; and if a judgment based on a homestead waiver note is rendered at any time prior to an adjudication in bankruptcy, the lien of such judgment attaches to the homestead exemption and the bankruptcy proceedings do not divest or affect the lien of such judgment. Bell v. Allied Fin. Co., 215 Ga. 631 , 112 S.E.2d 609 (1960).

Where homestead already set apart. - A homestead which has been regularly set apart can neither be waived nor renounced by the head of the family. Russell v. Gilliland, 19 Ga. App. 676 , 91 S.E. 1065 (1917).

Waiver binds family. - A husband may waive the right of homestead in his property as against a certain debt, and his waiver will bind his family, although an application for homestead may at the time be pending. Jackson v. Parrott, 67 Ga. 210 (1881).

Waiver of exemptions is not void but voidable, and therefore a defendant's disclosure statement disclosed a valid, enforceable security interest in the debtor's homestead exemption. Caldwell v. Dixie Fin. Corp., 15 Bankr. 811 (Bankr. N.D. Ga. 1981).

No estate conveyed. - The waiver of homestead does not convey an estate. Norris v. Aikens, 155 Ga. 488 , 117 S.E. 248 (1923).

The waiver of an exemption is somewhat akin to conveying property. However, a waiver of exemption although in the nature of a conveyance does not convey title or create a lien. Mims v. Dixie Fin. Corp., 426 F. Supp. 627 (N.D. Ga. 1976), overruled on other grounds, Hamilton v. Southern Disct. Co., 656 F.2d 150 (5th Cir. 1981).

Disposal of money by trustee in bankruptcy. - Where a trustee in bankruptcy paid to the bankrupt the amount set apart as exempt under O.C.G.A. § 44-13-40 , as soon as set apart by the referee, creditors could not require the trustee to deposit all moneys received as trustee in a bankruptcy depository, though, where an exemption is set apart and money is ordered paid, it ought to remain long enough in the hands of the trustee to allow claimants an opportunity to be heard. In re Barnett, 214 F. 263 (N.D. Ga. 1914).

Written waiver of exemption and homestead is good inter se without having the same alleged in the declaration or summons, judgment or execution, and is, after judgment, provable, aliunde, whether the lien of the judgment be general or special, and whether the waiver be written on the contract or obligation, or on a separate paper. Flemister v. Phillips, 65 Ga. 676 (1880).

Validity of waiver of exemptions and security interest prior to filing for bankruptcy. - Until such time as a debtor files a petition in bankruptcy and takes active steps to avoid a lien which impairs an exemption of the debtor, a waiver of exemptions is valid and a security interest in those exemptions is also valid. Caldwell v. Dixie Fin. Corp., 15 Bankr. 811 (Bankr. N.D. Ga. 1981).

Priority. - An assignment of an exemption, before an adjudication in bankruptcy, prevails over a sale after it is set apart. J. Saul & Co. v. Bowers, 155 Ga. 456 , 117 S.E. 86 (1923).

A waiver of the homestead and exemption allows the creditor to be preferred over general creditors. An assignment may allow the creditor to be preferred over both creditors holding homestead waivers and creditors with subsequent assignment. Elzea v. National Bank, 570 F.2d 1248 (5th Cir. 1978).

While pending the bankruptcy proceeding the creditor cannot maintain a suit at law against the debtor to obtain a judgment against the debtor in personam, but where claim of a creditor is evidenced by a promissory note in which the debtor waives the exemption of homestead, the debtor is estopped by the waiver to claim an exemption as against the creditor, and the latter has an equitable remedy to obtain a judgment in rem against the exempted property, subjecting it to the claim; and where the property is of personalty of a perishable nature, or such that it will be destroyed in the use, the court may enjoin the debtor from disposing of the property, and appoint a receiver to take charge of it until a judgment in rem can be obtained. Nelson v. Brannon, 182 Ga. 195 , 184 S.E. 870 (1936).

The creditor has no rights unless the debtor goes into bankruptcy and requests that the homestead and exemption be set aside. Elzea v. National Bank, 570 F.2d 1248 (5th Cir. 1978).

Cited in Levinson v. J.O.S. Rosenheim Shoe Co., 143 Ga. 584 , 85 S.E. 764 (1915); Sanders v. GMAC, 43 Ga. App. 374 , 158 S.E. 646 (1931); Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99 , 169 S.E. 700 (1933); Wilbanks v. Wardlaw, 50 Ga. App. 495 , 178 S.E. 466 (1935); Pass v. Pass, 195 Ga. 155 , 23 S.E.2d 697 (1942); Lowe v. Termplan, Inc., 144 Ga. App. 671 , 242 S.E.2d 268 (1978).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, § 143 et seq. 40 Am. Jur. 2d, Homesteads, § 187 et seq.

C.J.S. - 40 C.J.S., Homesteads, §§ 108, 119 et seq.

ALR. - Estoppel to claim, or waiver of, homestead by direction of judgment debtor to levy on real estate, 101 A.L.R. 851 .

Recital in deed or mortgage disclaiming homestead as respects property described or affirming homestead in other property, 128 A.L.R. 414 .

44-13-41. Selection of property as to which exemption not waived; affidavit as to valuation; jury trial; penalty for harassment of debtor.

In case of a waiver and the levy of an execution, the debtor may select and set apart $300.00 worth of household and kitchen furniture and provisions as free from levy and sale. If, when such selection is made, the plaintiff in fi. fa. shall be of the opinion that said property is of greater value than $300.00, he may indemnify the levying officer and require him to proceed with the levy upon some part of the property or all if it be incapable of division. It shall then be the right of the debtor to make and deliver to the levying officer an affidavit stating substantially that the property selected is not of greater value than $300.00. The levy and affidavit shall be returned to the next term of the superior court of the county of the residence of the debtor and shall be tried as cases of illegality, the only issue being the value of the property selected. The jury may find generally for the defendant in fi. fa., in which case the levy shall be dismissed, or may find specifically what portion of the property is of the value of $300.00, which portion shall be exempted, and the balance shall be sold; provided, however, that the jury or other tribunal trying the issue made by the levy and affidavit may assess damages, not exceeding 25 percent of the value of the property levied upon, against the plaintiff in execution for any levy made not in good faith for the collection of the execution but for the purpose of harassing the debtor.

(Ga. L. 1878-79, p. 99, § 7; Code 1882, § 2039b; Civil Code 1895, § 2864; Civil Code 1910, § 3414; Code 1933, § 51-1102; Ga. L. 1983, p. 1170, § 2.)

JUDICIAL DECISIONS

Limitation of exemption. - The exemption is limited by amount rather than by the nature of the articles, except under the general term "household and kitchen furniture." Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99 , 169 S.E. 700 (1933).

Option. - It is optional to take either the exemption provided by O.C.G.A. § 44-13-100 or the exemption declared in O.C.G.A. § 44-13-41 , but one cannot take both the exemptions. McFarlin v. Reeves, 10 Ga. App. 581 , 73 S.E. 862 (1912); Wilbanks v. Wardlaw, 50 Ga. App. 495 , 178 S.E. 466 (1935).

Two exemptions distinguished. - It is optional to take either the exemption provided by O.C.G.A. § 44-13-100 , the exemption declared in O.C.G.A. § 44-13-41 , but the two exemptions are distinct; as to the $300.00 worth of household and kitchen furniture and provisions allowed by O.C.G.A. §§ 44-13-40 and 44-13-41 when properly claimed and set apart in the manner provided by O.C.G.A. § 44-13-42 , no waiver of exemption will prevail, but under O.C.G.A. § 44-13-100 a waiver will be effective against any other benefit "provided for by the Constitution and laws of this state." Wilbanks v. Wardlaw, 50 Ga. App. 495 , 178 S.E. 466 (1935).

A constitutional homestead set aside only as provided in O.C.G.A. § 44-13-41 , and not as provided in O.C.G.A. § 44-13-5 , has not been set aside as provided by law. Brown v. Scarborough, 158 Ga. 301 , 123 S.E. 605 (1924).

Waiver not necessary. - In order for a debtor and his wife to avail themselves of the exemption provided by O.C.G.A. § 44-13-41 , it is not essential that the debtor should have waived his homestead and exemption rights with reference to the debt in question. Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99 , 169 S.E. 700 (1933).

In cases of waiver. - O.C.G.A. § 44-13-41 does make use of the language "in case of such waiver, and the levy of an execution by an officer of this state, it shall be right," but the reasonable meaning of this phrase must be taken to be that "even in" cases where there has been such a waiver. Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99 , 169 S.E. 700 (1933).

Piano. - The exemption of a piano is permissible. Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99 , 169 S.E. 700 (1933).

Cited in Kemp v. Price, 42 Ga. App. 655 , 157 S.E. 117 (1931); Sanders v. GMAC, 43 Ga. App. 374 , 158 S.E. 646 (1931); Alexander v. Holmes, 85 Ga. App. 124 , 68 S.E.2d 242 (1951).

RESEARCH REFERENCES

Am. Jur. 2d. - 21 Am. Jur. 2d, Exemptions, §§ 72 et seq., 143, 177. 40 Am. Jur. 2d, Homesteads, §§ 187, 188.

ALR. - Estoppel to claim, or waiver of, homestead by direction of judgment debtor to levy on real estate, 101 A.L.R. 851 .

44-13-42. Mode of setting apart household and kitchen furniture and provisions; schedule; recordation; fee.

Every debtor seeking the benefit of Code Section 44-13-41 shall make out a schedule of the debtor's household and kitchen furniture and provisions which shall set out the items and value thereof claimed to be exempt and shall return the schedule to the judge of the probate court of the county in which the applicant resides. It shall not be necessary to make any application for such exemption or to publish the schedule in a newspaper. The judge shall record the schedule in a book to be kept by him for that purpose.

(Ga. L. 1924, p. 57, § 1; Code 1933, § 51-1103; Ga. L. 1983, p. 1170, § 2.)

JUDICIAL DECISIONS

Limitation of exemption. - The exemption is limited by amount rather than by the nature of the articles, except under the general term "household and kitchen furniture." Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99 , 169 S.E. 700 (1933).

Summary nature of proceeding. - Under O.C.G.A. § 44-13-42 a debtor may obtain the benefit of O.C.G.A. §§ 44-13-40 and 44-13-41 by merely proceeding in a summary and ex parte manner. Wilbanks v. Wardlaw, 50 Ga. App. 495 , 178 S.E. 466 (1935).

Effect of waiver. - Where a debtor has not set aside household and kitchen furniture as prescribed in O.C.G.A. § 44-13-42 , and where the debtor has executed a note to a creditor waiving this exemption, the creditor may seek to have the exempted property subjected to the payment of the debtor's note. Turner v. Caudill, 175 Ga. 170 , 165 S.E. 24 (1932).

Waiver unnecessary. - In order for a debtor and his wife to avail themselves of the exemption provided by O.C.G.A. § 44-13-42 , it is not essential that the debtor should have waived his homestead and exemption rights with reference to the debt in question. Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99 , 169 S.E. 700 (1933).

Piano. - The exemption of a piano is permissible. Kemp v. Swainsboro Ice & Fuel Co., 47 Ga. App. 99 , 169 S.E. 700 (1933).

Cited in Kemp v. Price, 42 Ga. App. 655 , 157 S.E. 117 (1931).

RESEARCH REFERENCES

ALR. - What are "tools," "implements," "instruments," "utensils," or "apparatus," within the meaning of Debtor's Exemption Laws, 2 A.L.R. 818 ; 9 A.L.R. 1020 ; 36 A.L.R. 669 ; 52 A.L.R. 826 .

Debtor's exemption of proceeds of insurance on property itself exempt, 63 A.L.R. 1286 .

44-13-43. Spouse or dependent claiming exemption for debtor may not claim own exemption.

A person eligible under Code Section 44-13-2 to claim a debtor's exemption as a spouse or dependent of the debtor may not, during the time the debtor's exemption is allowed that person as spouse or dependent, be granted an exemption in that person's own right under this article.

(Code 1981, § 44-13-43 , enacted by Ga. L. 1983, p. 1170, § 2.)

PART 3 L EVY ON AND SALE OF EXEMPTED REAL PROPERTY

Editor's notes. - Section 1 of Ga. L. 1983, p. 1170, which amended Code Sections 44-13-60, 44-13-62, and 44-13-63 and reenacted Code Section 44-13-61 without change, provided in § 1, not codified by the General Assembly, that: "It is the intent of this Act to implement certain changes required by Article I, Section I, Paragraph XXVI of the Constitution of the State of Georgia."

OPINIONS OF THE ATTORNEY GENERAL

Levy for delinquent motor vehicle ad valorem taxes can be executed against homestead. 1968 Op. Att'y Gen. No. 68-146.

RESEARCH REFERENCES

ALR. - Right of creditor to attach bankrupt's exempt property after discharge in bankruptcy, 55 A.L.R. 303 .

44-13-60. Affidavit disputing exemption of exempted real property from execution; levy and sale by officer; effect of debtor's counteraffidavit.

  1. When an exemption under this article of realty and personalty or either has been applied for and set apart out of the property of a defendant in execution and the defendant in execution has no property except the real property on which the defendant resides on which to levy, if the plaintiff in execution seeks to have that real property levied on upon the ground that his debt falls within some or one of the classes for which the real property is bound under this article, such plaintiff, his agent, or his attorney may make an affidavit before any officer authorized to administer oaths that to the best of his knowledge and belief the debt upon which the execution is founded is one from which that real property is not exempt. Thereafter, it shall be the duty of the officer into whose hands the execution and the affidavit are placed to proceed at once to levy and sell as though the property had never been set apart.
  2. The defendant in execution may deny the truth of the plaintiff's affidavit by filing a counteraffidavit with the levying officer. If a counteraffidavit is filed, it shall be the duty of the levying officer to suspend further proceedings under the execution and to return the same together with the two affidavits to the court from which the execution issued.

    (Ga. L. 1871-72, p. 43, §§ 1, 2; Code 1873, §§ 2028, 2029; Code 1882, §§ 2028, 2029; Civil Code 1895, §§ 2850, 2851; Civil Code 1910, §§ 3400, 3401; Code 1933, §§ 51-902, 51-903; Ga. L. 1983, p. 1170, § 2.)

JUDICIAL DECISIONS

Methods of bringing homestead to sale. - Whenever it is sought to bring any part of a homestead to sale under a claim or debt for which it is contended the homestead is liable, such must be done in the manner provided by O.C.G.A. § 44-13-60 . Martin v. Davis & Co., 104 Ga. 633 , 30 S.E. 753 (1898).

Section not applicable to short homestead. - The affidavit required by O.C.G.A. § 44-13-60 applies only to homesteads set apart under the provisions of O.C.G.A. § 44-13-5 and not to property sought otherwise to be exempted. Marcrum v. Washington, 109 Ga. 296 , 34 S.E. 585 (1899).

Section inapplicable to distraint for rent. - O.C.G.A. § 44-13-60 does not apply to arresting and stopping the process of distraints for rent. Huckaby v. Brooks, 75 Ga. 678 (1885).

Necessity for affidavit. - In order to show that a sale was legal, it is necessary to prove affirmatively that affidavit under O.C.G.A. § 44-13-60 was in fact filed with the sheriff before the sale was made. Davis v. Jones, 95 Ga. 788 , 23 S.E. 79 (1895); Smith & Hollis v. Youngblood, 23 Ga. App. 640 , 99 S.E. 143 (1919).

Contests of affidavit. - Before a homestead can be levied on under O.C.G.A. § 44-13-60 the plaintiff, plaintiff's agent, or attorney, should swear that "there is no property except the homestead on which to levy," and that plaintiff's "debt falls within some one of the classes (specifying which class) for which the homestead is bound under the constitution." Brantley v. Stephens, 77 Ga. 467 (1886); Davis v. Jones, 95 Ga. 788 , 23 S.E. 79 (1895).

Where affidavit unnecessary. - Where the mortgage, the rule nisi, and the rule absolute all showed that the debt was within the exceptional class which could subject a homestead, and was for purchase money, an affidavit to that effect was unnecessary. McDaniel v. Westberry, 74 Ga. 380 (1884).

Schedule as evidence. - In an affidavit made under O.C.G.A. § 44-13-60 in order to procure a levy upon exempted realty, it was not harmful to the plaintiff in the execution levied to allow the defendant to introduce, for the purpose of showing that the property levied upon had been so set apart, a schedule of exempted personalty and realty which did not sufficiently describe the latter. Moore v. Penn, 115 Ga. 796 , 42 S.E. 57 (1902).

Debts for purchase money. - A homestead is subject to an execution founded upon a debt contracted for the purchase money, and the fact that the debt has been transferred to a third person does not change that liability. Chambliss v. Phelps, 39 Ga. 386 (1869).

Admission that judgment was for purchase money of the land levied on was fatal to the affidavit of illegality under O.C.G.A. § 44-13-60 . Blackwell v. Aiken, 73 Ga. 55 (1884).

Sale pending application. - Where land was sold at sheriff's sale pending application for homestead, the purchaser at such sale, with notice that such application was pending, took the property subject to the encumbrance of the homestead. Kilgore v. Beck, 40 Ga. 293 (1869).

Consent verdict. - The omission to file an affidavit as provided by O.C.G.A. § 44-13-60 did not render void the consent verdict and judgment and sale under execution of part of land in controversy. Mobley v. Belcher, 144 Ga. 442 , 87 S.E. 470 (1915).

Making affidavit after levy and claim. - Where the only evidence of the making of an affidavit prior to the levy was that the sheriff's entry of levy stated that it was made "by reason of an affidavit of plaintiff's attorney that the homestead is subject," this was not sufficient; nor was this cured by the making of an affidavit after the levy and interposition of a claim, that, to the best of the knowledge and belief of plaintiff's attorney, the debt for which the execution issued "is one from which the homestead is not exempt." In such a case, claim was a proper remedy to contest the levy and sale of the homestead. Brantley v. Stephens, 77 Ga. 467 (1886); Smith & Hollis v. Youngblood, 23 Ga. App. 640 , 99 S.E. 143 (1919).

Verdict declaring realty subject. - Where a verdict declares in terms that certain realty was subject thereto, and the judgment directs the sale of this realty, the affidavit prescribed by O.C.G.A. § 44-13-60 is not essential before the levy is made. Davis v. Taylor, 103 Ga. 366 , 30 S.E. 50 (1898).

Fi. fa. not showing superior lien. - Where a homestead is being levied on, and the fi. fa. fails to show upon its face a lien superior to the homestead, and where the plaintiff in fi. fa. has not filed the affidavit required by O.C.G.A. § 44-13-60 , the levy is proceeding illegally. Murphey v. Smith, 16 Ga. App. 472 , 85 S.E. 791 (1915).

Giving bonds for title. - Where the vendor of land takes promissory notes from the vendee for its purchase, giving to the latter a bond for titles, sues the notes to judgment and then makes and files a deed to the vendee for the purpose of effecting a sale of the land for the purchase money under an execution issued from the judgment, the sale cannot be defeated by the vendee having the land set apart as a homestead; nor is it necessary for the plaintiff to file an affidavit under the provisions of O.C.G.A. § 44-13-60 in order to have the execution proceed. Perdue v. Fraley, 92 Ga. 780 , 19 S.E. 40 (1894).

Dismissal of counter-affidavit. - Under O.C.G.A. § 44-13-60 an order dismissing a counter-affidavit renders a forthcoming bond obligator, where the property was not forthcoming, the sheriff could maintain in sheriff's own name an action upon the bond for a breach of the same. Clark v. Horn, 99 Ga. 165 , 25 S.E. 203 (1896).

Liability of officer. - Any officer knowingly levying upon property which has been made exempt from the process by either of the methods provided by law shall be guilty of a trespass, except that, in case of the constitutional homestead, a levy is permissible where the plaintiff, plaintiff's agent, or attorney, makes and places in the hands of the officer the affidavit prescribed by law. Personal Fin. Co. v. Evans, 45 Ga. App. 53 , 163 S.E. 250 (1932).

Burden of proof on sheriff. - Where a sheriff, upon being sued for failure to levy an execution upon certain personalty pleads, as an excuse for not having made the levy, that such personalty had been set apart to the judgment debtor as homestead property, the burden is upon the sheriff to show that the homestead exemption in question was a valid one. Johns v. Robinson, 119 Ga. 59 , 45 S.E. 727 (1903).

Bankruptcy court has no jurisdiction to protect or enforce against the bankrupt's exemption rights of creditors not having judgment or other lien, whose obligations to pay contain waiver of homestead authorized by state laws. Lockwood v. Exchange Bank, 190 U.S. 294, 23 S. Ct. 751 , 47 L. Ed. 1061 (1903);(decided under prior bankruptcy law).

Cited in Gillespie v. Chastain, 57 Ga. 218 (1876).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, §§ 136, 142. 40 Am. Jur. 2d, Homesteads, §§ 83, 90.

C.J.S. - 40 C.J.S., Homesteads, § 135.

ALR. - Lien of tax collector's bond, 54 A.L.R. 1285 .

44-13-61. When and how issue tried.

At the first term of the court to which the execution and the affidavits have been returned, an issue shall be formed upon the same and tried as in cases of illegality.

(Ga. L. 1871-72, p. 43, § 3; Code 1873, § 2030; Code 1882, § 2030; Civil Code 1895, § 2852; Civil Code 1910, § 3402; Code 1933, § 51-904; Ga. L. 1983, p. 1170, § 2.)

44-13-62. Findings upon the trial; effect.

When the finding upon the trial provided for in Code Section 44-13-61 is in favor of the plaintiff in execution, it shall be the duty of the levying officer to proceed immediately with the collection of the debt by the sale of the real property upon which the defendant in execution resides, if necessary. When the finding upon such issue is in favor of the defendant in execution, it shall operate to release that real property without prejudicing any other right of the plaintiff.

(Ga. L. 1871-72, p. 43, § 4; Code 1873, § 2031; Code 1882, § 2031; Civil Code 1895, § 2853; Civil Code 1910, § 3403; Code 1933, § 51-905; Ga. L. 1982, p. 3, § 44; Ga. L. 1983, p. 1170, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, § 142.

44-13-63. Levy or sale of exempted real property as trespass; persons entitled to recovery.

Except as provided in Code Section 44-13-60, any officer knowingly levying on or selling property made exempt from sale shall be guilty of trespass; and any person allowed such exemption may recover for such trespass for their exclusive use.

(Ga. L. 1868, p. 27, § 10; Code 1873, § 2027; Code 1882, § 2027; Civil Code 1895, § 2849; Civil Code 1910, § 3399; Code 1933, § 51-901; Ga. L. 1983, p. 1170, § 2.)

Law reviews. - For note discussing legal and equitable relief from execution available to debtors, see 12 Ga. L. Rev. 814 (1978).

JUDICIAL DECISIONS

Suit by wife or family. - Under O.C.G.A. § 44-13-63 trespass against an officer for wrongful levy on homestead property may be maintained by the wife or family of the debtor without making the debtor himself a party plaintiff. McWilliams v. Anderson, 68 Ga. 772 (1882).

Husband's right to sue. - The right to use is not limited to the wife or family, but the husband as the head of the family can maintain the action, and will hold the recovery for their use. Personal Fin. Co. v. Evans, 45 Ga. App. 53 , 163 S.E. 250 (1932).

Joinder of defendants. - Where an officer makes an unauthorized and wrongful levy upon the property of another, the officer and any others who procure such a seizure are liable as joint trespassers, in which event the aggrieved party may bring suit against any one or all of such wrongdoers, according to the aggrieved party's election. Personal Fin. Co. v. Evans, 45 Ga. App. 53 , 163 S.E. 250 (1932); Alexander v. Holmes, 85 Ga. App. 124 , 68 S.E.2d 242 (1951).

Affidavit of nonexemption. - Any officer knowingly levying upon property which has been made exempt from the process by either the methods provided by law shall be guilty of a trespass, except that, in case of the constitutional homestead, a levy is permissible where the plaintiff, plaintiff's agent or attorney, makes and places in the hands of the officer the affidavit prescribed by law. Personal Fin. Co. v. Evans, 45 Ga. App. 53 , 163 S.E. 250 (1932).

Action against true owner. - The fact that one who does not own land has had it set apart as a homestead would give that person no right as against the real owner, nor would that person therefore be entitled to recover against another for entering and taking possession of the land. Scott v. Mathis, 72 Ga. 119 (1883).

Evidence of valid exemption. - A petition under O.C.G.A. § 44-13-63 may constitute an adequate basis for the admission of evidence of the fact of a valid exemption if the allegations imply a valid homestead even though it may not appear which kind of homestead has been obtained. Personal Fin. Co. v. Evans, 45 Ga. App. 53 , 163 S.E. 250 (1932).

Claim may be interposed. - Trespass is not the only remedy. Bartlett v. Russell, 41 Ga. 196 (1870).

Trover may be brought. - See Greaves v. Middlebrooks, 59 Ga. 240 (1877).

Cited in Gillespie v. Chastain, 57 Ga. 218 (1876); Crowley & Co. v. Freeman, 9 Ga. App. 1 , 70 S.E. 349 (1911); White v. Roper, 176 Ga. 180 , 167 S.E. 177 (1932).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, §§ 136, 142, 167.

C.J.S. - 40 C.J.S., Homesteads, §§ 134, 153.

ALR. - Availability of judgment under which exempt property has been seized as a set-off or counterclaim against claim based on wrongful seizure, 20 A.L.R. 276 .

PART 4 S ALE OF EXCESS PROPERTY BY RECEIVER

Editor's notes. - Ga. L. 1983, p. 1170, which amended Code Sections 44-13-80 and 44-13-87 and reenacted Code Sections 44-13-81 through 44-13-86 without change, provided in § 1, not codified by the General Assembly, that: "It is the intent of this Act to implement certain changes required by Article I, Section I, Paragraph XXVI of the Constitution of the State of Georgia."

RESEARCH REFERENCES

ALR. - Lien of judgment on excess value of homestead, 41 A.L.R.4th 292.

44-13-80. Appointment of receiver to sell excess realty.

Whenever any person makes an application for an exemption of realty under this article and it appears by the return of the surveyor that the applicant is the owner of more real estate than is allowed to be exempt under this article, it shall be the duty of the judge of the probate court to appoint a receiver to take charge of the excess and to sell the same for the benefit of the creditors of the applicant under regulations set forth in this part.

(Ga. L. 1872, p. 44, § 1; Code 1873, § 2033; Code 1882, § 2033; Civil Code 1895, § 2855; Civil Code 1910, § 3405; Code 1933, § 51-1001; Ga. L. 1983, p. 1170, § 2.)

JUDICIAL DECISIONS

Wife applying. - Where the wife applies, with the consent of the husband, in the reason and spirit of O.C.G.A. § 44-13-80 , he is the applicant, and the power to appoint a receiver of the excess of his property is therein given. Landrum v. Chamberlin, Boynton & Co., 73 Ga. 727 (1884).

Appointment by court. - The receiver contemplated by O.C.G.A. § 44-13-80 should be appointed by the court, though there be no motion therefor. McWilliams v. Bones, 84 Ga. 199 , 10 S.E. 723 (1890).

Time of appointment. - It is upon the application for homestead, and not upon its final adjudication, that the receiver may be appointed, and the creditors are not to be delayed until the homestead and exemption are finally set apart. Landrum v. Chamberlin, Boynton & Co., 73 Ga. 727 (1884).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, § 37. 40 Am. Jur. 2d, Homesteads, §§ 85, 86.

C.J.S. - 40 C.J.S., Homesteads, §§ 148, 153.

ALR. - Lien of judgment on excess value of homestead, 41 A.L.R.4th 292.

44-13-81. Delivery of excess personalty to receiver for disposition.

Whenever any person makes an application for an exemption of personalty as provided for by this article and the schedule filed by the person discloses that the person has and is the owner of personal property in excess of that to which he is entitled to have as exempt, the excess shall be delivered by the judge of the probate court to a receiver who shall dispose of the excess for the benefit of the creditors of the applicant.

(Ga. L. 1872, p. 43, § 2; Code 1873, § 2034; Code 1882, § 2034; Civil Code 1895, § 2856; Civil Code 1910, § 3406; Code 1933, § 51-1002; Ga. L. 1983, p. 1170, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 40 Am. Jur. 2d, Homesteads, § 87.

ALR. - Lien of judgment on excess value of homestead, 41 A.L.R.4th 292.

44-13-82. Sale of realty and distribution of proceeds; priorities.

When a receiver is appointed as provided in Code Section 44-13-80, he shall proceed to advertise the real estate once a week for four weeks in the public newspaper in which the sheriff's sales of the county are advertised. On the first Tuesday of the month immediately following the last advertisement, the receiver shall expose the same for sale at public auction and the money arising from the sale of the property shall be delivered to the judge of the probate court for distribution among the several creditors of the applicant, such distribution to be made according to the dignity of the claims of the several creditors.

(Ga. L. 1872, p. 44, § 3; Code 1873, § 2035; Code 1882, § 2035; Civil Code 1895, § 2857; Civil Code 1910, § 3407; Code 1933, § 51-1003; Ga. L. 1983, p. 1170, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 40 Am. Jur. 2d, Homesteads, §§ 84, 89, 90.

C.J.S. - 40 C.J.S., Homesteads, § 68.

ALR. - Discretion of court or receiver as to whether receiver's sale shall be made for cash or on credit, 100 A.L.R. 937 .

Lien of judgment on excess value of homestead, 41 A.L.R.4th 292.

44-13-83. Procedure for sale of personalty.

Personal property shall be disposed of in the manner provided in Code Section 44-13-82, except that the receiver shall advertise the same in three of the most public places of the county for 30 days and shall not be required to advertise the same in a public newspaper.

(Ga. L. 1872, p. 43, § 4; Code 1873, § 2036; Code 1882, § 2036; Civil Code 1895, § 2858; Civil Code 1910, § 3408; Code 1933, § 51-1004; Ga. L. 1983, p. 1170, § 2.)

44-13-84. Only one receiver authorized.

Nothing in this part shall be construed to authorize the appointment of more than one receiver.

(Ga. L. 1872, p. 43, § 5; Code 1873, § 2037; Code 1882, § 2037; Civil Code 1895, § 2859; Civil Code 1910, § 3409; Code 1933, § 51-1005; Ga. L. 1983, p. 1170, § 2.)

44-13-85. Cancellation of sale upon failure of any creditor to appear and file claim.

If no creditors appear and file their claims before the day set apart for the sale of the property, the sale shall not take place; and the property in excess shall be turned over to the applicant.

(Ga. L. 1872, p. 43, § 6; Code 1873, § 2038; Code 1882, § 2038; Civil Code 1895, § 2860; Civil Code 1910, § 3410; Code 1933, § 51-1006; Ga. L. 1983, p. 1170, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 40 Am. Jur. 2d, Homesteads, § 82.

44-13-86. Bond required of receiver; power of superior court over receiver; settling of conflicts; disposition of excess.

When a receiver is appointed under Code Section 44-13-80, good bond and security shall be required of him by the judge of the probate court for the performance of his duty. The receiver shall be subject to rule in the superior court of the county where he was appointed, as sheriffs are, and shall, under rule of the superior court and not under the order of the judge of the probate court, pay out moneys received by him as sheriffs do when there are conflicting claims to moneys in his hands. When there are no conflicting claims, the receiver shall settle all the claims and turn over any excess to the party legally entitled to the same.

(Ga. L. 1876, p. 48, § 9; Code 1882, § 2038a; Civil Code 1895, § 2861; Civil Code 1910, § 3411; Code 1933, § 51-1007; Ga. L. 1983, p. 1170, § 2.)

44-13-87. Right of applicant to select exempt property.

The applicant for exemption from levy and sale of property under this article shall be permitted to select the property to be exempted but not to exceed the amount allowed by law.

(Ga. L. 1872, p. 43, § 7; Code 1873, § 2039; Code 1882, § 2039; Civil Code 1895, § 2862; Civil Code 1910, § 3412; Code 1933, § 51-1008; Ga. L. 1983, p. 1170, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, §§ 135, 137 et seq. 40 Am. Jur. 2d, Homesteads, § 77 et seq.

ARTICLE 2 STATUTORY EXEMPTIONS

JUDICIAL DECISIONS

Cited in Southall v. Blount, 182 Ga. 368 , 185 S.E. 321 (1936).

OPINIONS OF THE ATTORNEY GENERAL

Levy for delinquent motor vehicle ad valorem taxes can be executed against homestead. 1968 Op. Att'y Gen. No. 68-146.

RESEARCH REFERENCES

ALR. - Exemption of proceeds of voluntary sale of homestead, 1 A.L.R. 483 ; 46 A.L.R. 814 .

Right of individual partner to exemption in partnership property, 4 A.L.R. 300 .

Action for damages against signing spouse for breach of contract to convey homestead signed by one spouse only, 4 A.L.R. 1272 ; 16 A.L.R. 1036 .

What are "tools," "implements," "instruments," "utensils," or "apparatus," within the meaning of debtor's exemption laws, 52 A.L.R. 826 .

Attempt to resist enforcement of judgment or execution against real property on ground that it is exempt, as involving title to real property within contemplation of jurisdictional provision, 75 A.L.R. 1230 .

Homestead right of cotenant as affecting partition, 140 A.L.R. 1170 .

Exemption of insurance proceeds as available to assignee of policy, 1 A.L.R.2d 1031.

Recovery of damages for breach of contract to convey homestead where only one spouse signed contract, 3 A.L.R.5th 370.

44-13-100. Exemptions for purposes of bankruptcy and intestate insolvent estates.

  1. In lieu of the exemption provided in Code Section 44-13-1, any debtor who is a natural person may exempt, pursuant to this article, for purposes of bankruptcy, the following property:
    1. The debtor's aggregate interest, not to exceed $21,500.00 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor. In the event title to property used for the exemption provided under this paragraph is in one of two spouses who is a debtor, the amount of the exemption hereunder shall be $43,000.00;
    2. The debtor's right to receive:
      1. A social security benefit, unemployment compensation, or a local public assistance benefit;
      2. A veteran's benefit;
      3. A disability, illness, or unemployment benefit;
      4. Alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
      5. A payment under a pension, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
      6. A payment from an individual retirement account within the meaning of Title 26 U.S.C. Section 408 to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; and
      7. Moneys paid into or out of, the assets of, and the income of a health savings account or medical savings account authorized under Chapter 51 of Title 33 or Sections 220 and 223 of the Internal Revenue Code of 1986.
        1. Which is: (i) maintained for public officers or employees or both by the State of Georgia or a political subdivision of the State of Georgia or both; and (ii) financially supported in whole or in part by public funds of the State of Georgia or a political subdivision of the State of Georgia or both;
        2. Which is: (i) maintained by a nonprofit corporation which is qualified as an exempt organization under Code Section 48-7-25 for its officers or employees or both; and (ii) financially supported in whole or in part by funds of the nonprofit corporation;
        3. To the extent permitted by the bankruptcy laws of the United States, similar benefits from the private sector of such debtor shall be entitled to the same treatment as those specified in subparagraphs (A) and (B) of this paragraph,

          provided that the exempt or nonexempt status of periodic payments from such a retirement or pension plan or system shall be as provided under subparagraph (E) of paragraph (2) of this subsection; or

        4. An individual retirement account within the meaning of Title 26 U.S.C. Section 408;

      (2.1) The debtor's aggregate interest in any funds or property held on behalf of the debtor, and not yet distributed to the debtor, under any retirement or pension plan or system:

    3. The debtor's interest, not to exceed the total of $5,000.00 in value, in all motor vehicles;
    4. The debtor's interest, not to exceed $300.00 in value in any particular item, in household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor. The exemption of the debtor's interest in the items contained in this paragraph shall not exceed $5,000.00 in total value;
    5. The debtor's aggregate interest, not to exceed $500.00 in value, in jewelry held primarily for the personal, family, or household use of the debtor or a dependent of the debtor;
    6. The debtor's aggregate interest, not to exceed $1,200.00 in value plus any unused amount of the exemption, not to exceed $10,000.00, provided under paragraph (1) of this subsection, in any property;
    7. The debtor's aggregate interest, not to exceed $1,500.00 in value, in any implements, professional books, or tools of the trade of the debtor or the trade of a dependent of the debtor;
    8. Any unmatured life insurance contract owned by the debtor, other than a credit life insurance contract;
    9. The debtor's aggregate interest, not to exceed $2,000.00 in value, less any amount of property of the estate transferred in the manner specified in Section 542(d) of U.S. Code Title 11, in any accrued dividend or interest under, or loan or cash value of, any unmatured life insurance contract owned by the debtor under which the insured is the debtor or an individual of whom the debtor is a dependent;
    10. Professionally prescribed health aids for the debtor or a dependent of the debtor; and
    11. The debtor's right to receive, or property that is traceable to:
      1. An award under a crime victim's reparation law;
      2. A payment on account of the wrongful death of an individual of whom the debtor was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
      3. A payment under a life insurance contract that insured the life of an individual of whom the debtor was a dependent on the date of such individual's death, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor;
      4. A payment, not to exceed $10,000.00, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent; or
      5. A payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.
  2. Pursuant to 11 U.S.C. Section 522(b)(1), an individual debtor whose domicile is in Georgia is prohibited from applying or utilizing 11 U.S.C. Section 522(d) in connection with exempting property from his or her estate; and such individual debtor may exempt from property of his or her estate only such property as may be exempted from the estate pursuant to 11 U.S.C. Section 522(b)(2)(A) and (B). For the purposes of this subsection, an "individual debtor whose domicile is in Georgia" means an individual whose domicile has been located in Georgia for the 180 days immediately preceding the date of the filing of the bankruptcy petition or for a longer portion of such 180 day period than in any other place.
  3. The exemptions and protections contained in this article are extended to intestate insolvent estates in all cases where there is a living widow or child of the intestate.
    1. At any time after closing of a case filed pursuant to an act of Congress relating to bankruptcy, the debtor, his or her receiver or trustee, or any interested party may file with a clerk of court where a judgment lien is recorded an affidavit of lien release and shall attach thereto a certified copy of the discharge of such bankrupt or debtor and a lien avoidance order, or a certified copy of the order of confirmation of a plan and the plan as confirmed, together with a copy of the portions of the schedules filed by the debtor in the bankruptcy case listing the judgment creditor and identifying property as exempt. In addition, the filer shall certify that no order has been entered in the bankruptcy limiting the discharge as to the judgment or retaining the judgment lien.
    2. Upon filing such affidavit, the lien of such judgment shall be deemed cancelled as to:
      1. Any property which was:
        1. Identified as exempt and for which a lien avoidance order was issued; or
        2. Re-vested in the debtor without lien retention under a plan; and
      2. Any other property acquired by the debtor after the filing of the bankruptcy petition.
    3. The clerk of court shall file such affidavit in the deed records and index the recording information as to the affidavit of lien release on the judgment lien in the appropriate lien record.

      (Ga. L. 1865-66, p. 29, § 1; Code 1868, § 2022; Code 1873, § 2049; Code 1882, § 2049; Civil Code 1895, § 2875; Civil Code 1910, § 3425; Code 1933, § 51-1504; Code 1933, § 51-1301.1, enacted by Ga. L. 1980, p. 952, § 2; Code 1933, § 51-1601, enacted by Ga. L. 1980, p. 952, § 3; Ga. L. 1981, p. 626, §§ 2, 3; Ga. L. 1988, p. 1756, § 1; Ga. L. 1989, p. 14, § 44; Ga. L. 1995, p. 347, § 1; Ga. L. 2001, p. 745, § 1; Ga. L. 2012, p. 1030, § 2/SB 117; Ga. L. 2013, p. 141, § 44/HB 79; Ga. L. 2013, p. 1045, § 2/SB 105; Ga. L. 2015, p. 996, § 6-1/SB 65; Ga. L. 2017, p. 620, § 1/SB 87.)

The 2001 amendment, effective July 1, 2001, in subsection (a), in paragraph (1), substituted "$10,000.00" for "$5,000.00" in the first sentence and added the second sentence, substituted "$3,500.00" for "$1,000.00" in paragraph (3), in paragraph (4), substituted "$300.00" for "$200.00" in the first sentence and "$5,000.00" for "$3,500.00" in the second sentence, in paragraph (6), substituted "$600.00" for "$400.00" and inserted ", not to exceed $5,000.00,", substituted "$1,500.00" for "$500.00" in paragraph (7), inserted "or cash" in paragraph (9), and substituted "$10,000.00" for "$7,500.00" in subparagraph (a)(11)(D).

The 2012 amendment, effective May 2, 2012, in paragraph (a)(1), substituted "$21,500.00" for "$10,000.00" near the beginning and substituted "$43,000.00" for "$20,000.00" at the end.

The 2013 amendments. The first 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, revised punctuation near the middle of subparagraph (a)(2.1)(C). The second 2013 amendment, effective July 1, 2013, substituted "$5,000.00" for "$3,500.00" in the middle of paragraph (a)(3).

The 2015 amendment, effective July 1, 2015, in paragraph (a)(6), substituted "$1,200.00" for "$600.00" near the beginning and substituted "$10,000.00" for "$5,000.00" near the middle.

The 2017 amendment, effective July 1, 2017, deleted "and" at the end of subparagraph (a)(2)(E); substituted "; and" for the period at the end of subparagraph (a)(2)(F); added subparagraph (a)(2)(G); and added subsection (d).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1988, "subparagraphs (A) and (B) of this paragraph" was substituted for "(A) and (B)" at the end of subparagraph (a)(2.1)(C) of this Code section.

Pursuant to Code Section 28-9-5, in 1989, a comma was added to the end of subparagraph (a)(2.1)(C).

Editor's notes. - Ga. L. 2015, p. 996, § 1-1/SB 65, not codified by the General Assembly, provides that: "(a) This Act shall be known and may be cited as the 'Debtor Creditor Uniform Law Modernization Act of 2015.'

"(b) To promote consistency among the states, it is the intent of the General Assembly to modernize certain existing uniform laws promulgated by the Uniform Law Commission affecting debtor and creditor rights, responsibilities, and relationships and other federally recognized laws affecting such rights, responsibilities, and relationships."

Law reviews. - For article, "Preparing the Georgia Farmer (or Other Small Entrepreneur) for Bankruptcy," see 22 Ga. State Bar J. 186 (1986). For survey of 1985 Eleventh Circuit cases on bankruptcy, see 37 Mercer L. Rev. 1233 (1986). For article, "Avoidance of Liens: Section 522(f)," see 4 Bank. Dev. J. 95 (1987). For survey of 1986 Eleventh Circuit cases on bankruptcy, see 38 Mercer L. Rev. 1097 (1987). For article, "Retirement Benefits: Protection from Creditors' Claims," see 24 Ga. St. B.J. 118 (1988). For survey of 1995 Eleventh Circuit cases on bankruptcy law, see 47 Mercer L. Rev. 717 (1996). For Eleventh Circuit survey article on bankruptcy decisions in 2003, see 55 Mercer L. Rev. 1101 (2004). For article, "Noticing the Bankruptcy Sale: The Purchased Property May Not Be as 'Free and Clear of All Liens, Claims and Encumberances' as You Think," see 15 (No. 5) Ga. St. B.J. 12 (2010). For article, "Consumer Bankruptcy Panel: Hot Consumer Bankruptcy Plan Issues," see 28 Emory Bankr. Dev. J. 333 (2012). For annual survey on bankruptcy law, see 64 Mercer L. Rev. 849 (2013). For article, "Eleventh Circuit Survey: January 1, 2014 - December 31, 2014: Bankruptcy," see 66 Mercer L. Rev. 881 (2015). For annual survey of bankruptcy law, see 67 Mercer L. Rev. 819 (2016). For annual survey on bankruptcy, see 68 Mercer L. Rev. 929 (2017). For note on the 2001 amendment to O.C.G.A. § 44-13-100 , see 18 Ga. St. U. L. Rev. 263 (2001).

JUDICIAL DECISIONS

The legislative history to O.C.G.A. § 44-13-100 clearly states that its purpose is to keep the exemption statute from discriminating unfairly in favor of the homeowner. In re Harrison, 13 Bankr. 293 (Bankr. N.D. Ga. 1981).

Constitutionality. - Constitutionality of O.C.G.A. § 44-13-100(a)(9) is upheld because the statute does not violate the uniformity provision of the Bankruptcy Clause, the Supremacy Clause, or the Equal Protection Clause of the U.S. Constitution. In re Joyner, 489 Bankr. 292 (Bankr. S.D. Ga. 2012).

Limiting debtors to the $2,000 exemption for the cash value of life insurance did not violate the Supremacy Clause of the United States Constitution because Georgia law and federal law were not in conflict since Congress expressly granted states the power to opt-out of the federal exemptions and provide for exemptions under state laws. Furthermore, the statute applied uniformly to all debtors in bankruptcy. McFarland v. Wallace, 516 Bankr. 665 (S.D. Ga. 2014).

Limiting bankruptcy debtors to the $2,000 exemption for the cash value of life insurance, while permitting non-bankruptcy debtors to exempt the full cash surrender value of a life insurance policy under O.C.G.A. § 33-25-11 , did not violate the Equal Protection Clause of the Georgia Constitution because bankruptcy debtors and non-bankruptcy debtors were not in similar circumstances and, therefore, the Georgia Constitution did not require that they receive equal treatment. McFarland v. Wallace, 516 Bankr. 665 (S.D. Ga. 2014).

O.C.G.A. § 44-13-100(a)(9) did not violate U.S. Const., Art. I, Sec. VIII, Para. IV, as the Constitution's call for bankruptcy uniformity did not somehow require states to treat bankruptcy and non-bankruptcy debtors exactly alike. McFarland v. Wallace (In re McFarland), 790 F.3d 1182 (11th Cir. 2015).

O.C.G.A. § 44-13-100(a)(9) did not violate Ga. Const. 1983, Art. I, Sec. I, Para. II, when the legislature rationally balanced the needs of creditors and bankruptcy debtors in requiring the debtors to sacrifice more of their penumbral property in order to obtain greater relief on property more central to a fresh start. McFarland v. Wallace (In re McFarland), 790 F.3d 1182 (11th Cir. 2015).

Application. - O.C.G.A. § 44-13-100 , by the statute's express terms, applies to bankruptcy debtors. By contrast, nothing in the history or language of O.C.G.A. § 33-25-11(c) indicates the legislature intended the statute to apply in bankruptcy; therefore, O.C.G.A. § 33-25-11(c) is unavailable for purposes of exempting property from a debtor's bankruptcy estate. In re Dean, 470 Bankr. 643 (Bankr. M.D. Ga. 2012).

Debtor's exemption in the cash surrender value of a life insurance policy received from a fraternal benefit society was limited to the amount in O.C.G.A. § 44-13-100(a)(9), and O.C.G.A. § 33-15-62 did not apply. Section 44-13-100(a)(9) does not distinguish between policies provided by a fraternal benefit society and those that were not. Walton v. Gay (In re Gay), Bankr. (Bankr. S.D. Ga. Aug. 9, 2012).

Debtors were not entitled to reconsideration of an order finding that applicable vehicle exemption value allowed for debtors was the amount under the law on the date the debtors filed the debtors' petition, not the increased amount as of the conversion date, because the applicable law was the law as of the petition date. Dey v. Peoples Cmty Nat'l Bank, N.A. (In re Dey), Bankr. (Bankr. N.D. Ga. Nov. 1, 2013).

Judgment creditor's objection to the debtor's claim of a homestead exemption as excessive was not warranted because the $43,000 exemption limit was applicable based on the fact that the property was titled solely in the debtor's name, the debtor used the property as the debtor's residence, and the debtor's spouse was not a codebtor in the bankruptcy case. In re Mixon, Bankr. (Bankr. S.D. Ga. Jan. 2, 2014).

Georgia has opted out of the federal bankruptcy exemptions in favor of exemptions under state law; consequently, for debtors who are residents of Georgia, the applicable exemptions are those set forth in O.C.G.A. § 44-13-100(a) . Mooney v. Webster, 300 Ga. 283 , 794 S.E.2d 31 (2016).

Debtor could not claim an exemption for the segregated proceeds created by the pre-petition sale of the debtor's residence because, under the plain language of O.C.G.A. § 44-13-100 , the debtor did not own any property that would constitute a homestead on the petition date. Lubin v. Mason, 607 Bankr. 360 (Bankr. N.D. Ga. 2019).

Purpose. - O.C.G.A. § 44-13-100 was passed with the specific purpose of determining what property shall be eligible for exemption from the bankruptcy estate. Additionally: (i) O.C.G.A. § 44-13-100 (9) applies only to the cash surrender value of insurance policies and limits that exemption expressly to $2,000; (ii) O.C.G.A. § 33-25-11 , on the other hand, protects all cash surrender value of an insurance policy but only from certain creditor remedies; it does not attempt to characterize cash surrender value as "exempt"; and, (iii) without clear direction from the Georgia legislature that it intended to do so, the court would not read § 33-25-11 to effectively eliminate § 44-13-100(a)(9). Roach v. Ryan (In re Ryan), Bankr. (Bankr. S.D. Ga. Jan. 17, 2012).

Bankruptcy court did not err in concluding that O.C.G.A. § 33-25-11 did not provide the bankruptcy debtor an exemption from the bankruptcy estate because O.C.G.A. § 44-13-100 prevailed over the more general provisions of O.C.G.A. § 33-25-11 . McFarland v. Wallace, 516 Bankr. 665 (S.D. Ga. 2014).

Some of Georgia's state exemptions are found in O.C.G.A. § 44-13-100 ; however, in short, not all of Georgia's exemptions are contained within the four corners of O.C.G.A. § 44-13-100 . Debtor's workers' compensation claims were beyond the reach of creditors in bankruptcy. In re Fullwood, 446 Bankr. 634 (Bankr. S.D. Ga. 2010).

Exemption for both spouses filing jointly even though property titled only in husband's name. - Based on both the language and the legislative history of O.C.G.A. § 44-13-100(a)(1), the debtors could claim a $20,000.00 exemption, $10,000.00 for each spouse, for equity in their residence even though the property was titled only in the husband's name; there was no logical reason that the Georgia Assembly would give less protection to a couple filing jointly than to a debtor/non-debtor couple, and it appeared that a change in the language from a proposed amendment that clearly applied to jointly-filing spouses was changed to the current version to expand, not limit, the reach of the statute. In re Hartley, Bankr. (Bankr. N.D. Ga. July 18, 2002).

Exemption applies to debtor's "aggregate interest". - Under Georgia law, an exemption applies to the "debtor's aggregate interest" in property, O.C.G.A. § 44-13-100(a) , and the property may appreciate in value after the debtor has become entitled to the exemption. Mullis v. Aggeorgia Farm Credit, ACA (In re Jones), 357 Bankr. 888 (Bankr. M.D. Ga. 2005).

Similarity to federal and other states' law. - Although Georgia, by enactment of O.C.G.A. § 44-13-100(b) , has "opted out" of the federal list of exemptions found at 11 U.S.C. § 522(d) of the Bankruptcy Code, the exemption for part of a personal injury claim provided by O.C.G.A. § 44-13-100 is identical to the federal exemption provided by § 522(d)(11)(D) and to the exemption provided by statutes of other states. In re Geis, 66 Bankr. 563 (Bankr. N.D. Ga. 1986).

Exemptions set forth in O.C.G.A. § 44-13-100(a)(11)(A) were identical to those set forth in 11 U.S.C. § 522(d)(11)(A) and debtors were not permitted to exempt from the bankruptcy estate money that was ordered paid to them for restitution of a wrongful conversion of their property; debtors had not shown that the court ordered restitution was being made to compensate them for future loss of earnings or for personal injury. In re Seymour, 285 Bankr. 57 (Bankr. N.D. Ga. 2002).

Federal judicial precedent interpreting 11 U.S.C. § 522(d)(1) also determined what the Georgia General Assembly meant when it used the same words in O.C.G.A. § 44-13-100(a)(2)(E) because the state statute was modeled after the federal statute, the state statute had not changed since its original enactment, and any amendments were clearly intended to broaden the availability of exemptions. Goodman v. Bramlette (In re Bramlette), 333 Bankr. 911 (Bankr. N.D. Ga. 2005).

Privately funded annuity that the debtor claimed was exempt from the bankruptcy estate under O.C.G.A. § 44-13-100(a) (2.1), was analyzed under the requirements set forth in 11 U.S.C. § 522(d)(10) because the state statute closely patterned the federal scheme and referenced that the annuity would be exempt to the extent permitted by the bankruptcy laws of the United States. In re Michael, 339 Bankr. 798 (Bankr. N.D. Ga. 2005).

Exemptions not preempted by federal exemptions. - Georgia's exemptions were not preempted by the federal exemptions, on the basis that the Georgia exemptions were below the federal exemptions, because nothing in 11 U.S.C. § 522(b) (or elsewhere in the Bankruptcy Code) limited a state's power to restrict the scope of the state's exemption; the state could theoretically accord no exemptions at all. Coleman v. Harris (In re Harris), Bankr. (Bankr. S.D. Ga. Oct. 21, 1999).

Georgia opted out of federal exemption scheme. - Debtor could only assert a claim of $10,000 for a real property homestead exemption, pursuant to O.C.G.A. § 44-13-100 and could not claim more under the federal statutes because Georgia had opted out of the federal exemption scheme. In re Vaughn, Bankr. (Bankr. N.D. Ga. Nov. 25, 2008).

Argument that Georgia had not effectively opted out of the federal exemptions following the 1994 amendments to the Bankruptcy Code was rejected because states did not have to re-enact opt-out legislation following the 1994 amendments to the Bankruptcy Code. Coleman v. Harris (In re Harris), Bankr. (Bankr. S.D. Ga. Oct. 21, 1999).

The phrase "any property" in O.C.G.A. § 44-13-100(a)(6) should be given a liberal construction so as to include property which is partially exempt under other provisions of the statute. McGuire v. Landmark Fin. Servs., 132 Bankr. 803 (Bankr. M.D. Ga. 1987), aff'd, 132 Bankr. 807 (M.D. Ga. 1989).

Life insurance beneficiary rights. - 11 U.S.C. § 522(d)(7) exempts only the life insurance contract itself and not any beneficiary rights; O.C.G.A. § 44-13-100(a)(8) exempts the same. Life insurance proceeds a debtor receives within 180 days after filing bankruptcy are property of the estate; § 44-13-100(a)(8) does not exempt these proceeds because that section does not apply to beneficiary rights. In re Gonzalez, Bankr. (Bankr. M.D. Ga. Nov. 8, 2012).

In a Chapter 13 case when the debtor sought to retain life insurance proceeds that the debtor received due to the debtor's spouse/joint debtor's death, while the proceeds were the property of the estate, a calculation that assumed declining commission income for the 68-year-old debtor resulted in most of the insurance proceeds determined to be reasonably necessary for the debtor's support and therefore exempt. In re Taylor, 523 Bankr. 915 (Bankr. S.D. Ga. 2014).

Court denied a Chapter 7 debtor's motion for an order rescinding an order the court issued in 2013 which required the debtor to turn over two life insurance policies to the Chapter 7 trustee, and which allowed the trustee to liquidate both policies if the debtor lost an appeal the debtor filed from the court's ruling that the debtor was not entitled under O.C.G.A. § 44-13-100 to exempt proceeds of a third policy from creditors' claims; there was no merit to the debtor's claims that the court lacked jurisdiction to enter the court's 2013 turnover order, and that the order was void because the relief the court provided required the filing of an adversary proceeding and could not be resolved pursuant to a contested matter. In re McFarland, Bankr. (Bankr. S.D. Ga. Mar. 7, 2016).

Homestead limited to unencumbered portion of property. - A bankrupt is entitled to claim a homestead exemption only from the "aggregate interest" in real property under O.C.G.A. § 44-13-100(a) , which means that only the unencumbered portion of the property is to be counted in computing the "value" of the property for the purposes of determining the exemption. Wallis v. Clerk, Superior Court, 166 Ga. App. 775 , 305 S.E.2d 639 (1983).

Effect of lien on exempted property. - Under 11 U.S.C. § 522, the debtor may exempt certain property even if the property is subject to a lien; however, property claimed as exempt remains subject to an otherwise unavoided lien. United States v. Wood, 28 Bankr. 383 (N.D. Ga. 1983).

Even though it was assumed that debtors' claimed homestead exemption was valid under Georgia law, although they had no monetary interest in their residence, the exemption was not impaired by a judgment lien as required by 11 U.S.C. 522(f), and the lien on the residence could not be avoided. Holloway v. John Hancock Mut. Life Ins. Co., 81 F.3d 1062 (11th Cir. 1996).

Proper method for calculating the avoidability of a judicial lien where debtor and the debtor's spouse jointly owed a first mortgage on their jointly owned home which was also subject to a second priority judicial lien owed solely by the debtor was to first deduct the mortgage from the total value of the home to establish the net equity which was divided equally between debtor and the debtor's spouse, and then apply the mathematical formula provided in 11 U.S.C. § 522(f)(2)(A) to debtor's one-half equity interest. To the extent the judicial lien would not permit the debtor to take an exemption in the property, the judicial lien impairs the debtor's exemption and is avoidable; however, a creditor retains its judicial lien on any unencumbered, nonexempt portion of debtor's equity in the property. Schupp v. Bearson (In re Schupp), 304 Bankr. 906 (Bankr. N.D. Ga. 2004).

Chapter 7 debtor's use of the debtor's vehicle with regard to the debtor's trade as a law clerk and tutor was solely limited to commuting purposes and, thus, the vehicle was not a tool of the trade under Georgia's exemption statute. As a result, the debtor could not avoid a creditor's title lien. Mitchell v. First Franklin Corp. (In re Mitchell), Bankr. (Bankr. N.D. Ga. Mar. 21, 2018).

Construction with Insurance Code. - There is no indication that the Georgia General Assembly intended to amend or supplement the bankruptcy specific exemptions found in O.C.G.A. § 44-13-100 by way of the more general Georgia Insurance Code provisions. Rather, it appears that the General Assembly intended the Georgia Insurance Code to apply to nonbankruptcy situations with the bankruptcy specific exemptions in § 44-13-100 applying in bankruptcy cases. In re Allen, Bankr. (Bankr. M.D. Ga. Oct. 4, 2010).

Lien avoided. - Lien against personal property impaired the exemptions to which debtor was entitled under Georgia law and therefore the lien was avoided under Bankruptcy Code. Williams v. Finance One, 45 Bankr. 789 (Bankr. N.D. Ga. 1985).

Debtors in bankruptcy whose property exemptions are defined by O.C.G.A. § 44-13-100 may use 11 U.S.C. § 522(f) to avoid liens that encumber the property they seek to exempt. Hall v. Finance One of Ga. Inc., 752 F.2d 582 (11th Cir. 1985).

The 11 U.S.C. § 522(f) lien avoidance provision is available to debtors claiming under O.C.G.A. § 44-13-100 , and debtors may avoid a nonpossessory, nonpurchase-money security interest in a television and stereo system. Caruthers v. Fleet Fin., Inc., 87 Bankr. 723 (Bankr. N.D. Ga. 1988).

Judgment lienor's objection that Chapter 7 debtor undervalued the debtor's home in order to avoid the lien was overruled because the drive-by appraisal of the home performed by the lienor's appraiser was not credible compared with the complete appraisal performed by debtor's appraiser, which cited defects in the home, including a settlement problem. Schupp v. Bearson (In re Schupp), 304 Bankr. 906 (Bankr. N.D. Ga. 2004).

Because a debtor's total equity of $14,000 was less than the maximum allowed exemption in real property of $20,000.00 and her spouse did not file for bankruptcy, the debtor was entitled to avoid a judicial lien held by a creditor in its entirety with respect to the real property, a residence, pursuant to O.C.G.A. § 44-13-100(a)(1). Barnes v. Cavalry Invs. LLC (In re Barnes), Bankr. (Bankr. N.D. Ga. May 13, 2005).

When the bankruptcy court concluded that an Internal Revenue Service tax lien, which was junior to the creditor's judicial lien on the debtor's home, should be included in the calculation under 11 U.S.C. § 522(f)(2)(A), and the sum of liens and the state exemption under O.C.G.A. § 44-13-100 greatly exceeded the debtor's interest in the property, the bankruptcy court correctly concluded that the creditor's judicial lien could be avoided in its entirety. Cadle Co. v. Taras (In re Taras), 131 Fed. Appx. 167 (11th Cir. Apr. 29, 2005)(Unpublished).

Because a creditor's qualifying judicial lien would impair an exemption of the debtors if they amended their schedules to claim the exemption under O.C.G.A. § 44-13-100(1)(a) , (6), the judicial lien was avoidable in its entirety under 11 U.S.C. § 522(f), as the amounts two non-avoidable mortgage liens plus the amount of the judicial lien exceeded the value of the real property. In re Smith, Bankr. (Bankr. M.D. Ga. May 16, 2006).

Debtor's aggregate interest in property is not limited to equity, but also includes the right to possession, the equity of redemption and the right to create future equity by making mortgage payments. Cravey v. L'Eggs Prods., Inc., 100 Bankr. 119 (Bankr. S.D. Ga. 1989).

Aggregation of exemptions. - Debtors may add the "wildcard" exemption of O.C.G.A. § 44-13-100(a)(6) to their $200.00 per item exemption under O.C.G.A. § 44-13-100(a)(4), and thereby fully exempt certain of their household items that exceed $200.00 in value. In re Ambrose, 179 Bankr. 982 (Bankr. S.D. Ga. 1995).

Because a Chapter 7 debtor could have claimed an additional exemption of $ 500 under Georgia's "wildcard" exemption, O.C.G.A. § 44-13-100(a)(6), instead of just the § 44-13-100(a)(4) exemption, which was limited to $ 300, the debtor was given time to amend the Schedule C to exempt the debtor's laptop up to its full value. First Franklin Fin. v. Yawn (In re Yawn), Bankr. (Bankr. S.D. Ga. Feb. 5, 2010).

O.C.G.A. § 44-13-100(a)(6) is designed to prevent the exemption statute from discriminating unfairly against nonhomeowners. McGuire v. Landmark Fin. Servs., 132 Bankr. 803 (Bankr. M.D. Ga. 1987), aff'd, 132 Bankr. 807 (M.D. Ga. 1989).

Debtors, who owned a stereo worth $600, were entitled to exempt their interest in the stereo up to $200 under O.C.G.A. § 44-13-100(a)(4) and could exempt the remaining $400 value of the stereo under the "catch all" provisions of O.C.G.A. § 44-13-100(a)(6). McGuire v. Landmark Fin. Servs., 132 Bankr. 803 (Bankr. M.D. Ga. 1987), aff'd, 132 Bankr. 807 (M.D. Ga. 1989).

O.C.G.A. § 44-13-100 prevails over O.C.G.A. § 33-25-11 . - O.C.G.A. § 44-13-100 is the statute specific to bankruptcy exemptions and therefore it prevails over the more general provisions of O.C.G.A. § 33-25-11 ; the Georgia legislature drafted the exemption statute, § 44-13-100, specifically with bankruptcy in mind. In doing so, it struck the intended balance between allowing a debtor in bankruptcy to exempt a limited amount of property in exchange for receiving a bankruptcy discharge; in striking this balance, the legislature limited the aggregate exemption in such policies to $2,000. In re Sapp, Bankr. (Bankr. S.D. Ga. June 15, 2012).

Entitlement to spousal homestead exemption. - If a residence is titled only in the name of a married debtor, the debtor is entitled to a $20,000.00 homestead exemption to protect the equitable interest of the non-debtor spouse; however, if a residence is jointly titled in the names of the debtor and the non-debtor spouse, the debtor is limited to a $10,000.00 exemption. Wright v. Taylor (In re Taylor), Bankr. (Bankr. N.D. Ga. Jan. 27, 2005).

Chapter 7 debtor was entitled to a $10,000.00 exemption, not a $20,000.00 exemption, under O.C.G.A. § 44-13-100(a)(1) because, although the debtor's residence was titled in the names of both the debtor and the spouse, the spouse was not a debtor in the bankruptcy case. Wright v. Taylor (In re Taylor), Bankr. (Bankr. N.D. Ga. Jan. 27, 2005).

Enhanced exemption for married debtors pursuant to O.C.G.A. § 44-13-100(a)(1) applied only where the residence was titled in only one spouse and that spouse was a bankruptcy debtor; accordingly, because the property in the instant case was jointly owned, the debtor's homestead exemption was limited to $10,000.00. In re Hiers, Bankr. (Bankr. S.D. Ga. Sept. 26, 2005).

As a debtor owned only 50 percent of the debtor's residence, with the remaining 50 percent held by a living trust established for the benefit of the debtor's non-filing spouse, the debtor was not entitled to double the exemption provided for under Georgia's homestead exemption. Since the debtor had claimed value over and above the amount provided under that section, there was no "unused" portion of that exemption that trickled down to the debtor's wildcard exemption. Mann v. Burroughs (In re Burroughs), Bankr. (Bankr. N.D. Ga. Apr. 1, 2015).

When case pending, no homestead exemptions. - The homestead exemptions of O.C.G.A. § 44-13-100(a)(1) and (a)(6) are available only to an individual who is in bankruptcy or who was a dependent of an insolvent intestate, and may not be realized so long as the case is pending and payments are still due to be made under the terms of a confirmed plan. In re Deeble, 169 Bankr. 240 (Bankr. S.D. Ga. 1994).

Homestead exemption waived. - By the terms of the settlement agreement with the bankruptcy trustee, debtor waived any claim held against the estate, including a claim for an amended homestead exemption, in exchange for settlement of the estate's claim against the debtor. Moore v. Harrell, 212 Bankr. 174 (Bankr. S.D. Ga. 1997).

Applicability to separated spouse. - Chapter 7 trustee's objection to a debtor's claim for a $20,000.00 exemption in the debtor's residence under the Georgia homestead exemption statute, O.C.G.A. § 44-13-100(a)(1), was overruled because: (1) O.C.G.A. § 1-3-1 did not invite a court to usurp the power of the General Assembly by legislating from the bench each time the exemption statute created an unusual result; (2) the duration of the debtor's separation from the debtor's spouse, while indicative of a desire to discontinue the traditional role of spouse, was not determinative of a circumstance that would authorize the court to consider such a person as an entity other than a "spouse" as used in the homestead exemption statute; and (3) there was no basis for inferring legislative intent to allow married couples, whether they lived together or separately, to spread a $20,000.00 exemption across multiple residences. In re Green, 319 Bankr. 913 (Bankr. M.D. Ga. 2004).

Exemption of veteran's benefits. - Allowing a debtor to use debtor's exempt naval benefits to attain Chapter 13's broad discharge, without the corollary requirement to use it to pay creditors as much as debtor is able, would contravene the express purpose of O.C.G.A. § 44-13-100 - namely, that the debtor make payments under a plan - and thus would constitute "substantial abuse" of the bankruptcy process under 11 U.S.C. § 707(b). In re Rogers, 168 Bankr. 806 (Bankr. M.D. Ga. 1993).

Social Security benefits. - Bankruptcy court did not have jurisdiction under 28 U.S.C. § 1334(b) to hear an adversary proceeding a Chapter 7 debtor filed against the Social Security Administration (SSA) seeking an order requiring the SSA to waive recovery of overpayments of Social Security disability benefits the debtor received. The debtor's claims did not arise under the Bankruptcy Code and there was no nexus between the debtor's claims and the administration of the debtor's bankruptcy estate because the disability benefits were exempt property under 11 U.S.C. § 522(d)(10) and O.C.G.A. § 44-13-100 . Rodriquez v. United States (In re Rodriquez), Bankr. (Bankr. N.D. Ga. Mar. 23, 2010).

Health savings account does not constitute a right to receive a disability, illness, or unemployment benefit for the purposes of O.C.G.A. § 44-13-100(a)(2)(C), nor does it constitute a right to receive a payment under a pension, annuity, or similar plan or contract for the purposes of O.C.G.A. § 44-13-100(a)(2)(E). Mooney v. Webster, 300 Ga. 283 , 794 S.E.2d 31 (2016).

Debtor's health savings account did not constitute a right to receive a disability, illness, or unemployment benefit nor a right to receive a payment under a pension, annuity, or similar plan or contract for the purposes of O.C.G.A. § 44-13-100 because it was not a substitute for wages, thus, the exemptions provided in § 44-13-100 (a)(2)(C) and (a)(2)(E) did not apply. Mooney v. Webster, 300 Ga. 283 , 794 S.E.2d 31 (2016).

Exemption of health savings accounts. - Bankruptcy court did not err in sustaining the trustee's objection to a Chapter 7 debtor's exemption of a health savings account (HSA) because HSA funds were not specifically set out as exempt under the Georgia Code and were not clearly identified with or clearly analogous to exempted funds. Mooney v. Webster (In re Mooney), F. Supp. 2d (M.D. Ga. Feb. 26, 2015), aff'd, 854 F.3d 1260 (11th Cir. 2017).

Insurance proceeds from loss of exempt property. - Debtor could not use the Georgia motor vehicle exemption under O.C.G.A. § 44-13-100(a)(3) to exempt proceeds from a property damage settlement that resulted from a car accident in which her vehicle was destroyed; the proceeds that the debtor sought to exempt were compensation for the loss of a car and were not protected by the exemption statute either as a motor vehicle or as proceeds of a motor vehicle. In re Carelock, Bankr. (Bankr. S.D. Ga. Jan. 13, 2006).

Phrase "debtor's interest" in O.C.G.A. § 44-13-100(a)(4) does not mean only "equitable interest." Debtors have an interest even in their fully-encumbered property. Maddox v. Southern Disct. Co., 34 Bankr. 801 (Bankr. N.D. Ga. 1982); Moyer v. Fleet Fin., 39 Bankr. 211 (Bankr. N.D. Ga.), aff'd, 746 F.2d 814 (11th Cir. 1984), cert. denied, 471 U.S. 1053, 105 S. Ct. 2113 , 85 L. Ed. 2 d 478 (1985).

Priority of judgment creditor. - The rights of the judgment creditor, based upon a homestead waiver note, are superior to the rights of the holders of homestead waiver notes which had not been reduced to judgment, upon the principle that the law favors the diligent, not the slothful. Rosenthal v. Langley, 180 Ga. 253 , 179 S.E. 383 , appeal dismissed, 295 U.S. 720, 55 S. Ct. 916 , 79 L. Ed. 1674 (1935).

Resort to equity not necessary. - Where the widow of an insolvent intestate proceeds to obtain an exemption of personal property, there is no necessity to resort to equity to prevent the property from being seized and sold by a creditor of the intestate pending the filing and record of the widow's schedule, or after such filing and record. The widow's remedy to recover the property from one having unlawful possession is by possessory warrant in a proper case, or by trover. Morgan v. Community Loan & Inv. Co., 195 Ga. 675 , 25 S.E.2d 413 (1943).

Income from exempted property. - Where the head of a family rented land set apart as an exemption under O.C.G.A. § 44-13-100 , after having abandoned his wife and moved away from the exempted land, his wife was allowed to collect the rent, and neither the tenant nor the wife was liable to the husband therefor. Wood v. Wood, 171 Ga. 389 , 155 S.E. 678 (1930).

Exempt property turned over to debtors. - Debtors were entitled to have property exempted from their Chapter 13 bankruptcy petition turned over to them prior to the conclusion of the bankruptcy plan. Gamble v. Brown, 168 F.3d 442 (11th Cir. 1999).

Farmer-debtor. - A farmer-debtor will be permitted to exempt and avoid the lien on large items of farm equipment and to combine the farmer's $500.00 exemption for tools of the trade in O.C.G.A. § 44-13-100(a)(7) with the "wild card" exemption in O.C.G.A. § 44-13-100(a)(6) of $5,400.00. South Atl. Prod. Credit Ass'n v. Jones, 87 Bankr. 738 (Bankr. M.D. Ga. 1988).

The debtor, a farmer for 35 years, stated an intention to resume farming. Those items of equipment claimed exempt were essential to the debtor if the debtor was to resume farming. The debtor was a farmer for the purpose of claiming an exemption in farm implements and tools of the trade under O.C.G.A. § 44-13-100(a)(7) and for the purpose of avoiding a creditor's lien under 11 U.S.C. § 522(f)(2)(B). South Atl. Prod. Credit Ass'n v. Jones, 87 Bankr. 738 (Bankr. M.D. Ga. 1988).

Bankruptcy court sustained a trustee's objection to a Chapter 7 debtor's claim that an interest in a tractor was exempt from creditors' claims up to $3,500 under O.C.G.A. § 44-13-100(a)(3) because the tractor was a motor vehicle. The tractor was not a "motor vehicle" under § 44-13-100(a)(3) because the tractor was not designed to be used, nor ordinarily used, to transport people or property on roads. In re Matthews, 449 Bankr. 833 (Bankr. M.D. Ga. 2011).

"Tools of the trade" defined. - In Georgia, a tool of the trade is an implement used by a person in that person's work. Curry v. Dial Fin. Corp., 18 Bankr. 358 (Bankr. N.D. Ga. 1982).

The term "tool of the trade" contemplates that the person uses the tool with his hands, and that the person's work requires some degree of manual skill. Curry v. Dial Fin. Corp., 18 Bankr. 358 (Bankr. N.D. Ga. 1982).

Tools of tile setter. - The tools used by a debtor in work as a tile setter might well be classified as tools of the trade for bankruptcy purposes. Curry v. Dial Fin. Corp., 18 Bankr. 358 (Bankr. N.D. Ga. 1982).

A pickup truck used for transportation to work is not a tool of the trade of the debtor and the lien may not be avoided. Curry v. Dial Fin. Corp., 18 Bankr. 358 (Bankr. N.D. Ga. 1982).

Tractor as tool of trade of farmer. - Bankruptcy court allowed a Chapter 7 debtor's claim that a tractor the debtor owned was exempt from creditors' claims up to $1,500 under O.C.G.A. § 44-13-100(a)(7) because the debtor used the tractor to farm real property he owned with his wife, and it was a "tool of his trade." However, the court sustained a trustee's objection to the wife's claim that she was also entitled to claim an exemption under § 44-13-100(a)(7) because she did not drive the tractor and had not used the tractor to conduct farming operations. In re Matthews, 449 Bankr. 833 (Bankr. M.D. Ga. 2011).

A debtor has an "interest" in property encumbered by a nonpossessory, nonpurchase-money security interest. Finance One v. Bland, 793 F.2d 1172 (11th Cir. 1986).

Life insurance exemptions under § 44-13-100(a)(8). - O.C.G.A. § 44-13-100(a)(8) allows a debtor to exempt the unmatured life insurance policy itself, but this does not permit the debtor to exempt the cash value of the life insurance policy. Flatau v. Waggoner (In re Waggoner), 244 Bankr. 492 (Bankr. M.D. Ga. 2000).

Life insurance exemptions under § 44-13-100(a)(11)(C). - Bankruptcy court found that a wife who filed a joint petition with her husband under Chapter 7 of the Bankruptcy Code three months before her husband died was dependent on her husband's ability to run a company they owned together, and it allowed the wife to exempt $84,588 out of almost $105,000 in life insurance proceeds she received, pursuant to O.C.G.A. § 44-13-100(a)(11)(C); although the court refused to assume that the state legislature intended to permit spouses to exempt life insurance proceeds simply because language which appeared in § 44-13-100(a)(11)(C) was similar to language which appeared in 11 U.S.C. § 522(d)(11)(C), it found that the wife was a "dependent" for purposes of § 44-13-100(a)(11)(C). In re Bright, Bankr. (Bankr. N.D. Ga. July 16, 2007).

Chapter 7 trustee's objection was sustained and a debtor was denied an exemption under O.C.G.A. § 44-13-100(a)(11)(C) in the liquidated life insurance proceeds from the debtor's late spouse because the debtor voluntarily transferred the funds to the executor of the late spouse's estate under 11 U.S.C. § 522(g) in the belief that the law required such turnover, and the debtor failed to show that the debtor was subject to any great pressure to transfer the funds or that the debtor would not have turned the funds over if the debtor had known that the funds were not property of the spouse's estate. In re Sumner, Bankr. (Bankr. N.D. Ga. Nov. 26, 2007).

Exemption of personal injury payments. - Exemption for bodily injury claim can be based only on the exemption statute, not on the assignability of the claim, and therefore the maximum amount which a debtor can claim as exempt under O.C.G.A. § 44-13-100 is $7,500.00. In re Geis, 66 Bankr. 563 (Bankr. N.D. Ga. 1986).

Even though a debtor's interest in a personal injury claim was considered exempt property pursuant to O.C.G.A. § 44-13-100(a)(11)(D), it had to be included in her Chapter 13 plan as "disposable income" for use by the trustees to pay creditors, pursuant to 11 U.S.C. § 1325, because the debtor's regular income was sufficient to cover her monthly expenses. In re Springer, 338 Bankr. 515 (Bankr. N.D. Ga. 2005).

Court had authority under 11 U.S.C. § 329 over an attorney's fees because the personal injury case in which the attorney represented the Chapter 13 debtor was connected to the bankruptcy case; the debtor filed for bankruptcy due to lost wages following the accident, and any claim in excess of the debtor's exemption under O.C.G.A. § 44-13-100(a)(11)(D) would be property of the estate. In re Thornton, Bankr. (Bankr. S.D. Ga. Aug. 8, 2005).

Under O.C.G.A. § 44-13-100(a)(11)(E), a debtor could exempt compensation for lost future wages, notwithstanding the fact that the claim for lost future wages arose from a personal bodily injury. This was analogous to permitting an exemption of a portion of a personal injury settlement or award under 11 U.S.C. § 522(d)(11)(D) and a portion under 11 U.S.C. § 522(d)(11)(E). In re Lowery, Bankr. (Bankr. N.D. Ga. Sept. 24, 2007).

It was undisputed that debtor had suffered serious injuries due to a 1996 collision, including injuries to the neck, back, and shoulder, and the debtor testified that the debtor still required physical therapy, experienced back pain, and suffered from memory loss. In light of these circumstances, a portion of the $25,000 payment was intended to compensate debtor for the actual bodily injuries that were suffered in the collision. Wasden v. Nationwide Mutual Ins. Co. (In re Weaver), Bankr. (Bankr. S.D. Ga. July 19, 2006).

Due to injuries suffered in a 1996 collision, it was undisputed that the debtor could neither continue in the debtor's job as a clerical assistant nor continue studies to become an x-ray technician, and the debtor testified that the debtor had not had full-time employment since the collision and that the debtor's primary income had been in the form of payments from Social Security and pension. In light of debtor's circumstances, a portion of the $25,000 payment was reasonably necessary to support the debtor and was intended to compensate the debtor for loss of future earnings due to the collision. Wasden v. Nationwide Mutual Ins. Co. (In re Weaver), Bankr. (Bankr. S.D. Ga. July 19, 2006).

Allowance of $7,500.00 for debtor's actual bodily injury was not unreasonable, where evidence showed debtor had a five percent permanent impairment to debtor's shoulder. In re Howard, 169 Bankr. 77 (Bankr. S.D. Ga. 1994).

$15,000.00 loss-of-future-earnings exemption unreasonable. - Where a debtor's current family income exceeded current expenses by approximately $500.00 per month, and the debtor's prospects for the future suggested debtor's income was likely to increase, and there was no showing that the debtor or a dependent of the debtor was dependent on the exemption to provide for their support, an exemption of $15,000.00 was unreasonable and was disallowed. In re Howard, 169 Bankr. 77 (Bankr. S.D. Ga. 1994).

Award in age-discrimination action. - An award in favor of a bankruptcy debtor in an action under the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., was not "compensation of loss of future earnings" and was not exempt under O.C.G.A. § 44-13-100 . In re Williams, 197 Bankr. 398 (Bankr. M.D. Ga. 1996).

Workers' compensation benefits are exempt in their entirety under the federal bankruptcy statute (11 U.S.C. § 522(d) (10)(C)), which provides for exemption, regardless of amount, of disability, illness or unemployment benefits. In re Cain, 91 Bankr. 182 (Bankr. N.D. Ga. 1988).

Exempt status of workers' compensation awards. - O.C.G.A. § 44-13-100 did not need to address the exempt status of Workers' Compensation awards again because there was a broad exemption already in place; the statute did carve out the cash surrender values of life insurance policies, which were not already exempt, but placed a cap on the policies. Debtor's life insurance cash surrender value exemption here was limited to the $2,000 set by § 44-13-100 (a)(9). Roach v. Ryan (In re Ryan), Bankr. (Bankr. S.D. Ga. Jan. 17, 2012).

Denial of recoupment of disability benefits would not benefit other creditors because post-petition disability benefits are exempt under O.C.G.A. § 44-13-100(a)(2)(C); therefore, barring recoupment was not necessary to treat similarly situated creditors alike, because in no event would creditors have shared in the stream of benefit payments. Anthem Life Ins. Co. v. Izaguirre, 166 Bankr. 484 (Bankr. N.D. Ga. 1994).

Wrongful death annuity. - Annuity based upon a structured settlement for the wrongful death of debtor's minor son qualified for exemption, where the annuity was created in consideration of debtor's age and, under the terms of the annuity, debtor was not entitled to cash in the annuity and could not invade the principal in any manner. In re Wommack, 80 Bankr. 578 (Bankr. M.D. Ga. 1987).

Age as factor in annuity. - Supreme Court of Georgia holds that a debtor's right to receive payments from an annuity is on account of age if there exists a causal connection between the right to payment and the debtor's age; the requisite connection may be established in a myriad of ways, proof of which is limited only by the circumstances under which the annuity is created and the terms and conditions of the annuity itself. Silliman v. Cassell, 292 Ga. 464 , 738 S.E.2d 606 (2013).

For purposes of O.C.G.A. § 44-13-100(a)(2)(E), when determining whether a right to receive payment is on account of age, courts should focus on whether the right to payment is causally connected to the payee's age, not on the payee's intent in purchasing the annuity. Silliman v. Cassell, 292 Ga. 464 , 738 S.E.2d 606 (2013).

Life insurance cap. - Lower courts properly limited the exemption of a life insurance policy to $2,000 under O.C.G.A. § 44-13-100(a)(9) when the specific language of that statute governed over the more general debtor language in O.C.G.A. § 33-25-11(c) and § 44-13-100(a)(9) required such a result. McFarland v. Wallace (In re McFarland), 790 F.3d 1182 (11th Cir. 2015).

Exemption of annuity contract. - Chapter 7 debtor's interest in an annuity contract from a life insurance company was not exempt under O.C.G.A. § 44-13-100(a)(2) as it was not a contract to provide benefits in lieu of earnings after retirement or a plan created to fill or supplement a wage or salary void and although the debtor had purchased the annuity in contemplation of retirement, the debtor had made only one contribution shortly before the filing of the bankruptcy case, had discretion to withdraw from the corpus, and had the option to decide at a later time to receive a fixed return on the investment. Goodman v. Bramlette (In re Bramlette), 333 Bankr. 911 (Bankr. N.D. Ga. 2005).

Annuity purchased by the debtor was exemptible under O.C.G.A. § 44-13-100(a)(2)(E) because: (i) the debtor intended the annuity to be a wage substitute and evidenced the debtor's intent, not only in testimony, but by the payment option the debtor selected; (ii) the payment option reflected no real return on the debtor's investment but instead an intent to obtain income for the debtor's life; (iii) there was no persuasive evidence that the purchase of the annuity was part of pre-bankruptcy planning; and (iv) the debtor did not have inappropriate control over the annuity. Silliman v. Cassell (In re Cassell), 443 Bankr. 200 (Bankr. N.D. Ga. 2010).

Supreme Court of Georgia concludes that in deciding whether a particular annuity is of the type intended to come within the § 44-13-100(a)(2)(E) exemption, the pertinent question is whether the annuity provides income as a substitute for wages and to make that determination, courts must consider the nature of the contract giving rise to the annuity, as well as the facts and circumstances surrounding the purchase of the annuity. Silliman v. Cassell, 292 Ga. 464 , 738 S.E.2d 606 (2013).

Debtor's ability to choose among several different plans for investment at the time the debtor purchased the annuity is not significant for exemption purposes under 11 U.S.C. § 522(d)(10)(E), rather, what is relevant and legally significant in that analysis is the nature of the plan actually selected and the level of control a payee retains over the funds and payments thereafter. Silliman v. Cassell, 292 Ga. 464 , 738 S.E.2d 606 (2013).

Annuity did not fit within the scope of O.C.G.A. § 44-13-100 (a)(2)(E). The Annuity was not intended or designed to be a wage substitute; the nature of the annuity and the debtor's control over the annuity aligned the annuity outside the scope of the Georgia exemptions. Wallace v. McFarland (In re McFarland), 500 Bankr. 279 (Bankr. S.D. Ga. 2013).

While the debtor may have intended the annuity to provide security for the debtor's wife upon the debtor's death, O.C.G.A. § 44-13-100(a)(2)(E) made clear that the exemption was limited to a debtor's right to receive payment. Wallace v. McFarland (In re McFarland), 500 Bankr. 279 (Bankr. S.D. Ga. 2013).

Annuity at issue fell outside the scope of "annuity" for purposes of O.C.G.A. § 44-13-100(a)(2) because it did not provide income as a substitute for wages. In re Sheffield, 507 Bankr. 400 (Bankr. S.D. Ga. 2014).

Bankruptcy court did not clearly err in concluding that the bankruptcy debtor's annuity was not an annuity within the meaning of the annuity exemption because the annuity more closely resembled a nonexempt investment rather than a substitute for wages. McFarland v. Wallace, 516 Bankr. 665 (S.D. Ga. 2014).

Debtor's annuity did not qualify for exemption under O.C.G.A. § 44-13-100(a)(2)(E) when the annuity was structured more like a future investment than a substitute for wages, and the debtor conceded as much. McFarland v. Wallace (In re McFarland), 790 F.3d 1182 (11th Cir. 2015).

Annuity payment reasonably necessary for living expenses. - Pension payments were found to be reasonably necessary for the support of the debtors and the debtors' dependents in accordance with O.C.G.A. § 44-13-100(a)(2)(E) under the following circumstances: (i) the debtors documented in the debtors' schedules that the debtors current average monthly income was $4,376; (ii) the debtors' total monthly income included the debtors half of the annuity proceeds in the amount of $1,621; (iii) the debtors listed $4,318 as the average monthly expenses, leaving $58 as the average monthly net income; and (iv) the debtors also had three dependent daughters, and the debtors' schedules showed that the pension payments were relied upon in order to pay the debtors' reasonable and necessary living expenses. Baker v. Penton (In re Penton), Bankr. (Bankr. N.D. Ga. Feb. 15, 2013).

Stock bonus and profitsharing plans not exempt. - The Georgia legislature intended that stock bonus and profitsharing plans were not to be included as exempt under O.C.G.A. § 44-13-100(a)(2)(E) and that the words "or similar plan" were not to be extended to cover such plans. In re Gillespie, 63 Bankr. 124 (Bankr. N.D. Ga. 1985).

An unretired employee-debtor's interest in an Employee Retirement Income Security Act-qualified pension plan is not entitled to exemption under O.C.G.A. § 44-13-100(a)(2)(E), which only exempts payments under such a plan. In re Craddock, 62 Bankr. 583 (Bankr. N.D. Ga. 1986).

Tax shelter annuity. - Debtor's tax shelter annuity did not meet the requirements of O.C.G.A. § 44-13-100(a) (2.1), where the annuity plan was maintained by an insurance company which was not a nonprofit corporation, and not by the state, its political subdivision, or the debtor's employer. In re Herndon, 102 Bankr. 893 (Bankr. M.D. Ga. 1989).

Debtor's tax shelter annuity failed to meet the exemption requirements of O.C.G.A. § 44-13-100(a)(2)(E), where the debtor was not receiving payments from the annuity which were necessary for debtors or debtor's dependent's support. In re Herndon, 102 Bankr. 893 (Bankr. M.D. Ga. 1989).

Exemption of Roth IRAs. - Chapter 7 debtor was permitted to exempt the corpus of her Roth individual retirement account (IRA) under O.C.G.A. § 44-13-100(a)(2)(E) because federal judicial precedent interpreting 11 U.S.C. § 522(d)(10) concluded that the corpus was exempt, that precedent was instructional in determining the Georgia General Assembly's intent at the time the state statute was enacted, the amendments to the state statute regarding traditional IRAs did not preclude a conclusion of exemption as the Roth IRA was not in existence at the time the state statute was amended, and the Roth IRA was clearly a retirement vehicle. Goodman v. Bramlette (In re Bramlette), 333 Bankr. 911 (Bankr. N.D. Ga. 2005).

Repayment of retirement loan. - While the retirement account balance on the loan date of filing for bankruptcy is exempt, pursuant to O.C.G.A. § 44-13-100(a) (2.1)(C), only the equity in the account is protected, not voluntary payments to augment that equity. In re Aliffi, 285 Bankr. 550 (Bankr. S.D. Ga. 2002).

Exemption denied for Health Savings Account. - Debtor was not entitled to claim the debtor's health savings account (HSA) as exempt because the debtor's HSA was not a substitute for wages, and it was not the type of illness benefit or right to receive payment on account of illness contemplated by O.C.G.A. § 44-13-100(a)(2)(C) and (E). In re Mooney, 503 Bankr. 916 (Bankr. M.D. Ga. 2014).

Bankruptcy debtors entitled to exemption in property. - See Orsburn v. Diners Club, Inc., 35 Bankr. 217 (Bankr. N.D. Ga. 1983).

After considering various dictionary definitions of the word "dependent" and Fed. R. Bankr. P. 4003(c), a court concluded that a Chapter 7 trustee failed to carry the burden of proving that the debtors' 22 year-old daughter and grandson were not their "dependents" at the time of the bankruptcy filing to qualify for a residential exemption under O.C.G.A. § 44-13-100(a)(1); the debtors had the presumption of validity in their favor, and the limited evidence on dependency, including the fact that the debtors claimed them as dependents on their income tax return and that the daughter did not have steady employment, supported the conclusion that the daughter and grandson were dependents. In re Holt, 357 Bankr. 917 (Bankr. M.D. Ga. 2006).

Chapter 7 debtor was entitled to claim that funds the debtor's employer withheld from the debtor's wages and remitted to a Georgia court were exempt from creditors' claims under O.C.G.A. § 44-13-100(a)(6) because the debtor still had the right at the time the debtor declared bankruptcy to file a traverse under O.C.G.A. § 18-4-93 to an affidavit a creditor filed when the creditor garnished the debtor's wages. Because the debtor retained an interest in the funds, the funds became the property of the debtor's bankruptcy estate under 11 U.S.C. § 541(a)(1) and could be exempted from the creditors' claims, and a lien the creditor held on the funds could be avoided under 11 U.S.C. § 522(f). In re Williams, 460 Bankr. 915 (Bankr. N.D. Ga. 2011).

Creditor failed to meet the creditor's burden of proof with respect to the creditor's objection to a debtor's IRA exemptions as the debtor had funds in a pension plan that were exemptible under the Bankruptcy Code and Georgia law before the debtor's fraudulent acts that gave rise to a nondischargeable debt and, while the debtor subsequently converted the pension funds to IRA accounts, the debtor did not convert non-exempt assets to exempt assets. Santa Ana Unified Sch. Dist. v. Montgomery (In re Montgomery), Bankr. (Bankr. N.D. Ga. Sept. 18, 2013).

Chapter 7 debtor's cluster of cash withdrawals and checks written to cash immediately preceding the debtor's bankruptcy filing and the debtor's evasive testimony about what the debtor did with the cash strongly implied that the debtor was emptying the debtor's account and hiding cash in anticipation of filing the debtor's case and that the debtor was still in possession of the cash. Thus, the debtor was ordered to turn over the cash, less the debtor's $300 Georgia exemption in money in the debtor's checking account, to the trustee. Overstreet v. Ricks (In re Ricks), Bankr. (Bankr. S.D. Ga. July 15, 2013).

Chapter 13 debtors who purchased a 7.5-acre tract of unimproved land and subsequently gave a creditor a security interest in part of the property were allowed under O.C.G.A. § 44-13-100 to claim both the portion of the property that was encumbered and the portion of the property that was unencumbered as their homestead because the debtors lived in a manufactured home the debtors installed on the property and treated the entire 7.5 acres as the debtors' residence; Georgia bankruptcy courts that had discussed a method for determining whether adjoined parcels of land were part of a debtor's residence had focused on how debtors used the property. Goodman v. Vaughn (In re Vaughn), Bankr. (Bankr. N.D. Ga. Apr. 30, 2014).

Bankruptcy debtors not entitled to exemption in property. - Court sustained a Chapter 7 trustee's objection to an exemption in real and personal property for the debtors' block house property after finding no authority in the language of O.C.G.A. § 44-13-100(a)(1) or in case law that allowed them to exempt equity in a property adjacent to their residence that was leased to a residential tenant; clearly, the block house property was not used by the debtors or their dependents as a residence as required by the statute. In re Holt, 357 Bankr. 917 (Bankr. M.D. Ga. 2006).

Chapter 7 trustee and a junior lien-holder's carve-out agreement provided that the latter would receive some of the proceeds from the 11 U.S.C. § 363 sale of the debtors' home and that the trustee would receive the remainder after paying the first-priority lien; the debtors' state-law exemptions did not apply to the funds received by the estate under the carve-out agreement as the exemptions could not have attached to the property as of the petition date because it was wholly underwater, and the trustee's carve-out represented the value added from the trustee's efforts and powers, not the value of the property itself. In re Diener, Bankr. (Bankr. N.D. Ga. July 1, 2015).

Although a profit-sharing plan a Chapter 7 debtor established while the debtor owned a home-building company was not covered by ERISA because the debtor was the only trustee and beneficiary of the plan, money in the plan could still be exempted from creditors' claims under 11 U.S.C. § 541 if the plan was a qualified plan under 26 U.S.C. § 401; however, the evidence did not support the debtor's claim that even assuming that money in the plan was property of the debtor's bankruptcy estate, the debtor could exempt plan funds from the creditors' claims pursuant to O.C.G.A. § 44-13-100 and 11 U.S.C. § 522 because the debtor was not able to show the debtor had obtained a favorable opinion letter from the IRS. RES-GA Dawson, LLC v. Rogers (In re Rogers), 538 Bankr. 158 (Bankr. N.D. Ga. 2015).

Exemption denied in former residence in which debtor retained a security interest. - Debtor was denied an exemption in the debtor's former residence under O.C.G.A. § 44-13-100(a)(1), since the debtor had sold the property and moved from it, retaining a security interest and receiving monthly payments, as it was no longer the debtor's residence. In re Page, 289 Bankr. 484 (Bankr. S.D. Ga. 2003).

Requirement of title ownership in bankruptcy. - Debtor was entitled to claim the $20,000.00 exemption under O.C.G.A. § 44-13-100(a)(1) where the debtor's spouse did not have title to the home and did not file bankruptcy with the debtor; the statute imposed no requirement that the non-titled spouse also be in bankruptcy. In re Burnett, 303 Bankr. 684 (Bankr. M.D. Ga. 2003).

Exemption limited where non-resident spouse made no claim to the property. - Trustee's objection to a debtor spouse's Georgia homestead exemption claim under O.C.G.A. § 44-13-100(a)(1) for $17,000.00 was granted because the spouse's exemption was limited to $10,000.00 since: (1) the legislative intent was to protect the resident non-debtor spouse's interest in property where only one spouse filed for bankruptcy and property was titled only in the debtor-spouse, which was not the case in the instant matter; (2) the interpretation urged by the spouse would have allowed each of two debtor spouses to claim a full $20,000.00 exemption in two separate residences so long as they filed two separate bankruptcy cases; and (3) the non-debtor spouse made no claim on the residence. In re Neary, Bankr. (Bankr. N.D. Ga. Apr. 21, 2004).

Bankruptcy debtor not entitled to exemption in note inherited by wife. - Chapter 7 debtor husband was not entitled to an exemption under O.C.G.A. § 44-13-100(a)(6) in a promissory note that the debtor wife inherited from her father because the debtor wife did not by her actions show an intent to convert the note into joint marital property. In re Malia, Bankr. (Bankr. N.D. Ga. Feb. 7, 2012).

Wife without legal interest in inherited property. - Intention expressed by a husband who was joint debtor, with his wife, in a bankruptcy case under Chapter 13, to convert the proceeds to be received by him upon the sale of real estate in which he had inherited an interest, was an insufficient basis on which to find that the wife was entitled to claim an exemption in those proceeds under O.C.G.A. § 44-13-100(a)(6) (Georgia) and 11 U.S.C. § 522(b) because the nature of the wife's interest therein was fixed as of the date of the Chapter 13 bankruptcy per 11 U.S.C. § 348(f)(1) and on that date, the wife had no legal interest in the inherited property. In re Garner, Bankr. (Bankr. N.D. Ga. July 23, 2012).

Payments to disabled adult in Chapter 13. - Trustee's objection to a debtor's exemption claim per 11 U.S.C. § 522 and O.C.G.A. § 44-13-100(a)(2)(D) (2002) as to payments received from the debtor's deceased father's business interests was sustained because the trustee met the trustee's burden of proof per Fed. R. Bankr. P. 4003, to show that the payments, even if properly deemed, at their inception, to constitute "support" arising from a "domestic relations" order in effect when the debtor was 16 years old, such payments could no longer be considered "support" given that the debtor was 56 years old and the purported obligor was dead. Webster v. Aldrich (In re Aldrich), 403 Bankr. 766 (Bankr. M.D. Ga. 2009).

Venue. - The bankruptcy court for the Northern District of Georgia retained venue, even though the debtor had moved to New Jersey, since the evidence relating to the bodily injury claims, as well as how the claims should be allocated, was present in the state of Georgia, where the accident occurred. In re Geis, 66 Bankr. 563 (Bankr. N.D. Ga. 1986).

Exemptions exceeding cap. - Chapter 13 trustee's objection to the claimed exemptions in the debtor's checking account, savings account, and three future federal tax refunds was sustained where the amount exceeded the O.C.G.A. § 44-13-100(a)(6) cap by $50.00. In re Myles, Bankr. (Bankr. N.D. Ga. Mar. 8, 2006).

Pursuant to Fed. R. Bankr. P. 1009, a Chapter 7 debtor was not permitted to amend her claim of exemption under O.C.G.A. § 44-13-100(b)(6) after the Chapter 7 trustee had filed an objection and after certain property the debtor claimed was destroyed because to do so would have been inequitable and would have hindered the diligent administration of the bankruptcy estate by the trustee. In re Price, Bankr. (Bankr. N.D. Ga. Sept. 20, 2006).

When husband and wife debtors sought to exempt their income tax refunds, pursuant to O.C.G.A. § 44-13-100(a)(6), the procedure set forth in In re Crowson, 431 Bankr. 484, 489 (10th Cir. B.A.P. 2010) was to be followed. Each debtor was treated separately under 11 U.S.C. § 522(m), and Georgia law had no presumption of equal ownership of property between spouses under O.C.G.A. § 19-3-9 . In re Evans, 449 Bankr. 827 (Bankr. N.D. Ga. 2010).

Household goods exemption under O.C.G.A. § 44-13-100(a)(4) limited by 11 U.S.C. § 544(f)(4)(A). - Although a debtor's two televisions and two computers both were household goods that could be exempted under O.C.G.A. § 44-13-100(a)(4), a creditor's lien could be avoided only against one television and one computer pursuant to 11 U.S.C. § 544(f)(4)(A). A lawnmower qualified as a household good under state law and federal law, but a camera, while a household good under state law, did not qualify under § 544(f)(4)(A). First Franklin Fin. v. Yawn (In re Yawn), Bankr. (Bankr. S.D. Ga. Feb. 5, 2010).

Amendment of exemption. - Debtor was allowed to amend debtor's schedules, after a delay of more than one year, to claim an exemption in a checking account pursuant to O.C.G.A. § 44-13-100(a)(6) and which would have resulted in avoiding a judicial lien where the initial error in reporting the correct balance in the checking account was the attorney's fault, and thus there was no bad faith on the debtor's part; the creditor would not have been prejudiced as the debtor would have reaped the same benefit from amending the schedules that the debtor would have received had the debtor filed the amendments a year ago. In re Spice, Bankr. (Bankr. M.D. Ga. July 11, 2005).

Construction. - Use of the word "may" in O.C.G.A. § 44-13-100 denotes the fact that when a debtor files bankruptcy the debtor is not required to exempt any property; however, once the debtor chooses to exempt property, the debtor is limited to exemptions set forth in O.C.G.A. § 44-13-100 . When two statutes conflict, a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent. In re Sapp, Bankr. (Bankr. S.D. Ga. June 15, 2012).

Cited in Southall v. Blount, 182 Ga. 368 , 185 S.E. 321 (1936); In re Vlahakis, 11 Bankr. 751 (Bankr. M.D. Ga. 1981); Jenkins v. Northwest Ga. Bank, 11 Bankr. 958 (Bankr. N.D. Ga. 1981); Anderson v. Burnham, 12 Bankr. 286 (Bankr. N.D. Ga. 1981); Safeway Fin. Co. v. Ward, 14 Bankr. 549 (S.D. Ga. 1981); In re Pietrocola, 14 Bankr. 719 (Bankr. N.D. Ga. 1981); Landmark Fin. Corp. v. Stewart, 163 Ga. App. 176 , 293 S.E.2d 364 (1982); Maddox v. Southern Disct. Co., 713 F.2d 1526 (11th Cir. 1983); Dennis v. W.S. Badcock Corp., 31 Bankr. 128 (Bankr. M.D. Ga. 1983); Register v. Reese, 37 Bankr. 708 (Bankr. N.D. Ga. 1983); Schneider v. Fidelity Nat'l Bank, 37 Bankr. 747 (Bankr. N.D. Ga. 1984); Walker v. Guy F. Atkinson Co. (In re Sanders), 89 Bankr. 266 (Bankr. S.D. Ga. 1988); In re Bogert, 104 Bankr. 547 (Bankr. M.D. Ga. 1989); McGuire v. Landmark Fin. Servs., 132 Bankr. 807 (M.D. Ga. 1989); In re Thomsen, 181 Bankr. 1013 (Bankr. M.D. Ga. 1995).

OPINIONS OF THE ATTORNEY GENERAL

Homestead exemption in former law. - A taxpayer's assertion of the statutory homestead exemption contained in a former law would not prevent the Revenue Department from levying upon the taxpayer's personal automobile to satisfy delinquent state taxes. 1983 Op. Att'y Gen. No. 83-14.

RESEARCH REFERENCES

Am. Jur. 2d. - 40 Am. Jur. 2d, Homestead, § 150 et seq.

C.J.S. - 40 C.J.S., Homesteads, § 170.

ALR. - Jewelry and clothing as within debtor's exemptions under state statutes, 44 A.L.R.6th 481.

Construction and application of exemption for firearms under state law, 46 A.L.R.6th 401.

Constitutionality of state bankruptcy-specific exemptions under supremacy clause and bankruptcy clause of U.S. Constitution (U.S. Const., Art. VI, cl. 2 and Art. I, § 8, cl. 4), 77 A.L.R.6th 273.

Validity, construction, and application of state exemption statutes for proceeds of personal injury or wrongful death lawsuits, 99 A.L.R.6th 481.

Construction and application of state exemptions for health aids, 100 A.L.R.6th 251.

What constitutes state or local law that is applicable on date of filing of bankruptcy petition for purposes of applying 11 U.S.C.A. § 522(b)(3)(A) or its predecessor in opt-out states, 76 A.L.R. Fed. 2d 333.

Nonspousal inherited individual retirement account as exempt property in bankruptcy, 83 A.L.R. Fed. 2d 193.

Individual retirement accounts as exempt property in bankruptcy, 133 A.L.R. Fed. 1

44-13-101. Method of obtaining exemption.

Every debtor seeking the benefit of Code Section 44-13-100 or, if he refuses, his wife or any person acting as her next friend shall make out a schedule of the property claimed to be exempt and shall return the schedule to the judge of the probate court of the county without making any application for homestead; and it shall not be necessary to publish the schedule in a newspaper. The judge shall record the schedule in a book to be kept by him for that purpose; and, when land out of his county is exempted, he shall transmit the schedule to the judge of the probate court of the county in which the land is located for recording in like manner.

(Laws 1822, Cobb's 1851 Digest, p. 385; Code 1863, § 2014; Code 1868, § 2014; Ga. L. 1870, p. 74, § 1; Code 1873, § 2041; Code 1882, § 2041; Civil Code 1895, § 2867; Ga. L. 1898, p. 52, § 1; Civil Code 1910, p. 3417; Code 1933, § 51-1401.)

JUDICIAL DECISIONS

Duty of probate court. - O.C.G.A. § 44-13-101 does not require the probate judge to enter approval on the schedule of property filed by a debtor seeking its benefit. Carrie v. Carnes, 145 Ga. 184 , 88 S.E. 949 (1916).

Federal bankruptcy debtors exempt from O.C.G.A. § 44-13-101 . - The federal Bankruptcy Code, rules, and official forms, rather than Georgia law, apply and control in prescribing the procedure whereby exemptions are to be claimed in a bankruptcy case, and, as a result, debtors in bankruptcy are not required to comply with O.C.G.A. § 44-13-101 . Caruthers v. Fleet Fin., Inc., 87 Bankr. 723 (Bankr. N.D. Ga. 1988).

Where land lies in more than one county, the record must be made in each of the counties where the land set apart is situated. McLamb & Co. v. Lambertson, 4 Ga. App. 553 , 62 S.E. 107 (1908).

Contents of schedule. - The schedule filed by an insolvent debtor should contain a list of the property which the debtor owned at the time of filing the same. Johnson v. Martin, 25 Ga. 268 (1858).

Sufficiency of description. - In a statutory homestead the description of the property should be sufficiently definite to impart notice of the property homesteaded. Arnold v. Faulk, 19 Ga. App. 797 , 92 S.E. 294 (1917); Worley v. Arnold, 74 Ga. App. 772 , 41 S.E.2d 568 (1947).

Owner of property must be disclosed. - The schedule of exempt property must, on its face, disclose in express terms or by reasonable implication, whose property it is that the schedule is meant to comprehend and secure. Mapp v. Long, 62 Ga. 568 (1879).

Property within specified classes. - A schedule of property returned to the ordinary (now probate judge) as required by O.C.G.A. § 44-13-101 must be of particular property falling within the classes specified in the statute. Kendall v. Parker, 146 Ga. 260 , 91 S.E. 31 (1916).

Taking both homesteads prohibited. - An applicant for a homestead is not authorized to take both the statutory and the constitutional homesteads. Worley v. Arnold, 74 Ga. App. 772 , 41 S.E.2d 568 (1947).

Wife obtaining exemption. - The wife may obtain an exemption under O.C.G.A. § 44-13-101 where the husband refuses. Connally v. Hardwick, 61 Ga. 501 (1878).

Refusal of husband essential. - It is essential to the validity of a schedule filed by the wife for the purpose of having the property of the husband set apart as exempt that it shall affirmatively appear in the schedule that the husband refused to file the same; and if this fact does not so appear, the schedule, though recorded, is void, and may be collaterally attacked in any court of competent jurisdiction in which the creditors of the husband are seeking to subject the property embraced in the schedule to the payment of the husband's debts. Mutual Benefit Bldg. Ass'n v. Tanner, 96 Ga. 338 , 23 S.E. 403 (1895); Davis v. Lumpkin, 106 Ga. 582 , 32 S.E. 626 (1899); Marcrum v. Washington, 109 Ga. 296 , 34 S.E. 585 (1899); Hirsch Bros. & Co. v. Stinson, 112 Ga. 348 , 37 S.E. 365 (1900). See also Sheppard v. Davis, 22 Ga. App. 733 , 97 S.E. 262 (1918).

Resort to equity unnecessary. - Where the widow of an insolvent intestate proceeds to obtain an exemption of personal property, there is no necessity to resort to equity to prevent the property from being seized and sold by a creditor of the intestate pending the filing and record of her schedule, or after such filing and record. Her remedy to recover the property from one having unlawful possession is by possessory warrant in a proper case, or by trover. Morgan v. Community Loan & Inv. Co., 195 Ga. 675 , 25 S.E.2d 413 (1943).

Amendment of schedule. - If the applicant fails to describe the property with sufficient certainty to identify it the applicant may amend the schedule by giving a sufficiently accurate and definite description. Redding v. Lennon, 112 Ga. 491 , 37 S.E. 711 (1900).

A void schedule may be disregarded by an officer, and the property therein set forth be levied on. Kendall v. Parker, 146 Ga. 260 , 91 S.E. 31 (1916).

Fullness of schedule question for jury. - See Mims v. Lockett, 20 Ga. 474 (1856).

Description held sufficient. - See McNair v. Fortner, 149 Ga. 654 , 101 S.E. 772 (1920).

Description held insufficient. - See Barfield v. Reynolds Banking Co., 40 Ga. App. 305 , 149 S.E. 302 (1929).

Cited in Wardlaw v. Woodruff, 175 Ga. 515 , 165 S.E. 557 (1932); Clark v. Kinney, 177 Ga. 864 , 171 S.E. 763 (1933).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, § 128 et seq. 40 Am. Jur. 2d, Homesteads, § 77 et seq.

ALR. - Homestead right of cotenant as affecting partition, 140 A.L.R. 1170 .

44-13-102. Survey and plat of exempted land; return to probate court; recordation.

Upon an application by a debtor, it shall be the duty of the county surveyor or any other surveyor if there shall be no county surveyor to lay off the land allowed to the debtor's family under this article and make a plat of the same, which plat shall be returned to the judge of the probate court within 15 days after the application is made to the surveyor by the debtor, and recorded as provided for in Code Section 44-13-101.

(Laws 1841, Cobb's 1851 Digest, p. 389; Laws 1843, Cobb's 1851 Digest, p. 390; Code 1863, § 2015; Code 1868, § 2015; Code 1873, § 2042; Ga. L. 1878-79, p. 69, § 1; Code 1882, § 2042; Civil Code 1895, § 2868; Civil Code 1910, § 3418; Code 1933, § 51-1402; Ga. L. 1982, p. 3, § 44.)

Cross references. - Authority of county surveyor to establish fee for making plat of homestead, affidavit, and return, § 36-7-9 .

Appointment of person to perform duties of county surveyor when no such office exists in county, § 36-7-13 .

JUDICIAL DECISIONS

Quantity of land. - O.C.G.A. § 44-13-102 does not apply to a case where the quantity of land owned by the defendant is less than that exempted. Rogers v. Hawkins, 20 Ga. 200 (1856); Connally v. Hardwick, 61 Ga. 501 (1878); Pritchard v. Ward, 64 Ga. 446 (1879); Clark v. Kinney, 177 Ga. 864 , 171 S.E. 763 (1933).

Plats made by another than county surveyor. - Under O.C.G.A. § 44-13-102 , when it is shown that the plats were made by another than the county surveyor, the law will presume there was no county surveyor. Dunagan v. Stadler, 101 Ga. 474 , 29 S.E. 440 (1897).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, § 79 et seq. 40 Am. Jur. 2d, Homesteads, § 140 et seq.

44-13-103. Objections to survey or to valuation of improvements; application to probate court; appointment of appraisers; alterations in survey.

Should any creditor, for any cause, desire to dispute the propriety of the survey or the value of the improvements, he may make application to the judge of the probate court and give notice to the debtor thereof. Thereafter, the judge may appoint three appraisers to view the survey and to value the improvements; and, on their return, the judge may direct the surveyor to make such alterations as shall, in his judgment, be conformable to law. It shall be a valid ground of objection to the propriety of any survey that the same has been so made by a disregard of the shape and location of the entire tract as to injure unjustly or needlessly the value of any land left unexempted.

(Orig. Code 1863, § 2016; Code 1868, § 2016; Code 1873, § 2043; Ga. L. 1878-79, p. 69, § 2; Code 1882, § 2043; Civil Code 1895, § 2869; Civil Code 1910, § 3419; Code 1933, § 51-1403.)

JUDICIAL DECISIONS

Appointment of appraisers. - The appointment of appraisers to view the survey and value the improvements of realty claimed as exempt is but preliminary to judicial action, and is not the subject of appeal to the superior court. Bangs v. McLeod, 63 Ga. 162 (1879).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, §§ 135, 137. 40 Am. Jur. 2d, Homesteads, § 83.

44-13-104. Town property worth more than $500.00; sale and reinvestment.

If the debtor in value owns real property in town which exceeds the sum of $500.00 and it cannot be so divided as to give that amount to his family, he may give notice to the officer levying thereon. When the proceeds of the sale are distributed, the court shall order $500.00 of the same to be invested by some proper person in a home for the family of the debtor, which home shall be exempt as if laid off under this article.

(Orig. Code 1863, § 2017; Code 1868, § 2017; Code 1873, § 2044; Code 1882, § 2044; Civil Code 1895, § 2870; Civil Code 1910, § 3420; Code 1933, § 51-1404.)

JUDICIAL DECISIONS

Time of notice. - The notice may be after the levy, but before the sheriff pays out the money. Ragland v. Moore, Trimble & Co., 51 Ga. 476 (1874).

Sale under security deed. - When town property set apart as a homestead is about to be sold under a security deed given by a husband, the debtor's wife cannot by giving notice have proceeds of the sale held up to be invested in other realty for a statutory homestead. Evans v. Piedmont Nat'l Bldg. & Loan Ass'n, 118 Ga. 880 , 45 S.E. 693 (1903).

Prior judgments. - Where prior judgments were obtained against a husband, the wife was later entitled to $500.00 in proceeds of town property sold under the judgments. Maxey, Jordan & Co. v. Loyal, 38 Ga. 531 (1868).

Time of improvements. - Improvements upon a homestead, to become or to partake of the nature of purchase money, must be made after the homestead has been set apart; for from the very nature of the case there can be no improvement of a homestead until there has actually been a homestead granted. Wright v. Carolina Portland Cement Co., 177 Ga. 564 , 170 S.E. 795 (1933).

RESEARCH REFERENCES

Am. Jur. 2d. - 40 Am. Jur. 2d, Homesteads, §§ 30, 32, 37.

C.J.S. - 40 C.J.S., Homesteads, § 33.

44-13-105. Sale of property subject to encumbrance of homestead.

If, from any cause, the exempt land has not been laid off when the remainder of the land is offered for sale, the purchaser shall buy subject to the encumbrance of the homestead if he was given notice of the exemption.

(Orig. Code 1863, § 2018; Code 1868, § 2018; Code 1873, § 2045; Code 1882, § 2045; Civil Code 1895, § 2871; Civil Code 1910, § 3421; Code 1933, § 51-1405.)

JUDICIAL DECISIONS

Pending application. - If, at the time of the sale of land by the sheriff, an application is pending for a homestead in favor of the family of the defendant, and notice thereof is given at the sale, the purchaser buys under O.C.G.A. § 44-13-105 subject to the homestead. Kilgore v. Beck, 40 Ga. 293 (1869); Faircloth v. St. Johns, 44 Ga. 603 (1872); Rogers v. Kimsey, 163 Ga. 146 , 135 S.E. 497 (1926), later appeal, 166 Ga. 176 , 142 S.E. 667 (1928).

Notice of application. - A person who has applied for an injunction to enjoin the sale of the land under an execution against that person, in which land the person claims a homestead on the ground of age and infirmity, is protected by giving notice of an application for homestead, provided, of course, it should be determined that the person is entitled to the homestead. Adams v. Grizzard, 171 Ga. 780 , 156 S.E. 689 (1931).

Illegal sale of a homestead does not divest property of its character as such. Evans v. Piedmont Nat'l Bldg. & Loan Ass'n, 118 Ga. 880 , 45 S.E. 693 (1903).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, §§ 13, 134, 138, 146. 40 Am. Jur. 2d, Homesteads, §§ 83 et seq., 110 et seq.

C.J.S. - 40 C.J.S., Homesteads, §§ 95 et seq., 148, 154.

44-13-106. Use of exempted property.

The property exempt under this article shall be for the use and benefit of the family of the debtor from whose estate the property has been exempted and allowed. Upon the death of the wife or her subsequent marriage, the property shall remain for the support and benefit of the minor children of the debtor during their minority.

(Orig. Code 1863, § 2021; Ga. L. 1865-66, p. 29, § 2; Code 1868, § 2021; Code 1873, § 2048; Ga. L. 1880-81, p. 69, § 1; Code 1882, § 2048a; Civil Code 1895, § 2874; Civil Code 1910, § 3424; Code 1933, § 51-1503; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Termination of homestead. - The exemption of land taken by a father for the benefit of his minor son ceases when the son reaches majority. Blalock v. Denham, 85 Ga. 646 , 11 S.E. 1038 (1890); Rogers v. Kimsey, 177 Ga. 839 , 171 S.E. 707 (1933).

Exemption for family as a whole. - Where it appeared from a plat in the record that the exemption consisted of 50 acres of land to the head of a family, and six adjacent tracts of five acres each to six named children, the homestead was nevertheless to be considered as a tract of 80 acres of land claimed and set apart for the use and benefit of the family as a whole, and not as consisting of seven distinct homesteads. Rogers v. Kimsey, 177 Ga. 839 , 171 S.E. 707 (1933).

Possessory warrant. - The possession of the head of the family is for the use of the wife and children, and the wife can recover by possessory warrant property which is taken from him. Tucker v. Edwards, 71 Ga. 602 (1883).

Enjoining interference with possession. - A proceeding to enjoin an interference with the right of possession by the beneficiaries of property set apart as homestead may properly be instituted directly by them. Pritchett v. Davis, 101 Ga. 236 , 28 S.E. 666 , 65 Am. St. R. 398 (1897).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, §§ 32, 132. 40 Am. Jur. 2d, Homestead, §§ 148, 155, 156, 166, 167.

C.J.S. - 40 C.J.S., Homesteads, § 167 et seq.

44-13-107. Exempted property subject to levy and sale for purchase money and taxes.

Property exempted from levy and sale as provided for in this article shall not be exempt from levy and sale for the purchase money or for the state and county or municipal taxes.

(Ga. L. 1874, p. 19, § 1; Code 1882, § 2046a; Civil Code 1895, § 2873; Civil Code 1910, § 3423; Code 1933, § 51-1502.)

JUDICIAL DECISIONS

Personalty set apart is not subject to levy and sale except for purchase money and taxes under O.C.G.A. § 44-13-107 . Gray Bros. v. Higgs, 18 Ga. App. 22 , 88 S.E. 709 (1916). See also Moseman v. Comer, 160 Ga. 106 , 127 S.E. 406 (1925).

O.C.G.A. § 44-13-107 limits the right of a creditor to claim the security of after-acquired property only if such property is acquired within ten days of the execution of the promissory note. Smathers v. Fulton Fed. Sav. & Loan Ass'n, 653 F.2d 977 (5th Cir.), rehearing denied, 664 F.2d 291 (5th Cir. 1981).

Consumer goods may not be made subject to a deed to secure debt unless they are acquired within ten days of the execution of the deed. Smathers v. Fulton Fed. Sav. & Loan Ass'n, 653 F.2d 977 (5th Cir.), rehearing denied, 664 F.2d 291 (5th Cir. 1981).

Lender not required to include as security interest anything of no value to borrower. - The law does not require that a lender include as a security interest on the disclosure statement anything which has no value to the borrower. Smathers v. Fulton Fed. Sav. & Loan Ass'n, 653 F.2d 977 (5th Cir.), rehearing denied, 664 F.2d 291 (5th Cir. 1981).

A borrower may not claim a homestead exemption against a purchase money security deed holder. Smathers v. Fulton Fed. Sav. & Loan Ass'n, 653 F.2d 977 (5th Cir.), rehearing denied, 664 F.2d 291 (5th Cir. 1981).

Mortgage. - O.C.G.A. § 44-13-107 applies to a mortgage executed for the purchase money of land prior to its passage. Harris v. Glenn, 56 Ga. 94 (1876).

Mortgage lien. - A mortgage lien given to a merchant for supplies, fertilizer, etc., to enable the mortgagor to make a crop, is not superior to the statutory exemption, and the personal property so set apart as exempt is not subject to be seized and sold under an execution issued on a foreclosure of the mortgage. Jones v. Spillers, 9 Ga. App. 473 , 71 S.E. 777 (1911).

Lien survives discharge. - When a debtor filed the debtor's 2008 state income tax return four days after the filing of the debtor's Chapter 7 case, the debtor's tax liability for that year was excepted from discharge under 11 U.S.C. § 523(a)(1)(B)(i). Even though the debtor's liability for the year 2007 was subject to discharge, the Georgia Department of Revenue's tax lien survived the discharge and attached to any exempt property of the debtor. Wellborn v. Ga. Dep't of Revenue (In re Wellborn), Bankr. (Bankr. N.D. Ga. Aug. 20, 2012).

Landlord's lien for rent. - The landlord's special lien for rent upon the crops raised on the rented premises is superior to an exemption set apart in such crops under the provisions of O.C.G.A. § 44-13-107 . Shirling v. Kennon, 119 Ga. 501 , 46 S.E. 630 (1904).

A landlord's lien for supplies is superior to an exemption in the crops, being in the nature of purchase money. Moseman v. Comer, 160 Ga. 106 , 127 S.E. 406 (1925).

Debt for fertilizers. - Land exempted is not subject to a debt for fertilizers used thereon. Wilcox, Ives & Co. v. Cowart, 110 Ga. 320 , 35 S.E. 283 (1900). See also Watson v. Williams, 110 Ga. 321 , 35 S.E. 344 (1900).

Lien for keep of horse. - A horse upon which a livery stable keeper claimed a lien for its keep, but which was subsequently set apart to the claimant as the head of a family, was exempt from levy and sale under the lien. Gray Bros. v. Higgs, 18 Ga. App. 22 , 88 S.E. 709 (1916).

Cited in Southall v. Blount, 182 Ga. 368 , 185 S.E. 321 (1936).

OPINIONS OF THE ATTORNEY GENERAL

Motor vehicle taxes. - The levy for delinquent motor vehicle ad valorem taxes can be executed against the homestead. 1968 Op. Att'y Gen. No. 68-146.

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, §§ 120 et seq., 122, 125, 147. 40 Am. Jur. 2d, Homesteads, §§ 98-102, 110, 166.

C.J.S. - 40 C.J.S., Homesteads, §§ 1, 6, 57 et seq., 174.

44-13-108. Levy or sale of exempt property as trespass; cause of action.

Any officer who knowingly levies on or sells any property of a debtor which is exempt under this article, a schedule of which shall have been returned as required, shall be guilty of a trespass. An action may be brought therefor in the name of the wife or family of the debtor, and the recovery shall be for their exclusive use.

(Orig. Code 1863, § 2019; Code 1868, § 2019; Code 1873, § 2046; Code 1882, § 2046; Civil Code 1895, § 2872; Civil Code 1910, § 3422; Code 1933, § 51-1501.)

JUDICIAL DECISIONS

Husband's right to sue. - The right to sue is not limited to the wife or family, but the husband as the head of the family can maintain the action, and will hold the recovery, if any, for their use. Personal Fin. Co. v. Evans, 45 Ga. App. 53 , 163 S.E. 250 (1932).

Joinder of defendants. - Where an officer makes an unauthorized and wrongful levy upon the property of another, the officer and any others who procure such a seizure are liable as joint trespassers, in which event the aggrieved party may bring suit against any one or all of such wrongdoers, according to the aggrieved party's election. Personal Fin. Co. v. Evans, 45 Ga. App. 53 , 163 S.E. 250 (1932).

Failure to allege type of homestead. - A petition under O.C.G.A. § 44-13-108 may constitute an adequate basis for the admission of evidence of the fact of a valid exemption if the allegations imply a valid homestead even though it may not appear which kind of homestead has been obtained. Personal Fin. Co. v. Evans, 45 Ga. App. 53 , 163 S.E. 250 (1932).

Collateral attack. - Under O.C.G.A. § 44-13-108 where property levied on is claimed to be exempt as a "pony homestead," the validity of the exemption may be collaterally attacked. Marcrum v. Washington, 109 Ga. 296 , 34 S.E. 585 (1899).

Cited in Southall v. Blount, 182 Ga. 368 , 185 S.E. 321 (1936).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Exemptions, § 141. 40 Am. Jur. 2d, Homesteads, § 104.

C.J.S. - 40 C.J.S., Homesteads, § 139.

ALR. - Availability of judgment under which exempt property has been seized as a set-off or counterclaim against claim based on wrongful seizure, 20 A.L.R. 276 .

ARTICLE 3 DOMESTICATED JUDGMENT

Effective date. - This article became effective July 1, 2004.

44-13-120. Rights of Georgia residents.

As against a domesticated judgment from another state, a judgment debtor resident in Georgia shall be entitled to assert, in addition to any other exemption under Georgia law, an exemption from levy and sale and any other process equal to the exemption which would be provided to the judgment debtor by the law of the state in which the judgment was entered if the judgment debtor were a resident of that state.

(Code 1981, § 44-13-120 , enacted by Ga. L. 2004, p. 451, § 1.)

CHAPTER 14 MORTGAGES, CONVEYANCES TO SECURE DEBT, AND LIENS

Article 1

In General.

Article 2

Mortgages.

Article 3

Conveyances to Secure Debt

and Bills of Sale.

Part 1

I N GENERAL .

Part 2

R EVERSION .

Article 4

Security Agreements Relating

to Crops.

Article 5

Trust Deeds.

Article 6

Expiration and Extension of

Instruments Affecting

Personalty.

Article 7

Foreclosure.

Part 1

I N GENERAL .

Part 2

F ORECLOSURE ON MORTGAGES .

Part 3

Foreclosure of Deeds to Secure

Debt, Purchase Contracts,

and Bonds for Title.

Part 4

F ORECLOSURES ON PERSONALTY .

Subpart 1

In General.

Subpart 2

Foreclosures Arising out of

Commercial Transactions.

Subpart 3

Foreclosures on Bills of Sale or

Contracts Retaining Title.

Subpart 4

Foreclosures in Magistrate Court.

Article 8

Liens.

Part 1

I N GENERAL .

Part 2

L ANDLORDS .

Part 3

M ECHANICS AND MATERIALMEN .

Part 4

L ABORERS .

Part 5

Pawnbrokers, Factors, Bailees,

Acceptors, and Depositories.

Part 6

J EWELERS .

Part 7

L AUNDRIES, CLEANERS, AND TAILORS .

Part 7A

R EPAIR OF EQUIPMENT .

Part 8

H OSPITALS AND NURSING HOMES .

Part 9

V ETERINARIANS AND BOARDERS OF ANIMALS .

Part 10

M ISCELLANEOUS LIENS .

Part 11

F ORECLOSURE OF LIENS ON REALTY .

Part 12

F ORECLOSURE OF LIENS ON PERSONALTY .

Part 13

Registration of Liens for

Federal Taxes.

Part 14

B ANKRUPTCY PROCEEDINGS .

Part 15

C OMMERCIAL REAL ESTATE BROKER LIENS .

Article 9

Lis Pendens.

Cross references. - Secured transactions generally, Art. 9, T. 11.

Priority of tax liens, § 48-2-56 .

Editor's notes. - Ga. L. 1963, p. 188, § 39 provides that Chs. 1, 11, 13, and 14 of Code 1933, T. 67 (now codified primarily at this chapter) shall yield to and be superseded by any conflicting provisions of Code 1933, T. 109A (codified at Code 1981, T. 11).

Law reviews. - For article discussing 1976 to 1977 developments in mortgage law, see 29 Mercer L. Rev. 219 (1977).

JUDICIAL DECISIONS

Foreclosure by bondholder notwithstanding contrary trust indenture provisions. - Where, under a trust indenture to secure certain bonds, the exclusive right to accelerate and declare the bond issue due on account of defaults is vested in the trustee, and where it is further provided in the trust indentures that the bonds cannot be declared due by the bondholders thereof except upon a written request by the holders of an interest of at least 25 percent of the bonds outstanding, the holder of bonds of less than this amount cannot proceed in the bondholder's own name to foreclose the bonds personally held. Varner v. Atlanta Laundries, Inc., 182 Ga. 148 , 184 S.E. 877 (1936).

Foreclosure of lien on mare. - Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56 to colt possessors in a tortious interference with a contract claim by a horse trainer, wherein the trainer alleged that the trainer had a contract to keep the recently born colt in exchange for continued services to the mare's owner; the court found that there was no showing that the possessors were aware of a contract regarding the ownership of the colt, the possessors had followed the necessary procedures for filing a financing statement under O.C.G.A. § 11-9-501 et seq., they had allegedly foreclosed on their lien on the mare by the time that they became aware of the trainer's claim, pursuant to O.C.G.A. § 44-14-490 , and the trainer did not record a lien against the colt pursuant to O.C.G.A. § 44-14-511 . Medlin v. Morganstern, 268 Ga. App. 116 , 601 S.E.2d 359 (2004).

RESEARCH REFERENCES

Warranty Deed Intended as Mortgage, 4 POF2d 567.

Proof That Grantor Intended Deed as Mortgage, 79 POF3d 109.

Prospective Purchaser's Recovery of Damages for Tortuous Interference with Real Estate Contract, 97 Am. Jur. Trials 107.

Real Estate Broker's Breach of Fiduciary Duty to Disclose Material Facts to Seller-Principal, 101 Am. Jur. Trials 1.

ALR. - Duty to notify mortgagor who has parted with title to mortgaged real property of proceedings to enforce prior lien, 6 A.L.R. 499 .

Rights and duties as between owner of land and owner of timber or of minerals in place as regards liens covering both interests, 26 A.L.R. 1031 .

Protection of mortgagor or owner of mortgaged property, on foreclosure sale, by fixing upset or minimum price, requiring credit of specified amount on mortgage debt, or denying or limiting amount of deficiency judgment, 85 A.L.R. 1480 .

Admissibility of admissions against title to tangible personal property made by one subsequent to executing chattel mortgage thereon, 106 A.L.R. 1296 .

Attachment, garnishment, execution, or similar process in action on note or bond, not resulting in sale of mortgaged property, as precluding foreclosure of real-estate mortgage, 37 A.L.R.2d 959.

Necessity and sufficiency of tender of payment by one seeking to redeem property from mortgage foreclosure, 80 A.L.R.2d 1317.

ARTICLE 1 IN GENERAL

44-14-1. Operation of "open-end" clauses; limited to ex contractu obligations between parties.

  1. As used in this Code section, the term "original party" means, without limitation, any bank, trust company, or other corporation into which the grantee of any real estate mortgage or deed conveying realty as security for a debt shall be merged or consolidated. In addition to the foregoing, the term "original party," as used in this Code section, shall also include, without limitation, any bank, trust company, or other corporation, whether organized and existing under the laws of the United States or this state, into which the grantee of any real estate mortgage or deed conveying realty as security for a debt shall be converted.
  2. Except as provided in subsection (c) of this Code section, the operation of "open-end" clauses contained in real estate mortgages or deeds conveying realty as security for a debt, which clauses provide that, in addition to securing the debt named or described in the instrument, such instruments or the property thereby conveyed shall also secure any other debt or obligation that may be or become owing by the mortgagor or grantor, is limited to other debts or obligations arising ex contractu, as distinguished from those arising ex delicto, between the original parties to the security instrument.
  3. A transferee or assignee of an original party to a home equity line of credit agreement or contract who makes additional advances or disbursements on a home equity line of credit shall have the benefit of the security under the deed if the disbursements, made after the assignment, were authorized by the original parties to the home equity line of credit agreement or contract.

    (Ga. L. 1958, p. 655, § 1; Ga. L. 1978, p. 1705, § 4; Ga. L. 1980, p. 1550, § 1; Ga. L. 1980, p. 1765, § 1; Ga. L. 1997, p. 712, § 1; Ga. L. 1998, p. 128, § 44.)

Cross references. - Ambiguous terms and rules of construction of instruments, § 11-3-118 .

Strict construction of powers of sale in deeds of trust, mortgages, and other instruments, § 23-2-114 .

Editor's notes. - Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

Law reviews. - For note discussing how an open-end or dragnet clause within a deed to secure debt ensnares subsequent purchasers of real property, in light of Commercial Bank v. Readd, 240 Ga. 519 , 242 S.E.2d 25 (1978), see 30 Mercer L. Rev. 363 (1978).

JUDICIAL DECISIONS

Federal tax liens. - Since a federal tax lien is wholly a creature of federal law, the consequences of a lien that attaches to property interests, e.g., priority determinations, are matters of federal law; consequently, it is federal law which provides for the priority and validity of federal tax liens, not Georgia law. United States ex rel. IRS v. Georgia Bank & Trust Co. (In re Littleton), 177 Bankr. 407 (Bankr. S.D. Ga. 1995).

O.C.G.A. § 44-14-1 is not vague, uncertain or indefinite. - O.C.G.A. § 44-14-1 is not so vague, indefinite and uncertain as to be null, void and of no effect. The purpose and meaning of the words employed are neither vague, indefinite or uncertain. Hill v. Perkins, 218 Ga. 354 , 127 S.E.2d 909 (1962).

Variance between title and subject matter of Ga. L. 1958, p. 655 not unconstitutional. - O.C.G.A. § 44-14-1 is not unconstitutional under Ga. Const. 1945, Art. III, Sec. VII, Para. VIII (see, now, Ga. Const. 1983, Art. III, Sec. V, Para. III) because the title of Ga. L. 1958, p. 655 is broader than the body of subject matter. Hill v. Perkins, 218 Ga. 354 , 127 S.E.2d 909 (1962).

Section does not grant unconstitutional privileges and immunities to mortgagors. - O.C.G.A. § 44-14-1 is not unconstitutional under Ga. Const. 1945, Art. I, Sec. III, Para. II (see, now, Ga. Const. 1983, Art. I, Sec. I, Para. X) and Ga. Const. 1945, Art. I, Sec. I, Para. II, (see, now, Ga. Const. 1983, Art. I, Sec. I, Para. II) as granting special privileges and immunities to mortgagors at the expense of mortgagees. Hill v. Perkins, 218 Ga. 354 , 127 S.E.2d 909 (1962).

Limitation on dragnet clauses. - O.C.G.A. § 44-14-1 authorizes dragnet clauses but limits their effectiveness to ex contractu debts between original parties to such security instrument. Willis v. Rabun County Bank, 249 Ga. 493 , 291 S.E.2d 715 (1982).

Dragnet clause contained in the deed to secure debt did not secure subsequent individual debts of debtors. In re Felker, 181 Bankr. 1017 (Bankr. M.D. Ga. 1995).

In distributing insurance proceeds following the postpetition destruction of Chapter 13 debtors' home, a dragnet clause in the security agreement did not preclude the bank from retaining amounts owed on the debtors' prior notes under O.C.G.A. § 44-14-1(b) . The security deed demonstrated a clear intent for the real estate to secure the individual liabilities of the debtors. In re Ryles, 457 Bankr. 138 (Bankr. M.D. Ga. 2011).

Section inapplicable to security deeds executed before March 25, 1958. - The provisions of O.C.G.A. § 44-14-1 confining the operation of open-end clauses do not apply to a security deed executed before March 25, 1958. Poole v. Smith, 226 Ga. 259 , 174 S.E.2d 430 (1970).

Phrase "original parties" simply means that dragnet clause in security deed limits operation of security deed to debts of parties to security deed. Willis v. Rabun County Bank, 249 Ga. 493 , 291 S.E.2d 715 (1982).

Bank resulting from a merger is an original party, within the meaning of O.C.G.A. § 44-14-1 , to a security deed executed to one of the merging banks and, accordingly, can enforce an open-end clause in such a deed. Georgia R.R. Bank & Trust Co. v. McCullough, 241 Ga. 456 , 246 S.E.2d 313 (1978).

A merged bank is considered an original party to the security instruments of its constituent banks; they do not lose their existences in the merger, merely their identities. Guthrie v. Bank S., 195 Ga. App. 123 , 393 S.E.2d 60 (1990).

Merged bank cannot retroactively secure loan. - Although O.C.G.A. § 44-14-1(a) provides that the term "original party" includes merged banks, a merger following a loan will not operate to secure that loan with the open end provisions of an earlier instrument granted to one of the predessor banks, and the merged bank cannot use the later merger to retroactively secure a loan it has already made. United States ex rel. IRS v. Georgia Bank & Trust Co. (In re Littleton), 177 Bankr. 407 (Bankr. S.D. Ga. 1995).

Duration of deeds with open-end or dragnet clauses. - Deeds to secure debt with open-end or dragnet clauses continue to be effective so long as there exists indebtedness between the grantor and the grantee. Citizens & S. DeKalb Bank v. Hicks, 232 Ga. 244 , 206 S.E.2d 22 (1974).

A security deed containing an open-end or dragnet clause will continue to be effective so long as an indebtedness arising out of contract between the original parties to the deed continuously exists from the deed's date. Brinson v. McMillan, 263 Ga. 802 , 440 S.E.2d 22 (1994).

Determination that a payment was intended to satisfy the total debt of debtors required a determination that a security deed was satisfied upon the bank's loan closing and, although the security deed remained of record, the dragnet clause did not remain effective when the complete debt amount was satisfied. Regions Bank v. Wachovia Bank ( In re Goldberg), 248 Bankr. 201 (Bankr. S.D. Ga. 2000).

Lack of intent, at time of execution, to tack contract onto lien. - It is immaterial whether or not the parties to a contract of guaranty intended at the time of its execution that it be tacked onto the original lien, since this can be legally done under O.C.G.A. § 44-14-1 . Citizens & S. Nat'l Bank v. Gilbert, 130 Ga. App. 219 , 202 S.E.2d 718 (1973).

Extension of deed to cover other debts where it identifies a particular debt. - Where the deed to secure debt identifies a particular debt, it cannot be extended to cover other debts except by a new agreement between the parties, subject to the rules governing recording and priorities. Bob Parrott, Inc. v. First Palmetto Bank, 133 Ga. App. 447 , 211 S.E.2d 401 (1974).

Effect of provision in open-end clause applying security to subsequent parties. - Even if deed to secure debt contained an open-end clause which applied the security to subsequent debts, such a provision would operate only between original parties. FDIC v. Willis, 497 F. Supp. 272 (S.D. Ga. 1980).

Failure to satisfy untacked judgment from proceeds of foreclosure sale of security deed not a "deficiency" under O.C.G.A. § 44-14-161 . - When defendant-assignee was assigned a note that was in default and a security deed by defendant-assignor, the assignee's judgment, not being a contractual obligation, did not tack on to the note and become one obligation; since the judgment does not tack, the failure to satisfy the judgment from the proceeds of a foreclosure sale of the security deed under a power of sale contained therein does not constitute a "deficiency" within the meaning of O.C.G.A. § 44-14-161 . Cook v. F & M Bank, 247 Ga. 661 , 279 S.E.2d 199 (1981).

Indebtedness to transferees. - A transferee may not enforce under an open-end clause a new indebtedness between the transferee and an original party to the deed. FDIC v. Willis, 497 F. Supp. 272 (S.D. Ga. 1980).

A transferee of a security deed with an open-end provision cannot have the benefit of the security under the deed for prior indebtedness owing to the transferee or for additional advances to the maker beyond those provided in O.C.G.A. § 44-14-2 . Bowen v. Kicklighter, 124 Ga. App. 82 , 183 S.E.2d 10 (1971).

Open-end clauses regarding future advances valid. - Open-end or "dragnet" clauses regarding future advances in deeds to secure debt are valid and enforceable. Tedesco v. CDC Fed. Credit Union, 167 Ga. App. 337 , 306 S.E.2d 397 (1983).

Additional debt of one creditor cannot operate as a hook to grab a dragnet which carries with it property interests of party other than creditor in separate transaction. Willis v. Rabun County Bank, 249 Ga. 493 , 291 S.E.2d 715 (1982).

Individual debt of one of parties executing deed. - Where the "grantor" consisted of three individuals who executed the security deed, a note signed by only one of them for a personal debt was not an indebtedness of the grantor within the meaning of the security deed. Americus Fin. Co. v. Wilson, 189 Ga. 635 , 7 S.E.2d 259 (1940).

Where "first parties" as used in a security deed referred to two individuals, a promissory note signed by one of them and a third party was not an indebtedness of the "first parties" within the meaning of the deed to secure debt. Bank of LaFayette v. Giles, 208 Ga. 674 , 69 S.E.2d 78 (1952).

Where both the husband and wife were designated in a deed to secure debt by singular number as "party of the first part," the individual debt owed to the bank by the husband alone was not the debt of the "party of the first part," which fell within the operation of the deed's dragnet clause. Cordele Banking Co. v. Powers, 217 Ga. 616 , 124 S.E.2d 275 (1962).

Where in security deed two parties were designated as "party of the first part" and the open-end clause provided that the deed was to secure not only the debt stated in the deed but any other debt thereafter owing to the defendant "by party of first part," the individual indebtedness of one of the parties to the defendant was not the debt of the "party of the first part," the two parties, and did not fall within the open-end clause of the security deed. Hill v. Perkins, 218 Ga. 354 , 127 S.E.2d 909 (1962).

Individual loan to one of several grantors is included under dragnet clause of original deed to secure debt where it is clear from the language of the deed that "grantor" included either the plural or the singular grantors, and where it is established that all the parties to the contract at all times intended that any later obligations incurred by one of the grantors alone would be fully secured by the original jointly and severally executed instrument. Sutton v. Atlantic Bank & Trust Co., 167 Ga. App. 861 , 307 S.E.2d 746 (1983).

Successor corporation. - Dragnet clause in security agreement on house that husband and wife executed to third party to secure loan to husband's corporation was effective to bring debt of successor corporation, which both assumed prior debt and obtained new debt, within security agreement where wife signed hypothecation agreement with third party authorizing corporation to pledge house as collateral and even though wife was never personally liable for a debt to the third party. Fleming v. First Am. Bank & Trust Co., 171 Ga. App. 295 , 319 S.E.2d 119 (1984).

Cancellation of open-end claused deeds. - A deed to secure debt with an "open-end" clause is not cancelled immediately upon payment of the initial debt. Tedesco v. CDC Fed. Credit Union, 167 Ga. App. 337 , 306 S.E.2d 397 (1983).

Effectiveness of "open-end" clause. - Plaintiff's failure to provide actual notice of plaintiff's own subsequent security deed to the defendant sustained the effectiveness of the "open-end" clause contained in defendant's first security deed, blocking plaintiff's efforts to limit defendant's recovery to the original debt. First Nat'l Bank v. Charuhas, 207 Ga. App. 333 , 427 S.E.2d 831 (1993).

Merger of debts. - The open end or dragnet clause in the first note effectively merged the two debts into one debt for foreclosure; such a clause merges the debt secured by the second note into the debt secured by the first note to the extent that it satisfies the requirements of O.C.G.A. § 44-14-1 and the notes were secured by the same property. Oakvale Rd. Assocs. v. Mortgage Recovery, 231 Ga. App. 414 , 499 S.E.2d 404 (1998).

Cited in Reisman v. Jacobs, 107 Ga. App. 200 , 129 S.E.2d 338 (1962); Pacific Ins. Co. v. R.L. Kimsey Cotton Co., 114 Ga. App. 411 , 151 S.E.2d 541 (1966); Shaw v. Walter E. Heller & Co., 385 F.2d 353 (5th Cir. 1967); Courson v. Atkinson & Griffin, Inc., 230 Ga. 643 , 198 S.E.2d 675 (1973); Hamlin v. Timberlake Grocery Co., 130 Ga. App. 648 , 204 S.E.2d 442 (1974); Vaughn & Co. v. Saul, 143 Ga. App. 74 , 237 S.E.2d 622 (1977); Mason v. Bates, 251 Ga. 241 , 304 S.E.2d 724 (1983).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 69 et seq.

C.J.S. - 59 C.J.S., Mortgages, § 157 et seq.

ALR. - Debts included in provision of mortgage purporting to cover all future and existing debts (dragnet clause) - modern status, 3 A.L.R.4th 690.

44-14-2. What advances secured by mortgage or conveyance to secure debt; effect of recorded transfer of property subject to "open-end" clause; notice of transfer.

  1. Whether or not it contains clauses providing therefor, a real estate mortgage or deed conveying realty as security for a debt shall secure advances made:
    1. To pay taxes;
    2. To pay premiums on insurance on the property;
    3. To pay sums due to the holder of a deed to secure debt or lien on the property without which payment the secured position of the holder of the mortgage or deed to secure debt advancing such payment would be jeopardized;
    4. To repair, maintain, or preserve the property; and
    5. To complete improvements on the property,

      whether such advances were made by the original owner or by any subsequent owner of the mortgage or deed to secure debt and whether the property is still owned by the original mortgagor or grantor or is owned by a subsequent purchaser of such property. Such mortgage or deed to secure debt shall secure all expenses incident to the collection of the debt thereby secured and the foreclosure thereof by an action in any court or by the exercise of the power of sale therein contained.

  2. Except for the advances set out in subsection (a) of this Code section, any extension of credit to the mortgagor or grantor after July 1, 1980, as to any debt or obligation arising subsequent to the actual notice of transfer of property or any valuable interest therein as provided in this subsection shall not be secured by virtue of the operation of an "open-end" clause described in Code Section 44-14-1 if the grantor of the instrument containing the "open-end" clause has transferred the property subject to such instrument or has transferred any valuable interest in such property and if the instrument effecting such transfer has been filed for record and actual notice of such transfer has been given to the holder of such instrument. In addition to other means of furnishing actual notice and for the purpose of this subsection, actual notice shall be deemed to have been given to the holder of such instrument upon evidence that:
    1. A properly stamped envelope which contained a copy of the recorded transfer and was addressed to the holder at its principal office was placed in the United States mail for registered or certified delivery and that the holder or an officer, agent, employee, or representative of the holder acknowledged receipt thereof on a United States Postal Service return receipt form for registered or certified mail delivery; or
    2. The recorded transfer was sent to the holder at its principal office by statutory overnight delivery and a receipt therefor obtained as provided in Code Section 9-10-12.
  3. Notwithstanding subsections (a) and (b) of this Code section and the occurrence of any of the events, acts, or conditions described therein, a real estate mortgage or deed conveying realty as security for a debt shall continue to secure any debt or obligation named or described therein and any advance permitted by this Code section.

    (Ga. L. 1980, p. 1550, § 2; Ga. L. 1982, p. 3, § 44; Ga. L. 2000, p. 1589, § 12.)

The 2000 amendment, effective July 1, 2000, in subsection (b), inserted a colon following "instrument upon evidence that", designated the language following "instrument upon evidence that" as paragraph (1), and added paragraph (2).

Editor's notes. - Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflict with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the Act is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Advances made by the assignee of a junior security deed to the holder of a senior security deed, in order to protect the assignee's secured position, are secured by the junior security deed. Mason v. Bates, 251 Ga. 241 , 304 S.E.2d 724 (1983).

O.C.G.A. § 44-14-2 extends to costs incidental to foreclosure, but which do not grow out of a suit on the foreclosure proceeding itself. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978), aff'd, 620 F.2d 508 (5th Cir. 1980).

Advertising costs of foreclosure sales are ordinarily recoverable. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978), aff'd, 620 F.2d 508 (5th Cir. 1980).

Notice required for collection of attorney's fees. - A provision in a security deed in respect to collection of attorney's fees does not dispense with the notice required by O.C.G.A. § 13-1-11 to collect such fees. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978), aff'd, 620 F.2d 508 (5th Cir. 1980).

Cost of removal of a complaint to federal district court is not taxable against a mortgagee, under O.C.G.A. § 44-14-2 . Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978), aff'd, 620 F.2d 508 (5th Cir. 1980).

Costs of bankruptcy proceedings filed with intent to hinder or delay. - An award of costs and expenses by the court is allowed in a case where an insolvent mortgagor files a bankruptcy proceeding with the intent to hinder and delay the mortgagee in foreclosing the security deed. The mortgagee must appear therein to protect the mortgagee's right to the exercise of the power of sale. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978), aff'd, 620 F.2d 508 (5th Cir. 1980).

Duty to keep expenses of sale within reason. - It is the duty of a mortgagee in conducting sale under a power contained in a security deed or mortgage to keep the expenses of collection within reasonable bounds. Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978), aff'd, 620 F.2d 508 (5th Cir. 1980).

Burden of showing actual notice received not met. - Debtors failed to carry their burden of demonstrating that the debt fell within the scope of O.C.G.A. § 44-14-2(b) where there was no evidence that any debt was incurred after the bank received notice of insurance coverage showing the existence of a second mortgage. In re Felker, 181 Bankr. 1017 (Bankr. M.D. Ga. 1995).

Cited in Citizens Fed. Sav. & Loan Ass'n v. Andrews, 114 Ga. App. 94 , 150 S.E.2d 301 (1966).

OPINIONS OF THE ATTORNEY GENERAL

Application of O.C.G.A. § 44-14-2(b) to "open-end" clauses in security deeds executed prior to July 1, 1980, cannot be assured, because such application arguably would impair obligation of contracts in violation of constitutional guarantees. 1981 Op. Att'y Gen. No. 81-98.

Application of phrase "transfer of property or any valuable interest therein." - Phrase "transfer of property or any valuable interest therein" seems clearly to refer to situation where equity owner of encumbered property transfers some or all of the equity owner's interest subject to first security deed. In this situation, O.C.G.A. § 44-14-2(b) protects purchaser of equity from loss in event original owner borrows more money from first security deed holder. 1981 Op. Att'y Gen. No. 81-98.

Phrase "transfer of property or any valuable interest therein" would appear also to refer to a secondary security deed conveyance, because a secondary security deed unquestionably conveys a valuable interest in property. 1981 Op. Att'y Gen. No. 81-98.

Department of Banking and Finance in its examinations should not regard debt secured by secondary security deed as being senior to debts under "open-end" clause in first security deed executed prior to July 1, 1980, unless holder of first security deed has agreed that subsequent advances will not be senior to secondary security deed indebtedness. 1981 Op. Att'y Gen. No. 81-98.

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, §§ 65 et seq., 83 et seq.

C.J.S. - 59 C.J.S., Mortgages, § 154 et seq.

ALR. - Application of insurance moneys received by mortgagee, 11 A.L.R. 1295 .

Duty of mortgagee, or one holding title as security, to protect the interests of third persons in respect to insurance, 41 A.L.R. 1283 ; 130 A.L.R. 598 .

Right of mortgagee to benefit of insurance taken out by purchaser of equity of redemption, 47 A.L.R. 1011 .

Liability of mortgagee under mortgage clause for insurance premium, 47 A.L.R. 1126 ; 56 A.L.R. 679 ; 83 A.L.R. 105 .

Right of mortgagee to be reimbursed for, or credited with, amount of taxes paid by him after judgment, but before sale, 60 A.L.R. 425 .

Validity, construction, applicability, and effect of provision in real estate mortgage regarding payment of taxes or assessments by mortgagee, 74 A.L.R. 506 .

Adjustment of loss by agreement between mortgagor and insurer as affecting mortgagee under loss-payable clause, 111 A.L.R. 697 .

Independent contract theory or creditor-beneficiary theory as regards status of mortgagee under mortgage clause in policy fire insurance, 124 A.L.R. 1034 .

Optional advance under mortgage as subject to lien intervening between giving of the mortgage and making the advance, 138 A.L.R. 566 .

Limit of amount specified in mortgage for future advances as affected by repayment of part of the advances, 152 A.L.R. 566 .

Priority between mechanics' liens and advances made under previously executed mortgage, 80 A.L.R.2d 179.

Rights in funds representing "escrow" payments made by mortgagor in advance to cover taxes or insurance, 50 A.L.R.3d 697.

Failure to keep up insurance as justifying foreclosure under acceleration provision in mortgage or deed of trust, 69 A.L.R.3d 774.

Debts included in provision of mortgage purporting to cover all future and existing debts (dragnet clause) - modern status, 3 A.L.R.4th 690.

44-14-3. Furnishing of cancellation by grantee or holder upon payment; liability for failure to comply; cancellation of instrument after failure to comply; liability of agents.

  1. As used in this Code section, the term:
    1. "Account" means the loan, note, or other such agreement executed by the parties.
    2. "Finance charge" means interest and other charges agreed to by the parties.
    3. "Grantee" means heirs, devisees, executors, administrators, successors, transferees or assigns, and any servicing agent or any person or entity to whom indebtedness is paid on behalf of or by any grantor.
    4. "Grantor" means heirs, devisees, executors, administrators, successors, transferees, or assigns.
    5. "Instrument" means a deed to secure debt, a security instrument, a purchase money mortgage, a financing statement, a personalty mortgage, a loan contract, or other instrument executed in connection with any loan.
    6. "Revolving loan account" means an arrangement between a lender and a debtor for the creation of debt pursuant to an agreement secured by an instrument and under which:
      1. The lender may permit the debtor to create debt from time to time;
      2. The unpaid balances of principal of such debt and the loan finance and other appropriate charges are debited to an account;
      3. A loan finance charge is computed on the outstanding balances of the debtor's account from time to time;
      4. The debtor agrees to repay the debt and accrued finance charges in accordance with the written agreement with the lender; and
      5. The limitation on the maximum amount which the debtor is entitled to become indebted under said arrangement between the lender and debtor is stated on the face of the instrument, and said amount shall be deemed to be notice of the maximum amount secured by the instrument.
    1. Whenever the indebtedness secured by any instrument is paid in full, the grantee or holder of the instrument, within 60 days of the date of the full payment, shall cause to be mailed to the grantor, at the grantor's last known address as shown on the records of the grantee or holder of the instrument, written notice of the grantee's or holder of the instrument's transmittal of notice of satisfaction or cancellation as required by this subsection and notice of the grantor's right to demand payment of $500.00 in liquidated damages from the grantee or holder of the instrument if such obligation is not timely met.
    2. Whenever the indebtedness secured by any instrument is paid in full, the grantee or holder of the instrument, within 60 days of the date of the full payment, shall cause to be furnished to the clerk of the superior court of the county or counties in which the instrument is recorded a legally sufficient satisfaction or cancellation to authorize and direct the clerk or clerks to cancel the instrument of record. The grantee or holder of the instrument shall further direct the clerk of the court to transmit to the grantor the original cancellation or satisfaction document at the grantor's last known address as shown on the records of the grantee or holder of the instrument. In the case of a revolving loan account, the debt shall be considered to be "paid in full" only when the entire indebtedness including accrued finance charges has been paid and the lender or debtor has notified the other party to the agreement in writing that he or she wishes to terminate the agreement pursuant to its terms.
    3. Notwithstanding paragraph (2) of this subsection, if an attorney at law remits the pay-off balance of an instrument to a grantee or holder of the instrument on behalf of a grantor, the grantee or holder of the instrument may direct the clerk of the court to transmit to such attorney the original cancellation or satisfaction document.
    4. A grantee or holder of the instrument shall be authorized to add to the pay-off amount the costs of recording a cancellation or satisfaction of an instrument.
    1. Upon the failure of the grantee or holder of the instrument to transmit a legally sufficient satisfaction or cancellation as required by subsection (b) of this Code section, the grantee or holder of the instrument shall be liable to the grantor for the sum of $500.00 as liquidated damages and such additional sums for any loss caused to the grantor, plus reasonable attorney's fees if the grantor makes a written demand for liquidated damages to the grantee or holder of the instrument before transmittal, but not less than 61 days after the instrument is paid in full, and prior to filing a civil action.
    2. The grantee or holder of the instrument shall not be liable to the grantor if he or she demonstrates reasonable inability to comply with subsection (b) of this Code section; and the grantee or holder shall not be liable to the grantor unless and until a written demand for the liquidated damages as provided in subsection (b) of this Code section is made. No settlement agent or attorney may take an assignment of the right to the $500.00 in liquidated damages.
    3. Except as provided in paragraph (1) of subsection (b) and paragraph (2) of subsection (c) of this Code section, no other provision of this Code section shall be construed so as to affect the obligation of the grantee or holder of the instrument to pay the liquidated damages provided for in this subsection.
    4. At least 15 business days prior to filing a civil action to recover liquidated damages, the grantor shall provide notice in writing to the grantee or holder of the instrument at the address where the grantee or holder of the instrument directs payments to be mailed with respect to the indebtedness secured by the instrument or, if such address is not available, at the address of the grantee or holder of the instrument's registered agent for service of process in Georgia stating that the grantee or holder of the instrument:
      1. Has failed to comply with the obligation required by this Code section;
      2. Owes the grantor liquidated damages in the amount of $500.00; and
      3. May be sued by the grantor for the failure to comply with the provisions of this Code section.
        1. A written verification which was given at the time of payment by the grantee or holder of record of the amount necessary to pay off such loan; and
        2. (A) Copies of the front and back of a canceled check to the grantee or holder of record paying off such loan.
    5. If the grantee or holder of the instrument fails to provide written notice to the grantor regarding the grantee's or holder of the instrument's obligation for transmittal as provided in paragraph (1) of subsection (b) of this Code section, the grantor may file a civil action at any time more than 60 days after the grantee's or holder of the instrument's receipt of full payment.

      (B) Confirmation of a wire transfer to the grantee or holder of record paying off such loan.

      (C) A bank receipt showing payment to the grantee or holder of record of such loan.

      Any person who files an affidavit in accordance with this subsection which affidavit is fraudulent shall be guilty of a felony and shall be punished by imprisonment for not less than one year nor more than three years or by a fine of not less than $1,000.00 nor more than $5,000.00, or both.

    (c.1) In the event that a grantee or holder of record has failed to transmit properly a legally sufficient satisfaction or cancellation to authorize and direct the clerk or clerks to cancel the instrument of record within 60 days after a written notice mailed to such grantee or holder of record by registered or certified mail or statutory overnight delivery, return receipt requested, the clerk or clerks are authorized and directed to cancel the instrument upon recording an affidavit by an attorney who has caused the secured indebtedness to be paid in full or by an officer of a regulated or chartered financial institution whose deposits are federally insured if that financial institution has paid the secured indebtedness in full. The notice to be mailed to the grantee or holder of record shall identify the indebtedness and include a recital or explanation of this subsection. The affidavit shall include a recital of actions taken to comply with this subsection. Such affidavit shall include as attachments the following items:

  4. In all cases, any servicing agent or any person or entity to whom the indebtedness is paid on behalf of any grantee shall be responsible for notifying the holder thereof upon payment in full and for securing the satisfaction or cancellation as provided in this Code section; and, upon failure to do so, the servicing agent or payee shall be subject to the same liability as provided in this Code section.

    (Ga. L. 1975, p. 1134, §§ 1, 2; Ga. L. 1983, p. 677, § 1; Ga. L. 1984, p. 22, § 44; Ga. L. 1986, p. 754, § 1; Ga. L. 1987, p. 3, § 44; Ga. L. 1991, p. 413, §§ 1, 2; Ga. L. 1998, p. 545, § 1; Ga. L. 1999, p. 862, §§ 2, 3; Ga. L. 2000, p. 136, § 44; Ga. L. 2000, p. 1589, § 3; Ga. L. 2008, p. 352, § 1/HB 1093.)

The 2000 amendments. The first 2000 amendment, effective March 16, 2000, part of an Act to revise, modernize, and correct the Code, in subsection (c.1), substituted a period for a semicolon at the end of subparagraph (c.1)(2)(A) and substituted a period for "; or" at the end of subparagraph (c.1)(2)(B). The second 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the first sentence of the introductory language in subsection (c.1).

The 2008 amendment, effective May 12, 2008, inserted "of the instrument" throughout subsections (b) and (c); in subsection (b), added paragraph (b)(1), redesignated former paragraphs (b)(1) through (b)(3) as present paragraphs (b)(2) through (b)(4), respectively, in paragraph (b)(2), inserted "or she" near the end of the last sentence, and, in paragraph (b)(3), substituted "paragraph (2)" for "paragraph (1)"; and rewrote subsection (c). See the Editor's note for applicability.

Editor's notes. - Ga. L. 1991, p. 413, § 3, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 1991, and shall be applicable to any written demand for the transmittal of a cancellation or satisfaction made pursuant to the provisions of Code Section 44-14-3 of the Official Code of Georgia Annotated occurring on or after July 1, 1991."

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the Act is applicable with respect to notices delivered on or after July 1, 2000.

Ga. L. 2008, p. 352, § 2, not codified by the General Assembly, provides, in part, that a demand for liquidated damages made before May 12, 2008 shall be governed by the provisions of former Code Section 44-14-3.

Law reviews. - For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986). For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). For note, "The Great Escape: How One Plaintiff's Sidestep of a Mandatory Arbitration Clause Was Applied to a Class in Bickerstaff v. SunTrust Bank," see 68 Mercer L. Rev. 539 (2017).

JUDICIAL DECISIONS

Statutory obligation to cancel satisfied notes. - Trial court correctly ordered that security deed be satisfied and canceled of record as the uncontroverted evidence was that the different former property owner paid the different former property owner's debt to the security deed holder but the security deed holder never canceled the security deed; however, once the security deed was satisfied, the security deed holder had a statutory obligation to cancel that instrument. Lebbos v. Davis, 256 Ga. App. 1 , 567 S.E.2d 345 (2002).

The trial court, having found a debt to have been forgiven upon a decedent's death, did not err in ordering the decedent's administrator to cancel a deed to secure debt. The litigation did not give notice to the public that the deed had been cancelled; under O.C.G.A. §§ 44-14-3(b) and 44-14-60 , a grantee of a security deed had the duty to cancel the deed of record when the obligation was satisfied. Mize v. Woodall, 291 Ga. App. 349 , 662 S.E.2d 178 (2008).

Lender improperly removed a borrower's action under 28 U.S.C. §§ 1446(b) and 1453(a) because the lender failed to meet its burden to establish that the number of borrowers who paid off their loans and whose security deeds were not timely cancelled under former O.C.G.A. § 44-14-3(b) met the requirements of the Class Action Fairness Act of 2005, making remand necessary under 28 U.S.C. § 1447(c). Stroh v. Colonial Bank, N.A., F. Supp. 2d (M.D. Ga. Nov. 4, 2008).

In a dispute between two siblings and their brother's widow, arising out of the brother's purchase and mortgage of a home for a third sibling, the title of which was in the names of the two siblings and the brother, the trial court erred in ruling that the siblings were not entitled to cancellation or satisfaction of the loan documents after the widow paid the amounts due on the mortgage because the estate had a duty to pay the amount due as the brother was the only obligor on the mortgage. Roberts v. Smith, 341 Ga. App. 823 , 801 S.E.2d 915 (2017).

Application of definition of grantee. - After Chapter 7 debtor executed a note to a lender and also executed a security deed to a grantee, as lender's nominee, to secure the debt, the grantee was not a grantee, within the meaning of O.C.G.A. § 44-14-3(a) , because the definition of "grantee" in § 44-14-3(a) did not apply to any other Code section. Drake v. Citizens Bank (In re Corley), 447 Bankr. 375 (Bankr. S.D. Ga. 2011).

Standing was in new purchaser of property. - Former property owner lacked standing to bring an action for statutory damages and attorney fees under O.C.G.A. § 44-14-3(c) against a lender that failed to cancel the lender's security deed on the property after receiving a payoff of the loan as the owner no longer had an interest in the property at the time that the complaint was filed and, accordingly, the owner was not the real party in interest under O.C.G.A. § 9-11-17(a) ; the new purchaser of the property became "the grantor" that had the capacity to prosecute the claim pursuant to § 44-14-3(a)(4). Associated Credit Union v. Pinto, 297 Ga. App. 605 , 677 S.E.2d 789 (2009).

Duty to inform grantee of manner by which debt satisfied. - Although no particular form of words is necessary when phrasing a demand under O.C.G.A. § 44-14-3(c) , when grantor relies upon payment of the debt in a manner other than that prescribed by the terms of the debt instrument, it is incumbent upon that grantor to inform the grantee of the exact manner by which the grantor claims the debt has been satisfied. Mitchell v. Oliver, 254 Ga. 112 , 327 S.E.2d 216 (1985).

Notice. - When a debtor paid a promissory note and demanded that the creditor record the note's satisfaction, the creditor's failure to do so fell squarely under O.C.G.A. § 44-14-3(c) , and the notice requirements found in O.C.G.A. § 44-14-3 (c.1) had no application, as (1) the two sections concerned different matters, (2) each had a distinct notice requirement, and (3) O.C.G.A. § 44-14-3(c) specifically provided that no other provision of O.C.G.A. § 44-14-3 was to be construed to limit a creditor's obligation to pay a debtor liquidated damages for violating O.C.G.A. § 44-14-3(c). Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236 , 620 S.E.2d 463 (2005).

"Honest doubt" concerning payment of debt. - Trial court properly granted creditor's motion for summary judgment upon debtor's claim for statutory penalties under O.C.G.A. § 44-14-3(c) , where creditor submitted facts demonstrating that it did not cancel the security deed within the 45-day time period because of an "honest doubt" concerning payment of the debt, and debtor presented no specific facts raising a genuine issue in this regard. Edenfield v. Trust Co. Mtg., 185 Ga. App. 678 , 365 S.E.2d 520 (1988).

Borrower waived and released its claim for violation. - Although a lender had failed to timely release two subdivision lots from its deed to secure debt as required by O.C.G.A. § 44-14-3 , the lender was not liable to the borrower because, after the lots sold, the borrower signed loan modification agreements releasing and waiving any claims it might have against the lender. Heritage Creek Dev. Corp. v. Colonial Bank, 268 Ga. App. 369 , 601 S.E.2d 842 (2004).

Demand for liquidated damages. - Because the borrower never specifically demanded liquidated damages, the borrower was not entitled to statutory damages for the lender's failure to timely cancel a security deed. Shree Annpurna, Inc. v. Udhwani, 255 Ga. App. 799 , 567 S.E.2d 42 (2002).

In an action for damages, O.C.G.A. § 9-11-8(a)(2)(B), part of the Civil Practice Act (CPA), requires a written demand in the complaint for the damages requested; thus, if a court were to interpret O.C.G.A. § 44-14-3(c) as permitting a demand for liquidated damages to be made in the complaint, the section would have no real meaning because the CPA already imposes such a requirement. Accordingly, if O.C.G.A. § 44-14-3(c) is to serve any real purpose, it must be construed as a requirement that a grantor make a written demand on the grantee for the liquidated damages as a condition precedent to creating the liability that serves as the basis for a lawsuit. SunTrust Bank v. Hightower, 291 Ga. App. 62 , 660 S.E.2d 745 (2008).

A complaint by a borrower against a lender for liquidated damages under O.C.G.A. § 44-14-3(c) should have been dismissed because the borrower failed to make a written demand for such damages before filing suit. If the statute was to serve any real purpose, the statute had to be construed as imposing such a requirement. SunTrust Bank v. Hightower, 291 Ga. App. 62 , 660 S.E.2d 745 (2008).

Penalties were appropriate where no justification existed for a bank's refusal to cancel a security deed on property. Regions Bank v. Wachovia Bank ( In re Goldberg), 248 Bankr. 201 (Bankr. S.D. Ga. 2000).

Attorney fees. - When a debtor paid a promissory note and demanded that the creditor record the note's satisfaction, but the creditor sued the debtor on the note four years later, the debtor was entitled to attorney fees, including fees incurred in defending against the creditor's action, which was directly related to the creditor's failure to comply with O.C.G.A. § 44-14-3(c) . Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236 , 620 S.E.2d 463 (2005).

Because the debtor and the investment company's defense of the creditor's action to quiet title was directly related to the creditor's refusal to comply with the creditor's obligation under O.C.G.A. § 44-14-3 to have the security deed cancelled, the trial court did not err when the court awarded the debtor attorney fees under the statute. CB Lending, LLC v. Strategic Property Consulting Group, LLC, 353 Ga. App. 114 , 834 S.E.2d 618 (2019).

Penalties were appropriate. - When a debtor paid a promissory note and gave the creditor a written demand to record the note's satisfaction, but, instead, the creditor sued the debtor on the note four years later, the creditor's actions and omissions fell squarely within O.C.G.A. § 44-14-3(c) , and it was liable to the debtor for statutory damages under that section. Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236 , 620 S.E.2d 463 (2005).

Cited in Green v. Cohutta Banking Co., 156 Ga. App. 292 , 274 S.E.2d 688 (1980); Lee v. Beneficial Fin. Co., 159 Ga. App. 205 , 282 S.E.2d 770 (1981); Dixon v. Cook Banking Co., 191 Ga. App. 861 , 383 S.E.2d 337 (1989); Stearns Bank, N.A. v. Mullins, 333 Ga. App. 369 , 776 S.E.2d 485 (2015), cert. denied sub nom. Hawkins v. Stearns Bank, N.A., No. S15C1827, 2015 Ga. LEXIS 855 (Ga. 2015), cert. denied, No. S15C1821, 2015 Ga. LEXIS 868 (Ga. 2015).

OPINIONS OF THE ATTORNEY GENERAL

Sufficiency of deed cancellation. - Under Ga. L. 1986, p. 754, amending O.C.G.A. §§ 44-14-3 and 44-14-67 dealing with deeds to secure debt and their cancellation, the release of corporate security interests in real property or security interests under the UCC, signed by an officer or delegated agent, as provided in O.C.G.A. § 14-5-7(b) , will continue to constitute conclusive evidence of corporate authorization for the release, and when the clerk is presented with such a release apparently so signed, in the absence of overt signs of impropriety, it should be accepted for recording. 1986 Op. Att'y Gen. No. 86-17.

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 475 et seq. 69 Am. Jur. 2d, Secured Transactions, § 426 et seq.

C.J.S. - 59 C.J.S., Mortgages, §§ 479, 483, 484.

ALR. - Requiring security as condition of canceling of record mortgage or lien, or of recording payment, 2 A.L.R.2d 1064.

Damages recoverable for real-estate mortgagee's refusal to discharge mortgage or give partial release therefrom, 8 A.L.R.4th 853.

44-14-4. Procedure for recording cancellation of mortgage.

Any mortgagor who has paid off his or her mortgage may present the paid mortgage to the clerk of the superior court of the county or counties in which the mortgage instrument is recorded, together with the order of the mortgagee or transferee directing that the mortgage be canceled. After payment of the fee authorized by law, the clerk shall index and record, in the same manner as the original mortgage instrument is recorded, the canceled and satisfied mortgage instrument or such portion thereof as bears the order of the mortgagee or transferee directing that the mortgage be canceled, together with any order of the mortgagee or transferee directing that the mortgage be canceled. The clerk shall show on the index of the cancellation and on the cancellation document the deed book and page number where the original mortgage instrument is recorded. The clerk shall manually or through electronic means record across the face of the mortgage instrument the words "satisfied" and "canceled" and the date of the entry and shall sign his or her name thereto officially. The clerk shall also manually or electronically make a notation on the record of the mortgage to indicate where the order of the cancellation is recorded.

(Ga. L. 1884-85, p. 129, §§ 1, 2; Civil Code 1895, §§ 2737, 2738; Civil Code 1910, §§ 3270, 3271; Code 1933, § 67-117; Ga. L. 1963, p. 276, § 1; Ga. L. 1989, p. 498, § 1; Ga. L. 2012, p. 173, § 1-36/HB 665.)

The 2012 amendment, effective July 1, 2012, inserted "or her" in the first sentence; in the fourth sentence, inserted "manually or through electronic means" near the beginning, and inserted "or her" near the end; and inserted "manually or electronically" in the last sentence.

Editor's notes. - Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

JUDICIAL DECISIONS

Cancellation need not be under seal. - There is no requirement that a cancellation of a mortgage should be under seal. Sims v. Scheussler, 5 Ga. App. 850 , 64 S.E. 99 (1909).

Priority of new security taken by mortgagee who surrenders original note and mortgage. - Where the mortgagee takes new security and enters upon the note and mortgage the word "satisfied," and surrenders them to the mortgagor, and the mortgage is duly canceled on the record, this amounts to an extinguishment of the mortgage, and the new security is inferior to an intervening mortgage on the same property, of which the first mortgagee had notice at the time the mortgagee canceled the mortgage and accepted the new security. Farkas v. Third Nat'l Bank, 133 Ga. 755 , 66 S.E. 926 , 26 L.R.A. (n.s.) 496 (1910).

Cancellation under mistake of fact, see Woodside v. Lippold, 113 Ga. 877 , 39 S.E. 400 , 84 Am. St. R. 267 (1901).

Good faith purchase at sale under power without notice of satisfaction of debt. - While a power of sale in a mortgage is extinguished by the payment of the debt the mortgage was given to secure, if the mortgagor fails to have the satisfaction of the debt entered of record and a sale is thereafter had under the power, one who purchases in good faith and for value at such sale, without notice of the fact of the satisfaction of the debt, will be protected in title. Garrett v. Crawford, 128 Ga. 519 , 57 S.E. 792 , 119 Am. St. R. 398 , 11 Ann. Cas. 167 (1907).

Effect of forged entry of satisfaction. - Where the mortgagor fraudulently substitutes a copy for the original, and forges an entry of satisfaction thereon and has it cancelled of record, it does not affect the mortgagee, even as to a bona fide purchaser. Luther v. Clay, 100 Ga. 236 , 28 S.E. 46 , 39 L.R.A. 95 (1897).

Liability of clerk for recording forged cancellation order. - When a mortgagor presents to a clerk an original mortgage of record and an order to the clerk, purporting to have been signed by the mortgagee, to cancel such mortgage on the record, and the clerk has no knowledge of the invalidity of the order, nor any reason to suspect the same, the act of recording the order does not render the clerk and the sureties on the clerk's official bond liable to a person injured by such entry, notwithstanding the order was forged. Luther v. Banks, 111 Ga. 374 , 36 S.E. 826 (1900).

Instrument containing no defeasance clause is a deed or bill of sale to secure debt. - A written instrument which by its terms passes title from the vendor to the vendee as security for a debt, and which contains no defeasance clause, is a deed or bill of sale to secure a debt, and is not a mortgage. The title conveyed thereunder does not automatically revert to the vendor upon the payment of the debt, but continues thereafter in the vendee, and is not divested until the performance of some act, as a reconveyance from the vendee to the vendor, or the cancellation and surrender of the instrument by the vendee as required by statute. Grady v. T.I. Harris, Inc., 41 Ga. App. 111 , 151 S.E. 829 (1930).

Cited in Ellis v. Ellis, 161 Ga. 360 , 130 S.E. 681 (1925); Blumenfeld v. Citizens Bank & Trust Co., 168 Ga. 327 , 147 S.E. 581 (1929); Investor's Syndicate v. Thompson, 172 Ga. 203 , 158 S.E. 20 (1931); Bank of LaFayette v. Giles, 208 Ga. 674 , 69 S.E.2d 78 (1952); Stearns Bank, N.A. v. Mullins, 333 Ga. App. 369 , 776 S.E.2d 485 (2015), cert. denied sub nom. Hawkins v. Stearns Bank, N.A., No. S15C1827, 2015 Ga. LEXIS 855 (Ga. 2015), cert. denied, No. S15C1821, 2015 Ga. LEXIS 868 (Ga. 2015).

OPINIONS OF THE ATTORNEY GENERAL

Recordation requirements. - When a paid mortgage or security deed is filed with an order of cancellation upon it, clerks of superior court may record the canceled instrument or only the part which bears the order; the part recorded should be sufficient to identify the transaction; clerks should index cancellations of security instruments with the name of the borrower (mortgagor) in the "grantee" index, make all notations required by statute in the indices and on the recordings, and charge a fee of $3.50, unless the cancellation is by new deed, in which case the fee for recording a deed should also be charged. 1989 Op. Att'y Gen. U89-19.

Cancellation of security deeds and writs of execution from record, see 1972 Op. Att'y Gen. No. U72-79.

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 430.

C.J.S. - 59 C.J.S., Mortgages, § 479.

ALR. - Rights in mortgage security, of mortgagor or intermediate grantee who pays the mortgage debt after conveying the property, 2 A.L.R. 242 .

Release of mortgagor (or intermediate grantee who has assumed the mortgage) by subsequent dealings between the mortgagor's grantee and mortgagee, 41 A.L.R. 277 ; 72 A.L.R. 389 ; 81 A.L.R. 1016 ; 112 A.L.R. 1324 .

Doctrine by inverse order of alienation as affected by release or part of property covered by mortgage or other lien, 110 A.L.R. 65 ; 131 A.L.R.4th 108.

Reacquisition by mortgagor, or his grantee, of the title through foreclosure of first mortgage as affecting rights under second mortgage to which the property was subject before the foreclosure, 111 A.L.R. 1285 .

Requiring security as condition of canceling of record mortgage or lien, or of recording payment, 2 A.L.R.2d 1064.

Construction and effect of real-estate mortgage clause providing for payment of a premium or additional sum if mortgagor prepays principal debt, 70 A.L.R.2d 1334.

Construction of provision in real-estate mortgage, land contract, or other security instrument for release of separate parcels of land as payments are made, 41 A.L.R.3d 7.

Damages recoverable for real-estate mortgagee's refusal to discharge mortgage or give partial release therefrom, 8 A.L.R.4th 853.

44-14-5. Practices prohibited in connection with certain residential real estate transactions.

  1. As used in this Code section, the term:
    1. "Borrower" means a person who has secured an indebtedness with a security interest in real property or a person who has taken an interest in real property subject to an outstanding security interest in the real property and has notified the holder of the security interest that he has taken the real property and assumed the indebtedness secured by the real property.
    2. "Lender" means a person who has a security interest in real property, which interest is evidenced by a security deed, a mortgage, a trust deed, a bond for title, or other security document granting a security interest in real property to secure an indebtedness owed to the lender.
    3. "Person" means any individual, firm, partnership, corporation, joint venture, association, company, agency, syndicate, estate, trust, business trust, receiver, fiduciary, or other group or combination or any other entity whatsoever.
  2. Subject to the limitations and exceptions provided in this Code section, any lender with a security interest in real estate shall not, directly or indirectly:
    1. Accelerate or mature the indebtedness secured by the real estate on account of the sale or transfer of the real estate or on account of the assumption of the indebtedness, except as provided in paragraph (5) of this subsection. This paragraph shall not apply if the person to whom the real estate would be sold or transferred does not intend to occupy the property as the person's principal residence, if such occupancy is a requirement imposed by federal regulatory authorities upon the lender;
    2. Increase the interest rate above the existing interest rate of the indebtedness unless:
      1. The borrower who is primarily liable for the repayment of the indebtedness shall make a request in writing to the lender at the time of the making of the application to the lender for approval of the transfer or, at any time prior to the granting or denying of approval of the transfer by the lender, a request that the borrower desires to be relieved of liability under the terms of the security instrument and the note secured thereby; and
      2. The lender furnishes written evidence to the borrower that the borrower has been relieved of liability under the terms of the security instrument and the note secured thereby. In the event the lender so relieves the borrower of liability after having been requested to do so by the borrower, the lender may increase the interest rate on the indebtedness; provided, however, that the lender shall not escalate the interest in excess of 1 percent per annum above the existing interest rate at the time of the transfer nor shall the lender be entitled to escalate the interest rate at any time other than at the transfer of title and then not more often than once in any 24 month period. Any subsequent transfer of the property after 24 months from the time of the last escalation of interest shall likewise be limited to a 1 percent per annum increase above the interest rate of the indebtedness existing at the time of the subsequent transfer;
    3. Charge, collect, or attempt to collect any transfer fee on account of the sale or transfer of such real estate or on account of the assumption of such indebtedness in excess of:
      1. One-half of 1 percent of the principal amount of the indebtedness outstanding on the date of the transfer or $150.00, whichever is greater, in the event the lender does not relieve the borrower of liability for the repayment of the indebtedness;
      2. One percent of the principal amount of the indebtedness outstanding on the date of the transfer, in the event the lender does not escalate the interest rate but does relieve the borrower of liability for the repayment of the indebtedness; or
      3. One-half of 1 percent of the principal amount of the indebtedness outstanding on the date of such transfer or $250.00, whichever is greater, in the event the lender escalates the interest rate and relieves the borrower of liability for the repayment of the indebtedness.

        Any borrower who has been relieved of liability for the repayment of the indebtedness may submit his affidavit of such fact to the clerk of the superior court in the county where the security instrument is recorded, which clerk shall enter a notation on the recorded security instrument to the effect that the borrower has been relieved of liability under the terms of the security instrument and the note secured thereby. Any such transfer fee shall not be considered interest and shall not be taken into account in the calculation of interest and shall not be considered a "rate of charge" as that term is defined in Code Section 7-4-30;

    4. Enforce or attempt to enforce the provisions of any mortgage, deed of trust, or other real estate security instrument executed on or after July 1, 1979, which provisions are contrary to this Code section;
    5. Withhold approval or disapproval of the sale or transfer of the real estate and the assumption of the indebtedness beyond 50 days after receipt by the lender of the completed written application for same on such form as may be required by the lender (a copy of which shall be furnished to the applicant) to determine the financial ability to retire the indebtedness of the applicant according to the lender's terms; otherwise, the sale or transfer and the assumption shall be approved; provided, however, that the parties by mutual agreement may extend the aforesaid period of time for a period not to exceed 30 days. The lender shall have the right, if permitted under the security instrument, to accelerate the indebtedness if the borrower transfers the property to a person if:
      1. The lender has reasonably determined, based upon the standards provided in this Code section, that such person is financially incapable of retiring the indebtedness according to the terms of the security instrument; or
      2. The lender is entitled under this Code section and the security instrument to increase the interest rate on the indebtedness, and the person to whom the real estate is transferred declines to agree to such increase.

        Such acceleration shall be permitted only within a 60 day period after the lender acquires actual knowledge of the sale or transfer to such person; and

    6. Disapprove the sale or transfer of the real estate and the assumption of the indebtedness for any reason other than the credit worthiness of the person to whom the real estate would be sold or transferred, which disapproval is based upon standards normally used by persons in the business of making loans on real estate in the same or similar circumstances; otherwise, any due-on-sale clause or similar provision in the security instrument shall be deemed to be against public policy and shall be void.
  3. The maximum increase allowed in paragraph (2) of subsection (b) of this Code section and the maximum fee allowed in paragraph (3) of subsection (b) of this Code section shall not be deemed to be required, minimum, or ordinary; but the interest increase and fee may, in any case, be less than the amount allowed.
  4. This Code section shall be applicable only to a security interest in real property utilized as residential dwelling units other than apartments, motels, hotels, and nursing homes and only if the original amount of the loan is less than $100,000.00.
  5. This Code section shall not be applicable in those cases in which the secretary of housing and urban development, or his successor, matures the indebtedness on multiple-family housing projects pursuant to the current law and regulations of the Federal Housing Administration.
  6. This Code section shall not be applicable to a person with a security interest in real estate, which person is not regularly engaged in the business of making real estate loans.
  7. In the event that the party assuming the indebtedness declines to agree to an increase in the interest rate as provided in paragraph (2) of subsection (b) of this Code section, the indebtedness may be prepaid without penalty or increased interest at any time within 60 days after the assumption; but if the party does not make the prepayment within the 60 day period, the party shall be liable for the increased interest rate from the date of the assumption; and any prepayment penalty provided for in the security instrument shall thereafter be in effect. Any law to the contrary notwithstanding, such increased interest and the outstanding indebtedness shall be secured by the security instrument securing the indebtedness with the same priority as if the increased interest rate were originally set forth in the note evidencing the indebtedness.
  8. Nothing contained in this Code section shall be construed so as to permit a lender to increase the interest rate beyond applicable usury laws.
  9. Nothing in this Code section shall be construed to limit the right of the Federal Land Bank to increase or decrease the interest rate of any loan so long as the increase or decrease is pursuant to the terms of the variable interest rate provision of the security instrument or the note secured thereby and the increase or decrease is not the result of the transfer of the property serving the loan.
  10. This Code section shall not be applicable to loans made by the Farmers Home Administration, which loans provide for interest subsidies or variable interest rates based on the income of the borrower, or to loans made by the Georgia Housing and Finance Authority, the Urban Residential Finance Authority of the City of Atlanta, or other similar state or local authorities.
  11. This Code section shall not be applicable to loans on or secured by real property utilized as residential dwelling units as that term is used in subsection (d) of this Code section, which loans are made by an employer to an employee as an employment benefit.
  12. In addition to the fee authorized by paragraph (3) of subsection (b) of this Code section, a lender may charge and collect a fee to recover the actual costs incurred by the lender in obtaining a credit report on the person to whom the real estate would be sold or transferred in instances where the borrower has requested to be relieved from liability for the indebtedness as well as in instances where the borrower has not made such request, but no investigation by the lender to determine credit worthiness shall authorize the lender to withhold approval or disapproval of the sale or transfer of the real estate beyond the time limitation specified in paragraph (5) of subsection (b) of this Code section.
  13. Nothing in this Code section shall be construed to limit the right of a lender to increase or decrease the interest rate on the indebtedness so long as such increase or decrease is effected pursuant to the terms contained in the security instrument or the note secured thereby or by mutual agreement between borrower and lender, provided that such increase or decrease is not the result of the sale or transfer of the property securing such indebtedness or the assumption of the indebtedness, unless such increase upon a sale or transfer of such property or assumption of the indebtedness is otherwise permitted by this Code section.

    (Ga. L. 1979, p. 345, §§ 1, 2; Ga. L. 1980, p. 585, § 1; Ga. L. 1981, p. 480, §§ 1-9; Ga. L. 1991, p. 1653, §§ 2-3.)

Editor's notes. - Ga. L. 1981, p. 480, § 10, not codified by the General Assembly, provided as follows: "This Act shall become effective upon its approval by the Governor or upon its becoming law without his approval; and the provisions of the Act shall apply to any transfer or sale of real estate and the assumption of indebtedness in connection therewith which is accomplished on or after the effective date of this Act; but the Act and this amendatory Act shall not affect or impair the rights, duties, or interests arising out of or flowing from instruments executed prior to the effective date of this amended Act."

Law reviews. - For article surveying 1979 legislative developments in commercial law, see 31 Mercer L. Rev. 13 (1979). For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981).

JUDICIAL DECISIONS

State law preempted by federal law. - Georgia laws restricting the enforcement of "due-on-sale" provisions have been preempted by the Garn-St. Germain Depository Institutions Act of 1982 (P.L. 97-320, 96 Stat. 1469) which expressly permits a lender to "enforce a contract containing a due-on-sale clause with respect to a real property loan." Aetna Cas. & Sur. Co. v. Valdosta Fed. Sav. & Loan Ass'n, 175 Ga. App. 614 , 333 S.E.2d 849 (1985).

O.C.G.A. § 44-14-5 does not conflict with Georgia's long-standing policy of adjusting usury laws and other regulatory policies to promote a stable and active residential mortgage lending industry. The scheme under O.C.G.A. § 44-14-5 that attempts to restrict loan modifications made in connection with due-on-sale clauses and thereby blocks a traditional method of adjusting mortgage pool rates; however, it does not necessarily limit a lender's ability to adjust market-pool spreads because it was: totally prospective in operation; coupled with a floating usury rate; and accompanied by changes in the traditional long term, fixed rate lending practices. Lindenberg v. First Fed. Sav. & Loan Ass'n, 528 F. Supp. 440 (N.D. Ga. 1981), aff'd, 691 F.2d 974 (11th Cir. 1982).

In the plan of the General Assembly, O.C.G.A. § 44-14-5(b)(1) through (3), (5), and (6) provide the substantive provisions of the Act and O.C.G.A. § 44-14-5(b)(4) provides for its operation. Lindenberg v. First Fed. Sav. & Loan Ass'n, 90 F.R.D. 255 (N.D. Ga. 1981).

O.C.G.A. § 44-14-5(b)(4) is the provision that makes that section's prohibitions operative; by itself, it has no meaning. Rather, it takes on meaning in the context of O.C.G.A. § 44-14-5(b)(1) through (3), (5), and (6) ; these are the paragraphs that determine what provisions and practices are contrary to that section and cannot be enforced pursuant to O.C.G.A. § 44-14-5(b)(4). Lindenberg v. First Fed. Sav. & Loan Ass'n, 90 F.R.D. 255 (N.D. Ga. 1981).

Where three parties are involved, release of the original borrower and acceptance of a purchaser-grantee is valid consideration for a new contract at new interest rates, even before expiration of the original loan term. Lindenberg v. First Fed. Sav. & Loan Ass'n, 528 F. Supp. 440 (N.D. Ga. 1981), aff'd, 691 F.2d 974 (11th Cir. 1982).

Contracts entered into under one usury statute remain enforceable on their original terms even if the statute changes, whereas any contract entered into after changing the law is to be governed by the new law even if the new contract concerns a preexisting debt, such that even if an original loan contract was void for usury, a new promise to pay the loan after an increase in the usury limits was binding under the new limits. Therefore, the plaintiffs' promise to pay the remaining portion of their grantors' debt must be judged at the time of their promise. Lindenberg v. First Fed. Sav. & Loan Ass'n, 528 F. Supp. 440 (N.D. Ga. 1981), aff'd, 691 F.2d 974 (11th Cir. 1982).

OPINIONS OF THE ATTORNEY GENERAL

O.C.G.A. § 44-14-5 is binding on federally chartered savings and loan associations. 1979 Op. Att'y Gen. No. U79-17.

Effect on instruments executed prior to effective date of section. - While O.C.G.A. § 44-14-5 applies to transactions involving instruments executed prior to its effective date, the exact effect of that section on these transactions must be resolved after the instruments and the transactions are studied on a case by case basis. 1979 Op. Att'y Gen. No. U79-17.

RESEARCH REFERENCES

ALR. - Validity and enforceability of due-on-sale real-estate mortgage provisions, 61 A.L.R.4th 1070.

Validity and construction of provision of mortgage or other real-estate financing contract prohibiting prepayment for a fixed period of time, 81 A.L.R.4th 423.

44-14-6. Wrongful sale or removal of mortgaged property; penalty.

After having made a mortgage deed to personal property or a bill of sale to secure debt, any person who sells or otherwise disposes of the property or causes the property to be moved outside of the state before the payment of the mortgage debt or the debt secured by the bill of sale without the consent of and with intent to defraud the mortgagee shall be guilty of a misdemeanor if loss is thereby sustained by the holder of the mortgage or bill of sale.

(Ga. L. 1871-72, p. 71, §§ 1, 2; Code 1873, § 4600; Ga. L. 1875, p. 26, § 1; Code 1882, § 4600; Ga. L. 1887, p. 37, § 1; Penal Code 1895, § 671; Ga. L. 1910, p. 59, § 1; Penal Code 1910, § 720; Ga. L. 1921, p. 123, § 1; Code 1933, § 67-9901; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

"Or otherwise disposes of". - The words "or otherwise disposes of," must be construed to mean a disposition of the property in the nature of a sale and not in any other manner. Stenson v. State, 43 Ga. App. 582 , 159 S.E. 777 (1931).

What constitutes loss generally. - The loss mentioned in O.C.G.A. § 44-14-6 does not necessarily refer to a loss of the debt, or any part of it, nor will the solvency of the mortgaged property, of itself, prevent such a sale or disposition from being a violation of that section. Coleman v. Allen, 79 Ga. 637 , 5 S.E. 204 , 11 Am. St. R. 449 (1887).

Loss is shown by statement of value of property sold to accused. - Where the prosecutor testifies about loss of a certain sum, the value of the property sold by the accused, this is a statement of fact and shows loss as contemplated by O.C.G.A. § 44-14-6 . Farmer v. State, 18 Ga. App. 307 , 89 S.E. 382 (1916).

Loss is not shown by general statement of prosecutor about lost valuable time, and employment of a lawyer to foreclose mortgage. Denney v. State, 2 Ga. App. 146 , 58 S.E. 318 (1907).

Section inapplicable where debtor has express permission to sell property. - Where, by the terms of a bill of sale to secure debt it is provided that any property sold must be replaced in kind or the revenue from the sale thereof placed in position for payment on the note which the instrument secures, the fact that the defendant sold stock to another dealer, but failed to apply the proceeds from such sale toward the payment of the bill of sale to secure debt and such failure to apply the proceeds resulted in a loss to the holder of the bill of sale to secure debt, will not authorize the defendant's conviction under O.C.G.A. § 44-14-6 for the reason that the holder of the bill of sale to secure debt has expressly agreed and consented in the bill of sale itself that the defendant might sell the property on condition and while the evidence shows a failure to comply with the condition of the contract, such failure will not render criminal a sale of the property made under such permission. Carter v. State, 90 Ga. App. 417 , 83 S.E.2d 246 (1954).

Implied permission. - In a prosecution for the fraudulent sale of personal property on which there is a mortgage or bill of sale to secure a debt under O.C.G.A. § 44-14-6 , where the evidence discloses that the holder of the bill of sale impliedly consented to the sale of the property by the defendant to the party to whom defendant did actually sell it, a conviction is not warranted. In such case, two elements of the offense are lacking: absence of consent, and an intent on the part of the defendant to defraud the holder of the bill of sale to secure a debt. Wallace v. State, 55 Ga. App. 872 , 192 S.E. 81 (1937).

Where defendant had nothing to do with a sale of the property by the sheriff a conviction of the offense set forth in O.C.G.A. § 44-14-6 is unauthorized. Tatom v. State, 27 Ga. App. 779 , 109 S.E. 917 (1921).

One aiding in sale of the property is a principal. Wyatt v. State, 16 Ga. App. 817 , 81 S.E. 802 (1914).

Disposal of property by killing and eating it, see Linder v. State, 17 Ga. App. 520 , 87 S.E. 703 (1916); Stenson v. State, 43 Ga. App. 582 , 159 S.E. 777 (1931).

What constitutes probable cause under O.C.G.A. § 44-14-6 . - The mere act of a mortgagor in disposing of the mortgaged property, without the consent of the mortgagee and without applying the proceeds to the mortgage, constitutes probable cause for instituting a criminal prosecution against the mortgagor. Sirmans v. Peterson, 42 Ga. App. 707 , 157 S.E. 341 (1931).

Sufficiency of description of property mortgaged and disposed of, and demurrer thereto, see Brown v. State, 60 Ga. App. 646 , 4 S.E.2d 676 (1939).

Sufficiency of affidavit and warrant charging offense. - Where an affidavit upon which a criminal warrant is founded states that the accused did commit the offense of a misdemeanor by disposing of property upon which another held mortgage, and the warrant states that the accused did commit the offense of misdemeanor, the affidavit and warrant are sufficient to charge a crime. Cain v. Kendrick, 199 Ga. 147 , 33 S.E.2d 417 , answer conformed to, 72 Ga. App. 392 , 33 S.E.2d 883 (1945).

Elements of proof. - To sustain a conviction under O.C.G.A. § 44-14-6 , the evidence must show that the defendant sold or otherwise disposed of property after having made a mortgage deed thereto, or bill of sale to secure a debt, and that the sale was without the consent of the mortgagee or person holding the bill of sale to secure a debt, that it was with the intent to defraud the mortgagee or person holding the bill of sale to secure a debt, and that the mortgagee or holder of the bill of sale to secure a debt suffered loss thereby. Wallace v. State, 55 Ga. App. 872 , 192 S.E. 81 (1937); Carter v. State, 90 Ga. App. 417 , 83 S.E.2d 246 (1954).

Essential elements of offense, see Barclay v. State, 55 Ga. 179 (1875); Wright v. State, 9 Ga. App. 442 , 71 S.E. 500 (1911); Farmer v. State, 18 Ga. App. 307 , 89 S.E. 382 (1916).

Evidence must show the property sold was the mortgaged property. Gibson v. State, 16 Ga. App. 265 , 85 S.E. 199 (1915).

Evidence of other transactions which tend to establish the existence of fraudulent intent which is the gist of the offense for which the accused is being tried is admissible in illustration of the accused's intent and motives in the transaction under investigation. Wyatt v. State, 16 Ga. App. 817 , 81 S.E. 802 (1914).

Cited in Sims v. State, 43 Ga. App. 438 , 158 S.E. 913 (1931); Smith v. State, 124 Ga. App. 581 , 184 S.E.2d 681 (1971); Burke Loan Co. v. Kelly, 127 Ga. App. 36 , 192 S.E.2d 413 (1972).

RESEARCH REFERENCES

Am. Jur. 2d. - 37 Am. Jur. 2d, Fraudulent Conveyances, § 83.

C.J.S. - 37 C.J.S., Fraudulent Conveyances, § 50.

ALR. - Duty and liability of trustee under mortgage, deed of trust, or other trust instrument, to holders of bonds or other obligations secured thereby, 90 A.L.R.2d 501.

44-14-7. Selling or disposing of motor vehicle securing bill of sale with intent to defraud; penalty.

After having given a bill of sale to secure debt or other security instrument to any motor vehicle, it shall be unlawful for any person to sell or otherwise dispose of the motor vehicle or to cause the motor vehicle to be moved outside of the state before the payment of the debt secured by the security instrument if the sale, disposition, or removal is without the consent of and with the intent to defraud the holder of the security instrument and if loss is thereby sustained by the holder of the security instrument. Any person who is convicted of violating this Code section shall be imprisoned for not less than one year nor more than three years.

(Code 1933, § 67-9901.1, enacted by Ga. L. 1976, p. 637, § 1.)

Cross references. - Security interests in and liens on motor vehicles generally, § 40-3-50 et seq.

Editor's notes. - Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

RESEARCH REFERENCES

Am. Jur. 2d. - 37 Am. Jur. 2d, Fraudulent Conveyances, § 83.

C.J.S. - 37 C.J.S., Fraudulent Conveyances, § 50.

44-14-8. Removal or other disposal of encumbered property in order to hinder levy; penalty; venue.

Any mortgagor, any giver of a purchase money lien, a lien for rent, or any lien created by contract between the parties, or the holder or possessor of any property under such mortgage or liens who runs off, removes, hides, or in any way disposes of the property under the mortgage or lien so as to hinder, delay, or prevent the levying officer of the county of the defendant's bona fide residence from levying on the property covered by the mortgage or lien by virtue of the foreclosure of the mortgage or lien shall be guilty of a misdemeanor. The venue shall be in the county of the defendant's bona fide residence where the search is made.

(Ga. L. 1918, p. 262, § 1; Code 1933, § 67-9902.)

Editor's notes. - Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

JUDICIAL DECISIONS

Criminal statutes must be construed strictly. Waldroup v. State, 198 Ga. 144 , 30 S.E.2d 896 , answer conformed to, 71 Ga. App. 550 , 31 S.E.2d 463 (1944).

What constitutes property covered by lien. - Where one holds personal property under a conditional contract of purchase and sale, and where, by the terms of the purchase, the title to the property is retained by the vendor until the purchase price is paid, the property, under such facts, is covered by a "lien" within the meaning of the word as employed in O.C.G.A. § 44-14-8 . Waldroup v. State, 198 Ga. 144 , 30 S.E.2d 896 , answer conformed to, 71 Ga. App. 550 , 31 S.E.2d 463 (1944).

Variance between date alleged and proved. - Though a day and year must be alleged in every indictment, time is not material, and a day different from the one laid may generally be proved, provided it is within the period prescribed by the statute of limitations. Nelson v. State, 51 Ga. App. 207 , 180 S.E. 16 (1935).

Verdict under O.C.G.A. § 44-14-8 is not contrary to law and without evidence to support it merely because the crime was alleged to have been committed upon the date of the execution of the retention of title contract, while the proof showed that the offense was committed at a subsequent date prior to the filing of the accusation and within the period of the statute of limitations. Nelson v. State, 51 Ga. App. 207 , 180 S.E. 16 (1935).

Fraud may be proved by wide range of circumstances. - Where fraud is alleged, a wide range is given in proof of circumstances tending to establish it, it being generally a matter of secrecy, and it is often only by collecting together numerous circumstances that it can be brought to light and exposed. Nelson v. State, 51 Ga. App. 207 , 180 S.E. 16 (1935).

Cited in Daniels v. State, 43 Ga. App. 779 , 159 S.E. 903 (1931); Smith v. State, 124 Ga. App. 581 , 184 S.E.2d 681 (1971).

RESEARCH REFERENCES

ALR. - Right of chattel mortgagee in respect of proceeds of sale of mortgaged property by mortgagor, 36 A.L.R. 1379 .

Validity, construction, and application of criminal provisions of statute relating expressly to conditional or installment sales of personal property, 129 A.L.R. 1077 .

Mortgagor's interference with property subject to order of foreclosure and sale as contempt of court, 54 A.L.R.3d 1242.

44-14-9. Aiding and abetting removal or other disposal; venue; conviction not dependent upon principal's conviction.

Any person who intentionally aids or abets in any violation of Code Section 44-14-8 shall be guilty of a misdemeanor as principal in the county where he aided and abetted in the offense, and his trial and conviction shall not be dependent on the trial and conviction of any other person connected therewith.

(Ga. L. 1918, p. 262, § 2; Code 1933, § 67-9903.)

Editor's notes. - Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

JUDICIAL DECISIONS

Cited in Nelson v. State, 179 Ga. 743 , 177 S.E. 253 (1934).

RESEARCH REFERENCES

Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 117.

C.J.S. - 22 C.J.S., Criminal Law, § 132.

ALR. - Validity, construction, and application of criminal provisions of statute relating expressly to conditional or installment sales of personal property, 129 A.L.R. 1077 .

44-14-10. Search for property where defendant has no permanent abode; venue of prosecution.

When any person who violates Code Section 44-14-8, 44-14-9, or 44-14-11 has no permanent place of abode in this state, search may be made in any county into which or through which the property has been carried. Upon the failure to find the property upon which to levy, prosecution may be had against such person in any such county; and such person shall be guilty of a misdemeanor.

(Ga. L. 1918, p. 262, § 3; Code 1933, § 67-9904.)

Editor's notes. - Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

JUDICIAL DECISIONS

Cited in Nelson v. State, 179 Ga. 743 , 177 S.E. 253 (1934); Taylor, Bean, & Whitaker Mortg. Corp. v. Brown, 276 Ga. 848 , 583 S.E.2d 844 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 542.

C.J.S. - 92A C.J.S., Venue, § 91.

ALR. - Validity, construction, and application of criminal provisions of statute relating expressly to conditional or installment sales of personal property, 129 A.L.R. 1077 .

44-14-11. Entry of nulla bona; shifting of burden of proof.

When a search has been made in any of the cases provided by Code Sections 44-14-8 through 44-14-10 by the levying officer for the purpose of levying the execution and the property described therein is not found at the defendant's home, if the defendant fails or refuses to direct the levying officer to the property, the officer shall enter a nulla bona; and the testimony of the officer or the entry of a nulla bona when properly proven shall shift the burden of proof to defendant.

(Ga. L. 1918, p. 262, § 4; Code 1933, § 67-9905.)

Editor's notes. - Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

JUDICIAL DECISIONS

If defendant is completely unavailable, defendant cannot refuse or fail to direct levying officers. - Where a defendant cannot have refused or failed to have directed the levying officers to the property, since defendant was completely unavailable, the court errs in giving the substance of O.C.G.A. § 44-14-11 in its charge. Smith v. State, 124 Ga. App. 581 , 184 S.E.2d 681 (1971).

Cited in Hardin v. State, 40 Ga. App. 529 , 150 S.E. 453 (1929); Nelson v. State, 179 Ga. 743 , 177 S.E. 253 (1934); Burke Loan Co. v. Kelly, 127 Ga. App. 36 , 192 S.E.2d 413 (1972).

RESEARCH REFERENCES

ALR. - Validity, construction, and application of criminal provisions of statute relating expressly to conditional or installment sales of personal property, 129 A.L.R. 1077 .

44-14-12. Deceiving as to existence of lien; making second deed of conveyance; penalty.

Any person who defrauds another in the sale or disposition of any property, either real or personal, by falsely representing that the property is not subject to any lien while knowing that the property is subject to a lien or any person who fraudulently makes a second deed of conveyance to any land or real estate shall be guilty of a misdemeanor.

(Laws 1755, Cobb's 1851 Digest, p. 160; Ga. L. 1859, p. 59, § 1; Code 1863, § 4467; Ga. L. 1865-66, p. 235, § 1; Code 1868, § 4511; Code 1873, § 4599; Code 1882, § 4599; Penal Code 1895, § 669; Penal Code 1910, § 714; Code 1933, § 67-9909.)

Editor's notes. - Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

JUDICIAL DECISIONS

Consent of the holder of the prior lien will not prevent a violation of O.C.G.A. § 44-14-12 . Mathis v. State, 14 Ga. App. 241 , 80 S.E. 695 (1914).

Proof of false representation and damage to prosecutor authorizes guilty verdict. - Where the state introduces evidence from which the jury is authorized to find that the defendant knowingly sold the prosecutor property upon which there was a prior recorded chattel mortgage, falsely representing to the prosecutor that there were no prior liens on the property, and the prosecutor was forced to pay the chattel mortgage off in order to regain possession of the property, a verdict finding the defendant guilty as charged is authorized by the evidence. Beaty v. State, 89 Ga. App. 478 , 79 S.E.2d 831 (1954).

Damage is assumed upon proof of lien. French v. State, 4 Ga. App. 462 , 61 S.E. 836 (1908).

Where prior lien not proved, conviction unauthorized. Connor v. State, 8 Ga. App. 688 , 70 S.E. 45 (1911).

Indictment under O.C.G.A. § 44-14-12 as evidence of merger of mortgage into warranty deed. Pitts Banking Co. v. Fenn, 160 Ga. 854 , 129 S.E. 105 (1925).

No fraud shown on part of developer. - In an action brought by the purchasers of a lot seeking to cancel the developer's security deed based upon alleged fraud, the trial court properly granted summary judgment to the developer as, even if the developer knew of the sale of the lot to the purchasers, such sale did not estop the developer from the developer's claim against the lot pursuant to the developer's security deed; however, the trial court did err by denying the equitable subrogation claim asserted by the purchasers' lender since exercising subrogation did not prejudice the developer in any manner. Byers v. McGuire Props., 285 Ga. 530 , 679 S.E.2d 1 (2009), overruled on other grounds by SRM Group, Inc. v. Travelers Prop. Cas. Co. of Am., 308 Ga. 404 , 841 S.E.2d 729 (2020).

Court is not required to instruct as to what is a valid lien. Portwood v. State, 18 Ga. App. 502 , 89 S.E. 591 (1916).

RESEARCH REFERENCES

Am. Jur. 2d. - 37 Am. Jur. 2d, Fraud and Deceit, §§ 52, 53, 222.

C.J.S. - 77 C.J.S., Sales, § 43. 91 C.J.S., Vendor and Purchaser, § 63.

44-14-13. Disbursement of settlement proceeds; delivery of loan funds to settlement agent by lender; damages.

  1. As used in this Code section, the term:
    1. "Borrower" means the maker of the promissory note evidencing the loan to be delivered at the loan closing.
    2. "Collected funds" means funds deposited, finally settled, and credited to the settlement agent's escrow account.
    3. "Disbursement of settlement proceeds" means the payment of all proceeds of the transaction by the settlement agent to the persons entitled thereto.
    4. "Lender" means any person or entity regularly engaged in making loans secured by mortgages or deeds to secure debt on real estate.
    5. "Loan closing" means the time agreed upon by the borrower and the lender when the execution and delivery of loan documents by the borrower occurs.
    6. "Loan documents" means the note evidencing the debt due to the lender, the deed to secure debt or mortgage securing the debt due to the lender, and any other documents required by the lender to be executed by the borrower as part of the transaction.
    7. "Loan funds" means the gross or net proceeds of the loan to be disbursed by or on behalf of the lender at the loan closing.
    8. "Party" or "parties" means the seller, purchaser, borrower, lender, and settlement agent, as applicable to the subject transaction.
    9. "Settlement" means the time when the settlement agent has received the duly executed deed to secure debt and other loan documents and funds required to carry out the terms of the contracts between the parties.
    10. "Settlement agent" means the lender or an active member of the State Bar of Georgia responsible for conducting the settlement and disbursement of the settlement proceeds.
  2. This Code section shall apply only to transactions involving purchase money loans made by a lender, or refinance loans made by the current or a new lender, which loans will be secured by deeds to secure debt or mortgages on real estate within the State of Georgia containing not more than four residential dwelling units, whether or not such deeds to secure debt or mortgages have a first-priority status.
  3. Except as otherwise provided in this Code section, a settlement agent shall not cause a disbursement of settlement proceeds unless such settlement proceeds are collected funds. A settlement agent may disburse settlement proceeds from its escrow account after receipt of any of the following negotiable instruments even though the same are not collected funds:
    1. A cashier's check, as defined in subsection (g) of Code Section 11-3-104, from a federally insured bank, savings bank, savings and loan association, or credit union and issued by a lender for a closing or loan transaction, provided that such funds are immediately available and cannot be dishonored or refused when negotiated or presented for payment;
    2. A check drawn on the escrow account of an attorney licensed to practice law in the State of Georgia or on the escrow account of a real estate broker licensed under Chapter 40 of Title 43, if the settlement agent has reasonable and prudent grounds to believe that the check will constitute collected funds in the settlement agent's escrow account within a reasonable period;
    3. A check issued by the United States of America or any agency thereof or the State of Georgia or any agency or political subdivision, as such term is defined in Code Section 50-15-1, of the State of Georgia; or
    4. A check or checks in an aggregate amount not exceeding $5,000.00 per loan closing.

      For purposes of this Code section, the instruments described in paragraphs (1) through (4) of this subsection are negotiable instruments if they are negotiable in accordance with the provisions of Code Section 11-3-104.

  4. The lender shall at or before the loan closing deliver loan funds to the settlement agent in the form of collected funds or in the form of a negotiable instrument described in subsection (c) of this Code section; provided, however, that in the case of refinancing, or any other loan where a right of rescission applies, the lender shall, prior to the disbursement of the settlement proceeds and no later than 11:00 A.M. eastern standard time or eastern daylight time, whichever is applicable, of the next business day following the expiration of the rescission period required under the federal Truth in Lending Act (15 U.S.C. Section 1601, et seq.), deliver loan funds to the settlement agent in one or more of the forms set forth in this Code section.
  5. Any party violating this Code section shall be liable to any other party suffering a loss due to such violation for such other party's actual damages plus reasonable attorneys' fees. In addition, any party violating this Code section shall pay to the party suffering the loss an amount of money equal to $1,000.00 or double the amount of interest payable on the loan for the first 60 days after the loan closing, whichever is greater.
  6. Any individual, corporation, partnership, or other entity conducting the settlement and disbursement of loan funds, when he, she, or it is not the settlement agent, shall be guilty of a misdemeanor.
  7. Nothing contained in this Code section shall prevent a real estate broker or real estate salesperson from exercising the rights and providing the duties and services specified by Chapter 40 of Title 43. (Code 1981, § 44-14-13 , enacted by Ga. L. 1990, p. 1653, § 1; Ga. L. 2008, p. 796, § 1/SB 355; Ga. L. 2012, p. 1099, § 15/SB 365.)

The 2008 amendment, effective July 1, 2008, rewrote subsection (c) and substituted the present provisions of subsection (d) for the former provisions which read: "The lender shall at or before the loan closing deliver loan funds to the settlement agent either in the form of collected funds or in the form of a negotiable instrument described in any of paragraphs (1) through (3) of subsection (c) of this Code section, provided that the lender must cause such instrument to be honored upon presentment for payment to the bank or other depository institution upon which such instrument was drawn.". See the Editor's notes for applicability.

The 2012 amendment, effective July 1, 2012, in paragraph (a)(10), substituted "lender or an active member of the State Bar of Georgia" for "person" near the beginning and deleted "and includes any individual, corporation, partnership, or other entity conducting the settlement and disbursement of the loan funds" following "proceeds" at the end; in subsection (b), substituted "shall apply" for "applies" near the beginning, substituted "refinance loans made by the current or a new lender" for "loans made to refinance, directly or indirectly, a purchase money loan made by another lender" in the middle, and inserted "within the State of Georgia"; substituted "party suffering the loss" for "borrower" in the second sentence of subsection (e); and added subsections (f) and (g).

Editor's notes. - Ga. L. 1990, p. 1653, § 3, not codified by the General Assembly, provides that this Act shall not be construed to repeal or modify any provisions of law relative to the utterance or delivery of a worthless check and the provisions of this Act shall be cumulative of such other provisions.

Ga. L. 2008, p. 796, § 2, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall apply to all loans closed on or after July 1, 2008.

Law reviews. - For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For annual survey on real property, see 64 Mercer L. Rev. 255 (2012). For annual survey on real property, see 66 Mercer L. Rev. 151 (2014).

JUDICIAL DECISIONS

Real estate closings. - If a lawyer receives funds at a real estate closing on behalf of a client or in any other fiduciary capacity the lawyer must deposit the funds into, and administer the funds from, a trust account in accordance with Ga. St. Bar R. 4-102(d):1.15(II). Georgia law also allows the lender to disburse funds, O.C.G.A. § 44-14-13(a)(10), but a lawyer may not deliver closing proceeds to a title company or a third party settlement company for disbursement instead of disbursing the funds from an attorney escrow account. In re Formal Advisory Opinion No. 13-1, 295 Ga. 749 , 763 S.E.2d 875 (2014).

44-14-14. Vacant and foreclosed real property registries; definitions; fees and penalties for registration.

  1. For purposes of this Code section, the term:
    1. "Agent" means an individual with a place of business in this state at which he or she is authorized to accept inquiries, notices, and service of process on behalf of a vacant or foreclosed real property owner.
    2. "Department" means the Department of Community Affairs.
    3. "Foreclosed real property" means improved or unimproved real property held pursuant to a judicial or nonjudicial foreclosure of a mortgage, deed of trust, security deed, deed to secure debt, or other security instrument securing a debt or obligation owed to a creditor or a deed in lieu of foreclosure in full or partial satisfaction of a debt or obligation owed to a creditor.
    4. "Street address" means the street or route address. Such term shall not mean or include a post office box.
    5. "Vacant real property" means real property that:
      1. Is intended for habitation, has not been lawfully inhabited for at least 60 days, and has no evidence of utility usage within the past 60 days; or
      2. Is partially constructed or incomplete, without a valid building permit.

        Such term shall not include a building or structure containing multiple units with common ownership that has at least one unit occupied with evidence of utility usage.

  2. Effective July 1, 2012:
    1. A county or municipal corporation may establish by ordinance or resolution for the requirement of registration of vacant or foreclosed real property as provided in this Code section;
    2. Notwithstanding county or municipal ordinances or resolutions that require registration for repeated ordinance violations that remain uncorrected for at least 90 days, no county or municipal corporation shall require registration of vacant property or real property that is unoccupied, uninhabited, abandoned, foreclosed, or advertised for foreclosure on any basis other than as set forth in this Code section or as may be otherwise authorized by general law; and
    3. No county or municipal corporation shall require for purposes of a vacant or foreclosed real property registry established pursuant to this Code section any information or documentation other than as set forth in this Code section.

      Any requirements of a vacant or foreclosed real property registry established by a county or municipal ordinance or resolution in effect as of July 1, 2012, that are in conflict with the requirements of this Code section shall be hereby preempted.

  3. Each registrant shall be required to file with a specifically identified office or officer a registration form, in paper or electronic format, as required by the county or municipal corporation, requiring submission of only the following information:
    1. The real property owner's name, street address, mailing address, phone number, facsimile number, and e-mail address;
    2. The agent's name, street address, mailing address, phone number, facsimile number, and e-mail address;
    3. The real property's street address and tax parcel number;
    4. The transfer date of the instrument conveying the real property to the owner; and
    5. At such time as it becomes available, recording information, including deed book and page numbers, of the instrument conveying the real property to the owner.
  4. The department may promulgate a standard vacant or foreclosed real property registry form that requires only the information set forth in subsection (c) of this Code section, in paper and electronic format. If such form is promulgated by the department, all counties and municipal corporations with a vacant or foreclosed real property registry shall use such form.
    1. When any real property is acquired by foreclosure under power of sale pursuant to Code Section 44-14-160 or acquired pursuant to a deed in lieu of foreclosure and:
      1. The deed under power of sale or deed in lieu of foreclosure contains the information specified in paragraphs (1) through (5) of subsection (c) of this Code section;
      2. The deed is filed with the clerk of superior court within 60 days of the foreclosure sale or transfer of the deed in lieu of foreclosure; and
      3. Proof of the following is provided to the office or officer in charge of the county or municipal foreclosed real property registry:
        1. A filing date stamp or a receipt showing payment of the applicable filing fees; and
        2. The entire deed under power of sale or entire deed in lieu of foreclosure,

          a county or municipal corporation shall not require the transferee to register such foreclosed real property pursuant to this Code section or the payment of any administrative fees pursuant to subsection (h) of this Code section.

    2. No county or municipal corporation may require registration of vacant or foreclosed real property pursuant to this Code section within 90 days of such real property's transfer:
      1. Pursuant to a deed under power of sale or deed in lieu of foreclosure; or
      2. To the first subsequent transferee after the vacant real property has been acquired by foreclosure under power of sale pursuant to Code Section 44-14-160 or acquired pursuant to a deed in lieu of foreclosure.
  6. An ordinance or resolution establishing a registry pursuant to this Code section may require a vacant or foreclosed real property owner to update the information specified in paragraphs (1) through (5) of subsection (c) of this Code section within 30 days after any change in such required information regardless of whether the information provided to the registry was in the deed under power of sale or deed in lieu of foreclosure.
  7. A vacant or foreclosed real property owner, or the agent of such owner, may apply to remove such vacant or foreclosed real property from the registry at such time as the real property no longer constitutes vacant or foreclosed real property. The county or municipal corporation shall grant or deny such application within 30 days, and if no such determination is made within 30 days, the application shall be deemed granted.
  8. An ordinance or resolution establishing a vacant or foreclosed real property registry may require the payment of administrative fees for registration which shall reasonably approximate the cost to the county or municipal corporation of the establishment, maintenance, operation, and administration of the registry. Such fees shall not exceed $100.00 per registration.
  9. An ordinance or resolution establishing a vacant or foreclosed real property registry may require penalties for failure to register or failure to update the information specified in paragraphs (1) through (5) of subsection (c) of this Code section, provided that such penalties shall not exceed $1,000.00.
  10. A county or municipal ordinance or resolution requiring the registration of vacant or foreclosed real property shall provide for administrative procedures. The administrative procedures shall include the right to appeal to the municipal or recorder's court in the city where the vacant or foreclosed real property is located or to the magistrate or recorder's court of the county in which the vacant or foreclosed real property is located, subject to applicable jurisdictional requirements. Any vacant or foreclosed real property owner affected by a county or municipal ordinance or resolution requiring vacant or foreclosed real property registration may challenge any determination made pursuant to such ordinance or resolution.
  11. An ordinance or resolution adopted by the governing authority of a county to establish a registry pursuant to this Code section may, subject to and in accordance with the requirements of this Code section, require registration of vacant or foreclosed real property within the entire territory of the county, except territory located within the boundaries of any municipal corporation, unless otherwise allowed by intergovernmental agreement between the county and municipal corporation.
  12. Nothing in this Code section shall be construed to prohibit a county or municipal ordinance or resolution requiring the registration of vacant or foreclosed real property from providing for exemptions from such registration.
  13. Nothing in this Code section shall be construed to impair, limit, or preempt in any way the power of a county or municipal corporation to enforce any applicable codes, as defined in Code Section 42-2-8, or to define or declare nuisances and to cause their removal or abatement by summary proceedings or otherwise.
  14. Notwithstanding Code Section 36-74-30 , an ordinance or resolution establishing a vacant or foreclosed real property registry may require the registration of residential rental property if such property is vacant or foreclosed real property. (Code 1981, § 44-14-14 , enacted by Ga. L. 2012, p. 656, § 1/HB 110; Ga. L. 2013, p. 634, § 2/HB 160.)

Effective date. - This Code section became effective July 1, 2012.

The 2013 amendment, effective July 1, 2013, deleted "for which a land disturbance permit has been issued by a county or municipal corporation and is" following "real property" near the beginning of paragraph (a)(3); and substituted "foreclosure sale or transfer of the deed in lieu of foreclosure" for "transfer" at the end of subparagraph (e)(1)(B).

Law reviews. - For annual survey on real property, see 65 Mercer L. Rev. 233 (2013).

44-14-15. Fee for a future conveyance; limited circumstances.

  1. As used in this Code section, the term "conveyance of real property" means a conveyance or other transfer of an interest or estate in real property.
  2. A restriction or covenant running with the land applicable to the conveyance of real property that requires a transferee or transferor of real property, or the transferee's or transferor's heirs, successors, or assigns, to pay a declarant, other person imposing the restriction or covenant on the property, or a third party designated by such declarant or other person, or a successor, assignee, or designee of such declarant, third party, or other person, a fee in connection with a future transfer of the property shall be prohibited. A restriction or covenant running with the land that violates this Code section or a lien purporting to encumber the land to secure a right under a restriction or covenant running with the land that violates this Code section shall be void and unenforceable.
  3. This Code section shall not apply to a restriction or covenant that requires a fee associated with the conveyance of real property to be paid to:
    1. An association formed for the purposes of exercising the powers of the association of any condominium created pursuant to Article 3 of Chapter 3 of this title, the "Georgia Condominium Act";
    2. A property owners' association formed for the purposes of exercising the powers of the property owners' association pursuant to Article 6 of Chapter 3 of this title, the "Georgia Property Owners' Association Act";
    3. A property owners' association formed for the purposes of exercising the powers of an association of property owners that has not been formed pursuant to or which has not adopted the provisions of Article 6 of Chapter 3 of this title, the "Georgia Property Owners' Association Act," provided that such association shall comply with subsection (d) of Code Section 44-3-232 ;
    4. A person or entity under the general supervision of the Public Service Commission as provided for in subsection (a) of Code Section 46-2-20 , provided that such fee is charged for expenses incurred in the administration of ongoing services or rights provided to the property interest conveyed;
    5. A community land trust or community development corporation that is tax-exempt under Section 501(c)(3) or 501(c)(4) of the federal Internal Revenue Code, provided that such fee is charged for and applied to expenses incurred in the administration of ongoing community program services or rights provided to shared equity property interests within, as applicable, the land subject to the community land trust or the geographic area served by the community development corporation; or
    6. A party to a purchase contract, option, real property listing agreement, or other agreement which obligates one party to the agreement to pay the other, as full or partial consideration for the agreement or for a waiver of rights under the agreement, an amount determined by the agreement if such amount constitutes a fee or commission paid to a licensed real estate broker for brokerage services rendered in connection with the transfer of the property for which such fee or commission is paid. (Code 1981, § 44-14-15 , enacted by Ga. L. 2013, p. 634, § 3/HB 160.)

Effective date. - This Code section became effective July 1, 2013. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2013, p. 634, § 4/HB 160, not codified by the General Assembly, provides, in part, that this Code section shall apply to covenants recorded on or after July 1, 2013.

Law reviews. - For annual survey on real property, see 65 Mercer L. Rev. 233 (2013).

ARTICLE 2 MORTGAGES

Editor's notes. - Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

JUDICIAL DECISIONS

Provisions of O.C.G.A. Art. 2, Ch. 14, T. 44, where conflicting, must yield to those of O.C.G.A. T. 11. Mack Trucks, Inc. v. Ryder Truck Rental, Inc., 110 Ga. App. 68 , 137 S.E.2d 718 (1964).

Where land is conveyed by vendor to purchaser who simultaneously conveys it to another as security for a loan of money for the purpose of discharging the purchase price of the land, and the money is so used by the concurrence of all parties concerned, and the conveyances are parts of a single transaction, the title passes through the borrower without being affected, as against the lender, by the lien of a judgment against the borrower which would have attached to the property if title had remained in the borrower. Cherokee Fertilizer Co. v. Federal Land Bank, 179 Ga. 712 , 177 S.E. 570 (1934).

Buyer unable to obtain mortgage. - In a potential home purchaser's action to recover earnest money, the seller was entitled to a directed verdict under O.C.G.A. § 9-11-50(a) on the basis that the contract was unenforceable because the contract did not list the loan amount or the interest rate on the loan; however, because the contract was unenforceable, the purchaser was not estopped from recovering the earnest money when the purchaser was unable to qualify for the mortgage. Parks v. Thompson Builders, Inc., 296 Ga. App. 704 , 675 S.E.2d 583 (2009).

Failure to properly attest security deed failed to provide notice of security interest. - Security deed in favor of a bank was not attested by an unofficial witness as required by Georgia law and was patently defective and, thus, the deed did not provide constructive or actual notice of any security interest. As an unattested security deed was equivalent to an unrecorded deed under Georgia law, a Chapter 7 trustee, in the trustee's position as a hypothetical bona fide purchaser of real estate, had the power to avoid the transfer of the improperly attested deed, and the avoided lien was preserved for the benefit of the estate. Flatau v. Ga. Bank & Trust Co. of Augusta (In re Davis), Bankr. (Bankr. M.D. Ga. Oct. 29, 2014).

RESEARCH REFERENCES

ALR. - Prorating provisions as applying to mortgagee, 1 A.L.R. 498 ; 72 A.L.R. 278 .

Effect of designating grantee in deed or mortgage by firm name, 1 A.L.R. 564 ; 8 A.L.R. 493 .

Release of vendee as endorser of note as waiver of vendor's lien, 1 A.L.R. 1638 .

Validity, construction, and effect of provision in real estate mortgage as to rents and profits, 4 A.L.R. 1405 ; 55 A.L.R. 1020 ; 87 A.L.R. 625 ; 91 A.L.R. 1217 .

Power of court to authorize discontinuance of public service corporation upon foreclosing a mortgage on its plant, 8 A.L.R. 238 .

Right to receive rent as between mortgagor and mortgagee of leased premises, 14 A.L.R. 640 ; 105 A.L.R. 744 .

Contracts requiring vendor or mortgagee to look to property alone for payment, 17 A.L.R. 714 .

Insurance: effect of provision declaring loss, in case of mortgagee's interest, subject to all the terms and conditions of the policy, 19 A.L.R. 1449 ; 56 A.L.R. 850 .

Bankruptcy: mortgage executed within four months' period pursuant to executory agreement antedating that period, as a voidable preference, 22 A.L.R. 1378 .

Purchase-money mortgagee as beneficiary of rule that after-acquired title inures to the benefit of mortgagee, 26 A.L.R. 173 .

Ignorance of, or mistake as to, terms of existing mortgage upon the property as ground for relief from a contract for the purchase of real property, 26 A.L.R. 528 .

Remedy of mortgagee or other holder of lien on real property against third person for damage to or trespass on property, 37 A.L.R. 1120 .

Rights in receivership proceeding as between mortgagee and creditor furnishing supplies required or used for operation, maintenance, and upkeep, of railroad or street railway, where there has been diversion of current earnings to benefit of mortgagee, 40 A.L.R. 8 .

Remedies in respect of mortgage on real property in another state or the debt secured thereby, 42 A.L.R. 470 .

Rights and liabilities of junior chattel mortgagee with respect to mortgaged property, 43 A.L.R. 388 .

Remedy of mortgagee in forged or unauthorized mortgage where proceeds are used to discharge valid lien, 43 A.L.R. 1393 ; 151 A.L.R. 407 .

Acceleration clause as affected by cross indebtedness or obligation, 51 A.L.R. 1256 ; 151 A.L.R. 896 .

Validity and construction of statute allowing penalty and damages against mortgagee refusing to discharge mortgage on real property, 56 A.L.R. 335 .

Effect of alteration in deed or mortgage with consent of parties thereto after acknowledgment or attestation, 67 A.L.R. 364 .

Mortgagee's loss of right as against grantee assuming mortgage, as affecting right of mortgagor, not released, as against grantee, 73 A.L.R. 1177 .

Rule that instruments are to be construed together as applicable to question of negotiability of note or bond secured by mortgage, 75 A.L.R. 1210 .

Rights in respect of rents and profits as between mortgagee and trustee in bankruptcy of mortgagor, 75 A.L.R. 1526 .

Effect of infant's disaffirmance of purchase-money mortgage or judgment, 77 A.L.R. 987 .

Requisites and sufficiency of change of possession under an unrecorded chattel mortgage, 79 A.L.R. 1018 .

Right and remedy of mortgagee who for the protection of his security pays taxes on, or redeems from tax sale of, mortgaged property, 84 A.L.R. 1366 ; 123 A.L.R. 1248 .

Trust receipts, 87 A.L.R. 302 ; 101 A.L.R. 454 ; 168 A.L.R. 359 .

Settlement or compromise by one of the parties to a chattel mortgage with a third person on account of conversion of or damage to property as affecting other party, 92 A.L.R. 205 .

Right to demand assignment of mortgage on paying or tendering amount due thereon, 93 A.L.R. 89 .

Transaction between chattel mortgagee and purchaser of mortgaged chattels as affecting liability of mortgagor, 93 A.L.R. 1203 .

Deed or mortgage of real estate as affecting right to oil and gas or royalty interest under existing lease, 94 A.L.R. 660 ; 140 A.L.R. 1280 .

Transaction or agreement between mortgagee and purchaser of property who did not assume mortgage as imposing personal obligation on latter for mortgage debt, 94 A.L.R. 1329 .

Financial depression as justification of moratorium or other relief to mortgagor (including decisions under statutes in that regard), 94 A.L.R. 1352 ; 96 A.L.R. 853 ; 97 A.L.R. 1123 ; 104 A.L.R. 375 .

Right of mortgagee to benefit of insurance taken out by, or in name of, receiver, trustee, or assignee for creditors of owner of equity of redemption, 94 A.L.R. 1387 .

Union of title to mortgage and fee in the same person as affecting right to personal judgment for mortgage debt, 95 A.L.R. 89 .

Implied power of trustee under mortgage or deed of trust who purchases property in behalf of bondholders at foreclosure sale, to give new mortgage, 95 A.L.R. 527 .

Deed from mortgagor to mortgagee as merger of real estate mortgage as regards intervening liens, 95 A.L.R. 628 ; 148 A.L.R. 816 .

Power of court or guardian as to mortgaging infant's real property, 95 A.L.R. 839 .

Exploitation of oil or gas resources of land by mortgagor, or purchaser or lessee subsequently to mortgage, as waste as against mortgagee, 95 A.L.R. 957 .

Right of subordinate lienor (mortgagee) as regards rents collected by receiver or assignee as further security for prior mortgage, 95 A.L.R. 1037 .

Rights of senior mortgagee in respect of rents and profits collected by receiver appointed at instance of junior mortgagee, 95 A.L.R. 1051 .

Trustee in mortgage securing bonds as agent of obligor or holder of bonds as regards deposit or payment in respect of principal or interest, 96 A.L.R. 1233 .

Liability of grantee assuming mortgage debt, to grantor, 97 A.L.R. 1076 .

Rights of tenant who holds over after expiration of term with consent of the then owner as against mortgagee or lienor pending the original term, or their successors in interest, 98 A.L.R. 216 .

Discharge of mortgage and taking back of new mortgage as affecting lien intervening between old and new mortgages, 98 A.L.R. 843 .

Validity, construction, and effect of provision in mortgage or deed of trust regarding status of mortgagor or his grantee in possession after sale under foreclosure or otherwise, 103 A.L.R. 981 .

Power of court to sell property in mortgage enforcement suit, or propriety of sale, as affected by opposition of mortgagee or trustee on whom mortgage or deed of trust confers discretion, 103 A.L.R. 1440 .

Rescission as essential to cancellation of instrument or lien voidable for fraud or failure of consideration, 109 A.L.R. 1032 .

Release of mortgagor (or intermediate grantee who has assumed the mortgage) by subsequent dealings between his grantee and mortgagee, 112 A.L.R. 1324 .

Lien of real estate mortgage, or right of subrogation thereto, as extinguished by sale of mortgaged property on attachment or execution on mortgage debt or debt on account of which right of subrogation is claimed, 122 A.L.R. 485 .

Right to deficiency or personal judgment under mortgage notwithstanding bar of limitation against action on personal debt, 124 A.L.R. 640 .

Duty of mortgagee, or one holding title as security, to protect the interests of third persons in respect to insurance, 130 A.L.R. 598 .

Statutes affecting mortgagee's rights and remedies in respect of deficiency as unconstitutional impairment of obligation of contract, 133 A.L.R. 1473 .

Validity, construction, application, and effect, in case of failure to maintain insurance, of acceleration provision in mortgage or deed of trust, 142 A.L.R. 1120 .

Variance from statute of wording of affidavit required by it to accompany chattel mortgage, 143 A.L.R. 1254 .

Omission of amount of debt in mortgage or in record thereof (including general description without stating amount) as affecting validity of mortgage, its operation as notice, or its coverage with respect to debts secured, 145 A.L.R. 369 .

Right of purchaser or junior encumbrancer who discharges prior lien to be subrogated to additional security held by senior lienor, 145 A.L.R. 738 .

Limit of amount specified in mortgage for future advances as affected by repayment of part of the advances, 152 A.L.R. 1182 .

Rule which protects mortgagor against effect of his release of equity of redemption to mortgagee as applicable to release by purchaser, to vendor, or rights under executory contract for purchase of land, 156 A.L.R. 1138 .

Delivery of deed or mortgage by one or more but not all of the grantors or mortgagors, 162 A.L.R. 892 .

Rights as between specific devisee and residuary devisees in respect of blanket mortgage or other lien on the real estate covered by those devises, 168 A.L.R. 701 .

Right of mortgagee in possession to compensation or credit for supervision or other services, 170 A.L.R. 181 .

Right of holder of mortgage or lien to proceeds of property insurance payable to owner not bound to carry insurance for former's benefit, 9 A.L.R.2d 299.

Conflict of laws as to chattel mortgages and conditional sales of chattels, 13 A.L.R.2d 1312.

Sufficiency of chattel mortgagee's affidavit as to statement of consideration, 45 A.L.R.2d 629.

Conveyance of real property to mortgagee or lienholder as constituting "sale or exchange" rendering owner liable for commissions to broker having exclusive agency or exclusive right to sell, 46 A.L.R.2d 1116.

Power of mortgagor to dedicate land or interest therein, 63 A.L.R.2d 1160.

Real-estate mortgage executed by one of joint tenants as enforceable after his death, 67 A.L.R.2d 999.

Validity of chattel mortgage on stock of goods which mortgagor has right to sell, where mortgagee takes possession of goods before third person's rights attach, 71 A.L.R.2d 1416.

Liability of mortgagee or lienholder of a lease with respect to rents or covenants therein, 73 A.L.R.2d 1118.

Acceptance of past-due interest as waiver of acceleration clause in note or mortgage, 97 A.L.R.2d 997.

Right of mortgage broker to commission where principal violated conditions of agreement, 45 A.L.R.3d 1326.

Right of junior mortgagee whose mortgage covers only a part of land subject to first mortgage to redeem pro tanto, where he was not bound by foreclosure sale, 46 A.L.R.3d 1362.

Validity, construction, and application of provision entitling mortgagee to increase interest rate on transfer of mortgaged property, 92 A.L.R.3d 822.

Right of mortgagee, who acquires title to mortgaged premises in satisfaction of mortgage, to recover, under fire insurance policy covering him as "mortgagee," for loss or injury to property thereafter damaged or destroyed by fire, 19 A.L.R.4th 778.

Vendor and purchaser: recovery for increased mortgage interest costs where vendor fails or refuses to convey, 28 A.L.R.4th 1078.

Mortgagee-lender's duty, in disbursing funds, to protect mortgagor against outstanding or potential mechanics' liens against the mortgaged property, 30 A.L.R.4th 134.

Mortgage foreclosure forbearance statutes - modern status, 83 A.L.R.4th 243.

Discharge of mortgage and taking back of new mortgage as affecting lien intervening between old and new mortgages, 43 A.L.R.5th 519.

Application of Clayton Act or Sherman Act to Merger or Acquisition of Television, Radio, News, or Internet Media Company, 38 A.L.R. Fed. 3d Art. 7.

Federal and State Copyright in Pre-1972 Sound Recordings, 38 A.L.R. Fed. 3d Art. 4.

Controlling Effect of United States Department of Housing and Urban Development (HUD) Regulations upon Mortgages, 38 A.L.R. Fed. 3d Art. 9.

44-14-30. Mortgage as security only; effect on title.

A mortgage in this state is only security for a debt and passes no title.

(Orig. Code 1863, § 1956; Code 1868, § 1944; Code 1873, § 1954; Code 1882, § 1954; Civil Code 1895, § 2723; Ga. L. 1899, p. 32, § 1; Civil Code 1910, § 3256; Code 1933, § 67-101.)

Law reviews. - For article comparing rights of grantees holding deeds to secure debts against a bankrupt debtor to those rights of the mortgagee, and lienor, see 10 Ga. B.J. 5 (1947).

JUDICIAL DECISIONS

A mortgage or an assignment for security purposes creates a lien only and does not pass title. Walter E. Heller & Co. v. Aetna Bus. Credit, Inc., 158 Ga. App. 249 , 280 S.E.2d 144 (1981).

Rule at common law. - At common law the legal estate vested in the mortgage and was forfeited by default. The title passed to the mortgagee by the deed. Ward v. Lord, 100 Ga. 407 , 28 S.E. 446 (1897).

Mortgage used both to refer to creating of lien and passing of title. - Under law of this state, the word "mortgage" is used in a double sense. Sometimes it refers to a conveyance which creates a lien, and at others to one which passes title as security for a debt. Denton Bros. v. Shields, 120 Ga. 1076 , 48 S.E. 423 (1904).

Instrument intended as security passes no title. - An instrument containing a defeasance clause, describing the debt, and showing on its face that it is intended as security, is a mortgage, and passes no title under O.C.G.A. § 44-14-30 . Lane v. Smart, 21 Ga. App. 292 , 94 S.E. 325 (1917).

Trust deeds to be considered as mortgages. - In equity, however it might be at law, it makes no substantial difference that mortgages are trust deeds in form and convey absolutely. They ought, in this forum and on a question of priority to be considered as mortgages pure and simple. So considered, they pass no title but are only securities for debts, under O.C.G.A. § 44-14-30 . Green v. Coast Line R.R., 97 Ga. 15 , 24 S.E. 814 , 54 Am. St. R. 379 , 33 L.R.A. 806 (1895).

Deeds and bills of sale to secure debt treated as equitable mortgages. - The objects of a mortgage and security deed and a bill of sale to personalty are identical - security for debt. While recognizing the technical difference between a mortgage and security deed, deeds to secure debts, and bills of sale to secure debts are treated as equitable mortgages. Merchants' & Mechanics' Bank v. Beard, 162 Ga. 446 , 134 S.E. 107 (1926).

Mortgages and conditional sales distinguished. - If the relation of debtor and creditor remains, and a debt still subsists, it is a mortgage; but if the debt be extinguished by the agreement of the parties, or the money advanced was not by way of loan, and the grantor has the privilege of refunding, if the grantor pleases, by a given time, and thereby entitled grantor to a reconveyance, it is a conditional sale. Galt v. Jackson, 9 Ga. 151 (1850).

Mortgages and deeds to secure debt distinguished. - A deed to secure a debt is not the same as a mortgage. Such a deed conveys title, while a mortgage is only a lien. Cole v. Cates, 110 Ga. App. 820 , 140 S.E.2d 36 (1964).

A statutory mortgage in this state does not convey title, but only creates a lien on property. A statutory security deed conveys title to property as security, and is expressly declared to be not a mortgage. The latter has been declared to be in effect an equitable mortgage, but vastly different rights arise from the effect of the two classes of security. Merchants' & Mechanics' Bank v. Beard, 162 Ga. 446 , 134 S.E. 107 (1926); Carmichael v. Citizens & S. Bank, 162 Ga. 735 , 134 S.E. 771 (1926).

Instruments held to be mortgages despite provisions. - A conveyance of real property, which recites that it is given for the purpose of indemnifying the grantee against loss resulting from an outstanding "mortgage" upon other property which the same grantor had conveyed to the same grantee, which contains no habendum clause, and which provides that when the mortgage referred to is paid, "then this deed shall be null and void," and which further provides that when this mortgage is paid "this deed shall become null and void and canceled on the record and surrendered to" the grantor, is not a security deed passing title to the grantee, but is a mortgage only. Camp v. Teal, 44 Ga. App. 829 , 163 S.E. 233 (1932).

Instruments held to be security deeds despite provisions. - An instrument otherwise in the form of a security deed is not a mortgage merely because it recites that it was given to secure an endorser upon a described note. The relationship of the parties does not make it a mortgage, nor is such recital a defeasance clause whereby the instrument should be treated as a mortgage and not as a security deed. Richey v. First Nat'l Bank, 180 Ga. 751 , 180 S.E. 740 (1935).

Title reservation note for the price of property sold cannot by agreement be treated as a mortgage under O.C.G.A. § 44-14-30 . Wynn & Robinson v. Tyner, 139 Ga. 765 , 78 S.E. 185 (1913).

Deposit of deeds as collateral security for a debt does not create such a lien on the land as can be foreclosed at law. English v. McElroy, 62 Ga. 413 (1879).

Mortgage as basis of claim to property or proceeds. - A mortgage does not pass title under O.C.G.A. § 44-14-30 and therefore cannot be made the basis of a claim to the mortgaged property; nor can the holder of an unforeclosed mortgage claim the proceeds of such property without showing equitable reasons entitling the holder to do so. Ennis v. Harralson Bros. & Co., 101 Ga. 282 , 28 S.E. 839 (1897).

Parties cannot by agreement make the instrument one both retaining title and not retaining title. Wynn & Robinson v. Tyner, 139 Ga. 765 , 78 S.E. 185 (1913).

Effect of conveyance to creditor of mortgaged property. - Where a creditor, whose debt is secured by mortgage, takes a conveyance of the property mortgaged in satisfaction of such debt, such conveyance is not effectual to vest in the creditor a title which would prevail upon the trial of a claim afterwards filed by such creditor to prevent the sale of such property under an execution issued from a judgment, junior to the mortgage, but older than the deed. MacIntyre & Co. v. Ferst's Sons & Co., 101 Ga. 682 , 28 S.E. 989 (1897).

Effect of mortgage where title in third person when executed. - Where, according to the express recitals contained in a mortgage, the property described in the mortgage was not in the possession of the mortgagor at the time the instrument was executed, and the title thereto was vested in another person, the mortgage did not take effect then or thereafter as a valid, subsisting lien upon the property it purported to cover. Hogg v. Fuller, 17 Ga. App. 442 , 87 S.E. 760 (1916).

Power of mortgagor to sell property named in mortgage. - A contract by a mortgagee, made on receiving the mortgage, that the mortgagee will hold the securities, and that the mortgagor may sell the property named in said deeds and make titles thereto, the proceeds of the sale to go to the credit of the mortgagee, gives to the mortgagor power to sell for cash, free from the mortgage, but not to exchange for other lands. It does not cast upon the purchaser for cash the duty of seeing that the mortgagor appropriates the proceeds according to the agreement. Woodward v. Jewell, 140 U.S. 247, 11 S. Ct. 784 , 35 L. Ed. 478 (1891).

Mortgagee cannot, by purchase of mortgaged property, divest an intervening title of which notice is had. MacIntyre & Co. v. Ferst's Sons & Co., 101 Ga. 682 , 28 S.E. 989 (1897); Booze v. Neal, 6 Ga. App. 279 , 64 S.E. 1104 (1909); Hudson v. Gunn, 20 Ga. App. 95 , 92 S.E. 546 (1917).

Acquisition of rights adverse to mortgagor by one holding title under mortgagor. - One holding title under mortgagor cannot acquire interest in the property adverse to rights of the mortgagee of which that person had previous notice. Hudson v. Gunn, 20 Ga. App. 95 , 92 S.E. 546 (1917).

Power of sale given by mortgage is revoked by mortgagors' death before the note fell due. Wilkins v. McGehee, 86 Ga. 764 , 13 S.E. 84 (1891).

Power of sale in a security deed, being coupled with an interest, is not revoked by grantor's death. Roland v. Coleman & Co., 76 Ga. 652 (1886).

Reversion to grantor upon payment of indebtedness. - Where the title, if any, conveyed by the terms of a deed amounting to a mortgage would terminate, by the terms of the deed, upon the deed's becoming null and void on payment of the mortgage indebtedness referred to therein, the title then, by the terms of the deed, would revert to the grantor, notwithstanding that a clause in the deed, that upon the payment of the mortgage debt "this deed shall become null and void and canceled on the record and surrendered to" the grantor, may not amount to a defeasance. Camp v. Teal, 44 Ga. App. 829 , 163 S.E. 233 (1932).

Possession under mortgage as defense to ejectment. - A mortgage in this state is only a lien, and conveys no title. Possession by virtue of it, therefore, furnishes no defense against an action of ejectment by the holder of the title. Phillips v. Bond, 132 Ga. 413 , 64 S.E. 456 (1909).

Cited in Jackson v. Carswell, 34 Ga. 279 (1866); Tucker v. Toomer, 36 Ga. 138 (1867); Peyton v. Lamar, 42 Ga. 131 (1871); Chisolm v. S.B. Chittenden & Co., 45 Ga. 213 (1872); Anderson v. Howard & Sims, 49 Ga. 313 (1873); Murphy v. Vaughan, 55 Ga. 361 (1875); Stephens v. Tucker, 55 Ga. 543 (1875); Frost v. Allen, 57 Ga. 326 (1875); Vason v. Ball, 56 Ga. 268 (1876); Lathrop & Co. v. Brown, 65 Ga. 312 (1880); Cully v. Bloomingdale, Rhine & Co., 68 Ga. 756 (1882); Brady v. Brady, 71 Ga. 71 (1883); Miller v. McDonald, 72 Ga. 20 (1883); Wofford v. Wyly, 72 Ga. 863 (1884); Thomas v. Morrisett, 76 Ga. 384 (1886); Wardlaw v. Mayer, Son & Co., 77 Ga. 620 (1886); Green v. Coast Line R.R., 97 Ga. 15 , 24 S.E. 814 , 54 Am. St. R. 379 , 33 L.R.A. 806 (1895); Mixon v. Stanley, 100 Ga. 372 , 28 S.E. 440 (1897); Georgia S. & Fla. Ry. v. Barton, 101 Ga. 466 , 28 S.E. 842 (1897); Ainsworth v. Mobile Fruit & Trading Co., 102 Ga. 123 , 29 S.E. 142 (1897); Lubroline Oil Co. v. Athens Sav. Bank, 104 Ga. 376 , 30 S.E. 409 (1898); Hill v. O'Bryan Bros., 104 Ga. 137 , 30 S.E. 996 (1898); Durant v. Duchesse D'Auxy, 107 Ga. 456 , 33 S.E. 478 (1899); Clark Bros. v. McNatt, 132 Ga. 610 , 64 S.E. 795 , 26 L.R.A. (n.s.) 585 (1909); Powers & Co. v. Georgia-Florida Grocery Co., 7 Ga. App. 592 , 67 S.E. 685 (1910); In re Caldwell, 178 F. 377 (S.D. Ga. 1910); Penton v. Hall, 140 Ga. 235 , 78 S.E. 917 (1913); Hogg v. Fuller, 17 Ga. App. 442 , 87 S.E. 760 (1916); Real Estate Bank & Trust Co. v. Baldwin Locomotive Works, 145 Ga. 831 , 90 S.E. 49 (1916); Bacon v. Hanesley, 19 Ga. App. 69 , 90 S.E. 1033 (1916); Hudson v. Gunn, 20 Ga. App. 95 , 92 S.E. 546 (1917); Smith v. Long Cigar & Grocery Co., 21 Ga. App. 730 , 94 S.E. 905 (1918); Dixon v. Pierce, 22 Ga. App. 291 , 95 S.E. 995 (1918); McBride v. Gibbs, 148 Ga. 380 , 96 S.E. 1004 (1918); Southern Ry. v. Lancaster, 149 Ga. 434 , 100 S.E. 380 (1919); National City Bank v. Adams, 30 Ga. App. 219 , 117 S.E. 285 (1923); Dunson & Bros. Co. v. Unity Cotton Mills, 34 Ga. App. 768 , 131 S.E. 186 (1926); Merchants' & Mechanics' Bank v. Beard, 162 Ga. 446 , 134 S.E. 107 (1926); Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524 , 13 S.E.2d 165 (1941); Alropa Corp. v. Goldstein, 69 Ga. App. 168 , 25 S.E.2d 116 (1943); Bayview Loan Servicing, LLC v. Baxter, 312 Ga. App. 826 , 720 S.E.2d 292 (2011); Detention Mgmt., LLC v. UMB Bank, NA (In re Mun. Corr., LLC), 501 Bankr. 119 (Bankr. N.D. Ga. 2013).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 1.

C.J.S. - 59 C.J.S., Mortgages, § 1.

ALR. - Provision in land contract against removal of buildings as affecting rights of third person under chattel mortgage or conditional sale, 30 A.L.R. 542 .

Mortgagor's statutory right to redeem or his right to possession after foreclosure as subject of levy and seizure by creditors, 42 A.L.R. 884 ; 57 A.L.R. 1128 .

Rights in abstract of title held by mortgagee, 44 A.L.R. 1332 .

Right to receive rent as between mortgagor and mortgagee of leased premises, 105 A.L.R. 744 .

Lien as estate or interest in land within venue statute, 2 A.L.R.2d 1261.

Assumption of mortgage as consideration for conveyance attacked as in fraud of creditors, 6 A.L.R.2d 270.

Recovery by chattel mortgagee or mortgagor, or person standing in his shoes, against third person for damage or destruction of property, 67 A.L.R.2d 1599.

Validity and construction of provision of mortgage or other real-estate financing contract prohibiting prepayment for a fixed period of time, 81 A.L.R.4th 423.

44-14-31. Form and contents of mortgage.

No particular form is necessary to constitute a mortgage. However, a mortgage must clearly indicate the creation of a lien and must specify the debt for which it is given and the property upon which it is to take effect.

(Orig. Code 1863, § 1957; Code 1868, § 1945; Code 1873, § 1955; Ga. L. 1876, p. 34, § 1; Code 1882, § 1955; Civil Code 1895, § 2724; Civil Code 1910, § 3257; Code 1933, § 67-102.)

Law reviews. - For note discussing how an open end or dragnet clause within a deed to secure debt ensnares subsequent purchasers of real property in light of Commercial Bank v. Readd, 240 Ga. 519 , 242 S.E.2d 25 (1978), see 30 Mercer L. Rev. 363 (1978).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Construction of section. - O.C.G.A. § 44-14-31 is to have a reasonable construction, and is to be construed to facilitate and not to hamper and restrict mortgage liens. It requires that the debt or duty of the mortgagor shall be specified; it does not say that such duty shall be specific and precise. It may be indefinite, as to indemnify a surety for whatever the surety may pay in a certain event, or to hold one harmless for whatever may happen under certain circumstances. The paper must point out what the parties intend. Allen v. J.W. Lathrop & Co., 46 Ga. 133 (1872).

Section requires no more than common law. - O.C.G.A. § 44-14-31 is nothing more than what the common law required, and amounts only to saying that the form of the undertaking is immaterial. If the material elements of a mortgage are there - sufficient certainty as to what the parties intend - the paper is good as a mortgage though there be no words of conveyance or any other of the usual forms of a mortgage. Allen v. J.W. Lathrop & Co., 47 Ga. 133 (1872).

No particular form is necessary to constitute a mortgage as long as the instrument clearly indicates the creation of a lien, and specifies the debt for which it is given, and the property upon which it is to take effect. Ray v. Atkins, 205 Ga. App. 85 , 421 S.E.2d 317 (1992).

Section dispenses with formalities in the execution of mortgages. - Matters of forms are no longer, under O.C.G.A. § 44-14-31 considered of any consequence in determining whether or not a given instrument amounts to a mortgage. Mason v. Parker, 101 Ga. 659 , 28 S.E. 985 (1897); Hopkins v. West Publishing Co., 106 Ga. App. 596 , 127 S.E.2d 849 (1962).

Intention of parties. - There is no general rule for determining whether a particular transaction is a mortgage or a conditional sale and every case must be decided on its own circumstances. The legal aspect of the contract in this respect depends upon the intention of the parties, to be ascertained by a consideration of the entire instrument and the surrounding circumstances, and not upon the form of the instrument or the name which the parties may have given to it. Valdosta Plywoods, Inc. v. Belote, 75 Ga. App. 616 , 44 S.E.2d 128 (1947).

Intent to mortgage. - Any language to show an intent to mortgage (creation of a lien) is sufficient. Daniel v. State, 63 Ga. App. 12 , 10 S.E.2d 80 (1940).

Mortgage must be in writing. - A mortgage must necessarily be in writing and be duly executed by the party to be bound thereby. Printup v. Barrett, 46 Ga. 407 (1872); Duke v. Culpepper, 72 Ga. 842 (1884); Pierce v. Parrish, 111 Ga. 725 , 37 S.E. 79 (1900).

Language necessary. - There must be proper words used in order to create a lien; it is not necessary to use "grant," "bargain," or other technical words. Any language showing an intent to convey or mortgage is sufficient. Horton v. Murden, 117 Ga. 72 , 43 S.E. 786 (1903).

Paper must point out what parties intend. - If this is done, the mortgage is sufficient. Moultrie Banking Co. v. Mobley, 170 Ga. 402 , 152 S.E. 903 (1930).

A seal is not necessary to the validity of a mortgage, even upon real estate, under O.C.G.A. § 44-14-31 , and a mortgage is valid, as between the parties thereto, without any attesting witness and without being recorded. Hawes v. Glover, 126 Ga. 305 , 55 S.E. 62 (1906).

Ambiguity may be determined from the nature of the property conveyed. Valdosta Plywoods, Inc. v. Belote, 75 Ga. App. 616 , 44 S.E.2d 128 (1947).

Mortgage takes effect upon execution. - A paper containing all the requisites of a mortgage of personal property, is a mortgage from the date of its execution, under O.C.G.A. § 44-14-31 , even though it be not attested by an officer. Nichols v. Hampton, 46 Ga. 253 (1872).

Questions of law and fact. - The question of the sufficiency of description of property in a mortgage is one of law, for the court; that of the identity of the property mortgaged is one of fact, to be decided by the jury. Thomas Ford Tractor, Inc. v. North Ga. Prod. Credit Ass'n, 153 Ga. App. 820 , 266 S.E.2d 571 (1980); Chapman v. Bank of Cumming, 154 Ga. App. 739 , 270 S.E.2d 4 (1980).

It is only when the terms descriptive of property intended to be conveyed by a written instrument are manifestly too meager, imperfect, or uncertain to serve as adequate means of identification that the court can, as a matter of law, adjudge the description to be insufficient. "Whether such terms will serve to identify the premises is a question of fact, and not of law." Balchin v. Jones, 10 Ga. App. 434 , 73 S.E. 613 (1912).

Whether or not a description in a mortgage, of mares, by name, age, and color was sufficient to put the purchaser on notice, was a question for the jury. Reynolds v. Jones, 7 Ga. App. 123 , 66 S.E. 395 (1909).

Notes payable in specifics. - It makes no difference, under O.C.G.A. § 44-14-31 , that notes, to secure which the mortgage was given, are payable in specifics. The value of the specifics may be recovered. Hatcher v. Chancey, 71 Ga. 689 (1883).

Rule as to deed to secure debt. - While, under the provisions of O.C.G.A. § 44-14-31 , one of the requisites to the validity of a mortgage is that the debt which it is given to secure shall be therein specified, a different rule obtains as to a deed given to secure a debt, and it is not necessary that such a conveyance shall specify the amount of the indebtedness that it is given to secure. McClure v. Smith, 115 Ga. 709 , 42 S.E. 53 (1902); Troup Co. v. Speer, 23 Ga. App. 750 , 99 S.E. 541 , cert. denied, 23 Ga. App. 813 (1919).

Cited in Jackson v. Carswell, 34 Ga. 279 (1866); Burnside v. Terry, 45 Ga. 621 (1872); Cully v. Bloomingdale, Rhine & Co., 68 Ga. 756 (1882); Park v. Snyder, Harris, Bassett & Co., 78 Ga. 571 , 3 S.E. 557 (1887); Woodward v. Jewell, 140 U.S. 247, 11 S. Ct. 784 , 35 L. Ed. 478 (1891); Cottrell & Sons v. Merchants' & Mechanics' Bank, 89 Ga. 508 , 15 S.E. 944 (1892); Bond v. Brewer, 96 Ga. 443 , 23 S.E. 421 (1895); Horton v. Murden, 117 Ga. 72 , 43 S.E. 786 (1903); Franklin v. Callaway, 120 Ga. 382 , 47 S.E. 970 (1904); Rowe v. Spencer, 140 Ga. 540 , 79 S.E. 144 , 47 L.R.A. (n.s.) 561 (1913); Brown v. Aaron, 20 Ga. App. 592 , 93 S.E. 258 (1917); In re W.J. Marshall Co., 291 F. 268 (S.D. Ga. 1923); Wyley Loose Leaf Co. v. Bird, 159 Ga. 246 , 125 S.E. 496 (1924); Winn v. Herring-Hall-Marvin Safe Co., 33 Ga. App. 419 , 126 S.E. 879 (1925); Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932); People's First Nat'l Bank v. Coe Mfg. Co., 67 F.2d 312 (5th Cir. 1933); Blackmar Co. v. Wright Co., 62 Ga. App. 861 , 10 S.E.2d 117 (1940); Motor Contract Co. v. Citizens & S. Nat'l Bank, 66 Ga. App. 78 , 17 S.E.2d 195 (1941).

Particular Instruments

In general. - Any instrument creating a lien, specifying the debt to secure which it is given and the property upon which it is to take effect, is to be construed as a mortgage under O.C.G.A. § 44-14-31 , notwithstanding that there may be some language in the instrument which would indicate an intention to convey the legal title. Powers & Co. v. Georgia-Florida Grocery Co., 7 Ga. App. 592 , 67 S.E. 685 (1910).

A deed of bargain and sale, absolute in its terms, and purporting to convey the fee in consideration of $90.00 in hand paid, passes title; and an entry endorsed upon it and signed by the grantee to the effect that the deed is to be returned to the grantor cancelled, on condition that the grantor shall pay to the grantee $90.00 by a specified time, with interest, does not convert the instrument into a mere mortgage. Jay v. Welchel, 78 Ga. 786 , 3 S.E. 906 (1887).

Purchase-money notes. - Promissory notes, reciting that they were given for the purchase-money of certain described chattels, but neither reserving title in the property sold nor containing a mortgage to secure the purchase-money, evidence no lien upon such chattels and confer no right upon the holder to have the holder's debt paid out of funds, in the hands of the sheriff, arising from the sale of such chattels. Bush v. Kimbrell, 25 Ga. App. 424 , 103 S.E. 686 (1920).

So-called "security deed" from purchaser to vendor and assumption agreement between bank, vendor, and purchaser met the requirements of O.C.G.A. § 44-14-31 as to the contents of a mortgage. Cherokee Ins. Co. v. Gravitt, 187 Ga. App. 179 , 369 S.E.2d 779 (1988).

Bank was not entitled to lien based on note promising to repay debt in full upon sale of debtor's house, as this note did not clearly indicate the creation of a lien, and it did not specify the debt for which it was given and the property upon which it was to take effect, as mortgages must do pursuant to O.C.G.A. § 44-14-31 . First Nat'l Bank v. Blackburn, 254 Ga. 379 , 329 S.E.2d 897 (1985).

Trust indenture. - Language in a trust indenture stating that the debtor "pledged and assigned" the debtor's interest in real property to a bond trustee as security for payment of bonds was sufficient under Georgia law to create a lien, and the indenture granted the bond trustee a mortgage under Georgia law even though it was not in recordable form since it specified the debt owed, accurately described the real property, and evidenced a clear intent to create a lien on the real property. Detention Mgmt., LLC v. UMB Bank, NA (In re Mun. Corr., LLC), 501 Bankr. 119 (Bankr. N.D. Ga. 2013).

Mortgage to secure note and future advances. - A mortgage which recites that it is given to secure the payment of a promissory note for a specified amount and "such future advances in money, stock, merchandise and plantation supplies" as may be made to the mortgagor by the mortgagee during a given year, is valid only as a mortgage to secure the payment of the note, under O.C.G.A. § 44-14-31 . Any indebtedness above the amount of the note is to be treated as an indebtedness on open account. Benton-Shingler Co. v. Mills, 13 Ga. App. 632 , 79 S.E. 755 (1913).

A mortgage to secure a note due, as well as any general or special balance due from the mortgagor up to the value of the property, which was described as being of the value of $5,000, is sufficiently definite to be valid as a mortgage for future advances up to $5,000. In re Corbitt, 248 F. 988 (S.D. Ga. 1918).

Bill of sale. - An instrument denominated a "bill of sale" may really be a mortgage, if it contains a defeasance clause. Daniels v. State, 43 Ga. App. 779 , 159 S.E. 903 (1931).

Where an instrument was executed by a party in the nature of a bill of sale, but the language used showed the intent of the parties to be the execution of a mortgage, it was held to be a mortgage. Stokes v. Hollis, 43 Ga. 262 (1871).

Conditional lien does not become operative where the contingent balance of indebtedness, for the security of which the lien is given, never comes into existence, according to the plain and unambiguous stipulations set forth in the instrument creating the lien. Dingfelder v. Georgia Peach Growers Exch., 184 Ga. 569 , 192 S.E. 188 (1937).

Assignment of a bond for title as security for a debt, which clearly expresses its purpose and specifies the debt and the property, is in legal effect a mortgage, and, to be effective against subsequent liens, must be recorded. Fuller v. Atlanta Nat'l Bank, 254 F. 278 (5th Cir. 1918), cert. denied, 249 U.S. 599, 39 S. Ct. 257 , 63 L. Ed. 796 (1919).

A retention title contract signed by the purchaser in the trade name by the purchaser in the purchaser's individual name is entitled to record where it otherwise meets the requirements of O.C.G.A. § 44-14-31 , and after being duly recorded constitutes constructive notice of the right and interest of the vendor therein as against the purchase of the property at a judicial sale on execution issued against the purchaser in an individual capacity. NCR Co. v. Sikes, 94 Ga. App. 391 , 94 S.E.2d 782 (1956).

After-acquired property. - Subject only to the statutory exceptions, it has long been the general rule in this state that any mortgage on after-acquired personal property is invalid; this general rule, with only the statutory exceptions, is applicable even though it is sought by an express provision of the instrument to include after-acquired property. Dupriest v. Bennett Bros., 61 Ga. App. 704 , 7 S.E.2d 293 (1940).

Instrument indicating that title should pass. - An instrument, after reciting that the makers were indebted to F. in an amount named, for which a note had been given, conveyed to F. certain personalty, specifying that it was intended that the title should pass. It provided further, that if the note was not paid when due, F. should take possession of said property, and after advertising, sell it, and apply the proceeds to the debt; that if the note was met as maturity, F. should reconvey by quit-claim deed. The instrument was a mortgage, under O.C.G.A. § 44-14-31 , and might be foreclosed as such. Frost v. Allen, 57 Ga. 326 (1876).

The term "pledge," used in an instrument whereby a sawmill and accessories are conveyed to a creditor to secure a debt, is ambiguous and subject to explanation since the pledge of such property to secure a debt is most unusual and practically unheard of; therefore, the testimony of the creditor to the effect that the intention was to create a mortgage is relevant and material and should not be excluded. Valdosta Plywoods, Inc. v. Belote, 75 Ga. App. 616 , 44 S.E.2d 128 (1947).

Livestock. - A writing which purports to create a mortgage lien upon property described as "seven head of mules and horses" is void under O.C.G.A. § 44-14-31 as against one claiming the proceeds of a sale thereof under a subsequently acquired lien by attachment. Reynolds v. Tifton Guano Co., 20 Ga. App. 49 , 92 S.E. 389 (1917).

Second agreement written on mortgage. - See Howard v. Rumble, 4 Ga. App. 327 , 61 S.E. 297 (1908).

Description of Property

The words "to specify" means "to point out, to particularize, to designate by words one thing or another." Morris & Eckels Co. v. Fulton Nat'l Bank, 208 Ga. 222 , 65 S.E.2d 815 (1951).

Meaning of "bounded." - In a mortgage description of land, the words, "bounded - by F. M. S." will be construed as meaning "bounded by lands of F. M. S." Smith v. Downing Co., 21 Ga. App. 741 , 95 S.E. 19 (1918).

Exactness not required. - No formal or exact description of the debt is essential, provided there is a debt between the parties capable of being enforced against the mortgagor or the property mortgaged. Literal exactness is not required. Moultrie Banking Co. v. Mobley, 170 Ga. 402 , 152 S.E. 903 (1930).

General descriptions, such as "all the estate, both real and personal, of the grantor," "all my land in a certain town, county, and State," and "all my land, wherever situated," have been held good and sufficient under O.C.G.A. § 44-14-31 . Bennett v. Green, 156 Ga. 572 , 119 S.E. 620 (1923).

Where property not distinguishable. - If the description is altogether general, such that the mortgaged property cannot be separated from the general mass of similar articles, the requirement of the law is not met. Morris & Eckels Co. v. Fulton Nat'l Bank, 208 Ga. 222 , 65 S.E.2d 815 (1951).

Description must give record notice. - In a case where one claims the proceeds of a sale of mortgaged property, under a subsequently acquired lien, the sufficiency of the mortgage description is not governed by the rule which would obtain between the parties to the writing, but such a degree of definiteness is required as would be sufficient to impart record notice to third parties. Reynolds v. Tifton Guano Co., 20 Ga. App. 49 , 92 S.E. 389 (1917).

Description not imparting notice. - The words of description in a mortgage may be sufficient to create a lien, and yet be insufficient of themselves to impart notice of the lien which they create. Nussbaum v. Waterman & Co., 9 Ga. App. 56 , 70 S.E. 259 (1911); Reynolds v. Tifton Guano Co., 20 Ga. App. 49 , 92 S.E. 389 (1917).

Description which is partially untrue does not render the mortgage void, if the part which is correct does not apply generally to other like property and reasonably identifies the property in controversy; but where the part of the description that is true is not so distinctive as reasonably to identify the property mortgaged, a purchaser may be justified in assuming that the property is not covered by the mortgage. Pinson-Brunson Motor Co. v. Bank of Danielsville, 40 Ga. App. 793 , 151 S.E. 549 (1930).

Parol evidence to aid description. - In providing that a mortgage or a conditional bill of sale shall specify the property on which it is to take effect under O.C.G.A. § 44-14-31 , the law does not require such a description as will serve to identify the property without aid of parol evidence. A.S. Thomas Furn. Co. v. T. & C. Furn. Co., 120 Ga. 879 , 48 S.E. 333 (1904); Hester v. Gairdner, 128 Ga. 531 , 58 S.E. 165 (1907); Georgia Novelty Mach. Co. v. Mount, 96 Ga. App. 704 , 101 S.E.2d 104 (1957).

Description of chattels. - Chattel mortgages were insufficient to impart notice to third parties, where the description of the chattels was too general to specify the exact chattels and no information was given as to their location. Morris & Eckels Co. v. Fulton Nat'l Bank, 208 Ga. 222 , 65 S.E.2d 815 (1951).

Boundaries of land. - A mortgage which described the land as having a frontage of a certain number of feet and extending back a stated distance, and which set out the boundaries on each side, and further described the property as being the same which was conveyed to the mortgagor by a deed of certain date and recorded on a specified date, fully identified the land. In re Corbitt, 248 F. 988 (S.D. Ga. 1918).

Tract capable of being located. - As to the matter of descriptive averments of the land intended to be mortgaged, if the descriptive recitals are so definite as to render the tract capable of being located, the averments are sufficient. Daniel v. State, 63 Ga. App. 12 , 10 S.E.2d 80 (1940).

Securing promissory notes. - Where a chattel mortgage is executed which describes the debt intended to be secured as the "aforesaid promissory notes," and it appears that two papers in the form of promissory notes, the one duly executed and attached to and preceding the mortgage, and the other written on the same paper with and immediately preceding the mortgage but unsigned by the maker, such mortgage sufficiently describes the debt intended to be secured to create a lien for the sum of the notes in favor of the mortgagee upon the mortgaged property. Mason v. Parker, 101 Ga. 659 , 28 S.E. 985 (1897).

Securing advances. - A mortgage upon real estate given to secure "advances" to be made by the mortgagee to the mortgagor, for the purpose of carrying on the farm of the mortgagor, is not invalid for want of a sufficient description of the debt intended to be secured. Allen v. J.W. Lathrop & Co., 46 Ga. 133 (1872).

Misdescription of bond. - Under O.C.G.A. § 44-14-31 , where a mortgage is given to indemnify one who becomes a surety upon a bond in which the mortgagor is principal, a misdescription of the particular bond may be corrected by parol testimony so as to identify the bond described in the mortgage with the one upon which the mortgagee became surety. And the mere misdescription of the bond will not have the effect to render the mortgage invalid as a lien upon the property described, either as to the mortgagor personally or the mortgagor's vendees. Emerson v. Knight, 130 Ga. 100 , 60 S.E. 255 (1908).

Bill of sale. - As is the case with a mortgage, an instrument creating a lien by bill of sale to secure a debt must specify the debt sought to be secured. Dingfelder v. Georgia Peach Growers Exch., 184 Ga. 569 , 192 S.E. 188 (1937).

Stock of goods in store. - Considering the caption and body together, the mortgage in this case covers goods in the brick store of the mortgagor in a certain place on the street named, and between two other stores named. It included all the merchandise in that store and to be in it to supply the place of old goods sold; and the description was sufficient. Welsh v. Lewis & Son, 71 Ga. 387 (1883).

The following description: "Our entire stock of dry goods, boots, shoes, hats, clothing, and notions, and such other goods as are usually kept in a first-class country store," (without any location of the goods, or without any other language of identification), is not a sufficient description under O.C.G.A. § 44-14-31 . Jaffrey v. Brown, 29 F. 476 (S.D. Ga. 1886).

Mares. - A paper, providing for a lien on a "bay mare," and showing that the mare was purchased by the mortgagor from the mortgagee, is a sufficient description of the property mortgaged under O.C.G.A. § 44-14-31 . Nichols v. Hampton, 46 Ga. 253 (1872).

Describing cotton. - See Stephens v. Tucker, 55 Ga. 543 (1875).

Descriptions found insufficient. - A description of land in a mortgage in these terms: "Two hundred and sixty-one acres of land off of lots numbers five, twenty-seven and twenty-eight, in the ninth district of Randolph County," is fatally defective for want of sufficiently definite description, under O.C.G.A. § 44-14-31 . Atkins v. Paul, 67 Ga. 97 (1881).

A mortgage on "twelve acres of cotton," without any further description, does not sufficiently specify the property upon which it is to take effect under O.C.G.A. § 44-14-31 . Hampton v. State, 124 Ga. 3 , 52 S.E. 19 (1905).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 12.

C.J.S. - 59 C.J.S., Mortgages, § 93.

ALR. - Trust receipt, or instrument purporting to be such, as a chattel mortgage within filing statutes, 25 A.L.R. 332 ; 49 A.L.R. 309 ; 87 A.L.R. 316 ; 101 A.L.R. 463 ; 168 A.L.R. 359 .

Liability of mortgagee under mortgage clause for insurance premiums, 56 A.L.R. 679 ; 83 A.L.R. 105 .

Requisites and sufficiency of description of property in conditional sales contract, 65 A.L.R. 714 .

Sufficiency of description of property in mortgage on animals, 124 A.L.R. 944 .

Validity, construction, and application of insecurity clause in chattel mortgage, 125 A.L.R. 313 .

Inconsistency between description of land in instruments conveying same or affecting title thereto and description in another instrument referred to therein, 134 A.L.R. 1041 .

Deed or mortgage as affected by uncertainty of description of excepted area, 162 A.L.R. 288 .

Sufficiency of description of property, as against third persons, in chattel mortgage on farm equipment, machinery, implements, and the like, 32 A.L.R.2d 929.

Uncertainty as to terms of mortgage or of accompanying note or bond contemplated by real-estate sales contract as affecting right to specific performance, 60 A.L.R.2d 251.

Validity and effect of "wraparound" mortgages whereby purchaser incorporates into agreed payments to grantor latter's obligation on initial mortgage, 36 A.L.R.4th 144.

44-14-32. Use of parol evidence to prove apparent deed a mortgage.

A deed or bill of sale which is absolute on its face and which is accompanied with possession of the property shall not be proved, at the instance of the parties, by parol evidence to be a mortgage only unless fraud in its procurement is the issue to be tried.

(Laws 1837, Cobb's 1851 Digest, p. 274; Code 1863, § 3732; Code 1868, § 3756; Code 1873, § 3809; Code 1882, § 3809; Civil Code 1895, § 2725; Civil Code 1910, § 3258; Code 1933, § 67-104.)

Law reviews. - For article, "The Parol Evidence Rule in Georgia," see 17 Ga. B.J. 49 (1954). For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For comment on Brown v. Carmichael, 149 Ga. 548 , 101 S.E. 124 (1919), and Wilkes v. Carter, 149 Ga. 240 , 99 S.E. 860 (1919), see 10 Ga. B.J. 338 (1948).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

In general. - O.C.G.A. § 44-14-32 merely prohibits the use of parol evidence for the purpose of reducing a deed, absolute in form and accompanied by the possession of the property conveyed, to a mortgage only. Manget Realty Co. v. Carolina Realty Co., 169 Ga. 495 , 150 S.E. 828 (1929); Hutchinson v. King, 192 Ga. 402 , 15 S.E.2d 523 (1941); Haynes v. Blackwell, 232 Ga. 430 , 207 S.E.2d 66 (1974).

Grantee not in possession. - Under O.C.G.A. § 44-14-32 , a deed absolute on its face may be shown by parol evidence to have been intended to convey title only for the purpose of securing a debt, where the grantee has not taken possession of the property. Askew v. Thompson, 129 Ga. 325 , 58 S.E. 854 (1907); Spencer v. Schuman, 132 Ga. 515 , 64 S.E. 466 (1909); Mercer v. Morgan, 136 Ga. 632 , 71 S.E. 1075 (1911); Lowe v. Findley, 141 Ga. 380 , 81 S.E. 230 (1914); Berry v. Williams, 141 Ga. 642 , 81 S.E. 881 (1914); Renitz v. Williamson, 149 Ga. 241 , 99 S.E. 869 (1919); Daniel v. Charping, 151 Ga. 34 , 105 S.E. 465 (1921); Copelin v. Williams, 152 Ga. 692 , 111 S.E. 186 (1922); Paulk v. Dorminey, 154 Ga. 785 , 115 S.E. 488 (1923); Sykes v. Porter, 31 Ga. App. 86 , 119 S.E. 455 (1923); Pitts v. Cos, 167 Ga. 228 , 145 S.E. 61 (1928); Hutchinson v. King, 192 Ga. 402 , 15 S.E.2d 523 (1941); Hobbs v. Houston, 195 Ga. 571 , 24 S.E.2d 884 (1943); Haynes v. Blackwell, 232 Ga. 430 , 207 S.E.2d 66 (1974); Haire v. Cook, 237 Ga. 639 , 229 S.E.2d 436 (1976).

Possession in vendor. - Where a paper, on its face, indicated that the possession remained with the vendor, the case does not come within the provisions of O.C.G.A. § 44-14-32 , prohibiting parol evidence. Denton Bros. v. Shields, 120 Ga. 1076 , 48 S.E. 423 (1904); Sims v. Sims, 162 Ga. 523 , 134 S.E. 308 (1926), later appeal, 166 Ga. 462 , 143 S.E. 381 (1928).

Inapplicable to implied trust. - O.C.G.A. § 44-14-32 is not applicable to a case seeking to set up an implied trust. Jenkins v. Lane, 154 Ga. 454 , 115 S.E. 126 (1922); Stern v. Howell, 160 Ga. 261 , 127 S.E. 776 (1925); Manget Realty Co. v. Carolina Realty Co., 169 Ga. 495 , 150 S.E. 828 (1929).

Meaning of "possession." - Possession of the property means an actual possession, and not that sort of possession which consists in agreeing to hold possession for the grantee in the deed; the formal change of possession is an act indicating on the part of the grantor in the deed, by the deliberate abandonment of grantor's own possession, that grantor's agreement is fully expressed in the deed. Spence v. Steadman, 49 Ga. 133 (1873).

The word "possession" as used in O.C.G.A. § 44-14-32 necessarily means possession under a complete and full title. Johnson v. Sherrer, 197 Ga. 392 , 29 S.E.2d 581 (1944).

Cardinal rule for testing intent of parties to establish either a mortgage or an absolute deed of conveyance seems to be whether or not the relation of debtor and creditor was intended to exist between the parties - whether the property was taken in satisfaction and discharge of the sum due or advanced - or whether, notwithstanding the words of the conveyance, the relation of debtor and creditor was still to exist, to wit: the right of the one to demand, and the obligation of the other to pay. Haire v. Cook, 237 Ga. 639 , 229 S.E.2d 436 (1976).

The inquiry in every case must be whether the contract in the specific case is a security for the repayment of money or a conditional sale. If the writings which were signed by both parties correctly set forth the agreement between them, then these writings evidence a sale and conveyance of the land, with an option to the vendor to repurchase it within a designated period. Manget Realty Co. v. Carolina Realty Co., 169 Ga. 495 , 150 S.E. 828 (1929).

No conclusive test can be suggested to determine whether transactions are mortgages or conditional sales, because the question arises under such varieties of circumstances that slight differences in these would make it inapplicable. Manget Realty Co. v. Carolina Realty Co., 169 Ga. 495 , 150 S.E. 828 (1929).

Construction of unambiguous contracts. - While the issue as to what was the true intent of the parties in the execution of a written instrument is frequently for the determination of a jury, who, upon consideration of all the facts and circumstances, are to determine whether a certain writing evidences an absolute conveyance or a mere security for the payment of a loan, nevertheless, the construction of unambiguous contracts in writing is for the court, and in the state of the pleadings in this case the contracts attached as a part of the petition were so plain and unambiguous as not to require the intervention of a jury. Durden-Powers Co. v. O'Brien, 165 Ga. 728 , 142 S.E. 90 (1928).

Cancellation of security deed. - A grantor in a deed absolute in form but made to secure a debt, who remains in possession of the land conveyed, may, upon the payment of the debt, have the deed canceled as a cloud on grantor's title. Blankenship v. Cochran, 151 Ga. 581 , 107 S.E. 770 (1921); Hobbs v. Houston, 195 Ga. 571 , 24 S.E.2d 884 (1943).

Presumption of absolute conveyance. - The presumption, of course, is that an instrument is what it purports on its face to be, an absolute conveyance; and the burden is on the grantor to show otherwise. Hobbs v. Houston, 195 Ga. 571 , 24 S.E.2d 884 (1943).

Resolution in doubtful cases. - In doubtful cases the court leans to the conclusion that the transaction is in reality a mortgage and not a sale. Manget Realty Co. v. Carolina Realty Co., 169 Ga. 495 , 150 S.E. 828 (1929).

Assignee of grantee. - There is nothing in O.C.G.A. § 44-14-32 which will prevent an assignee of the grantee who in an absolute deed conveyed to his wife the land thereby conveyed from treating it as a deed to secure debt, and, upon payment of the money thereby secured, reconveying the land to the grantor. Pitts v. Cox, 167 Ga. 228 , 145 S.E. 61 (1928).

Evasion of usury laws. - Whether a transaction was a bona fide sale with a right in the vendor to repurchase, or whether it was a ruse devised to evade the usury laws and to take security for the loan of money, can be shown by parol evidence. Jackson v. Commercial Credit Corp., 90 Ga. App. 352 , 83 S.E.2d 76 (1954).

Motion to dismiss. - A petition to have a warranty deed declared a security deed in which it is not alleged that the petitioner could not read, or that any fraud was practiced which excused petitioner from reading the instrument which petitioner signed, is subject to a motion to dismiss. Burns v. Washington, 149 Ga. 42 , 99 S.E. 115 (1919).

No showing of fraud. - Where it was not alleged in the petition that the plaintiff could not read, and no fraud was shown to have been practiced which excused plaintiff from reading the instrument which plaintiff signed, that instrument being a deed of conveyance absolute upon its face, and accompanied with possession of the property, such deed could not be shown by parol evidence to be merely a security deed; nor was the plaintiff entitled to have the deed in question treated as a mortgage or security deed, so as to recover a judgment for the sums which plaintiff seeks to recover in this case. Wynn v. First Nat'l Bank, 176 Ga. 218 , 167 S.E. 513 (1933).

Cited in Murphy v. Purifoy, 52 Ga. 480 (1874); Mitchell v. Fullington, 83 Ga. 301 , 9 S.E. 1083 (1889); Pusser v. Thompson, 132 Ga. 282 , 64 S.E. 75 , 22 L.R.A. (n.s.) 571 (1909); Marshall v. Pierce, 136 Ga. 543 , 71 S.E. 893 (1911); Walker v. Lastinger, 141 Ga. 435 , 81 S.E. 203 (1914); Simpson Grocery Co. v. Knight, 148 Ga. 410 , 96 S.E. 872 (1918); Wilkes v. Carter, 149 Ga. 240 , 99 S.E. 860 (1919); Brown v. Carmichael, 149 Ga. 548 , 101 S.E. 124 (1919); Berry v. Royal, 152 Ga. 425 , 110 S.E. 167 (1921); King v. Herrington, 158 Ga. 148 , 122 S.E. 879 (1924); Stern v. Howell, 160 Ga. 261 , 127 S.E. 776 (1925); Durden-Powers Co. v. O'Brien, 165 Ga. 728 , 142 S.E. 90 (1928); Monk v. Holden, 186 Ga. 549 , 198 S.E. 697 (1938); Davis v. Akridge, 199 Ga. 867 , 36 S.E.2d 102 (1945); Clarke v. Phillips, 204 Ga. 772 , 51 S.E.2d 848 (1949); Hancock v. Hancock, 205 Ga. 684 , 54 S.E.2d 385 (1949); Parham v. Heath, 92 Ga. App. 645 , 89 S.E.2d 528 (1955); Boswell v. Underwood, 106 Ga. App. 675 , 127 S.E.2d 870 (1962); Seay v. Malone, 219 Ga. 149 , 132 S.E.2d 261 (1963).

Particular Documents

Deed to secure debts. - Where a deed absolute on its face is made to secure a debt, the legal title will vest in the grantee and the equitable title, or right to have the property reconveyed on payment of the debt, will remain in the grantor. Hester v. Gairdner, 128 Ga. 531 , 58 S.E. 165 (1907); Waller v. Dunn, 151 Ga. 181 , 106 S.E. 93 (1921); Copelin v. Williams, 152 Ga. 692 , 111 S.E. 186 (1922); Paulk v. Dorminey, 154 Ga. 785 , 115 S.E. 488 (1923).

Quitclaim deed. - Where tenants in common of a tract of land conveyed the same by quitclaim deed to a third person, but remained in possession of the land, and the grantee in such security deed was never in possession thereof, the rule of O.C.G.A. § 44-14-32 applies, and it can be shown by parol evidence, by the heir of one of the tenants in common, that the deed was made only to secure a debt for money borrowed. Southern Ry. v. Williams, 160 Ga. 541 , 128 S.E. 681 (1925).

Deed in trust for benefit of grantor. - A deed absolute in form may be shown by parol evidence to have been made in trust for the benefit of the grantor, where the maker remains in possession of the land. Chandler v. Georgia Chem. Works, 182 Ga. 419 , 185 S.E. 787 (1936).

Bond for title. - Under O.C.G.A. § 44-14-32 a transfer of a bond for title to land, absolute in form, may be shown to have been made for the purpose of securing a loan, where the transferor retains the possession of the land. Renitz v. Williamson, 149 Ga. 241 , 99 S.E. 869 (1919).

Bill of sale to secure debt. - A writing in the form of an absolute bill of sale, but in fact intended only as security for a debt, conveys title, but is treated as an equitable mortgage, under O.C.G.A. § 44-14-32 . Denton Bros. v. Shields, 120 Ga. 1076 , 48 S.E. 423 (1904); Farmer v. State, 18 Ga. App. 307 , 89 S.E. 382 (1916). See also, Ellison & Chew v. Wilson, 7 Ga. App. 214 , 66 S.E. 631 (1909).

A sale on agreement to repurchase is nearly allied to a mortgage. In cases of sales and agreements to repurchase, the papers are open to contradiction by parol. Manget Realty Co. v. Carolina Realty Co., 169 Ga. 495 , 150 S.E. 828 (1929).

Parol agreement to reconvey. - When a party contracts on the purchase of a property in payment of a debt, to reconvey on the payment of the amount at which the party was taken in a settlement, and agrees to reduce it to writing, but does not, and refuses to comply, it is not a case in which parol evidence cannot be admitted. Henderson v. Touchstone, 22 Ga. 1 (1857).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 109 et seq.

C.J.S. - 59 C.J.S., Mortgages, §§ 44, 50 et seq.

ALR. - Lapse of time as affecting rights and remedies of parties to absolute deed intended as mortgage, 28 A.L.R. 554 .

Deed placed in escrow to be delivered to grantee upon failure to pay debt due him as a mortgage, 65 A.L.R. 120 .

Change of deed intended as mortgage by subsequent agreement into an absolute deed, 65 A.L.R. 771 .

Deed absolute on its face, with contemporaneous agreement or portion for repurchase by grantor, as a mortgage vel non, 79 A.L.R. 937 ; 155 A.L.R. 1104 .

Value of property as factor in determining whether deed intended as mortgage, 90 A.L.R. 953 ; 89 A.L.R.2d 1040.

Admissibility of parol evidence to show whether particular word or phrase was intended to connote a chattel mortgage or conditional sale, 101 A.L.R. 625 .

Parol evidence in relation to assumption of mortgage debt by grantee of mortgaged property, 143 A.L.R. 548 .

Remedy of mortgagee in forged or unauthorized mortgage where proceeds are used to discharge valid lien, 151 A.L.R. 407 .

Bill of sale, absolute on its face, as a chattel mortgage, 33 A.L.R.2d 364.

44-14-33. Attestation or acknowledgment of mortgage; additional witness in case of land; constructive notice.

In order to admit a mortgage to record, it shall be signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness. In the absence of fraud, if a mortgage is duly signed, witnessed, filed, recorded, and indexed on the appropriate county land records, such recordation shall be deemed constructive notice to subsequent bona fide purchasers.

(Orig. Code 1863, § 1957; Code 1868, § 1945; Code 1873, § 1955; Ga. L. 1876, p. 34, § 1; Code 1882, § 1955; Civil Code 1895, § 2724; Civil Code 1910, § 3257; Ga. L. 1931, p. 153, § 1; Code 1933, § 67-105; Ga. L. 1995, p. 1076, § 1; Ga. L. 2015, p. 937, § 3/HB 322.)

The 2015 amendment, effective July 1, 2015, substituted the present provisions of the first sentence for the former first sentence, which read: "In order to admit a mortgage to record, it must be attested by or acknowledged before an officer as prescribed for the attestation or acknowledgment of deeds of bargain and sale; and, in the case of real property, a mortgage must also be attested or acknowledged by one additional witness." and inserted "signed, witnessed," near the beginning of the second sentence.

Law reviews. - For annual survey on real property, see 65 Mercer L. Rev. 233 (2013). For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Casenote: The Decline and Fall of Constructive Notice," see 65 Mercer L. Rev. 1203 (2014).

JUDICIAL DECISIONS

Necessity for official witness. - Notwithstanding the employment of the word "must," under O.C.G.A. § 44-14-33 it has never been held that a mortgage was totally void for want of an official witness; it is surely safe to say that a duly executed reservation of title should not, for such a reason, be held wholly invalid. The contract containing it cannot be lawfully recorded unless the same be attested by "or proved before" one of the designated officials; nor can the holder get the protection which would result from the constructive notice to others given by the record; but surely the holder ought to be protected in rights as against one who takes with actual notice of the fact that the title has been reserved. Hill v. Ludden & Bates S. Music House, 113 Ga. 320 , 38 S.E. 752 (1901).

Attestation. - Attestation is not the act of subscribing one's name as a witness to the fact that a given paper was executed, but is instead the act of subscribing one's name as a witness to the fact that one witnessed the execution of a paper. Thus, the language of the affidavit did not make it clear that the closing attorney attested to execution of the Security Deed by the debtor or the debtor's ex-husband. Gordon v. Wells Fargo Bank, N.A. (In re Knight), 504 Bankr. 668 (Bankr. N.D. Ga. 2014).

Effect of unattested mortgage. - An unattested mortgage is good as between the parties thereto, or as between the maker and a transferee. The requirement relative to attestation, as prescribed by O.C.G.A. § 44-14-33 pertains to the prerequisite necessary to its record, and has application only so far as the intervening rights of third persons without notice are concerned. Futch v. Taylor, 22 Ga. App. 441 , 96 S.E. 183 (1918). See also, Jacobs v. State, 4 Ga. App. 509 , 61 S.E. 924 (1908); Donalson v. Thomason, 137 Ga. 848 , 74 S.E. 762 (1912); Bank of Ringgold v. West Publishing Co., 61 Ga. App. 426 , 6 S.E.2d 598 (1939); Central Bank & Trust Co. v. Creede, 103 Ga. App. 203 , 118 S.E.2d 844 (1961).

Security deed to real property that lacked the signature of a witness did not provide constructive notice of the lender's lien against the property since O.C.G.A. § 44-14-33 provided for constructive notice only if the deed was duly recorded, and a duly recorded security deed was one that was attested by the requisite number of witnesses. Gordon v. Wells Fargo Bank, N.A. (In re Codrington), 430 Bankr. 287 (Bankr. N.D. Ga. 2009).

Chapter 7 trustee put the material fact of the form of a security deed at the time of recordation in dispute, thus precluding summary judgment in favor of the lender on the trustee's complaint to avoid the lender's security deed under the trustee's strong arm powers by submitting a certified copy of the deed on file with a state court that did not include a notary stamp or seal as required under Georgia law when the official witness was a notary. Rainwater v. Chase Home Finance, LLC (In re Rainwater), Bankr. (Bankr. N.D. Ga. Sept. 18, 2013).

Memorandum of trust indenture could not provide constructive notice of the existence of a mortgage and could not give rise to inquiry notice since the debtor did not sign the memorandum, the memorandum did not fall into any of the recognized categories of documents that could be recorded under the Georgia Code, and the memorandum was not properly attested. Detention Mgmt., LLC v. UMB Bank, NA (In re Mun. Corr., LLC), 501 Bankr. 119 (Bankr. N.D. Ga. 2013).

Provisions of rider incorporated by reference. - Although the provisions of a rider or attached document may be incorporated into a security deed, the signatures attesting to execution of the rider or attached document do not suffice as an attestation of the security deed itself unless the language clearly states as such. Gordon v. Wells Fargo Bank, N.A. (In re Knight), 504 Bankr. 668 (Bankr. N.D. Ga. 2014).

Defendant purchasers were entitled to summary judgment on the trustee's avoidance action under 11 U.S.C.S. § 544(a)(3) because the deed at issue did not have any defects on the deed's face and was properly filed and recorded, thereby meeting the requirements necessary to provide constructive notice to the subsequent bona fide purchasers. Kelley v. Goforth (In re Brownlee), 606 Bankr. 508 (2019).

Properly attested adjustable rate rider did not validate improperly attested deed to secure debt; even though rider was incorporated into the terms of the deed, the deed itself remained improperly attested and ineligible for recordation. Stone v. Decatur Fed. Sav. & Loan Ass'n (In re Fleeman), 81 Bankr. 160 (Bankr. M.D. Ga. 1987).

Actual notice of prior mortgage. - A mortgage of real estate attested by but one witness is not void under O.C.G.A. § 44-14-33 , and, if a subsequent mortgagee or purchaser buys or takes a mortgage with actual notice of a prior mortgage, the buyer takes subject to it, even though it have but one witness. Gardner, Dexter & Co. v. Moore, Trimble & Co., 51 Ga. 268 (1874); Donalson v. Thomason, 137 Ga. 848 , 74 S.E. 762 (1912).

Certificate of acknowledgment. - Under O.C.G.A. § 44-14-33 which requires a mortgage to be attested before a notary public or justice of a court, it is not necessary that the notary should attach a formal certificate of acknowledgment. In re Virgin, 224 F. 128 (S.D. Ga. 1915).

Sufficiency of certificate. - A certificate, under O.C.G.A. § 44-14-33 , which merely stated "sworn to and subscribed before me," shows that the same one who subscribed the instrument swore to it, and is sufficient, whether it refers to the grantor or to the attesting witnesses since probate by either would be sufficient. In re Hammett, 286 F. 392 (N.D. Ga. 1923).

Signing acknowledgment. - The subsequent signing of an acknowledgment of an original signature before a notary public, who attests the last signature, to a previously executed contract of conditional sale, is in effect a re-execution. Saranac Mach. Co. v. Heyward, 293 F. 499 (5th Cir. 1923).

Affidavit of execution as substitute for attestations. - Under O.C.G.A. § 44-14-33 , an affidavit of the execution of a bill of sale, given as security, made before a notary public by one who was not an attesting witness, was insufficient as "proof" to substitute due attestation, and did not render the instrument eligible to record. In re Smith, 281 F. 574 (N.D. Ga. 1922).

Attestation incorporated by reference. - Chapter 7 trustee could avoid, pursuant to 11 U.S.C. § 544(a), a security deed for real property that did not contain an attestation because the deed, which incorporated the terms of another document by reference, did not also incorporate the attestations to that document and did not meet the requirements for constructive notice under O.C.G.A. § 44-14-33 . Gordon v. Terrace Mortg. Co. (In re Hong Ju Kim), Bankr. (Bankr. N.D. Ga. Nov. 28, 2007).

Questions were certified to the Georgia Supreme Court as to whether proper attestation of a rider whose provisions were incorporated into a security deed could satisfy the requirements of O.C.G.A. § 44-14-33 for the deed itself or could create inquiry notice, such that a bankruptcy trustee could not avoid the deed under 11 U.S.C. § 544(a)(3). Wells Fargo Bank, N.A. v. Gordon (In re Codrington), 691 F.3d 1336 (11th Cir. 2012).

Affidavit signed by a notary testified to both execution and attestation of a security deed and, thus, substantially complied with the requirements of O.C.G.A. § 44-2-18 to cure any defect in attestation under O.C.G.A. §§ 44-14-33 and 44-14-61 caused by the notary's signature appearing under the term "acknowledgement." As the affidavit cured the defect, the security deed was eligible for recordation under Georgia law, and its recordation provided constructive notice to a subsequent bona fide purchasers and, thus, a bankruptcy trustee could not use the trustee's strong-arm powers to avoid the security deed. Kelley v. Wells Fargo Bank, N.A. (In re Perry), 565 Bankr. 442 (Bankr. M.D. Ga. 2017).

Attestation of security deed. - First sentence of O.C.G.A. § 44-14-33 and the statutory recording scheme indicate that the word "duly" in the second sentence of § 44-14-33 should be understood to mean that a security deed is "duly filed, recorded, and indexed" only if the clerk responsible for recording determines, from the face of the document, that it is in the proper form for recording, meaning that it is attested or acknowledged by a proper officer and (in the case of real property) an additional witness; the General Assembly chose to enact the 1995 amendment to O.C.G.A. § 44-14-33 not as a freestanding Code provision but as an addition to a Code provision clearly referenced by O.C.G.A. § 44-14-61 , and the General Assembly is presumed to have been aware of the existing state of the law when the legislature enacted the 1995 amendment so the placement of the amendment makes complete sense. United States Bank Nat'l Ass'n v. Gordon, 289 Ga. 12 , 709 S.E.2d 258 (2011).

Because an eight-paged security deed lacked the signature of an unofficial witness, the deed was not in recordable form as required by O.C.G.A. § 44-14-33 and did not provide constructive notice, therefore, the security deed was avoidable under 11 U.S.C. § 544 with regard to a debtor's bankruptcy. Wells Fargo Bank, N.A. v. Gordon, 292 Ga. 474 , 749 S.E.2d 368 (2013).

Bankruptcy trustee was entitled to avoid a security deed, pursuant to 11 U.S.C. § 544, because the security deed was not duly recorded as the security deed did not appear to have two signatures and, therefore, did not appear to comply with all statutory requirements under O.C.G.A. §§ 44-2-15 and 44-14-33 . Gordon v. Ameritrust Mortg. Co. LLC (In re Nesbitt), Bankr. (Bankr. N.D. Ga. Sept. 13, 2013).

Trustee was entitled to avoid a creditor's security interest under the strong arm powers because it was not validly perfected under Georgia law; a security deed did not contain the requisite signature of an unofficial witness. One affidavit failed to meet the incorporation requirement set out in security deed, and an attorney's affidavits did not properly show that the attorney witnessed a debtor's execution of the security deed; rather, they were merely an affirmation that the attorney's explanations preceded the debtor's execution. Gordon v. OneWest Bank FSB, (In re Blackmon), 509 Bankr. 415 (Bankr. N.D. Ga. 2014).

Affidavit accompanying deed constituted substantial compliance. - Even assuming that a creditor's security deed was defective under O.C.G.A. § 44-14-33 by its lack of a notary seal, an affidavit accompanying the deed constituted substantial compliance with the remedial provisions of O.C.G.A. § 44-2-18 , curing the alleged defect, and a bankruptcy trustee thus could not avoid the lien under 11 U.S.C. § 544(a). Gordon v. Terrace Mortg. Co. (In re Hong Ju Kim), 571 F.3d 1342 (11th Cir. 2009).

No signature of unofficial witness. - Security deed did not contain the requisite signature of an unofficial witness. The defect in the deed was patent and, under Georgia law, the deed did not provide constructive notice to a bona fide purchaser, and thus, the trustee was entitled to avoid the security deed pursuant to 11 U.S.C. § 544. Gordon v. Wells Fargo Bank, N.A. (In re Knight), 504 Bankr. 668 (Bankr. N.D. Ga. 2014).

Place of execution. - A mortgage on real estate, which contains no recital as to its place of execution, except the caption, "Georgia, Washington County," and the attesting clause wherein the official witness signs his name with the addition, "J. P., Bartow, Jefferson County, Georgia," is to be construed as showing upon its face that it was attested by the official witness in Jefferson County, and, if otherwise entitled to record, may be recorded in that county. If the word Bartow had been omitted, it would be presumed to have been attested in Washington County. Bryant v. Davis, 145 Ga. 531 , 89 S.E. 512 (1916).

Husband signing wife's name. - Under O.C.G.A. § 44-14-33 where a husband signs his wife's name to a mortgage purporting to be executed by her, in her immediate presence and by her express request and direction, the effect of such signature is the same as if she had signed the mortgage herself. Hawes v. Glover, 126 Ga. 305 , 55 S.E. 62 (1906).

Mortgages on realty. - In order to be entitled to record, mortgages on realty must be attested by two witnesses under O.C.G.A. § 44-14-33 . Bryant v. Davis, 145 Ga. 531 , 89 S.E. 512 (1916).

Contract for conditional sale of personalty. - Though attestation of a written contract for the conditional sale of personalty in compliance with O.C.G.A. § 44-14-33 is necessary to its being legally recorded, yet it is not essential that the attesting witness be an official, if proper probate is made. Burgsteiner v. Street-Overland Co., 30 Ga. App. 140 , 117 S.E. 268 (1923).

Crops of cotton and corn. - Crops of cotton and corn being realty, in order to be entitled to record, a mortgage of the same must have been attested by two witnesses, one an official, under O.C.G.A. § 44-14-33 . Farmers Whse. Co. v. First Nat'l Bank, 152 Ga. 262 , 109 S.E. 900 (1921); Whatley v. Virginia-Carolina Chem. Co., 31 Ga. App. 226 , 120 S.E. 436 (1923).

Bill of sale with reservation of title. - To be valid as against third persons, an instrument purporting to be a bill of sale with reservation of title must be executed in the presence of and attested by and approved before one of the officials named in O.C.G.A. § 44-14-33 . E.E. Forbes Piano Co. v. Oliver, 11 Ga. App. 65 , 74 S.E. 713 (1912).

Signature of notary to the acknowledgment or probate can be construed as an attestation, under O.C.G.A. § 44-14-33 . Saranac Mach. Co. v. Heyward, 293 F. 499 (5th Cir. 1923).

Judge of superior courts. - A judge of the superior court of this state is authorized to attest mortgages. Strauss v. Maddox, 109 Ga. 223 , 34 S.E. 355 (1899).

Stockholder of a corporation bears such financial relation to it that the stockholder is disqualified from attesting, as a notary, a mortgage to which the corporation is a party. Southern Iron & Equip. Co. v. Voyles, 138 Ga. 258 , 75 S.E. 248 , 41 L.R.A. (n.s.) 375, 1913D Ann. Cas. 369 (1912); Peagler v. Davis, 143 Ga. 11 , 84 S.E. 59 , 1917A Ann. Cas. 232 (1915).

Employee of bank. - A mortgage to a bank attested by an employee of the bank as a notary public does not render it invalid under O.C.G.A. § 44-14-33 . In re Virgin, 224 F. 128 (S.D. Ga. 1915).

Probate. - The attesting witness of a deed of mortgage swore that the attesting witness was "a subscribing witness to the mortgage; that he saw the maker of the same assign it: and also saw the other subscribing witnesses assign it." Thus, the court held that the probate was insufficient to admit the mortgage to record. Stanley v. Suggs, 23 Ga. 137 (1857).

Admissibility of parol evidence. - Parol evidence of the facts attending the execution of a security deed cannot be considered to aid it, but the validity of the record must be established by the face of the record, and of the recorded instrument, since O.C.G.A. § 44-14-33 requires not only the execution of such a deed in the officer's presence but also the attestation by the officer, or the subsequent probate before the officer, and that fact must appear by official certificate and not otherwise. In re Hammett, 286 F. 392 (N.D. Ga. 1923).

Default judgment when security deeds lacked signatures. - Facts in a trustee's complaint were sufficient to support the entry of default judgment against a bank as the subject security deeds lacked the requisite signatures to constitute constructive notice under O.C.G.A. 44-14-33; thus, the deeds were unenforceable against a subsequent bona fide purchaser. Gordon v. Wells Fargo Bank, N.A. (In re Lawton), Bankr. (Bankr. N.D. Ga. Feb. 16, 2014).

Cited in Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932); Cook v. Parks, 46 Ga. App. 749 , 169 S.E. 208 (1933); People's First Nat'l Bank v. Coe Mfg. Co., 67 F.2d 312 (5th Cir. 1933); Blackmar Co. v. Wright Co., 62 Ga. App. 861 , 10 S.E.2d 117 (1940); A.O. Blackmar Co. v. NCR, 64 Ga. App. 739 , 14 S.E.2d 153 (1941); B.F. Avery & Sons Co. v. Davis, 226 F.2d 942 (5th Cir. 1955); NCR Co. v. Sikes, 94 Ga. App. 391 , 94 S.E.2d 782 (1956); Gortatowsky v. Cohen, 100 Ga. App. 646 , 112 S.E.2d 298 (1959); New London Square, Ltd. v. Diamond Elec. & Supply Corp., 132 Ga. App. 433 , 208 S.E.2d 348 (1974); Updike v. First Fed. Sav. & Loan Ass'n, 93 Bankr. 795 (Bankr. M.D. Ga. 1988); Tidwell v. Central Sav. Bank (In re Hunt), 154 Bankr. 1016 (Bankr. M.D. Ga. 1993); Sears Mtg. Corp. v. Leeds Bldg. Prods., Inc., 219 Ga. App. 349 , 464 S.E.2d 907 (1995).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 89 et seq.

C.J.S. - 59 C.J.S., Mortgages, § 110.

ALR. - Imputation to attesting witness of notice of contents of instrument, 4 A.L.R. 716 .

Effect of purported subscribing witness's denial or forgetfulness of signature by mark, 17 A.L.R. 1267 .

Sufficiency of certificate of acknowledgment, 29 A.L.R. 919 .

Statute of frauds: doctrine of part performance as applied to advance of money on oral agreement for mortgage on real estate, 30 A.L.R. 1403 .

Validity of mortgage executed by entryman on public land before patent, 41 A.L.R. 938 .

Formal acknowledgment of instrument by one whose name is signed thereto by another as an adoption of the signature, 57 A.L.R. 525 .

Variance from statute of wording of affidavit required by it to accompany chattel mortgage, 143 A.L.R. 1254 .

Sufficiency of certificate of acknowledgment, 25 A.L.R.2d 1124.

44-14-34. Signing of mortgages executed outside state.

When executed outside this state, mortgages shall be signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness.

(Ga. L. 1931, p. 153, § 1; Code 1933, § 67-106; Ga. L. 2015, p. 937, § 4/HB 322.)

The 2015 amendment, effective July 1, 2015, substituted the present provisions of this Code section for the former provisions, which read: "When executed outside this state, mortgages may be attested, acknowledged, or probated in the same manner as deeds of bargain and sale."

JUDICIAL DECISIONS

Bill of sale executed out of this state, probated before a notary public, is not entitled to record in Georgia where the seal of the notary is not attached and where the official character of the notary is not certified by a clerk of the court of record in the county or city of the residence of the notary. Southeastern Equip. Co. v. Peoples Ins. & Fin. Co., 105 Ga. App. 539 , 125 S.E.2d 114 (1962).

Cited in Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932); People's First Nat'l Bank v. Coe Mfg. Co., 67 F.2d 312 (5th Cir. 1933); Georgia Power Co. v. Hand, 67 F.2d 314 (5th Cir. 1933); Walker County Fertilizer Co. v. Napier, 184 Ga. 861 , 193 S.E. 770 (1937); Parham v. Heath, 90 Ga. App. 26 , 81 S.E.2d 848 (1954); Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 89 et seq.

C.J.S. - 59 C.J.S., Mortgages, § 110.

ALR. - Variance from statute of wording of affidavit required by it to accompany chattel mortgage, 143 A.L.R. 1254 .

Sufficiency of certificate of acknowledgment, 25 A.L.R.2d 1124.

44-14-35. Recording of mortgages on realty; effect of renewed mortgage as lien absent recordation.

Mortgages on realty shall be recorded in the county where the land is located. Where a mortgage upon realty is executed to secure the payment of money or other thing of value and the same is not recorded as provided by law but the mortgage is renewed or reexecuted, the mortgage shall operate as a lien upon the property of the mortgagor only against the mortgagor himself and those having actual notice of the mortgage except from the date of the record of such mortgage.

(Laws 1755, Cobb's 1851 Digest, p. 159; Laws 1768, Cobb's 1851 Digest, p. 162; Laws 1827, Cobb's 1851 Digest, pp. 171, 172; Code 1863, § 1958; Code 1868, § 1946; Code 1873, § 1956; Ga. L. 1876, p. 34, § 1; Ga. L. 1878-79, p. 139, § 1; Code 1882, § 1956; Civil Code 1895, § 2726; Civil Code 1910, § 3259; Code 1933, § 67-108.)

Cross references. - Intangible recording tax, § 48-6-60 et seq.

Law reviews. - For comment on Nalley Chevrolet, Inc. v. California Bank, 100 Ga. App. 197 , 110 S.E.2d 577 (1959), appearing below, see 12 Mercer L. Rev. 283 (1960).

JUDICIAL DECISIONS

Section repealed English statute. - O.C.G.A. § 44-14-35 is repugnant to the Statute 32 Henry VIII, Chapter 9, and therefore the Act repealed the statute, if it was ever in force in Georgia. Doe v. Roe, 23 Ga. 82 (1857).

Mortgages effective from time of record as to third persons. - Mortgages, as against the interest of third parties acting in good faith and without notice, who may have acquired a transfer or lien binding the same property, take effect from the time they are filed for record, under O.C.G.A. § 44-14-35 . Hays v. Reynolds, 53 Ga. 328 (1874); W.A. Patterson Co. v. Peoples Loan & Sav. Co., 158 Ga. 503 , 123 S.E. 704 (1924). See also, Albany Nat'l Bank v. Georgia Banking Co., 137 Ga. 776 , 74 S.E. 267 (1912).

Re-recordation required. - The record of a mortgage defectively attested or probated amounts to no record of it. If the mortgage afterwards be attested so as to entitle it to record, it must be recorded anew in order for it to be constructive notice. The entry of the name of the new attesting official upon the old record is improper and will not suffice. Donalson v. Thomason, 137 Ga. 848 , 74 S.E. 762 (1912); Nalley Chevrolet, Inc. v. California Bank, 100 Ga. App. 197 , 110 S.E.2d 577 (1959).

If a mortgage containing a power of sale is duly recorded, it may be exercised as against the mortgagor and those claiming under the mortgagor, either by deed, or as purchasers at a judicial sale, under process to which the mortgage is superior in its lien. Calloway v. People's Bank, 54 Ga. 572 (1875).

Record as between parties. - Generally, as among themselves, the priority of mortgage liens is fixed by the date of the record, in the absence of the elements of notice. Durden v. Aycock Bros., 13 Ga. App. 420 , 79 S.E. 213 (1913).

OPINIONS OF THE ATTORNEY GENERAL

Purpose of section. - The purpose of O.C.G.A. § 44-14-35 is to provide protection against third parties. 1950-51 Op. Att'y Gen. p. 113.

RESEARCH REFERENCES

C.J.S. - 59 C.J.S., Mortgages, § 192 et seq.

ALR. - Priority as between judgment lien and unrecorded mortgage, 4 A.L.R. 434 .

Priority were senior instrument affecting real property is recorded after execution but before recording of junior instrument, 32 A.L.R. 344 .

Fraudulent misrepresentation or concealment by a contracting party concerning title to property or other subjects which are matters of public record, 33 A.L.R. 853 ; 56 A.L.R. 1217 .

Who may take advantage of failure to renew real estate mortgage as provided by statute, 97 A.L.R. 739 .

Mortgagee's release of mortgagor's personal liability by dealings with purchaser of part of mortgaged property who had assumed mortgage debt as affecting lien of mortgage upon other which has been conveyed by mortgagor to third person, 101 A.L.R. 618 .

Constitutionality of retroactive statute limiting time for duration or enforcement of existing mortgage, or other real estate lien, or ground rent, 158 A.L.R. 1043 .

Statutes precluding enforcement of real-estate mortgage after prescribed period unless holder complies with certain conditions respecting record of amount remaining unpaid, 174 A.L.R. 652 .

Necessity that mortgage covering oil and gas lease be recorded as real-estate mortgage, and/or filed or recorded as chattel mortgage, 34 A.L.R.2d 902.

Reinstatement and restoration of mortgages released or discharged without authorization, as against subsequent purchasers, lienholders, judgment creditors, and the like, without notice, 35 A.L.R.2d 948.

44-14-35.1. Property covered by mortgage or bill of sale to secure debt; mortgage or bill given to secure bond issue.

A mortgage or bill of sale to secure debt may embrace all property in possession, or to which the mortgagor or grantor has the right of possession at the time. A mortgage or bill of sale to secure debt given by a person or a corporation to a trustee or trustees to secure an issue of bonds shall, when it is expressly so stipulated therein, embrace, cover, and convey title to after-acquired property of such person or corporation. Provided, however, any public utility company, whether or not incorporated, including, without limitation, any corporation organized under or governed by the provisions of Article 4 of Chapter 3 of Title 46, may by mortgage, bill of sale to secure debt, deed to secure debt, or deed of trust, embrace, cover, convey, pledge, and encumber after-acquired property of such company, wherever located, when the instrument expressly so stipulates therein; and any such instrument when recorded as provided by law shall constitute notice from the time it is filed for record and shall have priority (subject to purchase money encumbrances) as against the interests of third parties with respect to after-acquired property from the time such property is acquired.

(Ga. L. 1899, p. 32, § 1; Civil Code 1910, § 3256; Code 1933, § 67-103; Ga. L. 1947, p. 529, § 1; Ga. L. 1961, p. 468, § 1; Code 1981, § 44-14-35.1 , enacted by Ga. L. 1983, p. 3, § 33; Ga. L. 1990, p. 256, § 1; Ga. L. 1991, p. 94, § 44.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "encumbrances" was substituted for "incumbrances" near the end of the third sentence.

Editor's notes. - Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

This Code section, which is derived from the Acts listed in the historical citation, was not codified as part of the original Code enactment.

44-14-36. Registry of mortgages on property of railroads and other utilities.

  1. A mortgage, deed to secure debt, indenture, deed of trust, or other security agreement or any supplement or amendment thereto relating to real property made by a railroad corporation, electric or gas corporation, other public utility corporation, or any corporation or other entities engaged in the furnishing of telephone service or the production, transmission, or distribution of electricity or made by any receivers, trustees, or other legal officers in possession of or operating any such corporation or other entity shall be recorded on the real property records in the office of the clerk of the superior court in each county in this state in which any of the property is located. Any such security agreement or any supplement or amendment thereto shall be valid only from the time it is filed for record against subsequent creditors, grantees, purchasers, and mortgagees acting in good faith and without notice. Such instruments need not otherwise be filed or refiled except as may be provided by Chapter 3 of Title 40. To the extent that any mortgage, deed to secure debt, indenture, deed of trust, or other security agreement or any supplement or amendment thereto executed before April 8, 1968, has been filed or recorded as provided in this Code section, it need not be refiled or rerecorded under this Code section; and nothing in this Code section shall be deemed to impair the lien or effect of any such instrument executed prior to April 8, 1968, which instrument has been recorded or filed in accordance with the laws of this state applicable thereto prior to April 8, 1968.
  2. A security interest relating to fixtures and personal property of such a corporation shall be perfected as provided in Code Sections 11-9-501 through 11-9-504. Any such prior filing or recording that has been entered on the Uniform Commercial Code index for secured transactions, where no notice of conflict of lien or notice of creditor priority has been given, shall be valid and any such instruments need not otherwise be refiled, rerecorded, or reindexed.

    (Code 1933, § 67-108.1, enacted by Ga. L. 1964, p. 368, § 1; Ga. L. 1968, p. 1150, § 1; Ga. L. 1997, p. 970, § 1; Ga. L. 2001, p. 362, § 34.)

The 2001 amendment, effective July 1, 2001, substituted "11-9-501 through 11-9-504" for "11-9-401 through 11-9-403" in the first sentence of subsection (b).

RESEARCH REFERENCES

ALR. - Constructive notice by record of instrument relating to specific chattels as affected by changes therein, 63 A.L.R. 1456 .

Right to enforce contractual lien or reservation of title against property owned by or purchased by municipality, 76 A.L.R. 695 .

44-14-37. Effect of failure to record.

Reserved. Repealed by Ga. L. 2015, p. 937, § 5/HB 322, effective July 1, 2015.

Editor's notes. - This Code section was based on Laws 1827, Cobb's 1851 Digest, p. 172; Code 1863, § 1959; Code 1868, § 1947; Code 1873, § 1957; Code 1882, § 1957; Civil Code 1895, § 2727; Civil Code 1910, § 3260; Ga. L. 1931, p. 153, § 1; Code 1933, § 67-109.

44-14-38. Admission of mortgages into evidence.

Reserved. Repealed by Ga. L. 2011, p. 99, § 84/HB 24, effective January 1, 2013.

Editor's notes. - This Code section was based on Orig. Code 1863, § 1960; Code 1868, § 1948; Code 1873, § 1958; Code 1882, § 1958; Civil Code 1895, § 2782; Civil Code 1910, § 3261; Code 1933, § 67-110.

Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

44-14-39. Effect of defective record as notice.

A mortgage which is recorded in an improper office or without due attestation or probate or which is so defectively recorded as not to give notice to a prudent inquirer shall not be held to be notice to subsequent bona fide purchasers. A mere formal mistake in the record shall not vitiate it.

(Orig. Code 1863, § 1961; Code 1868, § 1949; Code 1873, § 1959; Code 1882, § 1959; Civil Code 1895, § 2729; Civil Code 1910, § 3262; Code 1933, § 67-111.)

Law reviews. - For article, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Casenote: The Decline and Fall of Constructive Notice," see 65 Mercer L. Rev. 1203 (2014).

JUDICIAL DECISIONS

Duty of mortgagee. - O.C.G.A. § 44-14-39 makes it the duty of a mortgagee to see that the mortgage is duly attested for record; and if the mortgagee fails in this regard, then the mortgage is postponed to younger liens. Andrews v. Mathews, 59 Ga. 466 (1877); Richards & Bro. v. Myers & Marcus, 63 Ga. 762 (1879); New England Mtg. Security v. Ober & Sons, 84 Ga. 294 , 10 S.E. 625 (1890); Cottrell & Sons v. Merchants' & Mechanics' Bank, 89 Ga. 508 , 15 S.E. 944 (1892); Southern Iron & Equip. Co. v. Voyles, 138 Ga. 258 , 75 S.E. 248 , 41 L.R.A. (n.s.) 375, 1913D Ann. Cas. 369 (1912).

Takes effect upon filing. - Where a deed which appears on its face to be entitled to record is filed for record in the office of the clerk of the superior court of the county in which the land lies, it takes effect, as against third persons without notice, from the time it is so filed. The actual recording is the duty of the clerk, and O.C.G.A. § 44-14-39 does not contemplate that an erroneous performance shall operate to defeat the grantee who has properly filed the deed. Thomas v. Hudson, 190 Ga. 622 , 10 S.E.2d 396 (1940).

Apparent defect. - Although a mortgage on realty may have been properly attested by two witnesses, yet where it is so imperfectly recorded as to show attestation by one witness only, such record is no record and is no notice to third persons without notice, under O.C.G.A. § 44-14-39 . Brown v. Aaron, 20 Ga. App. 592 , 93 S.E. 258 (1917).

Not constructive notice. - The record of a mortgage, made without due attestation or probate, will not be held to be constructive notice to a subsequent bona fide purchaser under O.C.G.A. § 44-14-39 . Donalson v. Thomason, 137 Ga. 848 , 74 S.E. 762 (1912); Winn v. Herring-Hall-Marvin Safe Co., 33 Ga. App. 419 , 126 S.E. 879 (1925).

Memorandum of trust indenture could not provide constructive notice of the existence of a mortgage and could not give rise to inquiry notice since the debtor did not sign the memorandum, the memorandum did not fall into any of the recognized categories of documents that could be recorded under the Georgia Code, and the memorandum was not properly attested. Detention Mgmt., LLC v. UMB Bank, NA (In re Mun. Corr., LLC), 501 Bankr. 119 (Bankr. N.D. Ga. 2013).

Evidence did not demand a finding of actual notice. - After a jury entered a special verdict finding that the corporation had notice of an earlier deed securing property in the corporation's declaratory judgment action to determine the priority of its deed over the earlier deed, the corporation's motion for a new trial was properly granted on the ground that the recordation of the earlier deed was so defective as to provide no notice under O.C.G.A. § 44-14-39 ; the trial court did not abuse its discretion in granting a new trial, even though its grant of judgment notwithstanding the verdict was improper on the ground that evidence supported the jury's verdict, because the evidence, construed in the corporation's favor as required under O.C.G.A. § 5-5-20 , did not absolutely demand a verdict that the corporation had actual notice of the earlier deed. Page v. McKnight Constr., 282 Ga. App. 571 , 639 S.E.2d 381 (2006).

Purchaser giving notes. - Where a purchaser buys land without notice of any mortgage thereon, and gives negotiable notes therefor, which are negotiated by the payee, so as to cut off any defense, before the purchaser receives notice of the prior lien, and the price paid is a full and fair consideration, such person will be deemed to be a bona fide purchaser, and as such entitled to protection, under O.C.G.A. § 44-14-39 . Donalson v. Thomason, 137 Ga. 848 , 74 S.E. 762 (1912).

Purchaser paying purchase money. - Actual payment of the purchase money, or what is equivalent thereto, before notice of a defectively recorded mortgage, is necessary to the protection of a subsequent purchaser under O.C.G.A. § 44-14-39 . If there has been a partial payment (or what is equivalent) of the purchase money before notice, the purchaser will be entitled to protection to that extent; but appropriate equitable pleadings are necessary for this purpose. Donalson v. Thomason, 137 Ga. 848 , 74 S.E. 762 (1912).

Erroneous indexing or entry of record. - Due filing for record of a valid mortgage affords good constructive notice of the instrument as to subsequent purchasers even though the entry is erroneously indexed and the record erroneously made on the wrong books. NCR Co. v. Sikes, 94 Ga. App. 391 , 94 S.E.2d 782 (1956).

Erroneous performance by clerk. - The actual recording is the duty of the clerk, and O.C.G.A. § 44-14-39 does not contemplate that an erroneous performance of such duty shall operate to defeat the grantee who has properly filed the deed, and this is true even though it be assumed, as alleged by the petition, that the prudent inquiry and search by the attorney for the purchaser of the record books would not have disclosed the record of the mortgage. NCR Co. v. Sikes, 94 Ga. App. 391 , 94 S.E.2d 782 (1956).

Liability of clerk. - The theory of the rule is that if any injury is done by a failure to record a paper, or by the improper recording of it, the clerk will be liable to the injured party for a breach of duty, and the filing puts the world on notice as to the contents of papers filed for record, whether they are recorded or not. This law, however, can only apply where there is a proper filing of the paper to be recorded and a filing under circumstances where an improper filing and indexing, and an improper recording could be charged to be a breach of duty on the part of the clerk. Buchanan v. Georgia Acceptance Co., 61 Ga. App. 476 , 6 S.E.2d 162 (1939).

Recording in wrong court. - The recording of bills of sale in a court other than in the residence of the maker at the time of its execution is equivalent to no record. It will remain valid against persons executing it, but will be postponed to all liens, created or obtained or purchased, made prior to legal record thereof. Commercial Bank v. Pharr, 75 Ga. App. 364 , 43 S.E.2d 439 (1947).

Valid between parties. - A retention of title contract or a mortgage may be valid between the parties even though it is unattested or improperly attested and not recorded and not entitled to be recorded because of such improper attestation. Central Bank & Trust Co. v. Creede, 103 Ga. App. 203 , 118 S.E.2d 844 (1961).

Re-recording required. - The record of a mortgage defectively attested or probated amounts to no record of it. If the mortgage afterwards be attested so as to entitle it to record, it must be recorded anew in order for it to be constructive notice under O.C.G.A. § 44-14-39 . The entry of the name of the new attesting official upon the old record is improper and will not suffice. Donalson v. Thomason, 137 Ga. 848 , 74 S.E. 762 (1912).

Attestation by mortgagee's attorney. - An affidavit, probating a mortgage, taken before the attorney of the mortgagee, who is a Notary Public, is not a legal affidavit, and a mortgage recorded on such probate is not legally recorded. Nichols v. Hampton, 46 Ga. 253 (1872).

Attestation by officer of corporation mortgagee. - A mortgage attested by a notary public, who is an officer of the corporation to which it is given, is not properly executed, and therefore not admissible for record; and a record of such a mortgage is not constructive notice to persons dealing with the mortgagor. Barrow v. E. Tris Napier Co., 16 Ga. App. 309 , 85 S.E. 267 (1915).

Mortgage filed with superior court clerk. - The lien of a mortgage filed in the office of the clerk of the superior court of the county where the land lies, though not properly recorded, is superior to that of common-law executions entered on the docket after the filing of the mortgage. Merrick v. Taylor, 14 Ga. App. 81 , 80 S.E. 343 (1913).

Security deed. - The record of a security deed on insufficient attestation or probate is equal to no record at all, under O.C.G.A. § 44-14-39 . In re Hammett, 286 F. 392 (N.D. Ga. 1923).

Conditional sales. - The same rules govern the priority of conditional bills of sale, as affected by registration under O.C.G.A. § 44-14-39 , as govern the registration of mortgages. Phillips & Crew Co. v. Drake, 13 Ga. App. 764 , 79 S.E. 952 (1913).

A retention title contract signed by the purchaser in the purchaser's trade name personally and in own individual name is entitled to record where it otherwise meets the requirements of O.C.G.A. § 44-14-39 , and after being duly recorded constitutes constructive notice of the right and interest of the vendor therein as against the purchase of the property at a judicial sale on execution issued against the purchaser in the individual capacity. NCR Co. v. Sikes, 94 Ga. App. 391 , 94 S.E.2d 782 (1956).

An attachment lien is superior to the lien of an unrecorded conditional sale contract executed before the issuance and levy of the attachment. Rhodes v. Jones, 55 Ga. App. 803 , 191 S.E. 503 (1937).

Effect on admissibility. - Fact that the records were perhaps not indexed or otherwise set up so that one could thereby locate the record of retention title transaction under the name of the individual signing the instrument did not amount to a defective recording of an otherwise valid instrument so as to allow the same to be excluded from evidence. NCR Co. v. Sikes, 94 Ga. App. 391 , 94 S.E.2d 782 (1956).

Partial repeal. - O.C.G.A. § 44-14-39 , as it appeared prior to 1889, was necessarily repealed insofar as it conflicted with the Act of 1889 (Ga. L. 1889, p. 106), O.C.G.A. § 44-2-2 . Buchanan v. Georgia Acceptance Co., 61 Ga. App. 476 , 6 S.E.2d 162 (1939).

Cited in A.O. Blackmar Co. v. NCR Co., 64 Ga. App. 739 , 14 S.E.2d 153 (1941); McEntyre v. Burns, 81 Ga. App. 239 , 58 S.E.2d 442 (1950); B.F. Avery & Sons Co. v. Davis, 226 F.2d 942 (5th Cir. 1955); Sullivan v. Sullivan, 286 Ga. 53 , 684 S.E.2d 861 (2009).

RESEARCH REFERENCES

C.J.S. - 59 C.J.S., Mortgages, § 197.

ALR. - Effect of purported subscribing witness's denial or forgetfulness of signature by mark, 17 A.L.R. 1267 .

Priority where senior instrument affecting real property is recorded after execution but before recording of junior instrument, 32 A.L.R. 344 .

Right of one claiming through heir, devisee, or personal representative to protection against unrecorded conveyance or mortgage by ancestor or testator, 65 A.L.R. 360 .

Right of executor or administrator of insolvent estate to take advantage of failure to record, or file, or refile a conveyance or mortgage executed by his decedent, 91 A.L.R. 299 .

Recording laws as applied to power of attorney under which deed or mortgage is executed, 114 A.L.R. 660 .

Inconsistency between description of land in instruments conveying same or affecting title thereto and description in another instrument referred to therein, 134 A.L.R. 1041 .

Omission of amount of debt in mortgage or in record thereof (including general description without stating amount) as affecting validity of mortgage, its operation as notice, or its coverage respect to debts secured, 145 A.L.R. 369 .

Statutes regarding filing or refiling of chattel mortgage as requiring disclosure of assignment of mortgage, 152 A.L.R. 1097 .

Sufficiency of certificate of acknowledgment, 25 A.L.R.2d 1124.

Reinstatement and restoration of mortgages released or discharged without authorization, as against subsequent purchasers, lienholders, judgment creditors, and the like, without notice, 35 A.L.R.2d 948.

44-14-40. Probate of mortgages.

All the rules prescribed for the probate of deeds to land when the witnesses are dead, insane, or removed from the state and all the rules prescribed for the acknowledgment before or attestation by consuls or commissioners shall apply to the probate of mortgages.

(Orig. Code 1863, § 1963; Code 1868, § 1951; Code 1873, § 1961; Code 1882, § 1961; Civil Code 1895, § 2731; Civil Code 1910, § 3264; Code 1933, § 67-112.)

JUDICIAL DECISIONS

Cited in In re W.J. Marshall Co., 291 F. 268 (S.D. Ga. 1923); Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932); A.O. Blackmar Co. v. NCR, 64 Ga. App. 739 , 14 S.E.2d 153 (1941); Parham v. Heath, 90 Ga. App. 26 , 81 S.E.2d 848 (1954).

RESEARCH REFERENCES

ALR. - Sufficiency of certificate of acknowledgment, 29 A.L.R. 919 .

Right of one claiming through heir, devisee, or personal representative to protection against unrecorded conveyance or mortgage by ancestor or testator, 65 A.L.R. 360 .

Right of executor or administrator of insolvent estate to take advantage of failure to record, or file, or refile a conveyance or mortgage executed by his decedent, 91 A.L.R. 299 .

Sufficiency of certificate of acknowledgment, 25 A.L.R.2d 1124.

44-14-41. Tacking of mortgages.

There shall be no tacking of mortgages.

(Orig. Code 1863, § 1964; Code 1868, § 1952; Code 1873, § 1962; Code 1882, § 1962; Civil Code 1895, § 2732; Civil Code 1910, § 3265; Code 1933, § 67-113.)

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 458.

44-14-42. Mortgages to sureties and guarantors.

Mortgages may be taken by sureties and guarantors to indemnify them against loss.

(Orig. Code 1863, § 1965; Code 1868, § 1953; Code 1873, § 1963; Code 1882, § 1963; Civil Code 1895, § 2733; Civil Code 1910, § 3266; Code 1933, § 67-114.)

JUDICIAL DECISIONS

O.C.G.A. § 44-14-42 is not a limitation, and it does not prevent a surety or endorser from taking other security. Richey v. First Nat'l Bank, 180 Ga. 751 , 180 S.E. 740 (1935).

RESEARCH REFERENCES

ALR. - Liability of grantee assuming mortgage debt to mortgagee or one in privity with him, 21 A.L.R. 439 ; 47 A.L.R. 339 .

Liability of grantee assuming mortgage debt, to grantor, 21 A.L.R. 504 ; 76 A.L.R. 1191 ; 97 A.L.R. 1076 .

Liability to mortgagee of insurer which pays loss to mortgagor, in absence of loss-payable clause, 21 A.L.R. 1464 .

Valuation of "security" which must be deducted from claim of holder of mortgage, or interest in mortgage, to determine amount allowable on liquidation of mortgage guaranty company, 115 A.L.R. 621 .

Mortgages effect upon obligation of guarantor or surety of statute forbidden, or restricting deficiency judgment, 49 A.L.R.3d 554.

44-14-42.1. Redemption of property by mortgagor.

If the possession of real property shall be given to the mortgagee, the mortgagor may redeem at any time within ten years from the last recognition by the mortgagee of such right of redemption.

(Code 1863, § 1966; Code 1868, § 1954; Code 1873, § 1964; Code 1882, § 1964; Civil Code 1895, § 2734; Civil Code 1910, § 3267; Code 1933, § 67-115; Code 1981, § 44-14-42.1 , enacted by Ga. L. 1984, p. 22, § 44.)

Editor's notes. - The provisions of this Code section were previously enacted in substantially similar form by the Acts and codes listed in the historical citation. However, those provisions were not originally enacted as part of O.C.G.A. by the Code enactment Act (Ga. L. 1981, Ex. Sess., p. 8).

RESEARCH REFERENCES

18 Am. Jur. Pleading and Practice Forms, Mortgages, § 250.

ALR. - Mortgages: effect on subordinate lien of redemption by owner or assignee from sale under prior lien, 56 A.L.R.4th 703.

44-14-43. Foreclosure of mortgage after note barred by limitations.

The fact that a note or other evidence of debt is barred does not prevent a creditor from thereafter availing himself of the mortgage or other security unless the mortgage or other security itself is barred.

(Civil Code 1895, § 2735; Civil Code 1910, § 3268; Code 1933, § 67-116.)

History of section. - This section is derived from the decisions in Elkins v. Edwards, 8 Ga. 325 (1849) and Reid v. Flippen, 47 Ga. 273 (1872).

JUDICIAL DECISIONS

Purchase-money notes. - The fact that notes given by a vendee to a vendor for the purchase-money of land have become barred does not extinguish the title of the vendor; and the latter can, although the purchase-money notes are barred, assert title by claim to the land until the purchase-money is paid in full. Myers v. Warrenfells, 153 Ga. 648 , 113 S.E. 180 (1922).

Transfer of insurance policy as security. - Where a policy of insurance was transferred as security for a debt, the fact that the remedy on the latter was barred did not destroy the debt itself, nor did it prevent the holder of the collateral from enforcing rights thereunder. Conway v. Caswell, 121 Ga. 254 , 48 S.E. 956 , 2 Ann. Cas. 269 (1904).

Unsealed promissory note. - Even though remedies upon an unsealed promissory note may have been barred, the debtor might still proceed under a mortgage or other security for the debt, executed under seal, until after the lapse of 20 years; and this is applicable to a foreclosure as an equitable mortgage of a deed to secure debt. Sammons v. Nabers, 186 Ga. 161 , 197 S.E. 284 (1938).

Rights under security deed. - Provided the right to foreclose or otherwise recover land conveyed by a security deed is not barred by the provisions of O.C.G.A. § 44-14-43 , even if the evidence at trial revealed that an action to collect the debt was barred by the statute of limitations, such would not prevent the grantee from exercising rights under the security deeds. Brinson v. McMillan, 263 Ga. 802 , 440 S.E.2d 22 (1994).

Security deed not referring to debt. - A security deed which does not refer in any way to the debt to secure which it was given, or furnish any evidence of its existence, cannot be foreclosed as an equitable mortgage, and a money judgment obtained thereon, if the obligation secured by the deed is barred by the statute of limitations. Duke v. Story, 116 Ga. 388 , 42 S.E. 722 (1902).

Bar of action on account was applied though the account was for goods sold under sealed contract retaining title in seller until payment. Hinson v. Davis, 30 Ga. App. 356 , 118 S.E. 481 , cert. denied, 30 Ga. App. 801 (1923).

Enforcing equitable lien arising from absolute conveyance. See Story v. Doris, 110 Ga. 65 , 35 S.E. 314 (1900).

Cited in Harris v. Black, 143 Ga. 497 , 85 S.E. 742 (1915); Klosterman v. Tudor, 170 Ga. App. 4 , 315 S.E.2d 920 (1984); Decatur Fed. Savs. & Loan v. Gibson, 268 Ga. 362 , 489 S.E.2d 820 (1997).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 687.

44-14-44. Sale of mortgaged land under other process; claiming proceeds of sale.

Subject to the lien of the mortgage, mortgaged property may be sold under other process. If the mortgage is foreclosed, the mortgagee may place his execution in the hands of the officer making the sale, may cause the unencumbered title to be sold, and may claim the proceeds according to the date of his lien.

(Orig. Code 1863, § 1969; Code 1868, § 1957; Code 1873, § 1967; Code 1882, § 1967; Civil Code 1895, § 2741; Civil Code 1910, § 3274; Code 1933, § 67-118.)

JUDICIAL DECISIONS

O.C.G.A. § 44-14-44 does not apply in case of two mortgages, unless both mortgages are given by the same person on the same property. Pasley v. Beland, 111 Ga. 828 , 36 S.E. 296 (1900); Crawford County Bank v. Britt-Hightower Co., 17 Ga. App. 804 , 88 S.E. 691 (1916); Stanton v. Hargett, 93 Ga. App. 508 , 92 S.E.2d 328 (1956).

Option of holder of mortgage. - Under O.C.G.A. § 44-14-44 the holder of the mortgage has the option to place mortgage fi. fa. in the hands of the officer, cause the title unincumbered to be sold, and claim the proceeds, according to the date of the lien, or else the mortgagor may simply allow the sale to proceed subject to the lien of mortgage. Kirby v. Reese, 69 Ga. 452 (1882). See also Toney v. Puckett, 18 Ga. App. 514 , 89 S.E. 1102 (1916).

Rights of holder of unforeclosed mortgage. - An unforeclosed mortgage cannot be the basis of a claim for money on a rule to distribute, unless it be shown that the holder of the mortgage would otherwise be remediless. De Vaughn v. Byrom, 110 Ga. 904 , 36 S.E. 267 (1900).

The holder of an unforeclosed mortgage on property brought to sale under a general judgment junior to the mortgage, could not, without the consent of the mortgagor and the plaintiff in execution, cause the entire estate to be sold and afterwards claim the fund in the sheriff's hands. Hynds Mfg. Co. v. Oglesby & Meador Grocery Co., 93 Ga. 542 , 21 S.E. 63 (1894).

The holder of an unforeclosed mortgage cannot claim at law the balance of a fund arising from the sale of the property covered by the mortgage, after paying the judgment under which it was sold, and which was older than the mortgage, but the holder can make such a claim in equity, and this could be done on a money rule, with proper allegations. Baker & Hall v. Gladden, 72 Ga. 469 (1884).

Lien of mortgage superior to subsequent judgment. - The lien of a mortgage was superior to a subsequent judgment, in a distribution of proceeds of the sale under O.C.G.A. § 44-14-44 . Ragan v. Coley & Bro., 4 Ga. App. 421 , 61 S.E. 862 (1908).

Illegal foreclosure. - A fi. fa. based on an illegal foreclosure has no standing in court and cannot take proceeds of the sale. Rich v. Colquitt, 65 Ga. 113 (1880).

Setting up outstanding title in third person. - One claiming property under levy cannot defeat the plaintiff in execution by setting up outstanding title in a third person; and it is equally true that one claiming funds by intervention in a rule to distribute money, derived from the sale of property under execution, cannot support such a claim by showing that title to the property was vested in some person other than the defendant in execution. Crawford County Bank v. Britt-Hightower Co., 17 Ga. App. 804 , 88 S.E. 691 (1916).

Lien of older judgments divested by sale on foreclosure. - The sale of property under an execution issued upon the foreclosure of a mortgage thereon, will divest the lien of a judgment against the mortgagor of older date than such mortgage, and will pass to the purchaser at such sale the title to the mortgaged property freed from the encumbrance of the lien imposed by the older judgment. Brunswick Sav. & Trust Co. v. National Bank, 102 Ga. 766 , 29 S.E. 688 (1898).

Sale of equity of redemption. - The equity of redemption in mortgaged property in this state is subject to levy and sale. Winter v. Garrard, 7 Ga. 183 (1849); Harwell v. Fitts, 20 Ga. 723 (1856); Tarver v. Ellison, 57 Ga. 54 (1876); Sims v. Jones, 158 Ga. 384 , 123 S.E. 614 (1924).

When the cost fi. fa. was levied upon land to the decedent in order to satisfy that fi. fa., only the equity of redemption could be sold. Johnson v. Goins, 157 Ga. 430 , 121 S.E. 830 (1924).

Tax sale. - Where property is sold under a tax fi. fa., upon which there is a preexisting mortgage, only the equity of redemption can be sold. Doane v. S.B. Chittenden & Co., 25 Ga. 103 (1858); Johnson v. Goins, 157 Ga. 430 , 121 S.E. 830 (1924).

Sale under junior general judgment. - Where it is undisputed that before and at the time of sale of property the attorney for the mortgagee gave all prospective and actual bidders upon the property, which was being sold under a junior general judgment, public notice that the property was being sold subject to the lien of a senior mortgage fi. fa. which the mortgagee held, the purchaser at the sale acquired only the equity of redemption held by the defendant in the junior fi. fa. Garrett v. Fields, 22 Ga. App. 381 , 95 S.E. 1014 (1918).

Effect of sale of unrecorded senior mortgage. - If a senior unrecorded mortgage is foreclosed, and the mortgagees become the purchasers at the sale thereunder, they obtained only the equity of redemption under a junior recorded mortgage, and the holder of such junior mortgage could thereafter foreclose it and subject the property to levy and sale thereunder; the junior mortgagee is not compelled to look to the proceeds of the sale under the senior mortgage fi. fa. Kelly & Bros. v. Shepherd, 79 Ga. 706 , 4 S.E. 880 (1887).

Equitable pleadings to foreclose as amendment to claim. - The claimant of property levied on under a judgment cannot, by equitable pleading offered as an amendment to the claim, foreclose a mortgage against the defendant in execution and thereupon obtain a decree for the satisfaction of such mortgage out of the proceeds of the property when sold under O.C.G.A. § 44-14-44 . Cabot v. Armstrong, 100 Ga. 438 , 28 S.E. 123 (1897).

Cited in Dowell v. George A. Dickle & Co., 55 Ga. 176 (1875); Smith v. Bowne, 60 Ga. 484 (1878); Roberts v. Hinson, 77 Ga. 589 , 2 S.E. 752 (1886).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 778.

C.J.S. - 59 C.J.S., Mortgages, § 457.

ALR. - Right of chattel mortgagee in respect of proceeds of sale of mortgaged property by mortgagor, 36 A.L.R. 1379 .

Liability of grantee assuming mortgage debt, to grantor, 76 A.L.R. 1191 ; 97 A.L.R. 1076 .

Chattel mortgagee's consent to sale of mortgaged property as waiver of lien, 97 A.L.R. 646 .

Personal liability to mortgagor, as distinguished from mortgagee, of vendee of mortgaged premises who does not in terms assume or agree to pay mortgage, 111 A.L.R. 1114 .

Sale in inverse order of alienation, 131 A.L.R. 4

Right of true owner to recover proceeds of sale or lease of real property made by another in the belief that he was the owner of the property, 133 A.L.R. 1443 .

Right to attack voidable sale under power in mortgage, as personal to mortgagor (or owner of equity of redemption), or as exercisable by his heir, grantee, creditor, or other person claiming under or through him, 143 A.L.R. 528 .

Extent of exemption of proceeds of voluntary sale of homestead as affected by lien or encumbrance, 161 A.L.R. 1256 .

44-14-45. Forthcoming bond by purchaser of mortgaged personalty; affidavit of mortgagee.

Purchasers at public sales of personal property subject to the lien of a mortgage shall give bond and security in double the value of the property to the officer making the sale and conditioned not to remove the property from the state and for its forthcoming answer to the lien; provided, however, that prior to the sale the mortgagee or his or her agent shall file with the officer an affidavit stating the amount due on the mortgage and that he or she expects the loss of the property unless the bond is taken. On failure to give the bond, the property shall be resold at the risk of the purchaser.

(Laws 1830, Cobb's 1851 Digest, p. 513; Code 1863, § 1970; Code 1868, § 1958; Code 1873, § 1968; Code 1882, § 1968; Civil Code 1895, § 2742; Civil Code 1910, § 3275; Code 1933, § 67-119; Ga. L. 2002, p. 415, § 44.)

The 2002 amendment, effective April 18, 2002, part of an Act to revise, modernize, and correct the Code, deleted "to" following "forthcoming" and inserted "or her" and "or she".

JUDICIAL DECISIONS

Cited in Calloway v. People's Bank, 54 Ga. 441 (1875).

RESEARCH REFERENCES

ALR. - Personal liability to mortgagor, as distinguished from mortgagee, of vendee of mortgaged premises who does not in term assume or agree to pay mortgage, 111 A.L.R. 1114 .

44-14-46. When mortgage fi. fa. may claim proceeds of sale.

If other writs of fieri facias are levied on mortgaged property and the property is sold, the mortgage fi. fa. may nevertheless claim the proceeds of the sale if its lien is superior.

(Orig. Code 1863, § 3877; Code 1868, § 3897; Code 1873, § 3973; Code 1882, § 3973; Civil Code 1895, § 2758; Civil Code 1910, § 3291; Code 1933, § 67-120.)

JUDICIAL DECISIONS

Cited in Brunswick Sav. & Trust Co. v. National Bank, 102 Ga. 776 , 29 S.E. 688 (1898); Ragan v. Coley & Bro., 4 Ga. App. 421 , 61 S.E. 862 (1908).

RESEARCH REFERENCES

ALR. - Validity of chattel mortgage where mortgagor is given right to sell, 73 A.L.R. 236 .

Personal liability to mortgagor, as distinguished from mortgagee, of vendee of mortgaged premises who does not in term assume or agree to pay mortgage, 111 A.L.R. 1114 .

Extent of exemption of proceeds of voluntary sale of homestead as affected by lien or encumbrance, 161 A.L.R. 1256 .

44-14-47. Sale of mortgaged property without foreclosure and claim by mortgagee.

If a mortgage on realty or personalty is not foreclosed and the equity of redemption is levied on by other writs of fieri facias by consent of the mortgagor and mortgagee and the plaintiff in the fi. fa. levied, the entire estate may be sold and the mortgagee may claim under his lien in the same manner as if his mortgage were foreclosed.

(Orig. Code 1863, § 3878; Code 1868, § 3898; Code 1873, § 3974; Code 1882, § 3974; Civil Code 1895, § 2759; Civil Code 1910, § 3292; Code 1933, § 67-121.)

JUDICIAL DECISIONS

Necessity for consent. - Where the equity of redemption is levied on, it requires the consent of the mortgagor, mortgagee, and plaintiff in fi. fa. under O.C.G.A. § 44-14-47 , to sell the entire interest in the property so as to free the same from the lien of the mortgage. Milner v. I.H. Pitts & Son, 117 Ga. 794 , 45 S.E. 67 (1903). See also Hynds Mfg. Co. v. Oglesby & Meador Grocery Co., 93 Ga. 542 , 21 S.E. 63 (1894); De Vaughn v. Byrom, 110 Ga. 904 , 36 S.E. 267 (1900).

Reason for rule. - The reason for the consent rule is patent. In the first place, the mortgage creditor with an unforeclosed mortgage is not in a position to assert a claim to the fund. Generally, a creditor cannot claim the proceeds of a sale, when the creditor has not the power personally to enforce a sale. Again, the debtor has the right under the law to insist upon a foreclosure before the property can be seized to satisfy the mortgage, and has the privilege of redeeming the property at any time pending the proceedings to foreclose and to sell. Hence, O.C.G.A. § 44-14-47 requires the debtor's consent, as well as the mortgagee's, before a sale can divest this special lien. Brunswick Sav. & Trust Co. v. National Bank, 102 Ga. 776 , 29 S.E. 688 (1898).

Consent need not be in writing. - It is not necessary, under O.C.G.A. § 44-14-47 , that the consent of the mortgagor, mortgagee and plaintiff in fi. fa., levied, to sell the entire fee in the land levied on, should be in writing. D. Goode & Son v. Rawlings, 44 Ga. 593 (1872).

Inapplicable to sales by receivers. - O.C.G.A. § 44-14-47 does not apply to sales by receivers, the statute being restricted in its operations to sales where the equity of redemption is levied on under an execution. McLaughlin v. Taylor, 115 Ga. 671 , 42 S.E. 30 (1902).

Mortgagee abandoning lien and claiming proceeds. - Until foreclosed, a younger fi. fa. can sell only the equity of redemption, unless the mortgagee abandons the lien and suffers the entire property to be sold, coming in for distribution of the proceeds. Except by agreement, the mortgagee cannot claim the proceeds of such sale. Harwell v. Fitts, 20 Ga. 723 (1856).

Claiming money arising from sale of property not mortgaged. - Mortgagees may waive the lien of their mortgages and claim the money with consent of mortgagor, without foreclosure, but they cannot claim, against the rights of other judgment creditors, even with the consent of the defendant, money arising from the sale of property not mortgaged. Byars v. Bancroft, Betts & Marshall, 22 Ga. 34 (1857).

Sale of entire estate after sale of equity of redemption. - Under O.C.G.A. § 44-14-47 , the mortgagor cannot, after a sale of the equity of redemption by joining in a consent with the mortgagee, lawfully cause the entire estate in the land to be sold and conveyed under another common-law judgment in favor of the mortgagee against the mortgagor. Hitch v. Bailey, 115 Ga. 891 , 42 S.E. 252 (1902).

Sale by virtue of execution on older judgment. - If there be not money enough raised from the sale of the equity of redemption, or interest in the land subject to the mortgage, to pay off the judgment which is older than the mortgage, an execution issued upon such older judgment may be levied upon the residue of the estate in the land, and being older than the mortgage, it will sell the land free from its incumbrance, and the title of the purchaser will be good against the mortgage. Tarver v. Ellison, 57 Ga. 54 (1876).

Lien of mortgage older than judgment. - A mortgagee sued the mortgage notes to judgment and had the execution levied on the premises covered by the mortgage. By virtue of an agreement between the mortgagor and mortgagee, who was also plaintiff in fi. fa., the entire estate was sold; and it brought full value. Just prior to the sale a third person lodged with the sheriff a general common-law judgment against the mortgagor, of date younger than the mortgage but older than the judgment based on the mortgage debt, and ordered the sheriff to hold up the fund arising from the sale. It was held, that on a rule brought against the sheriff for a distribution of the fund, the mortgage should first be paid and the residue applied to judgment of the intervenor. Both judgment creditors have liens, but the lien of the mortgage is older, and is therefore entitled to priority. Hughes v. Mount Vernon Bank, 4 Ga. App. 23 , 60 S.E. 809 (1908).

Estoppel to deny consent. - Where the holder of the subsequent mortgage failed to question the legal right of the other holder to intervene in a proceeding for distribution of process from a foreclosure without foreclosing the holder's mortgage, and where the jury found against the holder of the subsequent mortgage, and judgment was entered in favor of the other holder, the holder of the subsequent mortgage will not be heard to insist for the first time that it is illegal because the earlier mortgage had not been foreclosed and no equitable reason for claiming the fund derived from a sale under the subsequent mortgage was set out in the intervention. Bank of Cumming v. Goolsby, 34 Ga. App. 217 , 129 S.E. 8 (1925).

Sale by virtue of execution on junior judgment. - The sale of land by virtue of execution issued on a judgment junior to a mortgage, not foreclosed, conveys to the purchaser only the property sold, which, in this state, is the equity of redemption, or its equivalent, which is the estate in the land subject to the mortgage debt, and such sale divests the lien of a judgment older than the mortgage, only upon that interest or estate in the land which is sold. Tarver v. Ellison, 57 Ga. 54 (1876).

Retention of title note. - Where a firm bought certain mules, and gave to the vendors a purchase-money note in which it was provided that the title should remain in the latter until payment and the mules were sold under later common-law executions, the facts do not make a case falling within O.C.G.A. § 44-14-47 . Browder, Manget & Co. v. Blake & Madden, 135 Ga. 71 , 68 S.E. 837 (1910).

To deprive mortgagees of the priority acquired at a sale by consent, the other creditors must show clearly a superior equity. Baker & Wilcox v. Wimpee, 22 Ga. 69 (1857).

RESEARCH REFERENCES

ALR. - Chattel annexed to realty as subject to prior mortgage, 41 A.L.R. 601 ; 88 A.L.R. 1114 ; 99 A.L.R. 144 .

Validity of chattel mortgage where mortgagor is given right to sell, 73 A.L.R. 236 .

Sale in inverse order of alienation, 131 A.L.R. 4

44-14-48. Foreclosure by one of several mortgagees; control and distribution of proceeds by court.

If there are several mortgages of equal rank or if separate amounts due to distinct persons are embraced in the same mortgage and one mortgagee forecloses, the court will control the proceeds of the sale for distribution to the several mortgagees according to their claims.

(Orig. Code 1863, § 1968; Code 1868, § 1956; Code 1873, § 1966; Code 1882, § 1966; Civil Code 1895, § 2740; Civil Code 1910, § 3273; Code 1933, § 67-122.)

History of section. - This section is derived in part from the decision in Bass v. West Point Whsle. Grocery Co., 5 Ga. App. 746 , 62 S.E. 1004 (1908).

JUDICIAL DECISIONS

Evidence showing single mortgage in fact several. - Where a single mortgage is taken for two separate amounts due to two distinct parties, in legal effect it is equivalent to two mortgages taken contemporaneously upon the same property; and upon a suit by one of the parties secured thereunder against the other, it is permissible to show that the mortgage was collected as to only one of the amounts secured, and not as to the other. Bass v. West Point Whsle. Grocery Co., 5 Ga. App. 746 , 62 S.E. 1004 (1908).

Cited in Russell v. C.D. Carr & Co., 38 Ga. 459 (1868).

RESEARCH REFERENCES

ALR. - Foreclosure of one mortgage as affecting another mortgage on the property held by the same party, 39 A.L.R. 1485 .

Priority as between holders of different notes or obligations secured by the same mortgage or mortgages executed contemporaneously, 108 A.L.R. 485 ; 115 A.L.R. 40 .

Sale in inverse order of alienation, 131 A.L.R. 4

Mortgages: effect on subordinate lien of redemption by owner or assignee from sale under prior lien, 56 A.L.R.4th 703.

44-14-49. Right of holder of mortgage to foreclose in equity.

The holder of any mortgage of real or personal property or both, whether as original mortgagee or as executor, administrator, or assignee of the original mortgagee, may foreclose the mortgage in equity according to the practice of the courts in equitable proceedings as well as by the methods prescribed in this chapter.

(Ga. L. 1880-81, p. 127, § 1; Code 1882, § 3979a; Civil Code 1895, § 2770; Civil Code 1910, § 3305; Code 1933, § 67-601.)

Law reviews. - For note discussing enforcement of security agreements in equity in light of Article 9, Part 5 of the Uniform Commercial Code, see 3 Ga. L. Rev. 198 (1968).

JUDICIAL DECISIONS

History of equitable foreclosures. - Formerly the process of foreclosure of a mortgage in England was by bill in chancery. Bailey v. Lumpkin, 1 Ga. 392 (1846); Mahone v. Elliott, 141 Ga. 214 , 80 S.E. 713 (1914).

Holders of mortgages may now resort to equity for their foreclosure, without alleging any special grounds of equitable interference. DeLay v. Latimer, 155 Ga. 463 , 117 S.E. 446 (1923).

Courts have fuller power by this section. - O.C.G.A. § 44-14-49 allowing mortgages to be foreclosed in equity conferred fuller powers upon the court by this mode of procedure than it had at law; and in addition to the foreclosure, a personal decree may be rendered against the mortgagor. Clay v. Banks, 71 Ga. 363 (1883).

Where foreclosure already had at law. - Where the creditor has an honest mortgage on personalty, and has foreclosed the same at law, the creditor has no occasion, either as a substitute for, or in aid of the foreclosure proceeding, to file a bill in a court of equity under O.C.G.A. § 44-14-49 in order to realize the fruits of the foreclosure as against fraudulent mortgages of prior date on the same property, which are also foreclosed, and under which the property has been seized and is about to be sold. Manheim v. Claflin & Co., 81 Ga. 129 , 7 S.E. 284 (1888).

Foreclosure in connection with contempt action not authorized. - Contempt proceeding against former husband to enforce the terms of a divorce decree granting former wife an equitable lien on property conveyed to husband was merely ancillary to the divorce action and the court was not authorized to permit foreclosure upon the property. Harris v. U.S. Dev. Corp., 269 Ga. 659 , 502 S.E.2d 721 (1998).

Court of Appeals denied jurisdiction. - Since an action to enforce an equitable foreclosure is in equity, 1983 Const., Art. VI, Sec. VI, Para. III operates to deny jurisdiction of the Court of Appeals to hear a case arising under O.C.G.A. § 44-14-49 . Arnold v. Hickey, 169 Ga. App. 750 , 315 S.E.2d 273 (1984).

Personal judgment against debtor becoming barred. - Under O.C.G.A. § 44-14-49 the fact that a personal judgment against the debtor had become barred did not render dormant that part of the decree which declared that the creditor held a valid legal title to the policy to the extent specified. Conway v. Caswell, 121 Ga. 254 , 48 S.E. 956 , 2 Ann. Cas. 269 (1904).

Payment to purchaser from mortgagor before foreclosure. - Where A, the owner of land, borrows money from B and gives a security deed, taking a bond for titles, and subsequently mortgages the land to C to secure the payment of money borrowed, and then sells and transfers the bond for titles to D, who has notice of the mortgage, and D pays off the claims of B, C cannot in equity foreclose the mortgage on the land and have it sold without first paying or tendering to D the amount paid by the latter to B. Crawford v. Maddox, 117 Ga. 135 , 43 S.E. 421 (1903).

County of foreclosure of mortgage on realty. - A mortgage on land cannot be foreclosed in a county other than where the land lies under a legal proceeding, but it might be otherwise if the foreclosure were sought in equity under O.C.G.A. § 44-14-49 . Allen v. Glenn, 87 Ga. 414 , 13 S.E. 565 (1891).

Action for damages for breach of bond with a prayer of foreclosure. - An action of an equitable nature under O.C.G.A. § 44-14-49 by a building and loan association for damages resulting from the breach of a bond given to it by a member to whom it had made an advance upon the member's stock, with a prayer for the foreclosure of a mortgage which the member had executed to secure the payment of such damages, was well brought. Morgan v. Interstate Bldg. & Loan Ass'n, 108 Ga. 185 , 33 S.E. 964 (1899).

Failure to issue execution on judgment. - Where upon a petition to foreclose a mortgage in equity under O.C.G.A. § 44-14-49 a judgment was rendered foreclosing the mortgage, while, so far as the same may purport to be a general personal judgment, it is dormant because of failure to issue an execution thereon in terms of the statute relating to dormancy of judgments, it is valid and enforceable as a decree foreclosing a mortgage. Conway v. Caswell, 121 Ga. 254 , 48 S.E. 956 , 2 Ann. Cas. 269 (1904); Lindsey v. Porter & Garrett, 140 Ga. 249 , 78 S.E. 848 (1913).

Holder of one of several notes secured by same mortgage may foreclose the mortgage in equity. The holder of the other notes is a proper, even if not a necessary, party to the proceeding. Willingham & Cone v. Huguenin, 129 Ga. 835 , 60 S.E. 186 (1908).

Sufficiency of petition. Ford v. Tifton Guano Co., 144 Ga. 353 , 87 S.E. 274 (1915).

Cited in Duke v. Culpepper, 72 Ga. 842 (1884); Carling v. Seymour Lumber Co., 113 F. 483 (5th Cir. 1902); Smith v. First Nat'l Bank, 143 Ga. 543 , 85 S.E. 696 (1915); Thompson v. Graham, 172 Ga. 35 , 157 S.E. 204 (1931); Penn Mut. Life Ins. Co. v. Troup, 177 Ga. 456 , 170 S.E. 359 (1933); Coolidge v. Sandwich, 49 Ga. App. 564 , 176 S.E. 525 (1934); Candler v. Bryan, 189 Ga. 851 , 8 S.E.2d 81 (1940); Gillespie v. Williams, 78 Ga. App. 503 , 51 S.E.2d 608 (1949).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 633 et seq.

C.J.S. - 59 C.J.S., Mortgages, § 490 et seq.

ALR. - Personal representatives, or nonlien creditors, of deceased mortgagor or of deceased grantee of premises subject to mortgage (with or without assumption of mortgage debt), as necessary or proper parties to foreclosure suit, 124 A.L.R. 784 .

Remedy of mortgagee in forged or unauthorized mortgage where proceeds are used to discharge valid lien, 151 A.L.R. 407 .

Right, after foreclosure, to reformation on ground of erroneous description originating in mortgage, 172 A.L.R. 655 .

ARTICLE 3 CONVEYANCES TO SECURE DEBT AND BILLS OF SALE

Editor's notes. - Ga. L. 1962, p. 156, § 1, provides that any provision of Code Sections 44-14-1, 44-14-2, 44-14-4, 44-14-7 through 44-14-12, 44-14-100, and 44-14-160, and Arts. 2 and 3, Ch. 14, of this title which conflicts with T. 11 shall yield to and be superseded by T. 11. See Code Section 11-10-103.

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979).

JUDICIAL DECISIONS

Recorded deed constitutes notice. - A duly filed and recorded deed to secure debt is notice of all the rights which the grantee has thereunder. Cummings v. Johnson, 218 Ga. 559 , 129 S.E.2d 762 (1963).

Creditor reliance on judicial determination justified. - Creditors were entitled to rely upon a previous judicial determination that their secured property had not been transferred and to proceed with their foreclosure sale, following the filing of a bankruptcy petition by the alleged transferee, on the assumption that the property was not part of the bankruptcy estate. Albany Partners, Ltd. v. Westbrook, 749 F.2d 670 (11th Cir. 1984).

Cited in Luther P. Stephens Inv. Co. v. Berry Sch., 188 Ga. 132 , 3 S.E.2d 68 (1939).

PART 1 I N GENERAL

44-14-60. Deed to secure debt as absolute deed; necessity of bond of title or to reconvey.

Whenever any person in this state conveys any real property by deed to secure any debt to any person loaning or advancing the grantor any money or to secure any other debt and takes a bond for title back to the grantor upon the payment of the debt or debts or in like manner conveys any personal property by bill of sale and takes an obligation binding the person to whom the property is conveyed to reconvey the property upon the payment of the debt or debts, the conveyance of real or personal property shall pass the title of the property to the grantee until the debt or debts which the conveyance was made to secure shall be fully paid. Such conveyance shall be held by the courts to be an absolute conveyance, with the right reserved by the grantor to have the property reconveyed to him upon the payment of the debt or debts intended to be secured agreeably to the terms of the contract, and shall not be held to be a mortgage. No bond for title or to reconvey shall be necessary where the deed shows upon its face that it is given to secure a debt.

(Ga. L. 1871-72, p. 44, § 1; Ga. L. 1872, p. 47, § 1; Code 1873, § 1969; Code 1882, § 1969; Ga. L. 1884-85, p. 57, § 1; Civil Code 1895, § 2771; Civil Code 1910, § 3306; Ga. L. 1924, p. 56, § 1; Code 1933, § 67-1301.)

Law reviews. - For article comparing rights of grantees holding deeds to secure debts against a bankrupt debtor to those rights of the mortgagee and lienor, see 10 Ga. B.J. 5 (1947). For comment on Chase v. Endsley, 165 Ga. 292 , 140 S.E. 876 (1927), see 1 Ga. L. Rev. No. 3 p. 49 (1927). For comment on Hertz Driv-Ur-Self Stations, Inc. v. Arnold, 85 Ga. App. 175 , 68 S.E.2d 182 (1952), holding that where a lender takes a bill of sale on personal property to secure debt but authorizes borrower to sell property upon certain conditions, a purchaser without knowledge of the conditions takes free of lender's lien, see 14 Ga. B.J. 472 (1952). For comment on Manchester Motors, Inc. v. Farmers & Merchants Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955), see 18 Ga. B.J. 82 (1955). For comment on Ruff v. Lee, 230 Ga. 426 , 197 S.E.2d 376 (1973), see 8 Ga. L. Rev. 264 (1973).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Constitutionality. - O.C.G.A. § 44-14-60 is constitutional, and a foreclosure pursuant to it does not violate procedural due process rights. National Community Bldrs., Inc. v. Citizens & S. Nat'l Bank, 232 Ga. 594 , 207 S.E.2d 510 (1974).

In general. - The rights of a creditor whose debt is secured by deed from the debtor are fixed by a statute, which, while declaring that such conveyances pass the title to the vendee, evidently intended them to be treated as mere liens, except as between the contracting parties, when the right of third persons only are to be affected. A deed executed under the provisions of O.C.G.A. § 44-14-60 is absolute in the sense that nothing can intervene to prevent the creditor from collecting the debt if the property really belonged to the vendor and is sufficient for that purpose, and in the sense that the vendor is entitled, upon payment of the debt to have title reconveyed to the vendor. But while deeds executed under that section are expressly declared not to be mortgages, it is plain that the legislature, by declaring that they pass absolute title, intended to create a lien of high dignity. Dixon v. Bond, 18 Ga. App. 45 , 88 S.E. 825 (1916).

A purchase-money security deed operates as an absolute conveyance of title until the secured indebtedness is fully paid. It generally takes precedence over simultaneous or prior liens against the purchaser, but not prior liens against the property. Connolly v. State, 199 Ga. App. 887 , 406 S.E.2d 222 (1991).

History of security deeds. - See In re Lookout Mt. Hotel Co., 50 F.2d 421 (N.D. Ga.), rev'd on other grounds sub nom. Bryan v. Speakman, 53 F.2d 463 (5th Cir. 1931), cert. denied, 285 U.S. 539, 52 S. Ct. 312 , 76 L. Ed. 932 (1932).

Subsequent conveyances of real property remain subject to security deed. - Because legal title remains in the grantee until satisfaction of the terms of a security deed, all subsequent conveyances of the real property remain subject to the security deed, unless the grantee releases the property by conveyance or contractually subordinates grantee's rights. Rhodes v. Anchor Rode Condominium Homeowner's Ass'n, 270 Ga. 139 , 508 S.E.2d 648 (1998).

Similar to deed with subsequent mortgage. - Under O.C.G.A. § 44-14-60 , the situation is the same as that which would arise if a vendor made a deed to the vendee and then took a mortgage back to secure the indebtedness. Guin v. Hilton & Dodge Lumber Co., 6 Ga. App. 484 , 65 S.E. 330 (1909).

Vesting title. - Generally in Georgia the mortgage passes no title to lands; yet landed securities made in a particular way by O.C.G.A. § 44-14-60 , which were once held to be equitable mortgages, do pass title now. Thomas v. Morrisett, 76 Ga. 384 (1886).

Section does not divest title. - O.C.G.A. § 44-14-60 cannot be construed as operating, on the mere payment of the debt, to divest the title which, by a bill of sale as provided by O.C.G.A. § 44-14-60 , has passed from the vendor to the vendee, with the right reserved in the vendor to a reconveyance of the title to vendor on the vendee's payment of the debt, but must necessarily be construed as giving to the vendee only the right to retain the title as security for the debt until the debt is paid, and as operating to terminate this right and to cast on the vendee the obligation, after the debt has been paid, to reconvey the property to the vendor. Grady v. T.I. Harris, Inc., 41 Ga. App. 111 , 151 S.E. 829 (1930).

Title revests by operation of law. - A security deed is automatically released and satisfied by full payment of the secured indebtedness, and title passes by operation of law back to the grantor or to those claiming under the grantor; the title which thus revests upon payment is in no way affected by liens, encumbrances, or rights which would otherwise attach by virtue of title having been vested in the grantee. Commercial Bank v. Stafford, 149 Ga. App. 736 , 256 S.E.2d 69 (1979).

Applies to both realty and personalty. - A bill of sale of personalty to secure a debt stands on the same footing as a deed to realty to secure a debt. The status of each is provided for in O.C.G.A. § 44-14-60 . Merchants' & Mechanics' Bank v. Beard, 162 Ga. 446 , 134 S.E. 107 (1926).

Disposition of condemnation award. - Grantee of security deed is not entitled to receive entire proceeds of condemnation award for partial, involuntary taking of property conveyed by the security deed, inasmuch as both grantor and grantee have an interest in property conveyed by security deed, and hence a right to compensation upon condemnation. Harwell v. Georgia Power Co., 250 Ga. 435 , 298 S.E.2d 498 (1983).

Open-end clauses regarding future advances valid. - Open-end or "dragnet" clauses regarding future advances in deeds to secure debt are valid and enforceable. Tedesco v. CDC Fed. Credit Union, 167 Ga. App. 337 , 306 S.E.2d 397 (1983).

A deed to secure debt with an "open-end" clause is not cancelled immediately upon payment of the initial debt. Tedesco v. CDC Fed. Credit Union, 167 Ga. App. 337 , 306 S.E.2d 397 (1983).

Tobacco allotment. - Where debtor executed several deeds to secure debt on the 1,357 acres of farmland, since the tobacco allotment on the acres would pass to the lender if that acreage was sold to the lender, unless specifically reserved, it necessarily follows that debtor's interest in the allotment was conveyed to the lender by virtue of the deeds to secure debt. In re Flanders, 45 Bankr. 222 (Bankr. M.D. Ga. 1984).

The expression "personal property," as used in O.C.G.A. § 44-14-60 includes choses in action as well as visible, tangible personal property. Garrard v. Milledgeville Banking Co., 168 Ga. 339 , 147 S.E. 766 (1929).

Deed securing debt of another. - The plain language of O.C.G.A. § 44-14-60 , although not clear, seems to establish that a deed to secure debt is not limited solely to securing debts of the grantor but may secure the debt of another. In re Am. Ventures, Inc., 340 F. Supp. 279 (N.D. Ga. 1971), aff'd, 457 F.2d 974 (5th Cir. 1972).

Attaches to after-acquired property. - Where a bill of sale on an ordinary stock of merchandise is executed merely to secure a debt, the bill of sale will attach to after-acquired portions of the stock as in case of mortgages, whether or not the bill of sale makes express reference to such after-acquired property. Merchants' & Mechanics' Bank v. Beard, 162 Ga. 446 , 134 S.E. 107 (1926).

Crops not included. - A security deed executed to convey cultivated farm land as security for debt, does not ordinarily comprehend crops matured or unmatured on the land. Penn Mut. Life Ins. Co. v. Larsen, 178 Ga. 255 , 173 S.E. 125 (1934).

Recording. - While the language in O.C.G.A. § 44-2-1 "every deed conveying lands," standing alone, is broad enough to embrace security deeds, it is not applicable to security deeds. Randall v. Hamilton, 156 Ga. 661 , 119 S.E. 595 (1923).

Effect of payment on power of sale. - Payment in full of the debt renders the trust deed functus officio, and ipso facto extinguishes the power of sale. Thurman v. Lee, 181 Ga. 408 , 182 S.E. 609 (1935).

Sale of land under fi. fa. against holder of equity. - By virtue of O.C.G.A. § 44-14-60 the sale of land under a fi. fa. against the holder of an equity therein, who has conveyed the legal title to another to secure a debt, and while the legal title is thus held, is void. Dickenson v. Williams, 151 Ga. 71 , 105 S.E. 841 (1921).

Power of general agent to execute security deed. - A mere general agency to conduct the business of farming will not include the power to execute a security deed. Hargrove v. Armour Fertilizer Works, 31 Ga. App. 465 , 120 S.E. 800 (1923).

Separate deeds as security for two notes. - Where separate deeds executed under O.C.G.A. § 44-14-60 securing separate promissory notes, but by collateral contract the debtor agrees that each deed shall operate as security for the note described in the other, title to all the realty described in both notes passes, as between the debtor and the creditor, to the creditor, and the security is effectual against other creditors who obtain no lien. Johnson v. Gordon, 102 Ga. 350 , 30 S.E. 507 (1897).

Wife may be creditor of her husband and may take from him a deed to land to secure the debt under O.C.G.A. § 44-14-60 . Turner v. Woodward, 133 Ga. 467 , 66 S.E. 160 (1909).

Effect on insurance coverage. - A stipulation in an insurance policy that change of title or possession will render the policy void, does not cover a change effected by taking a security deed under O.C.G.A. § 44-14-60 . Nussbaum v. Northern Ins. Co., 37 F. 524 (S.D. Ga. 1889).

Where a policy of insurance covering a building on the premises is issued, containing a condition that the policy shall be void if the property should be sold, or the title or possession of the property, or any part thereof, transferred or changed, the holder of the policy conveys under O.C.G.A. § 44-14-60 the property insured, the policy is thereby rendered void. Phoenix Ins. Co. v. Asberry, 95 Ga. 792 , 22 S.E. 717 (1895).

Effect of execution of deed to nominee of lender. - After Chapter 7 debtor executed a note to a lender and also executed a security deed to a grantee, as the lender's nominee, to secure the debt, the Chapter 7 trustee could not avoid the deed because the note and deed were executed together and remained linked via language in the documents that contemplated the agency relationship formed by the designation of the grantee as nominee. Drake v. Citizens Bank (In re Corley), 447 Bankr. 375 (Bankr. S.D. Ga. 2011).

Taxation based on beneficial ownership. - In this state, in matters of taxation, the law looks to the substantial, beneficial ownership of property conveyed under O.C.G.A. § 44-14-60 , rather than to the shadowy, technical ownership of the legal title. Central of Ga. Ry. v. Wright, 124 Ga. 630 , 53 S.E. 207 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Merger of tax executions. - Where a grantee who had previously paid tax executions on property purchases the property after exercising the power of sale in a security deed, any claim for money for the tax executions is merged into the grantee's legal title. Branch v. Grubb, 177 Ga. 663 , 170 S.E. 799 (1933).

Evidence. - In the absence of an attack on a properly witnessed and recorded bill of sale placing upon a party the burden of proving its execution, it was not error to admit the bill of sale without proof of its execution. Watkins v. Muse, 78 Ga. App. 17 , 50 S.E.2d 90 (1948).

Summary judgment proper once security deed paid in full. - In an action to remove a cloud from title, the trial court properly granted summary judgment to a bank and cancelled a recorded deed in favor of a holder, as: (1) the holder could no longer claim any legal title to the subject property once the underlying debt thereto was paid; (2) no evidence of valid renewal or extension of the note existed; and (3) the holder lacked standing to challenge any foreclosure on the debt. Northwest Carpets, Inc. v. First Nat'l Bank, 280 Ga. 535 , 630 S.E.2d 407 (2006).

Measure of damages under title insurance policy. - In a breach of contract and bad faith refusal to pay claim under a policy of lender's title insurance, the court reversed the judgment in favor of the insured and held that the issued date for the purpose of measuring any loss by the insured was the date the insured foreclosed on the subject property, not the date the bank closed on the subject loan. Old Republic Nat'l Title Ins. Co. v. RM Kids, LLC, 337 Ga. App. 638 , 788 S.E.2d 542 (2016), cert. denied, No. S16C1843, 2017 Ga. LEXIS 117 (Ga. 2017).

Cited in Tufts v. Little, 56 Ga. 139 (1876); Roland v. Coleman & Co., 76 Ga. 652 (1886); Brice v. Lane, 90 Ga. 294 , 15 S.E. 823 (1892); Arrowood v. McKee, 119 Ga. 623 , 46 S.E. 871 (1904); Hubert v. Merchants' Bank, 137 Ga. 70 , 72 S.E. 505 (1911); McCord v. Hill, 10 Ga. App. 254 , 73 S.E. 559 (1912); Wood v. Dozier, 142 Ga. 538 , 83 S.E. 133 (1914); Beckcom v. Small, 152 Ga. 149 , 108 S.E. 542 (1921); Scott v. Paisley, 158 Ga. 876 , 124 S.E. 726 (1924); First Nat'l Bank v. State Mut. Life Ins. Co., 163 Ga. 718 , 137 S.E. 53 , 51 A.L.R. 1524 (1927); Tarver v. Beneficial Loan Soc'y, 39 Ga. App. 646 , 148 S.E. 288 (1929); A.J. Evans Mktg. Agency v. Federated Fruit & Vegetable Growers, Inc., 170 Ga. 30 , 152 S.E. 49 (1930); Phoenix Mut. Life Ins. Co. v. Bank of Kestler, 170 Ga. 734 , 154 S.E. 247 (1930); Investor's Syndicate v. Thompson, 172 Ga. 203 , 158 S.E. 20 (1931); Merchants' & Citizens' Bank v. Bogle, 174 Ga. 612 , 163 S.E. 489 (1932); A.J. Evans Mktg. Agency, Inc. v. Federated Growers' Credit Corp., 175 Ga. 294 , 165 S.E. 114 (1932); Jones v. Kaplan, 48 Ga. App. 118 , 172 S.E. 110 (1933); Piedmont Agrl. Credit Corp. v. Northeastern Banking Co., 51 Ga. App. 571 , 181 S.E. 84 (1935); First Nat'l Bank v. Southern Cotton Oil Co., 78 F.2d 339 (5th Cir. 1935); Hicks v. Morris, 183 Ga. 116 , 187 S.E. 639 (1936); Bull v. Johnson, 63 Ga. App. 750 , 12 S.E.2d 96 (1940); A.O. Blackmar Co. v. NCR Co., 64 Ga. App. 739 , 14 S.E.2d 153 (1941); Farmers Fertilizer Co. v. Carter, 83 Ga. App. 274 , 63 S.E.2d 245 (1951); Carrollton Prod. Credit Ass'n v. Allen, 93 Ga. App. 150 , 91 S.E.2d 93 (1955); Charles S. Martin Distrib. Co. v. First State Bank, 114 Ga. App. 693 , 152 S.E.2d 599 (1966); Murray v. Johnson, 222 Ga. 788 , 152 S.E.2d 739 (1966); Fourth Nat'l Bank v. Grant, 231 Ga. 692 , 203 S.E.2d 517 (1974); Porter v. Mid-State Homes, Inc., 133 Ga. App. 706 , 213 S.E.2d 10 (1975); Fourth Nat'l Bank v. Grant, 135 Ga. App. 798 , 219 S.E.2d 12 (1975); National Bank & Trust Co. v. Grant, 237 Ga. 337 , 227 S.E.2d 372 (1976); Tobler v. Yoder & Frey Auctioneers, Inc., 462 F. Supp. 788 (S.D. Ga. 1978); Peacock v. Owens, 244 Ga. 203 , 259 S.E.2d 458 (1979); In re Wilder, 22 Bankr. 294 (Bankr. M.D. Ga. 1982); Cravey v. L'Eggs Prods., Inc., 100 Bankr. 119 (Bankr. S.D. Ga. 1989); McCarter v. Bankers Trust Co., 247 Ga. App. 129 , 543 S.E.2d 755 (2000); Stearns Bank, N.A. v. Mullins, 333 Ga. App. 369 , 776 S.E.2d 485 (2015).

Form and Requisites

Instrument cannot be of two natures. - The parties cannot by an agreement make an instrument both retaining title and not retaining title; nor can they by such agreement make a summary statutory proceeding applicable by law to one character of instruments applicable by agreement to another. Wynn & Robinson v. Tyner, 139 Ga. 765 , 78 S.E. 185 (1913).

Sufficiency of description. - Where a security deed conveys a certain lease from the lessor to the grantor in such deed, which deed fully describes the lease and the leased premises and contains this provision: "including also all the machinery, equipment, stock in trade and all other assets" of the grantor, the description of such personal property is sufficient. Bennett v. Green, 156 Ga. 572 , 119 S.E. 620 (1923).

Specifying amount of debt. - It is not necessary that a deed to secure debt shall specify the amount of the indebtedness that it is given to secure. Troup Co. v. Speer, 23 Ga. App. 750 , 99 S.E. 541 , cert. denied, 23 Ga. App. 813 (1919).

Statutory obligation to cancel satisfied notes. - The trial court, having found a debt to have been forgiven upon a decedent's death, did not err in ordering the decedent's administrator to cancel a deed to secure debt. The litigation did not give notice to the public that the deed had been cancelled; under O.C.G.A. §§ 44-14-3(b) and 44-14-60 , a grantee of a security deed had the duty to cancel the deed of record when the obligation was satisfied. Mize v. Woodall, 291 Ga. App. 349 , 662 S.E.2d 178 (2008).

Debt infected with usury. - A deed executed by a borrower under O.C.G.A. § 44-14-60 to secure a debt infected with usury, and purporting not only to convey title to the lender, but also to confer upon the latter a power of sale, is void. Pottle v. Lowe, 99 Ga. 576 , 27 S.E. 145 , 59 Am. St. R. 246 (1896). See also McLaren v. Clark, 80 Ga. 423 , 7 S.E. 230 (1888); Liles v. Bank of Camden County, 151 Ga. 483 , 107 S.E. 490 (1921).

Under the Federal Farm Loan Act of 1916, as amended (former 12 U.S.C. §§ 771, 781, now repealed), a Federal Land Bank has authority and "jurisdiction" to lend money to members of national farm loan associations on security of mortgages on farm lands within its district, and it may in the State of Georgia take as security a deed to secure debt instead of a mortgage, and one who has obtained a loan from such a bank, and others holding under that person, will be estopped to deny the bank's authority. Smith v. Federal Land Bank, 56 Ga. App. 526 , 193 S.E. 257 (1937).

Determining Nature of Instrument

Mortgage and deed to secure debt distinguished. - A deed to secure a debt is not the same as a mortgage. Such a deed conveys title; a mortgage is only a lien. Cole v. Cates, 110 Ga. App. 820 , 140 S.E.2d 36 (1964).

Mortgage and bill of sale distinguished. - If the title becomes divested from the vendee upon the mere payment of the debt, the instrument created is only a mortgage, and is not a bill of sale to secure a debt and an instrument passing title as provided under O.C.G.A. § 44-14-60 . Grady v. T.I. Harris, Inc., 41 Ga. App. 111 , 151 S.E. 829 (1930).

A bill of sale to secure debt conveys an outright legal title, as distinguished from a mortgage lien, so as to place such legal title beyond the reach of any lien, statutory or otherwise, in the absence of a recording act treating such as an equitable mortgage. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955).

Security deeds and trust deeds distinguished. See In re Lookout Mt. Hotel Co., 50 F.2d 421 (N.D. Ga.), rev'd on other grounds sub nom. Bryan v. Speakman, 53 F.2d 463 (5th Cir. 1931), cert. denied, 285 U.S. 539, 52 S. Ct. 312 , 76 L. Ed. 932 (1932).

Bill of sale not pledge. - A bill of sale transferring title to a discount company of certain household furniture of the plaintiff as collateral security for a loan is not a mere pledge, but legal title is in the creditor subject to the right of the debtor to a reconveyance upon the debtor's payment of the debt in compliance with the terms of the contract. Jones v. Brown, 108 Ga. App. 776 , 134 S.E.2d 440 (1963).

Absolute deed cannot be shown to be mortgage. - A deed absolute on its face and accompanied with possession of property by defendant, could not, under the state of the pleadings, be proved by parol to be only a mortgage given for the purpose of securing a debt. Mitchell v. Fullington, 83 Ga. 301 , 9 S.E. 1083 (1889).

Creation of trust to pay note. - The creation of a trust for the purpose of paying a note is the same in effect as the insertion of a defeasance clause in the instrument; and this being true, such instrument is a mortgage, and not a bill of sale. Ward v. Lord, 100 Ga. 407 , 28 S.E. 446 (1897).

Mortgage in form of security deed. - An instrument in the usual form of a security deed under O.C.G.A. § 44-14-60 , but containing a clause providing that should the grantor "faithfully perform and keep all the covenants and agreements herein set out, this conveyance shall cease, determine, and be void," is a mortgage, and not a deed. Massillon Engine & Thresher Co. v. Burnett, 19 Ga. App. 487 , 91 S.E. 786 (1917).

O.C.G.A. § 44-14-60 not exclusive for conveyance of absolute title to a creditor to secure a debt. Roland v. Coleman & Co., 76 Ga. 652 (1886); Ward v. Lord, 100 Ga. 407 , 28 S.E. 446 (1897).

Compliance with section. - A failure to comply strictly with the provisions of O.C.G.A. § 44-14-60 does not necessarily make a conveyance given to secure a debt a mortgage. Williamson v. Orient Ins. Co., 100 Ga. 791 , 28 S.E. 914 (1897).

Equitable mortgages. - If a deed is not made under O.C.G.A. § 44-14-60 , but is made for the purpose of securing a debt, it would be what was known before the passage of the Act embodied in O.C.G.A. § 44-14-60 , as an equitable mortgage, conveying the title of the land with the equitable right of redemption. Mitchell v. Fullington, 83 Ga. 301 , 9 S.E. 1083 (1889).

Effect of defeasance clause. - Where a written instrument which purports to be a bill of sale passing the title as security for a debt contains a defeasance clause, the instrument is a mortgage, and the title, which under the language of the instrument purports to pass, does not pass to the vendee. Grady v. T.I. Harris, Inc., 41 Ga. App. 111 , 151 S.E. 829 (1930); Personal Fin. Co. v. Bailie, 43 Ga. App. 245 , 158 S.E. 436 (1931).

Effect of referring to "this mortgage." - Where an instrument was described as "this mortgage," it was the intention of the parties that the instrument be construed to be a mortgage. Massillon Engine & Thresher Co. v. Burnett, 19 Ga. App. 487 , 91 S.E. 786 (1917).

Effect of reciting that "this is a deed." - A bill of sale of personalty to secure the payment of a debt, which recites that "this is a deed conveying title, and a bond to reconvey is this day given," is not a mortgage, but a conveyance under O.C.G.A. § 44-14-60 . Watts v. Wight Inv. Co., 25 Ga. App. 291 , 103 S.E. 184 (1920).

Instrument securing endorser. - An instrument otherwise in the form of a security deed is not a mortgage merely because it recites that it was given to secure an endorser upon a described note. The relationship of the parties does not make it a mortgage, nor is such recital a defeasance clause whereby the instrument should be treated as a mortgage and not as a security deed. Richey v. First Nat'l Bank, 180 Ga. 751 , 180 S.E. 740 (1935).

Title not placed in grantor. - Where a warranty deed to secure a debt contains no defeasance clause, and no bond to reconvey is executed contemporaneously therewith - the grantee being given the power to sell the land at public outcry upon default in the payment of the debt - it is not necessary that title be again placed in the grantor in order to bring the property to sale. Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84 , 169 S.E. 337 (1933).

Conveyance for indemnification. - A conveyance of real property, which recites that it is given for the purpose of indemnifying the grantee against loss resulting from an outstanding "mortgage" upon other property which the same grantor had conveyed to the same grantee, which contains no habendum clause and which provides that when the mortgage referred to is paid, "then this deed shall be null and void," and which further provides that when this mortgage is paid "this deed shall become null and void and cancelled on the record and surrendered to" the grantor, is not a security deed passing title to the grantee, but is a mortgage only. Camp v. Teal, 44 Ga. App. 829 , 163 S.E. 233 (1932).

Reversion of title. - Where an instrument was denominated a bill of sale for personalty and was given to secure a debt, as provided in O.C.G.A. § 44-14-60 , yet where it contained a stipulation that the title to the personalty was put into the vendee until the debt was paid in full, this stipulation, by its terms, terminated the title to the vendee on the payment of the debt, and, when the debt was paid, the title reverted to the vendor; the instrument, therefore, was a mortgage only, and created only a lien upon the personalty, and passed no title thereto. Hix v. Williams, 42 Ga. App. 143 , 155 S.E. 355 (1930).

Because a security deed did not specify a fixed period for repayment or state that the security interest was perpetual under O.C.G.A. § 44-14-80(a) , title to the property reverted to the grantor after seven years and the grantee's security interest in the property was lost. Vineville Capital Group, LLC v. McCook, 329 Ga. App. 790 , 766 S.E.2d 156 (2014).

Estoppel after allegation that instrument is deed. - Where the holder of a promissory note, secured by an instrument purporting to be a deed, obtains a judgment thereon, stating in the holder's declaration that the instrument is a deed, the holder will not afterwards be heard to allege that the instrument is a mortgage and not a deed passing title. McCandless v. Yorkshire Guarantee & Sec. Corp., 101 Ga. 180 , 28 S.E. 663 (1897).

Illustrations. - Under O.C.G.A. § 44-14-60 a bill of sale of personalty to secure a debt, although it contains a clause to reconvey the property upon the payment of the debt, is not a mortgage, but is an absolute conveyance of the property, and passes title to the same until the debt is fully paid. Hill v. Marshall, 18 Ga. App. 652 , 90 S.E. 175 (1916).

Where an instrument recited that, whereas, the subscriber bargained, sold, transferred, and conveyed to C. all the stock of goods in a certain store, etc., that delivery was dispensed with, and that the goods were to remain in the subscriber's possession until default in the payment of the note and interest, during which time the subscriber was to be a bailee for hire, and on default was to deliver the property to C., it was a deed to secure a debt under O.C.G.A. § 44-14-60 , and not a chattel mortgage. In re Caldwell, 178 F. 377 (S.D. Ga. 1910).

Rights of Grantor

In general. - While deeds to secure debt do pass title to the property by which the debt is secured, such a deed does not divest the grantor in such deed of all the grantor's rights and interest in the property. Barnard v. Barnard, 91 Ga. App. 502 , 86 S.E.2d 533 (1955).

Right of possession and redemption. - The grantor in a deed under O.C.G.A. § 44-14-60 retains the right of possession and the right of redemption by payment of the debt, and consequently an equitable estate in the land which may be assigned or subjected to payment of grantor's debts. Citizens Bank v. Taylor, 155 Ga. 416 , 117 S.E. 247 (1923); Uvalda Naval Stores Co. v. Cullen, 165 Ga. 115 , 139 S.E. 810 (1927); Citizens & S. Bank v. Realty Sav. & Trust Co., 167 Ga. 170 , 144 S.E. 893 (1928); Federal Land Bank v. St. Clair Lumber Co., 58 Ga. App. 532 , 199 S.E. 337 (1938); Bell v. Allied Fin. Co., 215 Ga. 631 , 112 S.E.2d 609 (1960).

Possession. - O.C.G.A. § 44-14-60 contemplates that the grantor might remain in possession of the property. Tift & Co. v. Dunn, 80 Ga. 14 , 5 S.E. 256 (1887).

Grantor remaining in possession. - Where one executes a security deed and remains in possession of the land described in the deed, that person's possession is under the grantee in the security deed and is not adverse to the title, and neither prescription nor the statute of limitations is available as a defense to an action in ejectment founded on the security deed. Thomas v. Stedham, 208 Ga. 603 , 68 S.E.2d 560 (1952).

Right of redemption. - When one has borrowed a sum of money and conveyed land to the lender as security for the payment of the debt, and received from the grantee a bond conditioned to reconvey on the payment of the debt, the interest pertaining to such land which the grantor thereafter possesses, until the debt is paid, is the right to redeem. Williams & Bessinger v. Foy Mfg. Co., 111 Ga. 856 , 36 S.E. 927 (1900).

Nature of right to redeem. - The right to redeem is an equitable estate in the land, and may be sold and conveyed, subject to the paramount right of the original grantee to have all of the land appropriated to the payment of grantee's debt. Williams & Bessinger v. Foy Mfg. Co., 111 Ga. 856 , 36 S.E. 927 (1900).

How land redeemed. - To redeem land, held by absolute legal title as security for a debt under O.C.G.A. § 44-14-60 , the debt must be paid or tendered; and, generally, a tender will be effective, though delayed till after the creditor has recovered possession of the premises by action. Broach v. Barfield, 57 Ga. 601 (1876).

No leviable interest. - A security deed leaves the grantor no interest in land which can be subjected to levy and sale by a creditor whose judgment was obtained after the deed was executed. Shumate v. McLendon, 120 Ga. 396 , 48 S.E. 10 (1904); Bennett Lumber Co. v. Martin, 132 Ga. 491 , 64 S.E. 484 (1909); Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84 , 169 S.E. 337 (1933); Dean v. Andrews, 236 Ga. 643 , 225 S.E.2d 38 (1976).

Equitable interest. - A security deed to land conveys the legal title to the vendee, and the rights of the vendee cannot be affected by subsequent acts of conveyance by the vendor to third parties. But the vendor has such an equitable interest in the premises conveyed as that the vendor may create a valid second security deed, or lien, subject to the paramount right of the original grantee to have all the land appropriated to the payment of grantee's debt. Cook v. Georgia Fertilizer & Oil Co., 154 Ga. 41 , 113 S.E. 145 (1922).

Condition precedent to equitable relief by grantor. - Before a borrower who has executed a deed under O.C.G.A. § 44-14-60 can have affirmative equitable relief, such as injunction to prevent exercise of the power of sale by the grantee in such security deed, the borrower must pay or tender to such grantee the principal and lawful interest due. Liles v. Bank of Camden County, 151 Ga. 483 , 107 S.E. 490 (1921).

Judgment against grantor. - An absolute deed, though made as a security for a debt, passes title under O.C.G.A. § 44-14-60 , and a judgment subsequently rendered against the grantor, has no lien on the land which can be enforced by levy and sale until the title can become reinvested by redemption. Groves v. Williams, 69 Ga. 614 (1882).

Effect of sale. - A sale under the powers contained in a deed to secure debt divests the grantor of all title, and right of equity of redemption, to the lands described in the deed. Cummings v. Johnson, 218 Ga. 559 , 129 S.E.2d 762 (1963).

Effect of bankruptcy. - Title by virtue of a deed under O.C.G.A. § 44-14-60 was not divested by the subsequent voluntary bankruptcy of the grantor, and grantor's consequent discharge from all debts. Broach v. Barfield, 57 Ga. 601 (1876); Thomas v. Stedham, 208 Ga. 603 , 68 S.E.2d 560 (1952).

Effect of homestead on title. - Title under O.C.G.A. § 44-14-60 was not divested by the bankrupt causing the land to be set apart in bankruptcy as the bankrupt's homestead exemption. Broach v. Barfield, 57 Ga. 601 (1876).

Right to homestead. - A conveyance to secure a debt, made under O.C.G.A. § 44-14-60 , passes title, and defeats all right to homestead in the land covered by such a deed. Isaacs v. Tinley, 58 Ga. 457 (1877). See also, Johnson v. Griffin Banking & Trust Co., 55 Ga. 691 (1876); Christopher v. Williams, 59 Ga. 779 (1877); Kirby v. Reese, 69 Ga. 452 (1882); Morgan v. Community Loan & Inv. Co., 195 Ga. 675 , 25 S.E.2d 413 (1943).

Right to contest deed. - The right to contest the validity of a security deed on the ground that the notes secured by the deed contain usury is personal to the maker of the security deed, the maker's representatives and privies. A stranger in interest will not be heard in an attack on a title claimed to be void for usury. Dickenson v. Williams, 151 Ga. 71 , 105 S.E. 841 (1921).

Rights of grantor's lessee. - Where the leasehold of the plaintiff is under one who, by making a security deed to a creditor under O.C.G.A. § 44-14-60 , has divested himself of the legal title, and the plaintiff has no more than a mere possession of the land upon which the trespass is alleged to have been committed, plaintiff cannot maintain an action for damages to the realty. Flowers Lumber Co. v. Bush, 18 Ga. App. 269 , 89 S.E. 344 (1916).

Rights of Grantee

In general. - The interest which a grantee takes under a deed executed under this law is not absolute in its broadest sense, but is restricted to holding title as security for the debt. For that purpose it places legal title out of the grantor, but on payment of the debt the right of the grantee to hold it ceases. It is a species of security effective from the date of the instrument when duly recorded, and is enforceable against the property by levy and sale under proceedings elsewhere provided for in the Code. Harvard v. Davis, 145 Ga. 580 , 89 S.E. 740 (1916); Trust Co. v. Mobley, 40 Ga. App. 468 , 150 S.E. 169 (1929).

Options of holder of deed. - One holding a deed to secure debt under O.C.G.A. § 44-14-60 has the option of pursuing the statutory method of suing on the indebtedness, obtaining a judgment, executing a quitclaim deed to the debtor and filing the same for record for purposes of levy, and having the land sold under the judgment or the security deed may be foreclosed as an equitable mortgage. Ryals v. Lindsay, 176 Ga. 7 , 167 S.E. 284 (1932).

Grantee has leviable interest. - The holder of a subsisting security deed has the legal title to the property, and such title may be levied on as the holder's property to satisfy an execution against the holder. Parrott v. Baker, 82 Ga. 364 , 9 S.E. 1068 (1889); Richey v. First Nat'l Bank, 180 Ga. 751 , 180 S.E. 740 (1935).

A grantee has standing to enforce restrictive covenants against an outsider, and there is no need for the grantee to show actual benefit or injury to enforce this right. Turner Adv. Co. v. Garcia, 252 Ga. 101 , 311 S.E.2d 466 , cert. denied, 469 U.S. 824, 105 S. Ct. 101 , 83 L. Ed. 2 d 46 (1984).

Fee simple. - Unlike a mortgagee, who acquires only a lien, the grantee, or holder of a security deed in Georgia acquires the fee simple title to the property, subject to the right of the grantor, who is known as the equity owner, to reacquire the fee simple title upon satisfying the terms of the security deed. Sayers v. Forsyth Bldg. Corp., 417 F.2d 65 (5th Cir. 1969).

Right of trover action. - The grantee in a bill of sale, given for the purpose of securing a present, past or future indebtedness, has an interest in the pledged property which will support an action of trover against any one who wrongfully converts the same to the grantee's use, and in a proceeding instituted for that purpose the grantee may elect to take a money verdict, and in such a case where an election to take a money verdict is made, the measure of damages is either the highest proved value of the pledged property between the date of conversion and the trial, or the value of the property at the time of conversion, with interest or hire thereon; but subject, however, to the condition that under neither choice can a recovery be had for more than the amount of the debt for which the property stands as security. Rose City Foods, Inc. v. Bank of Thomas County, 207 Ga. 477 , 62 S.E.2d 145 (1950).

Allegation of default. - While a bill of sale to secure debt will support an action in trover it is necessary to allege in the petition a default by the maker giving the holder the right of possession, and in the absence of such an allegation, the petition is subject to general demurrer. American Nat'l Bank & Trust Co. v. Davis, 104 Ga. App. 586 , 122 S.E.2d 477 (1961).

Right to recovery in ejectment. - A deed to secure a debt passes the legal title under O.C.G.A. § 44-14-60 and will authorize a recovery in ejectment. Dykes v. McVay, 67 Ga. 502 (1881); Todd v. Morgan, 215 Ga. 220 , 109 S.E.2d 803 (1959).

Ejectment after debt matures. - The vendee in a security deed, after the debt matures, can bring ejectment against the vendor upon the title put in the vendee by such deed. Carswell v. Hartridge, 55 Ga. 412 (1875); Biggers v. Bird, 55 Ga. 650 (1876); Dykes v. McVay, 67 Ga. 502 (1881); Bennett v. Green, 156 Ga. 572 , 119 S.E. 620 (1923).

Title as defense to ejectment. - A deed under O.C.G.A. § 44-14-60 passing title to the grantee therein named, for the purpose of securing a debt, can, after the maturity of the debt, be set up as outstanding title to defeat an action of ejectment brought by one claiming under the grantor, if the possession of the defendant is connected with such title. Ashley v. Cook, 109 Ga. 653 , 35 S.E. 89 (1900).

Upon failure of debtor to pay debt at maturity. - The creditor may institute action thereon and may pray for and obtain a special judgment subjecting the property described in the deed to the payment of the debt. Jewell v. Walker, 109 Ga. 241 , 34 S.E. 337 (1899).

Failure to accept tender. - Where creditor has collateral, mortgage, or other form of security upon property of the debtor, failure to accept a lawful tender discharges the lien which was intended to secure payment. Thurman v. Lee, 181 Ga. 408 , 182 S.E. 609 (1935).

Condition precedent to levy. - In order for a creditor to levy an execution upon property covered by a valid bill of sale made to secure a debt under O.C.G.A. § 44-14-60 , the creditor must first redeem the property by paying off in full the security debt, and a levy made without a compliance with such condition precedent is void. Bank of La Grange v. Rutland, 27 Ga. App. 442 , 108 S.E. 821 (1921), later appeal, 29 Ga. App. 478 , 116 S.E. 49 (1923).

Chattel attached to realty. - Where furnace was a chattel attached to the realty of the grantee in the security deed as an "irremovable fixture," and where, after the execution of the security deed, it is detached and carried away by the grantor in said deed, an action will lie for its recovery and the fact that it was subsequently attached to the realty of the grantor in another county and this realty was sold to an innocent purchaser does not deprive the innocent owner of the property merely because some other person may be innocent or ignorant of the plaintiff's ownership. Burpee v. Athens Prod. Credit Ass'n, 65 Ga. App. 102 , 15 S.E.2d 526 (1941).

Timber rights. - A deed under O.C.G.A. § 44-14-60 passes the title to the land and the timber growing thereon to the vendee. G. H. Ponder & Co. v. Mutual Benefit Life Ins. Co., 165 Ga. 366 , 140 S.E. 761 (1927); Federal Land Bank v. St. Clair Lumber Co., 58 Ga. App. 532 , 199 S.E. 337 (1938).

Effect of recording. - A duly filed and recorded deed to secure debt is notice of all the rights which the grantee has thereunder. Cummings v. Johnson, 218 Ga. 559 , 129 S.E.2d 762 (1963).

Land located in two counties. - Where a large body of land divided by a county line was conveyed as a whole to secure a debt, with bond for reconveyance, the creditor, after obtaining judgment, could have the entire tract levied on and sold in either county, neither being the county of the residence of the defendant in execution. Cade v. Larned, 99 Ga. 588 , 27 S.E. 166 (1896).

Priorities

In general. - An unrecorded bill of sale to secure debt is uniformly superior to any lien arising by operation of law. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955).

Contractor's lien. - Where the owner of property incumbered it with a security deed and a contractor's lien, and thereafter leased a portion of it to a third person for a term of years, the holders of the liens will be compelled to sell such property in such a manner as not capriciously, unnecessarily, and unjustly to interfere with such leasehold interest. Western Union Tel. Co. v. Brown & Randolph Co., 154 Ga. 229 , 114 S.E. 36 (1922).

Materialman's lien. - Where title to real estate is conveyed by a duly recorded deed to secure a debt under O.C.G.A. § 44-14-60 , and the grantee takes the deed and advances the money loaned, without notice and before the record of the materialman's lien upon the property, the title thus acquired is superior to such lien. Bennett Lumber Co. v. Martin, 132 Ga. 491 , 64 S.E. 484 (1909); Milner v. Wellhouse, 148 Ga. 275 , 96 S.E. 566 (1918); Guaranty Inv. & Loan Co. v. Athens Eng'g Co., 152 Ga. 596 , 110 S.E. 873 (1922); Rivers v. Williams Bros. Lumber Co., 174 Ga. 262 , 162 S.E. 699 (1932).

Laborers' lien. - A security deed under O.C.G.A. § 44-14-60 is such a conveyance of title as will defeat laborers' liens upon the property embraced therein, if their creation was junior to this instrument, or if such deed was taken bona fide by the grantee and without notice of such liens. Bennett v. Green, 156 Ga. 572 , 119 S.E. 620 (1923).

Lease. - When property has been conveyed by a grantor to secure a debt, and the grantee in the security deed reduces debt to judgment and files a quitclaim deed for the purpose of levy and sale, and the property is sold by the sheriff under the levy of the execution issued on such judgment, the lessee from the grantor under a lease junior to the security deed can at law be dispossessed by the sheriff for the purpose of placing in possession the purchaser of the property at such sale; and this may be done notwithstanding the fact that the lease is older than the judgment, when it is junior to the security deed. Mattlage v. Mulherin's Sons & Co., 106 Ga. 834 , 32 S.E. 940 (1899).

Year's support and dower. - The title acquired under a deed under O.C.G.A. § 44-14-60 is superior to the right to a year's support, or dower, though such right to a year's support and dower are superior to the lien of a mortgage. When a judgment has been obtained on any indebtedness secured by the deed, before the property can be levied upon and sold, there must be a reconveyance by the grantee to the grantor. Bennett Lumber Co. v. Martin, 132 Ga. 491 , 64 S.E. 484 (1909).

Levy of fi. fa. - Where the plaintiff in fi. fa. has filed a deed under O.C.G.A. § 44-14-60 for the purpose of having the land levied upon which had been conveyed to plaintiff by plaintiff's debtor as security for the debt, the sheriff, though the fi. fa. issued from a justice's court, may make the levy without making a search for personal property or making an entry upon the fi. fa. that no such property can be found. Bennett v. McConnell, 88 Ga. 177 , 14 S.E. 208 (1891).

A fi. fa. issued upon a judgment rendered for a debt secured by a deed made under O.C.G.A. § 44-14-60 cannot be levied upon the realty conveyed as security until after the creditor has executed, filed, and had recorded a deed reconveying the property to the debtor; and a sale by the sheriff to the creditor, the levy having been made after the execution of such deed, but before it was either filed or recorded, is utterly void. National Bank v. Danforth, 80 Ga. 55 , 7 S.E. 546 (1887).

Lien of secured creditor attaching to proceeds of sale. - Where a creditor, whose debt was secured by a conveyance of land under O.C.G.A. § 44-14-60 , obtained judgment, reconveyed the land to the debtor, and subsequently acquiesced in a sale of the land under an execution in favor of another creditor, and claimed the proceeds of such sale in the sheriff's hands, the lien of the secured creditor attached to such proceeds, and the purchaser at the sheriff's sale acquired an unencumbered title. Marshall v. Hodgkins, 99 Ga. 592 , 27 S.E. 748 (1896).

Specifying lien on face of pleadings. - While it is the better practice, it is not essential, in suits upon notes secured by deed under O.C.G.A. § 44-14-60 , to specify or declare a lien on the face of the pleadings or the judgment therein, in order to sell the land under execution by filing a deed reconveying the land, and to subject it to the special contract lien. The proof of the special lien may be made aliunde the face of the judgment or the pleadings on the note sued. Spradlin v. Kramer, 146 Ga. 396 , 91 S.E. 409 (1917).

Effect of failure to record. - The court does not err in awarding money to a judgment creditor, upon a levy, where it does not appear that the defendant repaid any of the money borrowed, or that the lender conveyed back the land and filed the deed in the clerk's office. Osborne v. Hill, 91 Ga. 137 , 16 S.E. 965 (1893).

Status of surety. - The surety cannot sustain a claim to the property where it is levied on as that of the principal under an execution against the principal in favor of another creditor. Bank of Trion v. Parker, 43 Ga. App. 686 , 160 S.E. 128 (1931).

No judgment lien shown. - Trial court erred by granting summary judgment to a judgment lienholder because the lienholder did not establish as a matter of law that the lienholder had any legal or equitable interest in the property at any time after a quitclaim deed was executed; because the record did not establish that the lienholder had any ownership interest in the property upon which the right to seize assets could attach, the trial court erred in finding that the lienholder held a judgment lien against the property. Wells Fargo Bank, N.A. v. Twenty Six Properties, LLC, 325 Ga. App. 662 , 754 S.E.2d 630 (2014).

Transfer or Assignment

Rights of transferee. - A transferee of the grantee named in the security deed occupies the position of such grantee as against the grantor and those claiming under the grantor. Gilliard v. Johnston & Miller, 161 Ga. 17 , 129 S.E. 434 (1925).

Assignee of a security deed has legal title to the property, subject to the right of the grantor to have the realty reconveyed to the grantor upon payment of the debt. Regante v. Reliable-Triple Cee of N.J., Inc., 251 Ga. 629 , 308 S.E.2d 372 (1983); Leathers v. McClain, 255 Ga. 378 , 338 S.E.2d 666 (1986).

Equitable interest of assignee. - While an assignment of a promissory note, or other evidence of indebtedness, secured by a deed to land executed under the provisions of O.C.G.A. § 44-14-60 , does not pass to the assignee a legal title to the land itself, such assignee has an equitable interest in the security effectuated by the deed. Van Pelt v. Hurt, 97 Ga. 660 , 25 S.E. 489 (1896).

Enforcement of transferee's lien. - Where the transferee of the debt secured by a deed reduces the same to judgment, all that is essential to the enforcement of a special lien in the transferee's favor is the rendition of a general judgment thereon, the conveyance by the vendee in the security deed to the defendant of the lands embraced therein, and proof aliunde that such judgment was rendered upon the secured debt. Lively v. Oberdorfer, 216 Ga. 673 , 119 S.E.2d 27 (1961).

Bad faith acted to lift automatic stay of bankruptcy. - Because a debtor filed a second bankruptcy petition for the express purpose of delaying and frustrating the legitimate efforts of a secured creditor to enforce its right of foreclosure, the debtor was found to have not acted in good faith under 11 U.S.C. § 362(g); thus, cause existed to annul or lift the automatic stay pursuant to 11 U.S.C. § 362(d). GRP Fin. Servs. Corp. v. Olsen (In re Olsen), Bankr. (Bankr. N.D. Ga. Jan. 8, 2007).

Written transfer of deed itself and rights of grantee. - While the transfer of negotiable promissory notes secured by an absolute conveyance of land made under O.C.G.A. § 44-14-60 , although the transfer be made by endorsement of the payee without recourse upon the payee, will not discharge the land from the incumbrance placed upon it by the deed, yet a mere written transfer, endorsed upon the deed, of the deed itself and the rights of the grantee therein (the payee of the note) will not pass title to the land out of the grantee and into the endorsee of the notes, as to enable the latter to convey the land back to the debtor who executed the deed to secure the notes. Henry v. McAllister, 93 Ga. 667 , 20 S.E. 66 (1894).

Transfer of negotiable notes. - The transfer of a negotiable promissory note secured by a deed under the provisions of O.C.G.A. § 44-14-60 although the transfer be made by endorsement of the payee on the note without recourse upon the payee, will not discharge the land from the encumbrance placed upon it by the deed. Henry v. McAllister, 93 Ga. 667 , 20 S.E. 66 (1894); Milner v. Wellhouse, 148 Ga. 275 , 96 S.E. 566 (1918).

Where a deed was given under the provisions of O.C.G.A. § 44-14-60 to secure the payment of a promissory note, and the original payee afterwards transferred the note without recourse, at the same time conveying to the assignee the title to the land described in the security deed, the latter was entitled to all the rights of the original payee of the note, and all the remedies for enforcing the same. Hunt v. New England Mtg. Sec. Co., 92 Ga. 720 , 19 S.E. 27 (1893); Henry v. McAllister, 93 Ga. 667 , 20 S.E. 66 (1894); Gillispie v. Hunt, 145 Ga. 490 , 89 S.E. 519 (1916).

Where a vendor of land takes notes for the purchase money, securing their payment by reservation of title personally, which notes the vendor afterwards transfers without recourse and without any transfer of the reserve title to a third party, this operates as a payment of the purchase money, the vendee's equity becomes complete, and the vendor ceases to hold any interest in the land. Cade v. Jenkins, 88 Ga. 791 , 15 S.E. 292 (1892); Henry v. McAllister, 93 Ga. 667 , 20 S.E. 66 (1894).

Where transferee accepts bond as security for an additional loan subject to that specified in the loan deed, the transferee acquires such an equitable interest in the land as will entitle the transferee on sale of the property under the loan deed to a sufficient amount of the proceeds after discharge of the debt secured by the loan deed to satisfy the transferee's debt; and the transferee's right will attach from the time the transferee receives the transfer, and be superior to a subsequent materialman's lien. Guaranty Inv. & Loan Co. v. Athens Eng'g Co., 152 Ga. 596 , 110 S.E. 873 (1922).

Subsequent incumbrance of same property by grantor, whether by security deed or mortgage executed by the grantor named in the prior security deed while the grantor retains an equitable estate in the land, will operate upon that equitable estate. Citizens' Bank v. Taylor, 155 Ga. 416 , 117 S.E. 247 (1923).

Foreclosure

Equitable foreclosure. - Where security deed, executed subsequent to two deeds to secure debt, was made to secure an indebtedness represented by a promissory note, and on its face recited the debt and the purpose to secure it, the creditor could foreclose the deed as an equitable mortgage, although the grantor therein had been discharged as a bankrupt from the payment of debts. Pusser v. A. J. Thompson & Co., 132 Ga. 280 , 64 S.E. 75 , 22 L.R.A. (n.s.) 571 (1909); Smith v. Farmers' Bank, 165 Ga. 470 , 141 S.E. 203 (1928).

A deed to secure debt may be foreclosed as an equitable mortgage. Lively v. Oberdorfer, 216 Ga. 673 , 119 S.E.2d 27 (1961).

Suit barred by statute of limitations. - Where a deed under seal was made conveying title in order to secure an indebtedness represented by a promissory note, under O.C.G.A. § 44-14-60 , and on its face it recited the debt and the purpose to secure it, although suit on the note became barred by the statute of limitations, the creditor could foreclose the deed as an equitable mortgage within 20 years from its execution. Pusser v. A. J. Thompson & Co., 132 Ga. 280 , 64 S.E. 75 , 22 L.R.A. (n.s.) 571 (1909).

Usurious conveyance. - A conveyance made under O.C.G.A. § 44-14-60 to secure a debt, and which is void as title on account of usury, cannot be foreclosed as an equitable mortgage. Broach v. Smith, 75 Ga. 159 (1885).

Foreclosure as mortgage in federal court. - A deed to real estate, given to secure a debt, may be foreclosed by the grantee as a mortgage, notwithstanding a provision therein that it is to be construed as a deed passing title, and not as a mortgage, such provision being one for the benefit of the grantee, which the grantee may waive at the grantee's election. Merrihew v. Fort, 98 F. 899 (N.D. Ga. 1899).

A deed absolute in form, given as security for a loan of money, and executed contemporaneously with the debtor's notes and with a bond to reconvey, given by the grantee, all in accordance with the provisions of O.C.G.A. § 44-14-60 et seq., may be foreclosed as a mortgage, by an action in equity in a federal court, notwithstanding that these provisions give a special remedy at law; for the equity jurisdiction of the federal courts cannot be limited by state legislation. Ray v. Tatum, 72 F. 112 (5th Cir. 1896).

The fact that the holder of a conveyance brings action to foreclose the same as a mortgage in a federal court does not change its character to that of a plain mortgage, which is only a security and passes no title, so as to let in the claim of the widow of the grantor to an allowance for support out of the property, but such an allowance made in proceedings to which the grantee was not a party can apply only to the grantor's equity of redemption. British & Am. Mtg. Co. v. Worrill, 168 F. 120 (N.D. Ga. 1909).

Claims not barred as improper deficiency actions. - Trial court erred in ruling that a bank's claims against borrowers and guarantors for breach of promissory notes were barred as improper deficiency actions under O.C.G.A. § 44-14-161(a) due to the bank's failure to seek confirmation after the foreclosure auctions because although the bank conducted and bid at foreclosure auctions of the real property that secured the notes, the transfer of a borrower's right of possession and the borrower's equity of redemption to the bank as the foreclosure sale purchaser never occurred; three days after the foreclosure auctions, the bank notified the borrowers that the bank rescinded any actions taken with respect to foreclosure and that the foreclosures were not and would not be consummated, and by definition, the confirmation procedure had no application when there had been no foreclosure sale. Legacy Cmtys. Group, Inc. v. Branch Banking & Trust Co., 310 Ga. App. 466 , 713 S.E.2d 670 (2011), aff'd in part, rev'd in part, 290 Ga. 724 , 723 S.E.2d 674 , vacated in part, 316 Ga. App. 496 , 729 S.E.2d 612 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Grantor retains equitable rights. - Despite the strong language of O.C.G.A. § 44-14-60 , the grantor in a security deed retains certain equitable rights in the land. 1972 Op. Att'y Gen. No. U72-105.

RESEARCH REFERENCES

Am. Jur. 2d. - 23 Am. Jur. 2d, Deeds, §§ 3, 4. 55 Am. Jur. 2d, Mortgages, § 102 et seq.

C.J.S. - 59 C.J.S., Mortgages, §§ 8 et seq., 28.

ALR. - Remedy of judgment creditor where debtor surrenders property to vendee under prior security deed, 36 A.L.R. 805 .

Extension of existing real estate mortgage or deed of trust by subsequent agreement to cover additional indebtedness, 76 A.L.R. 574 .

Excessive security for debt as affecting question of fraud upon creditors, 138 A.L.R. 1051 .

Deed absolute on its face, with contemporaneous agreement or option for repurchase by grantor, as mortgage vel non, 155 A.L.R. 1104 .

Lien as estate or interest in land within venue statute, 2 A.L.R.2d 1261.

Effect of supplying of description of property conveyed after manual delivery of deed or mortgage, 11 A.L.R.2d 1372.

44-14-61. Signing of deeds to secure debt and bills of sale - Generally.

In order to admit deeds to secure debt or bills of sale to secure debt to record, they shall be signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness.

(Ga. L. 1884-85, p. 124, § 2; Civil Code 1895, § 2773; Civil Code 1910, § 3308; Ga. L. 1931, p. 153, § 1; Code 1933, § 67-1302; Ga. L. 2015, p. 937, § 6/HB 322.)

The 2015 amendment, effective July 1, 2015, substituted the present provisions of this Code section for the former provisions, which read: "In order to admit deeds to secure debt or bills of sale to record, they shall be attested or proved in the manner prescribed by law for mortgages.".

JUDICIAL DECISIONS

Applicability. - There is nothing in O.C.G.A. § 44-14-61 that in any way changes the rules governing the priority of conditional sales contracts and junior judgments; that section applies only to bills of sale to secure debt and security deeds. Parham v. Heath, 90 Ga. App. 26 , 81 S.E.2d 848 (1954).

Unwitnessed paper. - In the absence of fraud, a deed which on its face complies with all statutory requirements is entitled to be recorded, and once accepted and filed with the clerk for record, provides constructive notice to the world of its existence. Leeds Bldg. Prods., Inc. v. Sears Mtg. Corp., 267 Ga. 300 , 477 S.E.2d 565 (1996), overruling White v. Magarahan, 87 Ga. 217 , 13 S.E. 509 (1891)(overruling White v. Magarahan, 87 Ga. 217 , 13 S.E. 509 (1891); Propes v. Todd, 89 Ga. App. 308 , 79 S.E.2d 346 (1953), overruled on other grounds, Leeds Bldg. Prods., Inc. v. Sears Mtg. Corp., 267 Ga. 300 , 477 S.E.2d 565 (1996)).

Because no unofficial witness attested to or acknowledged a security deed when debtor signed it, despite the recordation of the deed and a subsequent recordation of a scrivener's affidavit attesting that the affiant, an attorney, was an unofficial witness to the signing of the deed, under Georgia law, specifically, O.C.G.A. § 44-14-61 , the deed was unperfected; subsequent assignments of the security deed to a bank and then to the creditor were not equivalent to a perfected second security deed that acknowledged the first and, thus, did not cure the patent defect in the deed. Wash. Mut. Home Loans v. Yearwood (In re Yearwood), 318 Bankr. 227 (Bankr. M.D. Ga. 2004).

Failure to properly attest security deed failed to provide notice of security interest. - Security deed in favor of a bank was not attested by an unofficial witness as required by Georgia law and was patently defective and, thus, the security deed did not provide constructive or actual notice of any security interest. As an unattested security deed was equivalent to an unrecorded deed under Georgia law, a Chapter 7 trustee, in the trustee's position as a hypothetical bona fide purchaser of real estate, had the power to avoid the transfer of the improperly attested deed, and the avoided lien was preserved for the benefit of the estate. Flatau v. Ga. Bank & Trust Co. of Augusta (In re Davis), Bankr. (Bankr. M.D. Ga. Oct. 29, 2014).

Unnotarized deed could not be recorded. - Notary was required to place the notary seal on any notarial act, including attestation of the Bank Security Deed, and failure to do so rendered the Bank Security Deed ineligible for recordation because an officer as provided in O.C.G.A. § 44-2-15 did not attest to execution of the deed in accordance with O.C.G.A. § 44-14-61 . To rule otherwise would make the requirements imposed on notary publics under O.C.G.A. § 45-17-6(a)(1) inapplicable to the common notarial act of attesting to a security deed. Kelley v. Thomasville Nat'l Bank (In re Taylor), Bankr. (Bankr. M.D. Ga. Dec. 7, 2016).

Effect of failure to record a mortgage or bill of sale to secure debt "shall be the same as is the effect of failure to record a deed of bargain and sale." This changes the prior law with reference to those securities so as to render such instruments, even though unrecorded, superior in rank to subsequent liens created by law. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955).

No priority unless recorded. - Where a bill of sale in its renewed form was for a larger amount than the balance due on the original instrument, in a contest between it and the bill of sale held by the original holder, it would only have had priority in the amount that was still due on the original bill of sale at the time the same was renewed, only it if was properly recorded. Propes v. Todd, 89 Ga. App. 308 , 79 S.E.2d 346 (1953), overruled on other grounds, Leeds Bldg. Prods., Inc. v. Sears Mtg. Corp., 267 Ga. 300 , 477 S.E.2d 565 (1996).

Properly attested adjustable rate rider did not validate improperly attested deed to secure debt; even though rider was incorporated into the terms of the deed, the deed itself remained improperly attested and ineligible for recordation. Stone v. Decatur Fed. Sav. & Loan Ass'n (In re Fleeman), 81 Bankr. 160 (Bankr. M.D. Ga. 1987).

Security deed was improperly attested where it did not bear the signature of either an unofficial witness or a notary public, and recordation of the document was therefore ineffective to give actual or constructive notice. Updike v. First Fed. Sav. & Loan Ass'n, 93 Bankr. 795 (Bankr. M.D. Ga. 1988).

Attestation of security deed. - First sentence of O.C.G.A. § 44-14-33 and the statutory recording scheme indicate that the word "duly" in the second sentence of § 44-14-33 should be understood to mean that a security deed is "duly filed, recorded, and indexed" only if the clerk responsible for recording determines, from the face of the document, that it is in the proper form for recording, meaning that it is attested or acknowledged by a proper officer and (in the case of real property) an additional witness; the General Assembly chose to enact the 1995 amendment to O.C.G.A. § 44-14-33 not as a freestanding Code provision but as an addition to a Code provision clearly referenced by O.C.G.A. § 44-14-61 , and the General Assembly is presumed to have been aware of the existing state of the law when the legislature enacted the 1995 amendment so the placement of the amendment makes complete sense. United States Bank Nat'l Ass'n v. Gordon, 289 Ga. 12 , 709 S.E.2d 258 (2011).

Because an eight-paged security deed lacked the signature of an unofficial witness, the deed was not in recordable form as required by O.C.G.A. § 44-14-33 and did not provide constructive notice, therefore, the security deed was avoidable under 11 U.S.C. § 544 with regard to a debtor's bankruptcy. Wells Fargo Bank, N.A. v. Gordon, 292 Ga. 474 , 749 S.E.2d 368 (2013).

Affidavit signed by a notary testified to both execution and attestation of a security deed and, thus, substantially complied with the requirements of O.C.G.A. § 44-2-18 to cure any defect in attestation under O.C.G.A. §§ 44-14-33 and 44-14-61 caused by the notary's signature appearing under the term "acknowledgement." As the affidavit cured the defect, the security deed was eligible for recordation under Georgia law, and its recordation provided constructive notice to a subsequent bona fide purchasers and, thus, a bankruptcy trustee could not use the trustee's strong-arm powers to avoid the security deed. Kelley v. Wells Fargo Bank, N.A. (In re Perry), 565 Bankr. 442 (Bankr. M.D. Ga. 2017).

Deed reference as notice of prior improperly attested deed. - Reference in a properly attested and recorded security deed to a prior improperly attested and therefore "unrecorded" security deed provided notice of the existence of the first security deed. Updike v. First Fed. Sav. & Loan Ass'n, 93 Bankr. 795 (Bankr. M.D. Ga. 1988).

Rescission had no legal effect. - While the rescission was signed by two witnesses and notarized in accordance with O.C.G.A. § 44-14-61 , there was no evidence of the grantor conveying such an interest. Thus, the rescission had no legal effect. Mak v. Argent Mortg. Co., LLC, F. Supp. 2d (N.D. Ga. Sept. 15, 2009).

Cited in Dixon v. Bond, 18 Ga. App. 45 , 88 S.E. 825 (1916); Penn Mut. Life Ins. Co. v. Larsen, 178 Ga. 255 , 173 S.E. 125 (1934); A.O. Blackmar Co. v. NCR Co., 64 Ga. App. 739 , 14 S.E.2d 153 (1941); B.F. Avery & Sons Co. v. Davis, 226 F.2d 942 (5th Cir. 1955); American Nat'l Bank & Trust Co. v. Davis, 104 Ga. App. 586 , 122 S.E.2d 477 (1961); Tidwell v. Central Sav. Bank (In re Hunt), 154 Bankr. 1016 (Bankr. M.D. Ga. 1993); Sears Mtg. Corp. v. Leeds Bldg. Prods., Inc., 219 Ga. App. 349 , 464 S.E.2d 907 (1995); Gordon v. Ameritrust Mortg. Co. LLC (In re Nesbitt), Bankr. (Bankr. N.D. Ga. Sept. 13, 2013).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, §§ 89, 90.

C.J.S. - 59 C.J.S., Mortgages, §§ 110, 111.

ALR. - Imputation to attesting witness of notice of contents of instrument, 4 A.L.R. 716 .

Effect of purported subscribing witness's denial or forgetfulness of signature by mark, 17 A.L.R. 1267 .

Sufficiency of certificate of acknowledgment, 25 A.L.R.2d 1124.

44-14-62. Signing of deeds to secure debt and bills of sale - Out-of-state deeds to secure debt and bills of sale.

When executed outside this state, deeds to secure debt and bills of sale to secure debt shall be signed by the maker, attested by an officer as provided in Code Section 44-2-15, and attested by one other witness.

(Ga. L. 1931, p. 153, § 1; Code 1933, § 67-1303; Ga. L. 2015, p. 937, § 7/HB 322.)

The 2015 amendment, effective July 1, 2015, substituted the present provisions of this Code section for the former provisions, which read: "When executed out of state, deeds to secure debt and bills of sale may be attested, acknowledged, or probated in the same manner as deeds of bargain and sale.".

JUDICIAL DECISIONS

Applicability. - There is nothing in O.C.G.A. § 44-14-62 that in any way changes the rules governing the priority of conditional sales contracts and junior judgments; that section applies only to bills of sale to secure debt and security deeds. Parham v. Heath, 90 Ga. App. 26 , 81 S.E.2d 848 (1954).

Deed of trust. - Deed of trust to property in Georgia given as security for bonds which was executed out of the State of Georgia, and was attested by a notary public of that state and another witness was properly recorded. In re Lookout Mt. Hotel Co., 50 F.2d 421 (N.D. Ga.), rev'd on other grounds sub nom. Bryan v. Speakman, 53 F.2d 463 (5th Cir. 1931), cert. denied, 285 U.S. 539, 52 S. Ct. 312 , 76 L. Ed. 932 (1932).

Mere misdescription of bond in a mortgage to a surety executed under O.C.G.A. § 44-14-62 will not have the effect to render the mortgage invalid as a lien upon the property described, either as to the mortgagor personally or mortgagor's vendees. Emerson v. Knight, 130 Ga. 100 , 60 S.E. 255 (1908).

Vesting holder of security interest with title by filing. - When the plaintiff, a Georgia citizen, filed a wrongful foreclosure action against, among others, a non-diverse defendant, the removing defendant met the defendant's burden of showing that there was no possibility that the plaintiff could establish a cause of action against the non-diverse defendant because, although it arguably could be held liable for a violation of Georgia foreclosure statutes as a result of acting as foreclosure counsel for the lender, the lender, through the lender's merger predecessor, appeared in the public record before the foreclosure sale. Jackson v. Bank of Am., NA, F.3d (11th Cir. Aug. 22, 2014)(Unpublished).

Cited in Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932); People's First Nat'l Bank v. Coe Mfg. Co., 67 F.2d 312 (5th Cir. 1933); Georgia Power Co. v. Hand, 67 F.2d 314 (5th Cir. 1933); Walker County Fertilizer Co. v. Napier, 184 Ga. 861 , 193 S.E. 770 (1937).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, §§ 89, 90.

C.J.S. - 59 C.J.S., Mortgages, §§ 110, 111.

ALR. - Effect of purported subscribing witness's denial or forgetfulness of signature by mark, 17 A.L.R. 1267 .

44-14-63. Recording of deeds to secure debt and bills of sale to secure debt; effect of failure to record.

  1. Every deed to secure debt shall be recorded in the county where the land conveyed is located. Every bill of sale to secure debt shall be recorded in the county where the maker, if a resident of this state, resided at the time of its execution and, if a nonresident, in the county where the personalty conveyed is located. Deeds to secure debt or bills of sale to secure debt not recorded shall remain valid against the persons executing them.
  2. A deed to secure debt shall not be recorded unless it includes the mailing address of the grantee thereof. Failure to comply with this provision shall not be a defense to any foreclosure or grounds to set aside any foreclosure of any deed to secure debt.

    (Ga. L. 1884-85, p. 124, § 1; Civil Code 1895, § 2772; Civil Code 1910, § 3307; Ga. L. 1931, p. 153, § 1; Code 1933, § 67-1305; Ga. L. 1989, p. 859, § 1; Ga. L. 2015, p. 937, § 8/HB 322.)

The 2015 amendment, effective July 1, 2015, in subsection (a), inserted "to secure debt" twice in the last sentence and deleted the former last sentence, which read: "The effect of the failure to record deeds and bills of sale shall be the same as the effect of the failure to record a deed of bargain and sale.".

Cross references. - Intangible recording tax, § 48-6-60 et seq.

Law reviews. - For comment on Manchester Motors, Inc. v. Farmers & Merchants Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955), see 18 Ga. B.J. 82 (1955).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

O.C.G.A. § 44-14-210 did not repeal O.C.G.A. § 44-14-63 , nor did it alter its effect, it not being in conflict therewith. Cooke v. Adams Bros. Co., 148 Ga. 289 , 96 S.E. 499 (1918).

Section applies to bills of sale and deeds to secure debts. - O.C.G.A. § 44-14-63 by its express terms applies as well to a bill of sale of personalty to secure debt as to deeds of conveyance of realty to secure debt. Butler v. LaGrange Grocery Co., 29 Ga. App. 612 , 116 S.E. 213 (1923).

Deed absolute in form. - Although a deed may have been on its face an absolute deed and expressed a valuable consideration, yet if it was given to secure a debt, falls under O.C.G.A. § 44-14-63 . Cabot v. Armstrong, 100 Ga. 438 , 28 S.E. 123 (1897).

Chattel mortgages. - Under O.C.G.A. § 44-14-63 a chattel mortgage to be valid as against other liens must be recorded. In re Smith, 281 F. 574 (N.D. Ga. 1922). See also Osborne v. Hill, 91 Ga. 137 , 16 S.E. 965 (1893).

Necessity for record. - Prior to the passage of the act from which O.C.G.A. § 44-14-63 was taken, recordation of a chattel mortgage was not required. Tift & Co. v. Dunn, 80 Ga. 14 , 5 S.E. 256 (1887).

Effect of § 44-14-101 . - A security deed executed under O.C.G.A. §§ 44-14-60 , 44-14-61 , 44-14-63 , 44-14-67 , and 44-14-66 , after the passage of O.C.G.A. § 44-14-101 , to convey cultivated farmland as security for debt, does not ordinarily comprehend crops matured or unmatured on the land. Penn Mut. Life Ins. Co. v. Larsen, 178 Ga. 255 , 173 S.E. 125 (1934).

Instrument in form of absolute deed. - Where the instrument is written in the form of an absolute conveyance and does not within itself disclose that title is passed merely as security for a debt, the record of the conveyance puts the world upon notice that no interest or equity in the land remains in the grantor, and one subsequently dealing with the grantor could not be misled or injured by the statement of the consideration as contained therein. McClure v. Smith, 115 Ga. 709 , 42 S.E. 53 (1902); McIntire v. Garmany, 8 Ga. App. 802 , 70 S.E. 198 (1911); Bank of Chatsworth v. Patterson, 148 Ga. 367 , 96 S.E. 996 (1918).

A parol agreement extending the security to an additional indebtedness is not to be taken as varying the written terms of the instrument, and is good, since where the form is that of an ordinary warranty deed, the mere naming of a consideration is not to be taken as stating any amount of security or limiting it to any particular sum. Hester v. Gairdner, 128 Ga. 531 , 58 S.E. 165 (1907); Wiggs v. Hendricks, 147 Ga. 444 , 94 S.E. 556 (1917); Troup Co. v. Speer, 23 Ga. App. 750 , 99 S.E. 541 , cert. denied, 23 Ga. App. 813 (1919).

Instrument specifying amount of loan. - Where an instrument made in the form of a security deed by its own language specifies and thus limits a debt in a named amount as being the one which it is actually intended to secure, the record of the instrument will not suffice to give to the grantee thereunder any priority over third persons who may have subsequently and in good faith acquired a lien upon the same property, except as to the amount of the particular indebtedness thus specified. American Nat'l Bank v. Brooks, 143 Ga. 320 , 85 S.E. 117 (1915); Skinner v. Elliott, 17 Ga. App. 511 , 87 S.E. 759 (1916); Bank of Cedartown v. Holloway-Smith Co., 146 Ga. 700 , 92 S.E. 213 (1917); A. Leffler Co. v. Lane, 146 Ga. 741 , 92 S.E. 214 (1917).

As between the parties themselves the rule would be different, and although a deed may be given as security for a named indebtedness in a specified amount, it is competent for the parties to extend the security by agreement so that as between them it shall cover an additional indebtedness. Wylly v. Screven, 98 Ga. 213 , 25 S.E. 435 (1896); Hester v. Gairdner, 128 Ga. 531 , 58 S.E. 165 (1907); Troup Co. v. Speer, 23 Ga. App. 750 , 99 S.E. 541 , cert. denied, 23 Ga. App. 813 (1919).

Whether a conditional sale contract is properly attested is immaterial between the original parties or between the maker and a transferee. Carter v. Commercial Credit Co., 58 Ga. App. 470 , 198 S.E. 792 (1938).

Cited in New England Mtg. Sec. Co. v. Gay, 145 U.S. 123, 12 S. Ct. 815 , 36 L. Ed. 646 (1892); Donovan v. Simmons, 96 Ga. 340 , 22 S.E. 966 (1895); Griffith v. Posey, 98 Ga. 475 , 25 S.E. 515 (1896); Empire Cotton Oil Co. v. Continental Gin Co., 21 Ga. App. 16 , 93 S.E. 525 (1917); DeLaigle v. Shuptrine, 28 Ga. App. 380 , 110 S.E. 920 (1922); Randall v. Hamilton, 156 Ga. 661 , 119 S.E. 595 (1923); First Nat'l Bank v. State Mut. Life Ins. Co., 163 Ga. 718 , 137 S.E. 53 , 51 A.L.R. 1524 (1927); Merchants' & Citizens' Bank v. Bogle, 174 Ga. 612 , 163 S.E. 489 (1932); Webb v. United-American Soda Fountain Co., 59 F.2d 329 (5th Cir. 1932); People's First Nat'l Bank v. Coe Mfg. Co., 67 F.2d 312 (5th Cir. 1933); Georgia Power Co. v. Hand, 67 F.2d 314 (5th Cir. 1933); Walker County Fertilizer Co. v. Napier, 184 Ga. 861 , 193 S.E. 770 (1937); Nightingale v. Juniata College, 186 Ga. 365 , 197 S.E. 831 (1938); Valdosta Plywoods, Inc. v. Belote, 75 Ga. App. 616 , 44 S.E.2d 128 (1947); Burgess v. Simmons, 207 Ga. 291 , 61 S.E.2d 410 (1950); Georgia R.R. & Banking Co. v. Fulmer, 84 Ga. App. 101 , 65 S.E.2d 636 (1951); Adel Banking Co. v. Parrish, 84 Ga. App. 329 , 66 S.E.2d 150 (1951); Parham v. Heath, 90 Ga. App. 26 , 81 S.E.2d 848 (1954); Parham v. Heath, 92 Ga. App. 645 , 89 S.E.2d 528 (1955); B.F. Avery & Sons Co. v. Davis, 226 F.2d 942 (5th Cir. 1955); Washburn Storage Co. v. Columbia Loan Co., 95 Ga. App. 552 , 98 S.E.2d 147 (1957); Williams v. General Fin. Corp., 98 Ga. App. 31 , 104 S.E.2d 649 (1958); Southeastern Equip. Co. v. Peoples Ins. & Fin. Co., 105 Ga. App. 539 , 125 S.E.2d 114 (1962); Jeanes v. Moore, 240 Ga. 466 , 241 S.E.2d 222 (1978); Palmer v. Forrest, Mackey & Assocs., 251 Ga. 304 , 304 S.E.2d 704 (1983); Minor v. McDaniel, 210 Ga. App. 146 , 435 S.E.2d 508 (1993).

Recording

The purpose of the recording statute is to protect against the negligent. - O.C.G.A. § 44-14-63 made it the plain duty of a grantee to record the deed, thereby giving constructive notice to everyone of its existence and of the grantee's rights thereunder; and since it is thus made the duty of such grantee to supply notice, everyone is justified in relying upon an examination of the record and believing that a purchase of land will convey all title which the record fails to disclose is in another. As a means of implementing this protection that section provides that the negligent failure to record renders the unrecorded deed ineffectual as against bona fide purchasers for value and without notice. Archer v. Kelley, 194 Ga. 117 , 21 S.E.2d 51 (1942).

O.C.G.A. § 44-14-63 was modified by O.C.G.A. § 44-2-2 , subsequently enacted. Cross v. Citizens' Bank & Trust Co., 160 Ga. 647 , 128 S.E. 898 (1925).

The word "shall" here used is merely directory as to the place where such instruments may be recorded, if at all. City Whsle. Co. v. Harper, 100 Ga. App. 151 , 110 S.E.2d 561 (1959).

A "bill of sale" as contemplated by O.C.G.A. § 44-14-63 is a "deed" to personalty, and is included in the meaning of the word "deeds" as employed in O.C.G.A. § 44-2-2 ; and consequently under that law bills of sale to secure debt are required to be recorded. Merchants & Mechanics' Bank v. Beard, 162 Ga. 446 , 134 S.E. 107 (1926).

The effect of recordation of conveyances to secure debt is by the law relating thereto made the same as the effect of the recordation of deeds of bargain and sale. City Whsle. Co. v. Harper, 100 Ga. App. 151 , 110 S.E.2d 561 (1959).

Laws relating to mortgage registration govern. - The registration and record of conditional bills of sale shall be governed in all respects by the laws relating to the registration of mortgages on personal property, except that they must be recorded within 30 days from their date, and in this respect they differ from mortgages, deeds and bills of sale to secure debt since these latter instruments date only from the time they are filed for record as to innocent purchasers without notice thereof. Scoggins v. General Fin. & Thrift Corp., 80 Ga. App. 847 , 57 S.E.2d 686 (1950).

Recording not necessary to convey title. - It is not essential under O.C.G.A. § 44-14-63 , in order to convey title to land to secure a debt as between the maker and the grantee, that the deed should be recorded. As between the maker of the security deed and the grantee, the latter would get a good title. Cooper v. Bacon, 143 Ga. 64 , 84 S.E. 123 (1915).

Serves as constructive notice. - Under O.C.G.A. §§ 44-2-1 and 44-14-63 , when bills of sale to secure debt have been recorded in the county of residence of the maker thereof, such registration serves as constructive notice from the date the same are filed for record. General Fin. & Thrift Corp. v. Bank of Wrightsville, 92 Ga. App. 808 , 90 S.E.2d 93 (1955).

The record of a security deed is constructive notice to subsequent grantees. Constructive notice is notice to the world. Cummings v. Johnson, 218 Ga. 559 , 129 S.E.2d 762 (1963).

Record from time of filing. - In a contest between a bill of sale to secure a debt and a lien of a subsequently recorded general execution, the record of the bill of sale dates back from the time of its filing for record in the office of the clerk of the superior court. Merchants & Mechanics' Bank v. Beard, 162 Ga. 446 , 134 S.E. 107 (1926).

Fractions of a day. - Where a priority as between a bill of sale to secure a debt and the lien of a subsequently recorded general execution depends upon whether the bill of sale was recorded first or the general execution was entered upon the execution docket first, such recording and such entry upon the execution docket having occurred on the same day, in determining such priority fractions of a day are to be considered. Merchants & Mechanics' Bank v. Beard, 162 Ga. 446 , 134 S.E. 107 (1926).

Where recorded. - A retention-of-title contract attested by a person described as a commercial notary public of one county, although the caption of the instrument indicates that it was executed in a town in another county is presumably officially executed in the first county. It nevertheless is legally executed to record in county indicated in the caption, the residence of the maker. Smith v. Simmons, 35 Ga. App. 427 , 133 S.E. 312 (1926).

Place of recording as effecting priority. - Where evidence in trover action establishes that, at the time of execution of bills of sale in question, maker was resident of one county but had domicile in another, in view of fact that O.C.G.A. § 44-14-63 provides for such recording, in the county where the maker resided at the time of the execution of such instruments, and the law draws a clear distinction between residence and domicile, defendant who was holder of junior bill of sale recorded in county where maker was resident had title to property superior to that of plaintiff who was holder of senior bill of sale recorded in county where maker had domicile. Commercial Bank v. Pharr, 75 Ga. App. 364 , 43 S.E.2d 439 (1947).

Recording in wrong place equivalent to no record. - The recording of bills of sale in a court other than in the residence of the maker at the time of its execution is equivalent to no record. It will remain valid against persons executing it, but will be postponed to all liens, created or obtained or purchased, made prior to legal record thereof. Commercial Bank v. Pharr, 75 Ga. App. 364 , 43 S.E.2d 439 (1947).

Chapter 7 trustee was allowed under 11 U.S.C. § 544 and O.C.G.A. § 44-14-63(a) to avoid a security deed which debtors gave to a bank before the debtors declared Chapter 7 bankruptcy because the bank filed the deed in the wrong county. There was no merit to the bank's claim that the trustee had inquiry notice of the bank's security interest because the debtors used the proceeds of a loan the debtors obtained from the bank to pay a debt to another bank and the other filed documents to cancel its loan that were defective under O.C.G.A. § 44-14-67(c) ; in addition, the doctrine of equitable subordination did not prevent the trustee from avoiding the bank's secured interest. Rogers v. M&I Bank FSB (In re Morgan), 449 Bankr. 821 (Bankr. N.D. Ga. 2010).

Where a conditional bill of sale or retention title contract is executed in another state on property afterward brought into this state, and such instrument is not recorded in the county of the buyer's residence within the time allowed by the statute, bona fide valid liens subsequently created against the property by the buyer would be superior to the rights of such seller, there being no question of actual knowledge of the rights of the seller under the conditional sale contract, or any fraud. Allen v. Dickey, 54 Ga. App. 451 , 188 S.E. 273 (1936).

Recorded deed not showing maturity. - A duly filed and recorded deed, which plainly shows that it was given to secure a debt, but does not show when the same matures, is notice to one dealing with the grantor therein of all the rights which the grantee has under the contract performance of which is thereby secured. Mattlage v. Mulherin's Sons & Co., 106 Ga. 834 , 32 S.E. 940 (1899).

Where subsequent purchaser or creditor has notice of sale. - A sale of personal property to secure a debt, where the property remains in the possession of the vendor, is inoperative and void as against third persons, unless it is reduced to writing, in which event it will be good as to third persons when recorded under O.C.G.A. § 44-14-63 , or, when not recorded, as to subsequent purchasers or creditors who have actual notice of such sale. Henry Vogt Mach. Co. v. Bailey, 2 Ga. App. 204 , 58 S.E. 314 (1907).

Preference arose when security executing not recorded. - Elements of a preference under 11 U.S.C. § 547(b) were met since the mortgagee's claim based on the mortgagee's security deed arose when the security deed was executed, under O.C.G.A. 44-14-63, but the transfer occurred when the security deed was recorded, and thus was made on behalf of antecedent debt. Ogier v. Mortg. Elec. Registration Sys. (In re Tanoh), Bankr. (Bankr. N.D. Ga. Sept. 26, 2011).

Effect of Failure to Record

A bill of sale is valid between the parties though not recorded. Arnoldsville Trading Co. v. Jones, 62 Ga. App. 677 , 9 S.E.2d 693 (1940).

O.C.G.A. § 44-14-63 so changes the prior law with reference to bills of sale and deeds to secure debts as to render such instruments, even though unrecorded, superior in rank to subsequent liens created by law; however, these statutes do not expressly or impliedly change the prior law with regard to contracts of conditional sale. Evans Motors of Ga., Inc. v. Hearn, 53 Ga. App. 703 , 186 S.E. 751 (1936); Massachusetts Mut. Life Ins. Co. v. Hirsch, 184 Ga. 636 , 192 S.E. 435 (1937); Mackler v. Lahman, 196 Ga. 535 , 27 S.E.2d 35 (1943); Refrigeration-Appliances, Inc. v. Atlanta Provision Co., 90 Ga. App. 821 , 84 S.E.2d 602 (1954); Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955), for comment, see 18 Ga. B.J. 82 (1955).

An unrecorded bill of sale to secure debt is uniformly superior to any lien arising by operation of law, as is the case with any mechanic's lien. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955), for comment, see 18 Ga. B.J. 82 (1955).

An unrecorded bill of sale to secure debt has the same effect as a deed of bargain and sale, and, therefore, although unrecorded, is superior in rank to subsequent liens created by law. Associates Disct. Corp. v. Willard, 99 Ga. App. 116 , 108 S.E.2d 110 (1959).

Effect of failure provided in § 44-2-1 . - The last sentence of O.C.G.A. § 44-14-63 states that the effect of failure to record deeds to secure debt and bills of sale shall be the same as shall be the effect of failure to record a deed of bargain and sale. The effect of this latter failure is provided in O.C.G.A. § 44-2-1 . Commercial Bank v. Pharr, 75 Ga. App. 364 , 43 S.E.2d 439 (1947).

The penalty of failure to record has reference only to the rights of a subsequent vendee, taking a deed from the same vendor without notice of the existence of the prior unrecorded deed. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370 , 21 S.E.2d 619 (1942).

An unrecorded deed of bargain and sale is postponed only to later bona fide purchasers for value without notice. Ivey v. Transouth Fin. Corp., 566 F.2d 1023 (5th Cir. 1978).

An unperfected security interest is subordinate to the rights of lien creditors who acquire their liens without knowledge of the prior security interest and before it is perfected, and this operates in favor of a creditor who has acquired a lien on the property involved by attachment, levy, or the like. Mack Trucks, Inc. v. Ryder Truck Rental, Inc., 110 Ga. App. 68 , 137 S.E.2d 718 (1964).

The effect of failure to record a deed of bargain and sale is that it loses its priority over a subsequent recorded deed from the same vendor, taken without notice of the existence of the first. It does not lose priority to a junior judgment or other lien created by operation of law, for the holder of such a lien is not a bona fide purchaser. Mack Trucks, Inc. v. Ryder Truck Rental, Inc., 110 Ga. App. 68 , 137 S.E.2d 718 (1964).

Prior to the passage of O.C.G.A. § 44-14-63 , a security deed executed in good faith, though unrecorded, was superior to a subsequently acquired lien against the grantor. Phinizy v. Clark, 62 Ga. 623 (1879); Sosnowski v. Rape, 69 Ga. 548 (1882); McClure v. Smith, 115 Ga. 709 , 42 S.E. 53 (1902); McIntire v. Garmany, 8 Ga. App. 802 , 70 S.E. 198 (1911).

A judgment against a grantor, obtained after the execution by the grantor of a security deed, but prior to its being filed for record in the county where the land lies under O.C.G.A. § 44-14-63 , is superior to such deed. Cabot v. Armstrong, 100 Ga. 438 , 28 S.E. 123 (1897); Cambridge Tile Co. v. Scaife & Sons Co., 137 Ga. 281 , 73 S.E. 492 (1911); Coley v. Altamaha Fertilizer Co., 147 Ga. 150 , 93 S.E. 90 (1917); Cook v. Adams Bros. Co., 148 Ga. 289 , 96 S.E. 499 (1918); Merchants' & Mechanics' Bank v. Beard, 162 Ga. 446 , 134 S.E. 107 (1926).

Priority of lien of judgment duly recorded over earlier security deed recorded afterward. Saunders v. Citizens First Nat'l Bank, 165 Ga. 558 , 142 S.E. 127 (1928).

Priority despite deed not being recorded in proceeding under Uniform Fraudulent Transfers Act. - Judgment voiding a transfer of property as fraudulent under the Uniform Fraudulent Transfers Act (UFTA) (now Uniform Voidable Transactions Act), O.C.G.A. § 18-2-70 et seq., was reversed because, despite not being recorded, the 2002 security deed executed in favor of a former sister-in-law, pledging the property as collateral for a promissory note, gave the former sister-in-law, as one of the defendant's creditors, priority over the plaintiff's judgment, such that the property could not be characterized as the defendant's asset under the UFTA. Wallin v. Wallin, 341 Ga. App. 440 , 800 S.E.2d 617 (2017).

Unrecorded bill of sale of crops to secure the debt was superior in rank to the subsequent judgment lien created by law. Cairo Banking Co. v. Citizens Bank, 63 Ga. App. 690 , 11 S.E.2d 806 (1940).

Security deed superior to debt outstanding evidenced by unrecorded deed. Mortgage Guarantee Co. of Am. v. Atlanta Com. Bank, 166 Ga. 412 , 143 S.E. 562 (1928).

The record of an agreement extending lien of recorded security deed to an additional debt, is not necessary to prevent a judgment for an unsecured from obtaining priority. McClure v. Smith, 115 Ga. 709 , 42 S.E. 53 (1902).

Landlord's lien for rent and tenant's unrecorded bill of sale. - A landlord's general lien for rent, arising upon the issuance and levy of a distress warrant, is superior to a tenant's unrecorded bill of sale of personalty to secure a debt, though the latter was executed and delivered prior to the date of the levy of the distress warrant upon the property covered by the bill of sale. Butler v. LaGrange Grocery Co., 29 Ga. App. 612 , 116 S.E. 213 (1923).

Distress warrant levied on prior to recording of security deed had priority over deed. Virginia-Carolina Chem. Co. v. Rylee, 139 Ga. 669 , 78 S.E. 27 (1913).

A recorded quitclaim deed, when taken in good faith for a valuable consideration, without notice, will prevail over a prior unrecorded deed. This rule is not altered by the fact that the quitclaim deed conveys only the grantor's rights, title, and interest in and to the land, instead of conveying the land itself. Archer v. Kelley, 194 Ga. 117 , 21 S.E.2d 51 (1942).

Where at the time that a security deed was executed and recorded a bond for title was not recorded, and the obligee on the bond for title was not in possession of the property, and where the grantee in the security deed had no actual notice of the outstanding bond for title, the rights conveyed by the security deed were superior to those held by the obligee in the bond for title. Kelley v. Spivey, 182 Ga. 507 , 185 S.E. 783 (1936).

Foreclosure provisions unenforceable. - The trial court did not err in finding that the foreclosure provisions of the deed to secure debt could not be enforced because the deed had never been delivered and recorded. Jones v. Phillips, 227 Ga. App. 94 , 488 S.E.2d 692 (1997).

Recording of security deed not necessary to effect a transfer between debtors and lender. - Because the security deed between the debtors and the lender was effective as between those parties at execution, it was not relevant that the security deed was recorded within 90 days prior to the debtors filing a petition in bankruptcy; under the doctrine of equitable subrogation, the security deed was not avoidable as a preferential transfer. Gordon v. NovaStar Mortg., Inc. (In re Hedrick), Bankr. (Bankr. N.D. Ga. Aug. 31, 2005), aff'd, 524 F.3d 1175 (11th Cir. 2008); modified and reh'g denied, 529 F.3d 1026 (11th Cir. 2008).

No judgment lien shown. - Trial court erred by granting summary judgment to a judgment lienholder because the lienholder did not establish as a matter of law that the lienholder had any legal or equitable interest in the property at any time after a quitclaim deed was executed; because the record did not establish that the lienholder had any ownership interest in the property upon which the right to seize assets could attach, the trial court erred in finding that the lienholder held a judgment lien against the property. Wells Fargo Bank, N.A. v. Twenty Six Properties, LLC, 325 Ga. App. 662 , 754 S.E.2d 630 (2014).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, §§ 59, 153 et seq.

C.J.S. - 26A C.J.S., Deeds, § 155 et seq. 59 C.J.S., Mortgages, § 192 et seq.

ALR. - Reinstatement and restoration of mortgages released or discharged without authorization, as against subsequent purchasers, lienholders, judgment creditors, and the like, without notice, 35 A.L.R.2d 948.

44-14-64. Transfers of deeds to secure debt; execution; partial transfers; transfers by certain financial institutions; requirements for recording; payoff balance.

  1. All transfers of deeds to secure debt shall be in writing; shall be signed by the grantee or, if the deed has been previously transferred, by the last transferee; and shall be witnessed as required for deeds.
  2. Transfers of deeds to secure debt may be endorsed upon the original deed or by a separate instrument identifying the transfer and shall be sufficient to transfer the property therein described and the indebtedness therein secured, whether the indebtedness is evidenced by a note or other instrument or is an indebtedness which arises out of the terms or operation of the deed, together with the powers granted without specific mention thereof.
  3. Transfer of a deed to secure debt and the indebtedness therein secured may be made in whole or in part; provided, however, that, where the transfer is made in part, that portion of the deed and the indebtedness therein secured to be transferred shall be stated upon a separate instrument and not upon the original deed.
  4. A transfer of a deed to secure debt and the indebtedness therein secured in whole or in part in accordance with subsections (a) through (c) of this Code section by a financial institution having deposits insured by an agency of the federal government or a transfer by a lender who regularly purchases or services residential real estate loans aggregating a minimum of $1 million secured by a first deed to secure debt encumbering real estate improved or to be improved by the construction thereon of one to four family dwelling units, where the transferor retains the right to service or supervise the servicing of the deed or interest therein, need not be recorded if:
    1. The original deed to secure debt has been recorded;
    2. An agreement in writing exists on or before the date of the transfer between the transferor and the transferee and sets forth the terms of the transfer and the interests of the parties thereto; and
    3. Possession of the deed, the instrument of indebtedness, and the instrument of transfer is taken by such new transferee for himself or in his representative capacity or by a representative of such transferee which may include the transferor or any other transferee, provided that the agreement in paragraph (2) of this subsection provides for such party to take possession.
  5. As described in subsection (d) of this Code section, the transfer by a financial institution or lender of a deed to secure debt and the indebtedness therein secured in whole or in part without recording in accordance with this Code section shall be effective to provide the new transferee with priority over all subsequent claims against the deed and the indebtedness therein secured to the extent of the interest so transferred, and the priority shall not be lessened by the fact that the transfer is not recorded; provided, however, that a transfer, satisfaction, cancellation, release, quitclaim deed, or modification executed and recorded by the holder of record of the deed to secure debt shall be effective to transfer, satisfy, cancel, release, quitclaim, or modify, as the case may be, all interest of the holder of record of the deed to secure debt and all interest of all transferees claiming by, through, or under the holder of record of the deed to secure debt.
  6. Where the holder of the right to service or supervise the servicing of the transferred deed to secure debt and the indebtedness therein secured is a financial institution or lender as described in subsection (d) of this Code section, it shall have the same rights, responsibilities, and obligations to act in all matters concerning the servicing, administration, and cancellation of the deed and indebtedness as to third parties as if no such transfer had taken place.
  7. A transfer of a deed to secure debt shall not be recorded unless it includes the mailing address of the last transferee thereof. Failure to comply with this provision shall not be a defense to any foreclosure or grounds to set aside any foreclosure of any deed to secure debt.
  8. A grantor or his transferee shall be entitled to receive without charge a payoff balance from the holder of a deed to secure debt on real property by requesting in writing said balance and providing a self-addressed stamped envelope.

    (Code 1933, § 67-1305.1, enacted by Ga. L. 1967, p. 737, § 1; Ga. L. 1980, p. 976, § 1; Ga. L. 1989, p. 859, § 2.)

JUDICIAL DECISIONS

A joint payee request did not constitute an assignment of FHA's security deed for the reason that it did not identify such security deed and did not purport to be signed by the grantee. Washington Loan & Banking Co. v. Guin, 236 Ga. 779 , 225 S.E.2d 318 (1976).

Effect of transfer of deed to nominee of lender. - After Chapter 7 debtor executed a note to a lender and also executed a security deed to a grantee, as the lender's nominee, to secure the debt, there was no separation of the note and security deed as a matter of law resulting from the transfer of the security deed. Drake v. Citizens Bank (In re Corley), 447 Bankr. 375 (Bankr. S.D. Ga. 2011).

Bad faith acted to lift automatic stay of bankruptcy. - Because a debtor filed a second bankruptcy petition for the express purpose of delaying and frustrating the legitimate efforts of a secured creditor to enforce its right of foreclosure, the debtor was found to have not acted in good faith under 11 U.S.C. § 362(g); thus, cause existed to annul or lift the automatic stay pursuant to 11 U.S.C. § 362(d). GRP Fin. Servs. Corp. v. Olsen (In re Olsen), Bankr. (Bankr. N.D. Ga. Jan. 8, 2007).

Effect of transfer of deed from nominee to lender. - Foreclosure sale was valid because there was no defect in the assignment of the power of sale from the nominee to the lender when the security deed did not lack any essential terms regarding the nominee's role, rights, or duties under O.C.G.A. § 10-6-1 and no consideration was needed under O.C.G.A. § 44-14-64(a) . The lender did not violate the automatic stay of 11 U.S.C. § 362(a) by recording the sale post-petition because the Chapter 13 debtor retained no interest in the property after the sale. Bishop v. GMAC Mortg., LLC (In re Bishop), 470 Bankr. 633 (Bankr. M.D. Ga. 2011).

Assignment of security deed. - Under O.C.G.A. §§ 23-2-114 and 44-14-64(b) , the assignments of plaintiff homeowner's security deed granted to defendant bank did not diminish the deed's powers in the bank's foreclosure action, thus, the homeowner's wrongful foreclosure claim failed to state a claim for relief. Milani v. OneWest Bank FSB, 491 Fed. Appx. 977 (11th Cir. 2012)(Unpublished).

District court properly dismissed the plaintiff's suit against multiple financial institutions and fictitious parties seeking declaratory and equitable relief to stop foreclosure proceedings as there was no dispute that the holder of the security deed at the time of the proposed foreclosure had the authority to foreclose on the property in accordance with the security deed's power of sale. Assignment of the security deed did not diminish the instrument's powers under Georgia law. Stabb v. GMAC Mortg., LLC, 579 Fed. Appx. 706 (11th Cir. 2014)(Unpublished).

Lower court correctly determined that the debtors lacked standing to challenge the assignment of the security deed to a bank because the security deed afforded the debtors no right to dispute the assignment as the debtors were not third-party beneficiaries of the assignment as a whole and were not intended to directly benefit from the transfer of the power of sale. Ames v. JP Morgan Chase Bank, N.A., 298 Ga. 732 , 783 S.E.2d 614 (2016).

Cited in Cummings v. Anderson, 173 Bankr. 959 (Bankr. N.D. Ga. 1994).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, §§ 1001, 1002, 1012 et seq.

C.J.S. - 59 C.J.S., Mortgages, §§ 319, 337, 346 et seq.

ALR. - Excessive security for debt as affecting question of fraud upon creditors, 138 A.L.R. 1051 .

44-14-65. Fees for transfer of real property covered by deed to secure debt.

Reserved. Repealed by Ga. L. 1984, p. 132, § 1, effective February 3, 1984.

Editor's notes. - This Code section was based on Code 1933, § 67-1301.1, enacted by Ga. L. 1975, p. 370, § 2.

Ga. L. 2015, p. 5, § 7/HB 90, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, reserved the designation of this Code section.

44-14-66. Effect of liens against grantee on grantor's right to reconvey; effect of reconveyance in event of grantor's prior death.

The grantor's right to a reconveyance of the property upon complying with the contract shall not be affected by any liens, encumbrances, or rights which would otherwise attach to the property by virtue of the title being in the grantee; but the right of the grantor to a reconveyance shall be absolute and permanent upon his complying with his contract with the grantee according to the terms. In the event of the prior death of the grantor, such a reconveyance shall be valid and effective to vest title in the heirs, personal representatives, or successors in title of the deceased grantor as their interests may appear.

(Ga. L. 1871-72, p. 44, § 2; Code 1873, § 1971; Code 1882, § 1971; Civil Code 1895, § 2775; Civil Code 1910, § 3310; Code 1933, § 67-1307; Ga. L. 1970, p. 176, § 1.)

JUDICIAL DECISIONS

The right of the mortgagee under O.C.G.A. § 44-14-66 , will be defeated by payment of the secured debt, either by the vendor or the vendor's assignee. Gilliard v. Johnston & Miller, 161 Ga. 17 , 129 S.E. 434 (1925).

The original holders of the bond for title did not have either a fee simple or mortgageable interest in the land which they could convey to the purchaser at the first sheriff's sale, or those who were substituted for the first purchaser, and therefore were not protected by O.C.G.A. § 44-14-66 . Lanier v. Brooker, 65 Ga. 761 (1880).

Land held by absolute deed as security for a debt still unpaid, is subject to levy and sale as the property of the vendee, under a judgment against the vendee, no matter whether the judgment creditor gave credit on the faith of the property so held or not. Parrott v. Baker, 82 Ga. 364 , 9 S.E. 1068 (1889).

Crops. - A security deed executed under O.C.G.A. §§ 44-14-60 , 44-14-61 , 44-14-63 , 44-14-66 , and 44-14-67 , after the passage of O.C.G.A. § 44-14-101 , to convey cultivated farm land as security for debt, does not ordinarily comprehend crops matured or unmatured on the land. Penn Mut. Life Ins. Co. v. Larsen, 178 Ga. 255 , 173 S.E. 125 (1934).

Legal title automatically reverted. - Trial court did not err in holding that children acquired a collective two-thirds interest in property because pursuant to O.C.G.A. § 44-14-67(a) , when the original security deeds were paid off and cancelled legal title automatically reverted to the father and the children, his assigns; the father had no authority thereafter to convey a greater interest than he held and, thus, only the father's own one-third interest could be encumbered by the loan that was made to the father without any involvement by the children. Chase Manhattan Mortg. Corp. v. Shelton, 290 Ga. 544 , 722 S.E.2d 743 (2012).

Cited in Gaskill v. Davis, 66 Ga. 665 (1881); Bowen v. Frick & Co., 75 Ga. 786 (1885); Cook v. Georgia Fertilizer & Oil Co., 154 Ga. 41 , 113 S.E. 145 (1922); Cravey v. L'Eggs Prods., Inc., 100 Bankr. 119 (Bankr. S.D. Ga. 1989); Vineville Capital Group, LLC v. McCook, 329 Ga. App. 790 , 766 S.E.2d 156 (2014).

OPINIONS OF THE ATTORNEY GENERAL

Ownership for annexation purposes. - The intent of the General Assembly in referring to "the record title holder of the fee simple title" in former O.C.G.A. § 36-36-22(d) was to give the grantor of a security deed the right to decide upon the question of annexation; thus, in determining ownership of land for the purpose of determining the eligibility of a landowner to sign an application for annexation to a municipality, it should be done without regard to whether such land is encumbered by an outstanding deed to secure debt. 1967 Op. Att'y Gen. No. 67-16.

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, §§ 362, 363.

C.J.S. - 59 C.J.S., Mortgages, § 478.

44-14-67. Cancellation of deed as reconveyance of title.

  1. In all cases where property is conveyed to secure a debt, the surrender and cancellation of the deed, in the same manner as mortgages are canceled, on payment of the debt to any person legally authorized to receive the same, shall operate to reconvey the title of the property to the grantor or the grantor's heirs, executors, administrators, or assigns.
  2. In the case of a deed to secure debt which applies to real property, in order to authorize the clerk of superior court to show the original instrument as canceled of record, there shall be presented for recording:
    1. A cancellation upon the original security deed itself;
    2. A conveyance from the record holder of the security deed, which conveyance is in the form of a quitclaim deed or other form of deed suitable for recording and which refers to the original security deed; or
    3. A cancellation as provided in subsection (c) of this Code section.

      Any clerk of superior court who cancels of record any deed to secure debt in the manner authorized in this subsection shall be immune from any civil liability, either in such clerk's official capacity or personally, for so canceling of record such security deed.

  3. Cancellation of a security deed, the original of which has been lost, stolen, or otherwise mislaid, may be made based upon a document executed by the owner of the security interest and who so swears in such document, which document shall be recorded and shall be in substantially the following form:

    (Ga. L. 1889, p. 118, § 1; Civil Code 1895, § 2774; Civil Code 1910, § 3309; Code 1933, § 67-1306; Ga. L. 1986, p. 754, § 2; Ga. L. 1989, p. 498, § 2; Ga. L. 1994, p. 1943, § 12; Ga. L. 1999, p. 81, § 44.)

________________ County, Georgia The indebtedness referred to in that certain deed to secure debt from _____________ to _____________, dated _____________, and of record in Deed Book __________, Page __________, in the office of the clerk of the Superior Court of ________________ County, Georgia, having been paid in full and the undersigned being the present owner of such secured interest by virtue of being the original grantee or the heir, assign, transferee, or devisee of the original grantee, the clerk of such superior court is authorized and directed to cancel that deed of record as provided in Code Section 44-14-4 of the O.C.G.A. for other mortgage cancellations. In witness whereof, the undersigned has set his or her hand and seal, this __________ day of ________________________, ________. ______________________________ (SEAL) Signature Signed, sealed, and delivered on the date above shown __________________ Unofficial Witness __________________ Notary Public (SEAL) My commission expires: ____________________________________

Law reviews. - For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986).

JUDICIAL DECISIONS

A security deed, although conveying the legal title, does so for the purpose of security only, and upon the satisfaction of the obligation which it is given to secure, is automatically extinguished in effect and can be canceled of record without any reconveyance by the grantee, in accordance with the provisions of O.C.G.A. § 44-14-67 . Hennessy v. Woodruff, 210 Ga. 742 , 82 S.E.2d 859 (1954); Sapp v. ABC Credit & Inv. Co., 243 Ga. 151 , 253 S.E.2d 82 (1979).

No reconveyance is necessary to revest title, where land has been conveyed to secure a debt, a cancellation of the deed, as in the case of mortgages, being sufficient for that purpose under O.C.G.A. § 44-14-67 . Chapman v. Ayer, 95 Ga. 581 , 23 S.E. 131 (1895); Citizens' Bank v. Taylor, 155 Ga. 416 , 117 S.E. 247 (1923).

Legal title automatically reverted. - Trial court did not err in holding that children acquired a collective two-thirds interest in property because pursuant to O.C.G.A. § 44-14-67(a) , when the original security deeds were paid off and cancelled legal title automatically reverted to the father and the children, his assigns; the father had no authority thereafter to convey a greater interest than he held, and thus, only the father's own one-third interest could be encumbered by the loan that was made to the father without any involvement by the children. Chase Manhattan Mortg. Corp. v. Shelton, 290 Ga. 544 , 722 S.E.2d 743 (2012).

It is the duty of the grantee, upon payment of the amount due under the terms of deed to secure debt, to surrender and deliver it to the grantor with a proper entry showing payment, and the grantor may thereafter have it "satisfied" of record. A petition seeking to have the above rule complied with by the grantee is based upon a statutory right. Hennessy v. Woodruff, 210 Ga. 742 , 82 S.E.2d 859 (1954).

Alternate methods. - If an instrument by which title is conveyed to the creditor is of such a character as to pass into the creditor an absolute title, it can be revested only by a reconveyance to the grantor, or by compliance with the provisions of O.C.G.A. § 44-14-67 . Burckhalter v. Planters' Loan & Sav. Bank, 100 Ga. 428 , 28 S.E. 236 (1897). See also Ashley v. Cook, 109 Ga. 653 , 35 S.E. 89 (1900).

Nature of interest revested. - Under O.C.G.A. § 44-14-67 the payment of a debt secured by deed to land revests in the grantor in such deed such interest and title therein as can be levied upon under an execution issuing upon a judgment junior in date to such deed, without a reconveyance of the land to the grantor, and, in case of cancellation, without the record of the cancellation of the security deed. Citizens' Mercantile Co. v. Easom, 158 Ga. 604 , 123 S.E. 883 (1924).

Deed with reconveyance clause not mortgage. - Under O.C.G.A. § 44-14-67 an instrument, in all respects in the form of a deed passing title, and executed for the purpose of securing the payment of a described debt is not, because containing the clause: "Reconveyance of said property to be made upon fulfillment of all the conditions of this instrument," properly to be treated as a mere mortgage. Pitts v. Maier, 115 Ga. 281 , 41 S.E. 570 (1902).

A written instrument which by its terms passes title from the vendor to the vendee as security for a debt and which contains no defeasance clause is a deed or bill of sale to secure a debt and is not a mortgage. The title conveyed thereunder does not automatically revert to the vendor upon the payment of the debt, but continues thereafter in the vendee, and is not divested until the performance of some act, as a reconveyance from the vendee to the vendor, or the cancellation and surrender of the instrument by the vendee as required by O.C.G.A. § 44-14-67 . Grady v. T.I. Harris, Inc., 41 Ga. App. 111 , 151 S.E. 829 (1930).

Distinction between cancellation and record of cancellation. - O.C.G.A. § 44-14-67 deals with the cancellation of the security deed as a separate and distinct thing from the record of such cancellation; and the record of such cancellation as a separate and distinct thing from the cancellation itself. The language of that section, "cancellation of such deed in the same manner that mortgages are now canceled," may mean that such cancellation shall consist of an acknowledgment of the payment of the debt and an order from the grantee authorizing or directing the cancellation of the instrument. The proper construction may be, that, when such order is entered upon the security deed, it is the cancellation thereof contemplated by the section. Citizens' Mercantile Co. v. Easom, 158 Ga. 604 , 123 S.E. 883 (1924).

Voluntary cancellation without consideration. - Under O.C.G.A. § 44-14-67 , the cancellation of a security deed and its delivery to the grantor, who had it canceled of record, was held binding and effective, though the cancellation was voluntary and without consideration. In re Hitchcock, 283 F. 447 (N.D. Ga. 1922).

Effect of failure to record cancellation. - If record of cancellation is not effected according to O.C.G.A. § 44-14-67 , the security deed appearing of record to be valid, a purchaser without notice acquires title. Ellis v. Ellis, 161 Ga. 360 , 130 S.E. 681 (1925).

Sufficiency of deed cancellation. - Chapter 7 trustee was allowed under 11 U.S.C. § 544 and O.C.G.A. § 44-14-63(a) to avoid a security deed which debtors gave to a bank before the debtors declared Chapter 7 bankruptcy because the bank filed the deed in the wrong county. There was no merit to the bank's claim that the trustee had inquiry notice of the bank's security interest because the debtors used the proceeds of a loan the debtors obtained from the bank to pay a debt to another bank and the other filed documents to cancel the bank's loan that were defective under O.C.G.A. § 44-14-67(c) ; in addition, the doctrine of equitable subordination did not prevent the trustee from avoiding the bank's secured interest. Rogers v. M&I Bank FSB (In re Morgan), 449 Bankr. 821 (Bankr. N.D. Ga. 2010).

Erroneous cancellation of security deed. - Trial court did not err in reinstating the security deed after the bank erroneously cancelled the security deed as the recorded cancellation did not reconvey title since the debt was not fully satisfied and, thus, the bank retained the bank's right to non-judicial foreclosure. Patel v. J.P. Morgan Chase Bank, N.A., 327 Ga. App. 321 , 757 S.E.2d 460 (2014).

Transfer of bond to reconvey. - Where an owner of land made a conveyance of it to secure a loan, taking bond for reconveyance upon payment, and transferred the bond to another, in the absence of fraud, one who subsequently obtained judgment against the assignor of the bond, and who was not shown to have been a creditor when the transfer was made, did not have the right to subject the land after the payment of the secured debt by the transferee of the bond, the cancellation of the security deed under O.C.G.A. § 44-14-67 , and the subsequent making of a quitclaim deed by the secured creditor to the transferee. Burney Tailoring Co. v. Cuzzort, 132 Ga. 852 , 65 S.E. 140 (1909).

Payee of a note authorizing retention of any of maker's collateral then or thereafter acquired and application to the same or other debts, which took a transfer of a note and security deed executed by maker to a bank, was entitled to a special lien on the land described in the security deed only for the amount of the balance due by the debtor to the bank, and upon payment of such balance the debtor was entitled to have the security deed canceled and surrendered to the debtor. Mitchell v. Mandeville Mills, 180 Ga. 791 , 180 S.E. 828 (1935).

No reconveyance where secured debt not paid in full. - Because the debt to the bank was not paid, the title of the property could not have been reconveyed to the successor of the grantor of the bank's security interest pursuant to O.C.G.A. § 44-14-67(a) . Therefore, the bank's security interest was never reconveyed and the bank held a senior position based on the bank's 1997 mortgage to the grantor. Mak v. Argent Mortg. Co., LLC, F. Supp. 2d (N.D. Ga. Sept. 15, 2009).

In a case in which (1) a creditor's security interest was inadvertently released before the mortgage on the debtor's residence was paid in full; (2) the debtor sought declaratory relief as to secured status, to avoid preferential transfer, and for monetary damages for wrongful foreclosure; and (3) the creditor moved for summary judgment, the creditor's inadvertent filing of a rescission of cancellation of the creditor's security interest in the debtor's residence did not result in a transfer of an interest of the debtor in the property. Under O.C.G.A. § 44-14-67(a) , filing a notice of cancellation did not terminate the creditor's lien; the satisfaction of the debt did so. In re Poff, Bankr. (Bankr. M.D. Ga. Dec. 16, 2010).

Fraudulent deed was facially regular and operated to release security interest. - A 2003 warranty deed that operated to release a prior lender's security interest in the property was not a forgery but was signed by someone fraudulently assuming the authority of an officer of the prior lender and was regular on the deed's face. Therefore, a subsequent lender that foreclosed on the property and purchased the property at the foreclosure sale was a bona fide purchaser for value entitled to take the property free of the prior lender's security interest. Deutsche Bank Nat'l Trust Co. v. JP Morgan Chase Bank, N.A., 307 Ga. App. 307 , 704 S.E.2d 823 (2010).

Failure to provide a separate statement swearing to fate of original document. - According to In re Morgan, 449 Bankr. 821 (Bankr.N.D.Ga. 2010), the failure to provide a separate statement swearing to the fate of the original document does not, by itself, put a hypothetical bona fide purchaser on inquiry notice because "given the plain language of the statute, the presentation of an instrument of cancellation conforming to this form with an attested, witnessed signature in and of itself evidences a sworn statement that the original security deed to be cancelled is unavailable." Though the Morgan decision did not address ownership, the reasoning plainly extends to it; the statute (in the context of O.C.G.A. § 44-14-67(c) ), provides a form, so that the form clearly complies with the requirements of the statute. Gordon v. Wells Fargo Bank, N.A. (In re Ingram), Bankr. (Bankr. N.D. Ga. Apr. 5, 2013).

Summary judgment proper once security deed paid in full. - In an action to remove a cloud from title, the trial court properly granted summary judgment to a bank and cancelled a recorded deed in favor of a holder, as: (1) the holder could no longer claim any legal title to the subject property once the underlying debt thereto was paid; (2) no evidence of valid renewal or extension of the note existed; and (3) the holder lacked standing to challenge any foreclosure on the debt. Northwest Carpets, Inc. v. First Nat'l Bank, 280 Ga. 535 , 630 S.E.2d 407 (2006).

Cited in Cumming v. McDade, 118 Ga. 612 , 45 S.E. 479 (1903); Webb v. Harris, 124 Ga. 723 , 53 S.E. 247 (1906); Turner v. Woodward, 133 Ga. 467 , 66 S.E. 160 (1909); Massell v. Fourth Nat'l Bank, 38 Ga. App. 631 , 144 S.E. 806 (1928); Blumenfeld v. Citizens' Bank & Trust Co., 168 Ga. 327 , 147 S.E. 581 (1929); Penn Mut. Life Ins. Co. v. Larsen, 178 Ga. 255 , 173 S.E. 125 (1934); Waldroup v. State, 198 Ga. 144 , 30 S.E.2d 896 (1944); Farmers Fertilizer Co. v. J.R. Watkins Co., 199 Ga. 49 , 33 S.E.2d 294 (1945); Burgess v. Simmons, 207 Ga. 291 , 61 S.E.2d 410 (1950); Bank of LaFayette v. Giles, 208 Ga. 674 , 69 S.E.2d 78 (1952); Wilson v. Whitmire, 212 Ga. 287 , 92 S.E.2d 20 (1956); Strickland v. Miles, 131 Ga. App. 300 , 205 S.E.2d 880 (1974); Davis v. Johnson, 241 Ga. 436 , 246 S.E.2d 297 (1978); Coleman Road Assocs. v. Culpepper, 214 Ga. App. 475 , 448 S.E.2d 83 (1994); Stearns Bank, N.A. v. Mullins, 333 Ga. App. 369 , 776 S.E.2d 485 (2015); Brown v. Tucker, 337 Ga. App. 704 , 788 S.E.2d 810 (2016).

OPINIONS OF THE ATTORNEY GENERAL

Recordation requirements. - When a paid mortgage or security deed is filed with an order of cancellation upon it, clerks of superior court may record the canceled instrument or only the part which bears the order; the part recorded should be sufficient to identify the transaction; clerks should index cancellations of security instruments with the name of the borrower (mortgagor) in the "grantee" index, make all notations required by statute in the indices and on the recordings, and charge a fee of $3.50, unless the cancellation is by new deed, in which case the fee for recording a deed should also be charged. 1989 Op. Att'y Gen. U89-19.

Cancellation of security deeds and writs of execution from record. 1972 Op. Att'y Gen. No. U72-79.

A clerk must obtain a written authorization executed by or on behalf of grantee in order to cancel a security instrument and, in case of real property, may require additional formalities such as attestations to assure against forgery. 1981 Op. Att'y Gen. No. U81-50.

Sufficiency of deed cancellation. - Under Ga. L. 1986, p. 754, amending O.C.G.A. §§ 44-14-3 and 44-14-67 dealing with deeds to secure debt and their cancellation, the release of corporate security interests in real property or security interests under the UCC, signed by an officer or delegated agent, as provided in O.C.G.A. § 14-5-7(b) , will continue to constitute conclusive evidence of corporate authorization for the release, and when the clerk is presented with such a release apparently so signed, in the absence of overt signs of impropriety, it should be accepted for recording. 1986 Op. Att'y Gen. No. 86-17.

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, §§ 359 et seq., 430.

C.J.S. - 59 C.J.S., Mortgages, § 451 et seq.

ALR. - Excessive security for debt as affecting question of fraud upon creditors, 138 A.L.R. 1051 .

Requiring security as condition of canceling of record mortgage or lien, or of recording payment, 2 A.L.R.2d 1064.

PART 2 R EVERSION

44-14-80. Reversion of realty to grantor; renewals and affidavits; effect; fees; construction of Code section.

  1. Title to real property conveyed to secure a debt or debts shall revert to the grantor or the grantor's heirs, personal representatives, successors, and assigns as follows:
    1. Title to real property conveyed to secure a debt or debts shall revert to the grantor or his or her heirs, personal representatives, successors, and assigns at the expiration of seven years from the maturity of the debt or debts or the maturity of the last installment thereof as stated or fixed in the record of the conveyance or, if not recorded, in the conveyance; provided, however, that where the parties by affirmative statement contained in the record of conveyance intend to establish a perpetual or indefinite security interest in the real property conveyed to secure a debt or debts, the title shall revert at the expiration of the later of (A) seven years from the maturity of the debt or debts or the maturity of the last installment thereof as stated or fixed in the record of conveyance or, if not recorded, in the conveyance; or (B) 20 years from the date of the conveyance as stated in the record or, if not recorded, in the conveyance;
    2. If the maturity of the debt or debts or the maturity of the last installment thereof is not stated or fixed, title to real property conveyed to secure a debt or debts shall revert at the expiration of seven years from the date of the conveyance as stated in the record or, if not recorded, in the conveyance; provided, however, that where the parties by affirmative statement contained in the record of conveyance intend to establish a perpetual or indefinite security interest in the real property conveyed to secure a debt or debts, the title shall revert at the expiration of 20 years from the date of the conveyance as stated in the record or, if not recorded, in the conveyance; or
    3. If the maturity is not stated or fixed and the conveyance is not dated, title to real property conveyed to secure a debt or debts shall revert at the expiration of seven years from the date the conveyance is recorded or, if not recorded, is delivered;

      provided, however, that foreclosure by an action or by the exercise of power of sale, if started prior to reversion of title, shall prevent the reversion if the foreclosure is completed without delay chargeable to the grantee or the grantee's heirs, personal representatives, successors, or assigns.

  2. If the grantee or the grantee's personal representatives, heirs, successors, or assigns, or any one of them if more than one, or an officer of a corporation having an interest shall, at any time before the title reverts as provided in subsection (a) of this Code section, make and cause to be recorded upon the record of the conveyance or elsewhere in the public records, with a notation of the place of record of the renewal on the record of the conveyance or, if not recorded, upon the conveyance, a written renewal of the debt or debts secured or the part thereof which are not fully paid and are not barred, which renewal shall be signed by the original grantor or the grantor's heirs, personal representatives, or successors in title to the real estate conveyed and shall be dated, the conveyance and record thereof shall remain of full force and effect and the title shall not revert for an additional period of seven years or 20 years according to the appropriate reversion period stated in subsection (a) of this Code section from the date of the renewal unless the debt or debts are paid sooner.
  3. If the grantee or the grantee's personal representatives, heirs, successors, or assigns, or any of them if more than one, or an officer of a corporation having an interest shall, at any time before the title reverts as provided in subsection (a) of this Code section, make and cause to be recorded upon the record of the conveyance or elsewhere in the public records, with a notation of the place of record thereof on the record of the conveyance or, if not recorded, upon the conveyance, an affidavit setting forth the name and address of the owner and holder of the debt and the deed securing the debt, the nature of the claim, the amount due thereon, the date of the last payment thereon, the maturity date of the indebtedness, and, if the debt has been renewed or extended, the terms of such renewal or extension and a description of the property conveyed therein, the conveyance and record thereof shall remain of full force and effect and title shall not revert for seven years or 20 years according to the appropriate reversion period stated in subsection (a) of this Code section from the maturity of the indebtedness as shown by said affidavit unless the debt or debts are paid sooner.
  4. It shall be the duty of the clerk of the superior court to record the renewals and affidavits provided for and authorized by this Code section; and the clerks shall be entitled to the same fees which are allowed for recording deeds.
  5. Subsections (a) through (d) of this Code section shall not operate to make such conveyance a mortgage, but the conveyance shall be held to be an absolute conveyance of title, subject to reversion.
  6. Nothing in this Code section shall be construed, interpreted, or enforced in a manner which impairs any contract rights under currently existing instruments conveying real property to secure a debt or debts.

    (Ga. L. 1941, p. 487, §§ 1, 2; Ga. L. 1953, Nov.-Dec. Sess., p. 313, § 1; Ga. L. 1982, p. 3, § 44; Ga. L. 1994, p. 1943, § 13; Ga. L. 1995, p. 1198, §§ 2, 3.)

Editor's notes. - Ga. L. 1995, p. 1198, § 4(b), not codified by the General Assembly, provides that where the record of conveyance states or fixes the maturity of the debt or debts or the maturity of the last installment thereof and the parties by affirmative statement contained in the record of conveyance evidence their intention to establish a perpetual or indefinite security interest, section 2 of the Act shall be applicable and effective with respect to all such conveyances even though they may be dated prior to July 1, 1995.

Law reviews. - For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981). For annual survey of real property law, see 58 Mercer L. Rev. 367 (2006). For note on the 1995 amendment of this section, see 12 Ga. St. U.L. Rev. 313 (1995).

JUDICIAL DECISIONS

Section constitutional as applied to deeds to secure debt executed after effective date. - O.C.G.A. § 44-14-80 , as applied to deeds to secure debt executed after its effective date, does not offend constitutional provisions prohibiting retrospective legislation. Smith v. Merchants & Farmers Bank, 226 Ga. 715 , 177 S.E.2d 249 (1970).

O.C.G.A. § 44-14-80 is unconstitutional in instances where security deed predates it because it would be retroactive and it would impair the obligation of a contract since the powers granted in a security deed could have been exercised so long as the debt secured remained unpaid, regardless of whether the evidence of the debt was barred by the statute of limitations. Drake v. Barrs, 225 Ga. 597 , 170 S.E.2d 684 (1969).

What constitutes "affirmative statement." - Use of the words "forever, in fee simple" in a security deed were not an "affirmative statement" within the meaning of O.C.G.A. § 44-14-80 (a)(2) such that title to the property did not revert to the grantor for 20 years, rather than seven years, because those words related to the estate granted rather than the duration of the security interest. Parol evidence was not admissible and § 44-14-80 controlled over O.C.G.A. § 44-6-21 . Vineville Capital Group, LLC v. McCook, 329 Ga. App. 790 , 766 S.E.2d 156 (2014).

Deed more than 20 years past due cannot be foreclosed. - When the debt secured by an unforeclosed deed is more than 20 years past due, title conveyed by the deed shall revert to the grantor. O.C.G.A. § 44-14-80 further denies any right to foreclose, to sell under such deed, or to sue for the land therein. Williams v. O'Connor, 208 Ga. 39 , 64 S.E.2d 890 (1951).

Reversion period was 20 years. - Trial court erred in finding that title to the real property reverted to an ex-husband and by setting aside a security deed on that basis because the security deed contained a sufficient statement that the parties intended to establish a perpetual or indefinite security interest in the real property such that the applicable reversion period was 20 years from the date of the conveyance as set forth in O.C.G.A. § 44-14-80(a)(1). Stearns Bank, N.A. v. Mullins, 333 Ga. App. 369 , 776 S.E.2d 485 (2015), cert. denied sub nom. Hawkins v. Stearns Bank, N.A., No. S15C1827, 2015 Ga. LEXIS 855 (Ga. 2015), cert. denied, No. S15C1821, 2015 Ga. LEXIS 868 (Ga. 2015).

Title under one security deed reverted after seven years. - Two security deeds did not create a perpetual or indefinite security interest in the property; therefore, as to a 2008 deed, title reverted to the grantor seven years after the maturity date under O.C.G.A. § 44-14-80(a) ; however, title did not revert under a 2011 deed because the lender had initiated foreclosure proceedings. West Vill. Holdings, LLC v. ONH Holdings, LLC (In re West Vill. Holdings, LLC), Bankr. (Bankr. N.D. Ga. Mar. 31, 2020).

Extension of reversion of title period. - Trial court erred in granting summary judgment in the appellee's favor on the appellant's wrongful foreclosure claim because the record contained no evidence showing whether the written renewals of the loan from the bank were recorded; thus, the appellate court could not determine from the record before the court whether title reverted to the appellant as a matter of law on November 10, 2010, seven years after the security deed was first filed, or whether the recording of any of the subsequent loan renewals extended the reversion period. Matson v. Bayview Loan Servicing, LLC, 339 Ga. App. 890 , 795 S.E.2d 195 (2016).

Extension not triggered. - In an action to quiet title, because the extensions to the maturity date of the note were not recorded and consequently the nonjudicial foreclosure occurred more than seven years after the note's maturity date, the automatic 20 year extension was not triggered. Bell v. Freeport Title & Guaranty, Inc., 355 Ga. App. 94 , 842 S.E.2d 565 (2020).

Promissory note secured under the dragnet clause of a previously executed security deed must be entered of record under O.C.G.A. § 44-14-80 in order to prevent title from reverting to the grantor at the expiration of 20 years from maturity of the original debt. Minor v. Neely, 247 Ga. 147 , 273 S.E.2d 853 (1981).

Notes and security deeds maturing before effective date of section not affected. - O.C.G.A. § 44-14-80 is not applicable to a note and security deed given to secure the same where the note matured before that section, according to its provisions, became effective. Hames v. Hames, 220 Ga. 595 , 140 S.E.2d 844 (1965).

O.C.G.A. § 44-14-80 will not be applied retroactively to loan deed made prior to 1941. McCreary v. Wright, 132 Ga. App. 500 , 208 S.E.2d 373 (1974).

For case where O.C.G.A. § 44-14-80 not retroactive, see Todd v. Morgan, 215 Ga. 220 , 109 S.E.2d 803 (1959).

Exclusion from evidence of deed to secure debt when more than 20 years past due. - Under O.C.G.A. § 44-14-80 , a deed to secure debt upon which the plaintiffs rely in a common-law action in ejectment should be excluded from the evidence when objected to, when the debt secured is more than 20 years past due and that section also provides that in such a case title in the deed reverts to the grantor. Williams v. O'Connor, 208 Ga. 39 , 64 S.E.2d 890 (1951).

Notice requirements in security deed. - Issue of whether a grantee properly served notice to cure to a promisor 60 days prior to initiating foreclosure proceedings, as stipulated in the grantee's security deed, was not waived because once the foreclosure sale the grantee conducted was completed, a bank properly amended the bank's petition to include the issue of whether the foreclosure sale was validly conducted; the pre-trial order in the case specifically listed as substantive issues whether the foreclosure sale was validly conducted and, if not, whether title under the grantee's security deed reverted to the promisor pursuant to O.C.G.A. § 44-14-80(a)(1), and the 60-day notice issue directly related to whether the foreclosure sale was validly conducted because the grantee was legally required to advertise and sell the property according to the terms of the security deed. MPP Invs., Inc. v. Cherokee Bank, N.A., 288 Ga. 558 , 707 S.E.2d 485 (2011).

Special master, in accordance with the special master's complete jurisdiction under O.C.G.A. § 23-3-66 , was entitled to review the pleadings and evidence to determine the valid interests in real property because an amended pleading properly filed by a bank included claims that a grantee's foreclosure sale was improper and that title under the grantee's security deed reverted to a promisor pursuant to O.C.G.A. § 44-14-80(a)(1). MPP Invs., Inc. v. Cherokee Bank, N.A., 288 Ga. 558 , 707 S.E.2d 485 (2011).

No affirmative statement of perpetual or indefinite security interest. - Title to real property that the debtors conveyed by a deed to secure a debt reverted to the debtors seven years after the maturity date because the deed did not contain an affirmative statement of intent to establish a perpetual or indefinite security interest. Lyons v. Taylor (In re Lyons), Bankr. (Bankr. M.D. Ga. Jan. 31, 2018).

Incorporation by reference. - Presence in a deed to secure debt of a date that was referenced in a note as the maturity date of the loan, and the incorporation by reference of the note into the deed sufficed to fulfill the requirements of O.C.G.A. § 44-14-80(a)(1) that the maturity date of a debt be stated in the record of the conveyance; there is no reason that the terms of a note cannot be incorporated by reference into a deed. United Bank v. West Cent. Ga. Bank, 275 Ga. App. 418 , 620 S.E.2d 654 (2005).

Estoppel. - Bank was not estopped from asserting that title to real property reverted to a promisor under a grantee's security deed because an investment company had constructive and actual knowledge of the bank's assertion of superior title and the possibility that title to the property pursuant to the grantee's security deed had reverted, and there was no evidence that the company relied in any way upon the bank's actions, silence, or inactions; the bank filed suit claiming superior title to the property and recorded a notice of lis pendens well in advance of the foreclosure sale, the company, which purchased the property, admitted at the hearing before the special master that the company knew of the suit against the property but decided to purchase the property anyway, and the company also admitted at that hearing that since the grantee's security deed was public record, the company had notice of both the maturity date on the security deed and the date on which automatic reversion could occur pursuant to O.C.G.A. § 44-14-80(a)(1). MPP Invs., Inc. v. Cherokee Bank, N.A., 288 Ga. 558 , 707 S.E.2d 485 (2011).

Entitlement to excess funds after tax sale. - Trial court erred by granting summary judgment to the property owner because the trial court erred by holding that the security deed holder lost the holder's right to excess funds that arose from the tax sale as the relevant date under O.C.G.A. § 44-14-80 when considering who was entitled to the excess funds from the tax sale was the tax sale date, not the fund distribution date. Worthwhile Investments, LLC v. Higgins, 337 Ga. App. 183 , 787 S.E.2d 245 (2016).

No showing of reversion of title. - Trial court did not err in denying the appellant's motion for summary judgment because, while the security deed was recorded, and seven years had passed from the maturity date of the note, the evidence showed without dispute that the note was renewed; and, in the absence of evidence that those renewals were not placed in the public record, the appellant did not yet make a prima facie showing of reversion of title. Matson v. Bayview Loan Servicing, LLC, 339 Ga. App. 890 , 795 S.E.2d 195 (2016).

Cited in Sampson v. Vann, 203 Ga. 612 , 48 S.E.2d 293 (1948); Flynt v. Dumas, 205 Ga. 702 , 54 S.E.2d 429 (1949); Thomas v. Stedham, 208 Ga. 603 , 68 S.E.2d 560 (1952); McKenney v. Woodbury Banking Co., 208 Ga. 616 , 68 S.E.2d 571 (1952); Williams v. O'Connor, 208 Ga. 801 , 69 S.E.2d 726 (1952); Routon v. Woodbury Banking Co., 209 Ga. 706 , 75 S.E.2d 561 (1953); Morgan v. Todd, 214 Ga. 497 , 106 S.E.2d 37 (1958); Milam v. Adams, 101 Ga. App. 880 , 115 S.E.2d 252 (1960); Milam v. Adams, 216 Ga. 440 , 117 S.E.2d 343 (1960); Newman v. Newman, 234 Ga. 297 , 216 S.E.2d 79 (1975); Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977); Stith v. Morris, 241 Ga. 247 , 244 S.E.2d 817 (1978); Minton v. Raytheon Co., 222 Ga. App. 85 , 473 S.E.2d 177 (1996).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 642 et seq. 66 Am. Jur. 2d, Records and Recording Laws, §§ 48, 157.

C.J.S. - 59 C.J.S., Mortgages, § 192.

ALR. - Extension of existing real estate mortgage or deed of trust by subsequent agreement to cover additional indebtedness, 76 A.L.R. 574 .

Who may take advantage of failure to renew real estate mortgage as provided by statute, 97 A.L.R. 739 .

Renewal by one spouse without the other's participation, of lien on homestead, 143 A.L.R. 1369 .

Increase or renewal of mortgage debt without insurer's consent as violation of policy provisions as to mortgages or encumbrances, 163 A.L.R. 1402 .

Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period, 79 A.L.R.2d 1080.

44-14-81. When power of sale barred.

Powers of sale in the conveyances of real property to secure debt shall not be exercised after an action to foreclose the instrument is barred. A sale or conveyance under power in such instrument after an action to foreclose the instrument is barred shall be absolutely void and not merely voidable.

(Ga. L. 1941, p. 487, § 3.)

Cross references. - Equitable principles pertaining to powers of sale, § 23-2-114 et seq.

JUDICIAL DECISIONS

Cited in McKenney v. Woodbury Banking Co., 208 Ga. 616 , 68 S.E.2d 571 (1952); Williams v. O'Connor, 208 Ga. 801 , 69 S.E.2d 726 (1952).

44-14-82. When action to recover barred.

No action shall be brought to recover property under a conveyance of real property to secure debt when an action to foreclose and the exercise of power of sale are barred.

(Ga. L. 1941, p. 487, § 4.)

Cross references. - Equitable principles pertaining to powers of sale, § 23-2-114 et seq.

JUDICIAL DECISIONS

Cited in McKenney v. Woodbury Banking Co., 208 Ga. 616 , 68 S.E.2d 571 (1952); Williams v. O'Connor, 208 Ga. 801 , 69 S.E.2d 726 (1952).

44-14-83. Actions to foreclose and exercise of powers of sale after reversion.

No action to foreclose and no action to recover property under a conveyance of real property to secure debt shall be commenced and no power contained in or conferred by a conveyance of real property to secure debt shall be exercised after the title thereby conveyed has reverted as provided in this part.

(Ga. L. 1941, p. 487, § 6.)

JUDICIAL DECISIONS

Title reverted to grantor after seven years causing grantee to lose security interest. - Because a security deed did not specify a fixed period for repayment or state that the security interest was perpetual under O.C.G.A. § 44-14-80(a) , title to the property reverted to the grantor after seven years and the grantee's security interest in the property was lost. Vineville Capital Group, LLC v. McCook, 329 Ga. App. 790 , 766 S.E.2d 156 (2014).

Cited in McKenney v. Woodbury Banking Co., 208 Ga. 616 , 68 S.E.2d 571 (1952); Williams v. O'Connor, 208 Ga. 801 , 69 S.E.2d 726 (1952); Minton v. Raytheon Co., 222 Ga. App. 85 , 473 S.E.2d 177 (1996).

44-14-84. Effect of grantor relinquishing possession in settlement of debt.

This part shall not apply in those cases where the grantor or his successors in possession have surrendered possession of the property described in the deed to secure debt to the grantee or his successors in title in settlement of the indebtedness.

(Ga. L. 1941, p. 487, § 8.)

JUDICIAL DECISIONS

Cited in Williams v. O'Connor, 208 Ga. 801 , 69 S.E.2d 726 (1952); Morgan v. Todd, 214 Ga. 497 , 106 S.E.2d 37 (1958).

44-14-85. Withdrawal of foreclosure proceedings after acceleration of maturity of indebtedness; effect on running of statute of limitations; rescission of acceleration.

  1. The acceleration of the maturity of an indebtedness which is evidenced by a note or otherwise and secured by a deed to secure debt conveying real property and the commencement of foreclosure proceedings by the advertisement of a sale under the power contained in the deed or by an action shall not commence the running of the statute of limitations against the exercise of any right, power, or privilege authorized in the deed or the evidence of the indebtedness secured thereby or the right to bring an action to enforce any provision of the deed or to collect the indebtedness secured thereby if the foreclosure proceedings are withdrawn prior to their completion by sale or otherwise. Such withdrawal shall operate to rescind the acceleration of the maturity of the indebtedness and to reinstate the indebtedness upon the terms and conditions existing prior to the acceleration. Such withdrawal shall not prejudice the right of the holder of the indebtedness and deed securing same to exercise any and all rights to accelerate the maturity of the indebtedness and to exercise any right or power contained in the deed or the evidence of the indebtedness secured thereby or conferred by law should a subsequent default occur.
  2. Nothing contained in subsection (a) of this Code section shall prevent, restrict, or otherwise impair the exercise of any other right or privilege conferred by law; but the rights contained in subsection (a) of this Code section shall be cumulative and in addition thereto.

    (Ga. L. 1956, p. 716, §§ 1, 2.)

Law reviews. - Commercial Law, see 53 Mercer L. Rev. 153 (2001). For survey article on real property law, see 67 Mercer L. Rev. 193 (2015).

JUDICIAL DECISIONS

Withdrawal does not eliminate question of surety's liability. - O.C.G.A. § 44-14-85 permits withdrawal of foreclosure proceedings prior to completion without prejudice to the right of the holder. However, that section does not eliminate fact questions as to whether a surety on the obligation foreclosed upon is discharged by reason of the withdrawal. Hart v. DeLowe Partners, Ltd., 147 Ga. App. 715 , 250 S.E.2d 169 (1978).

Foreclosure proceedings stated by bankruptcy court. - O.C.G.A. § 44-14-85 applies only to those foreclosure proceedings that have been withdrawn and does not apply where foreclosure proceedings were stayed by the bankruptcy court as a result of action taken by the debtors. Rapps v. Cooke, 246 Ga. App. 251 , 540 S.E.2d 241 (2000).

Cited in Williams v. O'Connor, 208 Ga. 801 , 69 S.E.2d 726 (1952).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, §§ 682, 689.

C.J.S. - 54 C.J.S., Limitations of Actions, § 153.

ALR. - Effect on acceleration clause in mortgage of delay in declaring mortgage due, 5 A.L.R. 437 .

Right to reasonable time in which to make payment required by mortgage after acceleration clause becomes effective, 21 A.L.R. 1547 .

Time within which taxes may be paid to prevent operation of acceleration clause in mortgage, 31 A.L.R. 731 .

Acceleration provision in note or mortgage as affecting the running of the statute of limitations, 34 A.L.R. 897 ; 161 A.L.R. 1211 .

Tender after acceleration clause has become operative as preventing foreclosure of mortgage, 41 A.L.R. 732 .

Part payment or acknowledgment of indebtedness on bond or note as tolling statute on mortgage securing same, 41 A.L.R. 822 .

Effect on note of acceleration of mortgage securing note, 66 A.L.R. 1311 .

Grounds of relief from acceleration clause in mortgage, 70 A.L.R. 993 .

Duty of creditor to apply funds so as to prevent operation of acceleration clause, 80 A.L.R. 246 .

Payment, acknowledgment, or new promise by mortgagor as tolling statute of limitations as against grantee of mortgaged premises, 101 A.L.R. 337 .

When "sale" deemed to have taken place for purposes of statute of limitations which fixed commencement of period at time of foreclosure sale or other judicial sale, 101 A.L.R. 1348 .

Acceleration provision of mortgage or other instrument as affected by bankruptcy proceedings, 108 A.L.R. 1030 .

Posting of notice or other steps preliminary to nonjudicial foreclosure of mortgage or deed of trust as suspending statute of limitations, 122 A.L.R. 938 .

Acceleration clause as affected by cross indebtedness or obligation, 151 A.L.R. 896 .

Statute of limitations as affecting suit to enforce mortgage or lien securing debt payable in instalments, 153 A.L.R. 785 .

Acceleration of note or mortgage as automatic or optional, 159 A.L.R. 1077 .

Acceptance of past-due interest as waiver of acceleration clause in note or mortgage, 97 A.L.R.2d 997.

Validity, construction, and application of clause entitling mortgagee to acceleration of balance due in case of conveyance or transfer or mortgaged property, 69 A.L.R.3d 713; 22 A.L.R.4th 1266; 61 A.L.R.4th 1070.

Construction and effect as to interest due of real estate mortgager clause authorizing mortgagor to prepay principal debt, 86 A.L.R.3d 599.

What transfers justify acceleration under "due-on-sale" clause of, 22 A.L.R.4th 1266.

Validity and enforceability of due-on-sale real-estate mortgage provisions, 61 A.L.R.4th 1070.

ARTICLE 4 SECURITY AGREEMENTS RELATING TO CROPS

JUDICIAL DECISIONS

Applicability of article. - O.C.G.A. § 44-14-100 et seq. discusses only liens on crop mortgages and bills of sale as they relate to crops grown within 12 months from the date of such instruments. Citizens Bank v. J.L. Pilcher & Sons, 67 Ga. App. 395 , 20 S.E.2d 442 (1942).

RESEARCH REFERENCES

ALR. - Chattel mortgage on livestock as covering animals subsequently acquired by means other than natural increase by generation, 129 A.L.R. 899 .

44-14-100. Tree growing and fruit producing as agricultural pursuits; gum producers as farmers.

  1. The planting, growing, cultivating, harvesting, and marketing of trees and the fruits and products thereof shall be considered and treated under the laws of this state as an agricultural pursuit.
  2. Every original producer or manufacturer of crude gum, oleoresin, from which is derived or may be derived gum spirits of turpentine and gum resin, and his or her employees are declared to be, for all intents and purposes, farmers insofar as any law of this state relates to farming and farmers.

    (Ga. L. 1933, p. 128, §§ 1, 2; Code 1933, § 67-1107; Ga. L. 1939, p. 240, §§ 1, 2; Ga. L. 1962, p. 156, § 1; Ga. L. 1963, p. 188, § 39; Ga. L. 2001, p. 362, § 35.)

The 2001 amendment, effective July 1, 2001, deleted former subsection (a) which read: "As used in laws relating to security agreements with respect to personal property, the terms 'crops' and 'growing crops' means the fruits and products of all annual or perennial plants, trees, and shrubs and shall also mean crude gum, oleoresin, from a living tree." and redesignated former subsections (b) and (c) as present subsections (a) and (b), respectively.

Cross references. - Forest resources and other plant life generally, Ch. 6, T. 12.

Law reviews. - For article, "Things Attached to Realty," see 15 Mercer L. Rev. 343 (1964).

JUDICIAL DECISIONS

Section strictly construed. - Since O.C.G.A. § 44-14-100 is in derogation of the common law, it must be strictly construed, and the intention of the General Assembly carried out if that intention can be gotten from the section itself. Meadows v. Dixon, 61 Ga. App. 697 , 7 S.E.2d 329 (1940).

Treatment of crude gum before section enacted. - Prior to the passage of O.C.G.A. § 44-14-100 at common law and by the law of this state, crude gum was a part of the realty, and only became personalty when it was taken from the tree. As a part of the realty, under the law as it then existed, it was not such a crop as could be mortgaged to secure advances, nor could a bill of sale thereto be given to secure advances for the gathering of the crude gum. Meadows v. Dixon, 61 Ga. App. 697 , 7 S.E.2d 329 (1940).

Reason for classification of pine tree products as personalty. - It was the intention of the General Assembly in passing O.C.G.A. § 44-14-100 to classify the products of the pine tree as personalty solely for the purpose of enabling turpentine operators to obtain credit on their products by the giving of bills of sale or a mortgage, and for no other purpose. Meadows v. Dixon, 61 Ga. App. 697 , 7 S.E.2d 329 (1940).

Cited in United States v. Turner Turpentine Co., 111 F.2d 400 (5th Cir. 1940); Collins v. Mills, 198 Ga. 18 , 30 S.E.2d 866 (1944); Hamilton Turpentine Co. v. Johnson, 93 Ga. App. 544 , 92 S.E.2d 235 (1956).

OPINIONS OF THE ATTORNEY GENERAL

Commissioner of Agriculture may license warehouse storing pine cones under O.C.G.A. § 10-4-2 . 1958-59 Op. Att'y Gen. p. 14.

Pine cones may come under O.C.G.A. § 10-4-2 , being includable in "agricultural products" as used therein. 1958-59 Op. Att'y Gen. p. 14.

Lumber is not an agricultural product within the meaning of O.C.G.A. § 10-4-2 . 1958-59 Op. Att'y Gen. p. 12.

Nursery products such as ornamental garden shrubs are not farm products as that term is used in Ga. Const. 1976, Art. VII, Sec. 1, Para. IV (see, now, Ga. Const. 1983, Art. VII, Sec. 2, Para. IV), and are subject to property taxation. 1969 Op. Att'y Gen. No. 69-407.

RESEARCH REFERENCES

ALR. - Chattel mortgage on fruit crops growing or to be grown, 54 A.L.R. 1532 .

44-14-101. Crops as personalty.

All matured or unmatured crops are declared to be personalty.

(Ga. L. 1922, p. 114, §§ 1-3; Ga. L. 1933, p. 128, §§ 1, 2; Code 1933, §§ 85-1901, 85-1902, 85-1903; Ga. L. 2001, p. 362, § 35.)

The 2001 amendment, effective July 1, 2001, deleted subsection (a) which read: "As used in this Code section, the term 'crops' means the fruits and products of all annual and perennial plants, trees, and shrubs and the crude gum, oleoresin, from a living tree." and redesignated the former provisions of subsection (b) as this Code section.

Law reviews. - For article, "Timber Transactions in Georgia," see 19 Ga. B.J. 413 (1957). For article, "Things Attached to Realty," see 15 Mercer L. Rev. 343 (1964).

JUDICIAL DECISIONS

Prior to O.C.G.A. § 44-14-101 , growing crops still attached to soil were part of realty, and a purchaser of the land obtained title to both the land and the crops. Hix v. Williams, 42 Ga. App. 143 , 155 S.E. 355 (1930).

Section applies to fruits and products, not plants themselves. - O.C.G.A. § 44-14-101 applies only to the fruits and products of plants, trees, and shrubs and do not refer to the plants, trees, and shrubs themselves. Adcock v. Berry, 194 Ga. 243 , 21 S.E.2d 605 (1942); Newton v. Allen, 220 Ga. 681 , 141 S.E.2d 417 (1965); Marshall v. Georgia Power Co., 134 Ga. App. 479 , 214 S.E.2d 728 (1975).

Section refers to mature crops, not nursery stock. - O.C.G.A. § 44-14-101 refers to crops that mature, and does not include a nursery or nursery stock attached to and growing in the soil. Adcock v. Berry, 194 Ga. 243 , 21 S.E.2d 605 (1942).

O.C.G.A. § 44-14-101 does not embrace as personalty a nursery or nursery stock consisting of plants, trees, and shrubs, attached to and growing in the soil. Adcock v. Berry, 194 Ga. 243 , 21 S.E.2d 605 (1942).

Security deed conveying cultivated land does not include crops. - A security deed executed under O.C.G.A. §§ 44-14-60 and 44-14-61 , 44-14-63 , 44-14-66 , 44-14-67 , after the passage of O.C.G.A. § 44-14-101 , to convey cultivated farm land as security for debt, does not ordinarily comprehend crops matured or unmatured on the land. Penn Mut. Life Ins. Co. v. Larsen, 178 Ga. 255 , 173 S.E. 125 (1934).

Purchaser acquires landlord's interest in crops where rented to tenant. - Although O.C.G.A. § 44-14-101 , making all crops personalty, does not affect the rule that the purchaser of the land acquires the landlord's interest in the crops in cases where the land is rented to a tenant, this rule does not mean that where land is not rented out by the owner, the one who acquires title by deed or otherwise, gets the title to the crops planted or growing thereon. King v. Tilley, 69 Ga. App. 561 , 26 S.E.2d 293 (1943).

Party who becomes owner of rented land before maturity of crops is entitled to recover rent. Neal v. Hubbard, 53 Ga. App. 267 , 185 S.E. 384 (1936).

Cropper and landlord both have right of action for wrongful destruction of crops. - Cropper has such an interest in crops, even though not all have matured and contract has not been fully completed by cropper, as would support an action against one who wrongfully destroyed them, which right of action is joint and several with that of the landlord who likewise has an interest in the crops. Thombley v. Hightower, 52 Ga. App. 716 , 184 S.E. 331 (1936).

Writing which leases trees for turpentine is lease of realty. - A writing which purports to lease trees for turpentine purposes, not merely the product thereof, is a lease of realty, and does not constitute a contract for the sale of personalty under O.C.G.A. T. 11. Newton v. Allen, 220 Ga. 681 , 141 S.E.2d 417 (1965).

Illegal marijuana is not part of realty and thus can be considered in the possession of a defendant cultivating it. Carney v. State, 134 Ga. App. 816 , 216 S.E.2d 617 (1975).

Crop of pecans is personalty, and does not pass as part of the realty by the sale and conveyance of the land in pursuance of a power expressed in the security deed. Miller v. Jackson, 190 Ga. 668 , 10 S.E.2d 35 (1940).

Crop-growing land is realty but unmatured crops are personalty. - A patch of ground, whether described as a melon patch, a strawberry patch, or any other sort of patch, is necessarily realty. But an unmatured crop growing thereon, as an unmatured melon crop, is, under O.C.G.A. § 44-14-101 , personalty. Kitchens v. Brassell, 42 Ga. App. 332 , 155 S.E. 905 (1930).

"Melon patch" is both ground and melon crop growing on it. - A melon patch is not only the ground constituting the patch, but is the ground together with the melon crop growing thereon. Kitchens v. Brassell, 42 Ga. App. 332 , 155 S.E. 905 (1930).

Damage to melon patch means damage to melon crop. - Damage whether "on" or "to" a melon patch must necessarily be damage affecting the melon crop which is an essential constituent of the melon patch. Kitchens v. Brassell, 42 Ga. App. 332 , 155 S.E. 905 (1930).

Damage to unmatured melon crop growing upon melon patch is damage to personalty, and an action to recover for damage to such crop, whether it is an action ex contractu for the value of the crop, or portion thereof taken and converted, or is an action ex delicto for a sum representing damage to the crop, is not an action for damage to realty. Kitchens v. Brassell, 42 Ga. App. 332 , 155 S.E. 905 (1930).

Damage to "melon patch." - Damage to a patch, or to a patch which is of the descriptive character of a melon patch, is, insofar as the damage is to the patch alone, damage to realty, yet damage to a "melon patch," where the expression "melon patch" is indicative of a melon crop growing on the patch of ground, is a damage to the crop of melons, and to that extent is necessarily a damage to personalty. Kitchens v. Brassell, 42 Ga. App. 332 , 155 S.E. 905 (1930).

Cited in Schnedl v. Langford, 40 Ga. App. 190 , 149 S.E. 102 (1929); Paul v. Mutual Benefit Life Ins. Co., 50 Ga. App. 762 , 178 S.E. 926 (1935); Courson v. Land, 54 Ga. App. 534 , 188 S.E. 360 (1936); Chastain v. Gardner, 187 Ga. 462 , 200 S.E. 786 (1939); Bivins v. State, 64 Ga. App. 689 , 13 S.E.2d 874 (1941); King v. Tilley, 69 Ga. App. 561 , 26 S.E.2d 293 (1943); Evans v. Looney, 86 Ga. App. 79 , 70 S.E.2d 801 (1952).

OPINIONS OF THE ATTORNEY GENERAL

Pecans are both crops and personalty under O.C.G.A. § 44-14-101 . 1971 Op. Att'y Gen. No. U71-41.

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Attachment and Garnishment, §§ 104-106, 329, 330, 335. 21 Am. Jur. 2d, Crops §§ 1, 3. 63 Am. Jur. 2d, Property, §§ 19, 21.

C.J.S. - 7 C.J.S., Attachment, § 181. 25 C.J.S., Crops, § 1. 73 C.J.S., Property, § 21.

ALR. - Right to crops sown or grown by one wrongfully in possession of land, 39 A.L.R. 958 ; 57 A.L.R. 584 .

Judicial or execution sale of realty as affecting debtor's share in crops grown by tenant or cropper, 113 A.L.R. 1355 .

Nursery stock attached to the soil as real or personal property, and resulting rights, 125 A.L.R. 1406 .

Growing crops as part of land or as a chattel asset, in farm debtor proceedings under Bankruptcy Act, 150 A.L.R. 1175 .

Rights in growing, unmatured annual crops as between personal representatives of decedent's estate and heirs or devisees, 92 A.L.R.2d 1373.

ARTICLE 5 TRUST DEEDS

RESEARCH REFERENCES

ALR. - Implied power of trustee under mortgage or deed of trust who purchases property in behalf of bondholders at foreclosure sale, to give new mortgage, 95 A.L.R. 527 .

Validity, construction, and effect of provision in mortgage or deed of trust regarding status of mortgagor or his grantee in possession after sale under foreclosure or otherwise, 103 A.L.R. 981 .

Duty and liability of trustee under mortgage or deed of trust securing debt to mortgagor, subsequent purchaser or lienor, 117 A.L.R. 1054 .

Creation of homestead right in real estate as affecting previous mortgage, trust deed, or purchase money or vendor's lien, 123 A.L.R. 427 .

Right of trustee under deed of trust, absent a provision in that regard, to bid at foreclosure sale in behalf of holders of bonds or other obligations secured thereby, and duty of court as regards authorization, 135 A.L.R. 393 .

Interest of trustee in debt secured under deed of trust (or association with or relationship to one having interest in debt) as affecting validity of deed or exercise of trustee's power of foreclosure or sale, 138 A.L.R. 1013 .

Demand for payment as a condition precedent to exercise of power of sale in, or foreclosure of, mortgage securing demand note, 147 A.L.R. 1109 .

Foreclosure of mortgage or trust deed as affecting easement claimed in, over, or under property, 46 A.L.R.2d 1197.

44-14-120. Enforcement of rights; petition; order.

Whenever any person has conveyed real property in this state by a deed to a trustee to secure the payment of a note or notes, bonds, or other debt owing to one or more persons, the rights of the trustee named in the deed or his successor in estate, as well as the rights of the holders or owners of the notes or other debts in the real property, may be enforced in the following manner:

  1. The trustee named in the deed or his successor in estate entitled to enforce the deed may, upon the request of the holders or owners of at least two-thirds of the indebtedness thereby secured but not otherwise, petition the superior court of the county of the residence of the maker of the deed or, if there is more than one maker, the superior court of the county of the residence of either or, if the maker or makers are nonresidents of the state, the superior court of the county wherein the land or any part thereof conveyed by the deed is located or the city court, if any, in the county having jurisdiction of the amount claimed in the petition. The petition shall contain a statement of the case, the amounts demanded, and a description of the property covered by the deed to secure such demands; and
  2. Upon the petition being filed, the court shall grant an order directing the sums demanded in the petition, together with interest and costs, to be paid into the court on or before the first day of the next term immediately succeeding the one at which the order is granted, which order shall be published once a week for four weeks in some newspaper generally circulated in the county or shall be served on the maker of the deed or his special agent or attorney at least 20 days prior to the time at which the money is directed to be paid into the court.

    (Ga. L. 1896, p. 76, § 1; Civil Code 1910, § 311; Code 1933, § 67-1201; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Section not sole method for foreclosure. - O.C.G.A. § 44-14-120 does not create the only method of foreclosure of trust deeds to secure debts, so that no foreclosure can be had unless the conditions of O.C.G.A. § 44-14-120 are complied with. It means that, upon request of two-thirds in amount of the indebtedness secured, but not otherwise, this unusual method of foreclosure may, but not must, be followed. Under other conditions, other methods must be pursued. In re Lookout Mt. Hotel Co., 50 F.2d 421 (N.D. Ga.), rev'd on other grounds sub nom. Bryan v. Speakman, 53 F.2d 463 (5th Cir. 1931), cert. denied, 285 U.S. 539, 52 S. Ct. 312 , 76 L. Ed. 932 (1932).

Security deeds and trust deeds distinguished, see In re Lookout Mt. Hotel Co., 50 F.2d 421 (N.D. Ga.), rev'd on other grounds sub nom. Bryan v. Speakman, 53 F.2d 463 (5th Cir. 1931), cert. denied, 285 U.S. 539, 52 S. Ct. 312 , 76 L. Ed. 932 (1932).

Deed of trust to property given as security for bonds is trust deed to secure debt under O.C.G.A. § 44-14-120 and not a security deed under O.C.G.A. § 44-14-60 . In re Lookout Mt. Hotel Co., 50 F.2d 421 (N.D. Ga.), rev'd on other grounds sub nom. Bryan v. Speakman, 53 F.2d 463 (5th Cir. 1931), cert. denied, 285 U.S. 539, 52 S. Ct. 312 , 76 L. Ed. 932 (1932).

For case where stipulation in deed of trust does not dispense with necessity of service, see City Bank & Trust Co. v. Graf, 177 Ga. 236 , 170 S.E. 74 (1933).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, §§ 517, 519, 522.

C.J.S. - 59 C.J.S., Mortgages, § 324 et seq.

ALR. - Conveyance in consideration of support as creating lien or charge upon the land conveyed, 64 A.L.R. 1250 .

Right of trustee under deed of trust, absent a provision in that regard, to bid at foreclosure sale in behalf of holders of bonds or other obligations secured thereby, and duty of court a regards authorization, 88 A.L.R. 1260 ; 96 A.L.R. 1456 ; 135 A.L.R. 393 .

Demand for payment as a condition precedent to exercise of power of sale in, or foreclosure of, mortgage securing demand note, 147 A.L.R. 1109 .

Failure to keep up insurance as justifying foreclosure under acceleration provision in mortgage or deed of trust, 69 A.L.R.3d 774.

Validity and construction of provision of mortgage or other real-estate financing contract prohibiting prepayment for a fixed period of time, 81 A.L.R.4th 423.

44-14-121. Defense by maker; when and how made; affidavit.

When an order for the payment of the sums demanded in the petition has been granted and published or served as provided in Code Section 44-14-120, the maker of the deed sought to be enforced or his special agent or attorney may appear on or before the first day of the term of the court at which the money is directed to be paid and file his objection to the enforcement of the deed and may set up and avail himself of any defense which he might lawfully set up in an ordinary action on the debts or demands secured by the deed and which defense shows that the petitioner is not entitled to enforce the demands or debts or that the amounts claimed are not due; provided, however, the facts of the defense shall be verified by the affidavit of the maker of the deed or his special agent or attorney at the time of filing the defense.

(Ga. L. 1896, p. 76, § 2; Civil Code 1910, § 3312; Code 1933, § 67-1202.)

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 642 et seq.

C.J.S. - 59 C.J.S., Mortgages, § 324 et seq.

44-14-122. Action against maker's personal representative.

When the maker of the deed is dead, the proceedings to enforce the deed may be instituted against his executor or administrator.

(Ga. L. 1896, p. 76, § 3; Civil Code 1910, § 3313; Code 1933, § 67-1203.)

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Executors and Administrators, § 9. 55 Am. Jur. 2d, Mortgages, §§ 1275, 1276.

C.J.S. - 34 C.J.S., Executors and Administrators, § 730. 59 C.J.S., Mortgages, § 550.

44-14-123. Trial of issues.

When proceedings to enforce a deed of trust are instituted and a defense is set up thereto as provided in Code Section 44-14-121, the issues thus raised shall be tried as other issues are tried in the court in which the proceedings were instituted.

(Ga. L. 1896, p. 76, § 4; Civil Code 1910, § 3314; Code 1933, § 67-1204.)

44-14-124. Judgment; lien thereof; levy and sale of the land.

When the maker of the deed, after being directed so to do, fails to pay the sums demanded in the petition together with interest and costs as required by Code Section 44-14-120 and also fails to set up and sustain his or her defense against the enforcement of the rights of the trustee and the holders or owners of the bonds, notes, or debts secured by the deed, the court shall give judgment for the amounts which may be due under the deed to be levied on the real property covered thereby. Upon the trustees making and recording a deed reconveying the real property to the maker in the office of the clerk of the superior court of the county where the land is located, the court shall order the real property to be sold in the same manner and under the same regulations which govern sheriff's sales under execution; provided, however, that, if the deed is filed and recorded as provided by law, the judgment shall be a lien upon the real property which shall be superior to any claim or lien, except taxes, whatsoever arising or created subsequent to the date of the deed to the trustee.

(Ga. L. 1896, p. 76, § 5; Civil Code 1910, § 3315; Code 1933, § 67-1205; Ga. L. 1982, p. 3, § 44; Ga. L. 2002, p. 415, § 44.)

The 2002 amendment, effective April 18, 2002, part of an Act to revise, modernize, and correct the Code, deleted the subsection (a) designation and inserted "or her".

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, §§ 518, 525.

C.J.S. - 59 C.J.S., Mortgages, § 324 et seq.

ALR. - Right of trustee under deed of trust, absent a provision in that regard, to bid at foreclosure sale in behalf of holders of bonds or other obligations secured thereby, and duty of court a regards authorization, 96 A.L.R. 1456 ; 135 A.L.R. 393 .

44-14-125. Disposition of proceeds of sale; surplus.

The money arising from the sale of the property shall be paid to the trustee unless claimed by some other lien which by law may have priority over the deed; and, when there is any surplus after paying the sums due under the deed and other liens, the surplus shall be paid to the maker of the deed or his agent.

(Ga. L. 1896, p. 76, § 6; Civil Code 1910, § 3316; Code 1933, § 67-1206.)

JUDICIAL DECISIONS

Cited in Lanier v. Mandeville Mills, 183 Ga. 716 , 189 S.E. 532 (1937).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, §§ 778, 785, 790.

C.J.S. - 59A C.J.S., Mortgages, §§ 664 et seq., 961, 966, 967.

ALR. - Trustee in mortgage securing bonds as agent of obligor or holder of bonds as regards deposit or payment in respect of principal or interest, 90 A.L.R. 467 ; 96 A.L.R. 1233 .

44-14-126. Debt due in installments; treatment of surplus.

If the deed is given to secure debts due by installments and is enforced before any one of the installments falls due and there is a surplus of funds as stated in Code Section 44-14-125, the court may retain the funds or order them to be invested to meet the unpaid installments.

(Ga. L. 1896, p. 76, § 7; Civil Code 1910, § 3317; Code 1933, § 67-1207.)

JUDICIAL DECISIONS

Cited in Strickland v. Lowry Nat'l Bank, 140 Ga. 653 , 79 S.E. 539 (1913); McCurry v. Pitner, 159 Ga. 807 , 126 S.E. 781 (1925); Miller Serv., Inc. v. Miller, 77 Ga. App. 413 , 48 S.E.2d 761 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 790.

C.J.S. - 59A C.J.S., Mortgages, § 962.

ARTICLE 6 EXPIRATION AND EXTENSION OF INSTRUMENTS AFFECTING PERSONALTY

RESEARCH REFERENCES

ALR. - What are "tools," "implements," "instruments," "utensils," or "apparatus" within the meaning of debtor's exemption laws, 9 A.L.R. 1020 ; 36 A.L.R. 669 ; 52 A.L.R. 826 .

Validity and effect, as to previously recorded instrument, of statute which places or changes time limit on effectiveness of record of mortgages or other instruments, 133 A.L.R. 1325 .

44-14-140. Expiration of notice effected by recording of mortgage or other security instrument on personality.

The notice given to third persons by the filing for record of any mortgage, bill of sale to secure debt, retention of title contract, or other security instrument creating a lien on, retaining title to, or conveying an interest in personal property only shall expire at the end of seven years from the date of the filing thereof for record.

(Ga. L. 1937, p. 760, § 1; Ga. L. 1945, p. 389, § 1.)

JUDICIAL DECISIONS

Purpose. - O.C.G.A. § 44-14-140 merely had for its purpose the relieving of the party taking the junior conveyance of the necessity of searching the records more than seven years back. City Whsle. Co. v. Harper, 100 Ga. App. 151 , 110 S.E.2d 561 (1959).

Limited effect of section. - O.C.G.A. § 44-14-140 merely provides that notice expires at the end of seven years from the date of the filing of instruments for record. Standing alone, that section merely takes from the law the provision that such filing would be notice after the expiration of seven years, nothing more. It does not, in any sense, purport to alter the fact that once notice has been afforded, the respective priorities of the junior and senior instruments are fixed. City Whsle. Co. v. Harper, 100 Ga. App. 151 , 110 S.E.2d 561 (1959).

Cited in Charles S. Martin Distrib. Co. v. First State Bank, 114 Ga. App. 693 , 152 S.E.2d 599 (1966).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, §§ 42, 48. 69 Am. Jur. 2d, Secured Transactions, §§ 405, 407 et seq.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 168-170.

ALR. - Negotiability of title-retaining note, 28 A.L.R. 699 ; 44 A.L.R.2d 71.

44-14-141. Extension of time period; affidavit.

The effect regarding third persons of the filing for record of any of the instruments enumerated in Code Section 44-14-140 may in all respects, including the preservation of priority thereof, be extended for successive additional periods, each period not exceeding five years from the date of the filing in the office of the clerk of the superior court wherein any such instrument is recorded, upon the filing by the owner or holder thereof of an affidavit identifying the instrument and stating his interest and the nature and amount unpaid on the obligation still secured thereby. Where the instrument is made to, held, or owned by a trustee or other representative to secure bonds, notes, or other obligations of the maker of the instrument, the affidavit provided for in this Code section may be made and filed by the trustee or other representative.

(Ga. L. 1937, p. 760, § 2; Ga. L. 1943, p. 575, § 1.)

JUDICIAL DECISIONS

O.C.G.A. § 44-14-141 affords to senior grantee means to preserve or restore grantee's priority, and the effect of the record of grantee's instrument as notice to subsequent grantees, by filing with the clerk an affidavit setting forth therein the matters specified in that section. City Whsle. Co. v. Harper, 100 Ga. App. 151 , 110 S.E.2d 561 (1959).

Cited in Charles S. Martin Distrib. Co. v. First State Bank, 114 Ga. App. 693 , 152 S.E.2d 599 (1966).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, §§ 409, 410 et seq.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 168-174.

ALR. - Filing a claim against decedent's estate as an unsecured claim, as a waiver of a mortgage or other lien, 2 A.L.R. 1132 .

Negotiability of title-retaining note, 28 A.L.R. 699 ; 44 A.L.R.2d 71.

44-14-142. Recording of affidavit; indexing; fee.

The clerk of the superior court shall file the affidavit required by Code Section 44-14-141, reindex the instrument mentioned in the affidavit, and enter on the margin of the record of the instrument a reference to the filing of the affidavit, which shall state the date of the filing of the affidavit and the amount unpaid on the obligation secured by the instrument, for which services the clerk shall be entitled to a fee as required by Article 2 of Chapter 6 of Title 15.

(Ga. L. 1937, p. 760, § 3; Ga. L. 1981, p. 1396, § 20; Ga. L. 1986, p. 1002, § 10.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, "clerk" was substituted for "clerks" preceding "shall be entitled to a fee".

JUDICIAL DECISIONS

Cited in Charles S. Martin Distrib. Co. v. First State Bank, 114 Ga. App. 693 , 152 S.E.2d 599 (1966).

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 64. 69 Am. Jur. 2d, Secured Transactions, § 409 et seq.

C.J.S. - 76 C.J.S., Records, § 19 et seq.

ALR. - Negotiability of title-retaining note, 28 A.L.R. 699 ; 44 A.L.R.2d 71.

44-14-143. Limitations on instruments filed before March 31, 1937.

The notice given by the filing of any mortgage, bill of sale to secure debt, retention of title contract, or other security instrument creating a lien on, retaining title to, or conveying an interest in personal property which is filed or recorded prior to March 31, 1937, shall not extend more than seven years from March 31, 1937, unless within seven years from March 31, 1937, an affidavit is filed, the instrument reindexed, and the marginal reference made on the record thereof as provided in Code Section 44-14-142.

(Ga. L. 1937, p. 760, § 4.)

JUDICIAL DECISIONS

Cited in Charles S. Martin Distrib. Co. v. First State Bank, 114 Ga. App. 693 , 152 S.E.2d 599 (1966).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, §§ 405, 407.

C.J.S. - 14 C.J.S., Chattel Mortgages, § 169.

ALR. - Negotiability of title-retaining note, 28 A.L.R. 699 ; 44 A.L.R.2d 71.

44-14-144. Exclusion of public utility corporations from coverage of Code Sections 44-14-140 through 44-14-143.

This article shall not apply to any mortgage, bill of sale to secure debt, retention of title contract, deed of trust, or other security instrument creating a lien on, retaining title to, or conveying an interest in property owned by, sold or leased to, or agreed to be sold or leased to any railroad corporation, street railroad corporation, electric or gas corporation, or other public utility corporation or any receivers, trustees, or other legal officers in possession of or operating any railroad corporation, street railroad corporation, electric or gas corporation, or other public utility corporation.

(Ga. L. 1943, p. 540, § 1; Ga. L. 1950, p. 33, § 1.)

RESEARCH REFERENCES

ALR. - Negotiability of title-retaining note, 28 A.L.R. 699 ; 44 A.L.R.2d 71.

ARTICLE 7 FORECLOSURE

Law reviews. - For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For article, "Buying Distressed Commercial Real Estate: What are the Alternatives?," see 16 (No. 4) Ga. St. B.J. 18 (2010).

RESEARCH REFERENCES

ALR. - Action for damages for attempted wrongful foreclosure, 104 A.L.R.6th 485.

PART 1 I N GENERAL

Law reviews. - For article, "Nonjudicial Foreclosures in Georgia: Fresh Doubts, Issues and Strategies," see 23 Ga. St. B.J. 123 (1987). For article, "Buying Distressed Commercial Real Estate: What are the Alternatives?," see 16 (No. 4) Ga. St. B.J. 18 (2010). For annual survey of commercial law, see 38 Mercer L. Rev. 85 (1986).

RESEARCH REFERENCES

Sufficiency of Manner and Timeliness of Redemption of Real Estate Contract from Foreclosure, 66 POF3d 267.

ALR. - Right of trustee of land having interest therein to purchase on his own behalf in association with foreclosure by third-party lienor, in absence of express trust provision, 30 A.L.R.4th 732.

Sufficiency of tender of payment to effect defaulting vendee's redemption of rights in land purchased, 37 A.L.R.4th 286.

44-14-160. Filing of foreclosure and deed under power; penalty for late payment.

  1. Within 90 days of a foreclosure sale, all deeds under power shall be filed by the holder of a deed to secure debt or a mortgage with the clerk of the superior court of the county or counties in which the foreclosed property is located. The clerk shall record and cross reference the deed under power to the deed to secure debt or mortgage foreclosed upon. The deed under power shall be indexed pursuant to standards promulgated by the Georgia Superior Court Clerks' Cooperative Authority.
  2. In the event the deed under power is not filed within 30 days after the time period set forth in subsection (a) of this Code section, the holder shall be required to pay a late filing penalty of $500.00 upon filing in addition to the required filing fees provided for in subsection (f) of Code Section 15-6-77. Such late filing penalty shall be collected by the clerk of the superior court before filing.
  3. The sums collected as a late filing penalty under subsection (b) of this Code section shall be remitted to the governing authority of the county. If the foreclosed property is located within a municipality, the governing authority of the county shall remit the late filing penalty for such property to the governing authority of such municipality within 30 days of its receipt of the penalty. For each late filing penalty for property located within the corporate limits of a municipality, the governing authority of the county may withhold a 5 percent administrative processing fee from the remittance to such municipality.

    (Ga. L. 1975, p. 422, § 1; Ga. L. 2009, p. 614, § 1/SB 141; Ga. L. 2015, p. 937, § 9/HB 322; Ga. L. 2018, p. 1112, § 44/SB 365.)

The 2009 amendment, effective July 1, 2009, substituted the present first sentence for "When the holder of a deed to secure debt or a mortgage forecloses the same and sells the real property thereby secured under the laws of this state governing foreclosures and sales under power and the purchaser thereof presents to the clerk of the superior court his deed under power to have the same recorded, the" and added "The" at the beginning of the second sentence.

The 2015 amendment, effective July 1, 2015, designated the existing provisions as subsection (a); in subsection (a), substituted "filed" for "recorded" in the middle of the first sentence, and, in the second sentence, substituted "record and cross reference the deed under power to" for "write in the margin of the page where" and deleted "is recorded the word 'foreclosed' and the deed book and page number on which is recorded the deed under power conveying the real property; provided, however, that, in counties where the clerk keeps the records affecting real estate on microfilm, the notation provided for in this Code section shall be made in the same manner in the index or other place where the clerk records transfers and cancellations of deeds to secure debt" following "foreclosed upon", and added the last sentence; and added subsections (b) and (c).

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "Code Section 15-6-77" for "Code Section 15-66-77" at the end of the first sentence of subsection (b).

Law reviews. - For annual survey article on commercial law, see 45 Mercer L. Rev. 87 (1993). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For article, "Buying Distressed Commercial Real Estate: What are the Alternatives?," see 16 (No. 4) Ga. St. B.J. 18 (2010). For survey article on real property law, see 67 Mercer L. Rev. 193 (2015). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).

JUDICIAL DECISIONS

Property not sold. - Under Georgia law, the homeowner had to first show that the homeowner's property was sold at a foreclosure in order to state a plausible claim for wrongful disclosure; because the homeowner did not allege that a foreclosure sale occurred, the homeowner failed to state such a claim. Thomas v. Bank of Am., N.A., 557 Fed. Appx. 873 (11th Cir. 2014)(Unpublished).

Summary judgment proper once security deed paid in full. - In an action to remove a cloud from title, the trial court properly granted summary judgment to a bank and cancelled a recorded deed in favor of a holder, as: (1) the holder could no longer claim any legal title to the subject property once the underlying debt thereto was paid; (2) no evidence of valid renewal or extension of the note existed; and (3) the holder lacked standing to challenge any foreclosure on the debt. Northwest Carpets, Inc. v. First Nat'l Bank, 280 Ga. 535 , 630 S.E.2d 407 (2006).

Failure to timely file deed. - Failure to timely file a deed following a foreclosure sale under O.C.G.A. § 44-14-160 was not fatal to the confirmation of the sale; confirmation was to pass upon the notice, advertisement, and regularity of the sale. To the extent that any claim was available to a debtor, the appropriate vehicle was a wrongful foreclosure action. Harper v. Ameris Bank, 326 Ga. App. 67 , 755 S.E.2d 872 (2014).

Cited in Gooden v. Buffalo Sav. Bank, 21 Bankr. 456 (Bankr. N.D. Ga. 1982); Grissom v. Johnson, 955 F.2d 1440 (11th Cir. 1992).

RESEARCH REFERENCES

C.J.S. - 59A C.J.S., Mortgages, § 643.

ALR. - Posting of notice or other steps preliminary to nonjudicial foreclosure of mortgage or deed of trust as suspending statute limitations, 122 A.L.R. 938 .

Recognition of action for damages for wrongful foreclosure - general views, 81 A.L.R.6th 161.

Recognition of action for damages for wrongful foreclosure - types of actions, 82 A.L.R.6th 43.

44-14-161. Sales made on foreclosure under power of sale - When deficiency judgment allowed; confirmation and approval; notice and hearing; resale.

  1. When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.
  2. The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.
  3. The court shall direct that a notice of the hearing shall be given to the debtor at least five days prior thereto; and at the hearing the court shall also pass upon the legality of the notice, advertisement, and regularity of the sale. The court may order a resale of the property for good cause shown.

    (Ga. L. 1935, p. 381, § 1.)

Law reviews. - For article surveying Georgia cases dealing with commercial law from June 1977 through May 1978, see 30 Mercer L. Rev. 15 (1978). For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For article surveying Georgia cases in the area of real property from June 1979 through June 1980, see 32 Mercer L. Rev. 175 (1980). For article surveying commercial law, see 34 Mercer L. Rev. 31 (1982). For annual survey of commercial law, see 39 Mercer L. Rev. 83 (1987). For annual survey of commercial law, see 43 Mercer L. Rev. 119 (1991). For annual survey on law of real property, see 43 Mercer L. Rev. 353 (1991). For survey article on commercial law, see 44 Mercer L. Rev. 99 (1992). For annual survey article discussing nonjudicial foreclosure sales, see 46 Mercer L. Rev. 95 (1994). For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998). For annual survey article discussing real property law, see 51 Mercer L. Rev. 441 (1999). For annual survey of real property law, see 56 Mercer L. Rev. 395 (2004). For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For article, "Enforcing Commercial Real Estate Loan Guaranties," see 15 (No. 2) Ga. St. B.J. 12 (2009). For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010). For article, "Georgia Foreclosure Confirmation Proceedings in Today's Recessionary Real Estate World: Back to the Future," see 16 (No. 4) Ga. St. B.J. 11 (2010). For annual survey on real property, see 66 Mercer L. Rev. 151 (2014). For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016). For comment, "Eleventh Circuit Survey: January 1, 2013 - December 31, 2013: Comment: Confirming the Enforceability of the Guaranty Agreement After Non-Judicial Foreclosure in Georgia," see 65 Mercer L. Rev. 1167 (2014). For comment, "Are Fannie Mae and Freddie Mac State Actors? State Action, Due Process, and Nonjudicial Foreclosure," see 65 Emory L. J. 107 (2015). For comment, "Kicked While They're Down: Deficiency Judgments and the Great Recession," see 67 Emory L.J. 1273 (2018).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Constitutionality discussed. Hinson v. First Nat'l Bank, 221 Ga. 408 , 144 S.E.2d 765 (1965).

O.C.G.A. § 44-14-161 , setting the venue for a confirmation hearing in the county where the land lies, is constitutional. Wall v. Federal Land Bank, 240 Ga. 236 , 240 S.E.2d 76 (1977).

O.C.G.A. § 44-14-161 does not violate equal protection or due process because there is insufficient state action in the Georgia foreclosure procedure. Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. 514 , 467 S.E.2d 531 (1996).

O.C.G.A. § 44-14-141 is in derogation of the common law and must be strictly construed. Dukes v. Ralston Purina Co., 127 Ga. App. 696 , 194 S.E.2d 630 (1972); First Nat'l Bank & Trust Co. v. Kunes, 128 Ga. App. 565 , 197 S.E.2d 446 , aff'd, 230 Ga. 888 , 199 S.E.2d 776 (1973); Southern Mut. Inv. Corp. v. Thornton, 131 Ga. App. 765 , 206 S.E.2d 846 (1974); Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851 (5th Cir. 1979); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980); Taylor v. Thompson, 158 Ga. App. 671 , 282 S.E.2d 157 (1981); Bentley v. North Ga. Prod. Credit Ass'n, 170 Ga. App. 361 , 317 S.E.2d 339 (1984).

History. - O.C.G.A. § 44-14-161 was enacted during the depression when many mortgagors were forced into bankruptcy by the deficiency judgments which were sought and obtained against them after mortgagees had acquired the property at nonjudicial foreclosure sales for nominal or depressed prices. Taylor v. Thompson, 158 Ga. App. 671 , 282 S.E.2d 157 (1981).

Legislative intent. - The intent of the General Assembly in 1935, in adopting O.C.G.A. § 44-14-161 , was to provide for debtor relief. First Nat'l Bank & Trust Co. v. Kunes, 230 Ga. 888 , 199 S.E.2d 776 (1973); Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980).

The legislative intention was to have a speedy determination through a bench trial of the specific items stated in O.C.G.A. § 44-14-161 . In this way there would be no lengthy litigation which would cloud the title to the property and delay a sale thereof; nor, would the borrower be deprived of the right to a jury trial on meritorious matters involved in the loan transaction. Jones v. Hamilton Mtg. Corp., 140 Ga. App. 490 , 231 S.E.2d 491 (1976).

There is no indication of a legislative intent to incorporate, within the reporting provision of O.C.G.A. § 44-14-161 , the time requirement of the Civil Practice Act, O.C.G.A. § 9-11-4(c) , for service on the debtor within five days from the day the report of sale is presented to the judge. Oviedo v. Connecticut Nat'l Bank, 194 Ga. App. 626 , 391 S.E.2d 417 , cert. denied, 194 Ga. App. 912 , 391 S.E.2d 417 (1990).

The purpose of O.C.G.A. § 44-14-161 is to protect debtors from deficiency judgments when the forced sale of their property brings less than fair market value. Goodman v. Nadler, 113 Ga. App. 493 , 148 S.E.2d 480 (1966); United States v. Golf Club Co., 435 F.2d 9 (5th Cir. 1970); First Nat'l Bank & Trust Co. v. Kunes, 128 Ga. App. 565 , 197 S.E.2d 446 , aff'd, 230 Ga. 888 , 199 S.E.2d 776 (1973); Adams v. Gwinnett Com. Bank, 140 Ga. App. 233 , 230 S.E.2d 324 (1976), aff'd, 238 Ga. 722 , 235 S.E.2d 476 (1977); Colodny v. Krause, 141 Ga. App. 134 , 232 S.E.2d 597 , cert. denied, 434 U.S. 892, 98 S. Ct. 267 , 54 L. Ed. 2 d 177 (1977); Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851 (5th Cir. 1979); Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980); Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981).

The Georgia confirmation proceeding is designed to protect a debtor from a deficiency judgment when the nonjudicial foreclosure sale brings less than the property's fair market value. It is a prerequisite to obtaining a deficiency judgment. Bank of Am. Nat'l Trust & Sav. Ass'n v. Virginia Hill Partners, 110 Bankr. 84 (Bankr. N.D. Ga. 1989).

The purpose of O.C.G.A. § 44-14-161 is to protect debtors from deficiency judgments when the forced sale of their property brings less than the fair market value. Commercial Exch. Bank v. Johnson, 197 Ga. App. 529 , 398 S.E.2d 817 (1990).

O.C.G.A. § 44-14-161 analogous to commercial reasonableness requirement. - The Georgia confirmation statute is analogous to the commercial reasonableness requirement in personal property situations. United States v. Yates, 774 F. Supp. 1368 (M.D. Ga. 1991).

O.C.G.A. § 44-14-161 is a debtor's relief Act to subject a land foreclosure sale under a power to the scrutiny of the court. Wall v. Federal Land Bank, 240 Ga. 236 , 240 S.E.2d 76 (1977).

O.C.G.A. § 44-14-161 provides the debtor with protection against an unfair deficiency claim and not with a basis for seeking damages in the event the sale does not result in obtaining the fair market value of the property. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980).

Civil Practice Act inapplicable. - Although O.C.G.A. § 44-14-161 does not expressly provide to the contrary, the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, is not applicable to require service upon a debtor of a creditor's application for confirmation of a non-judicial foreclosure sale of real property, since such an application is not a "complaint" within the meaning of O.C.G.A. § 9-11-4(a) . Vlass v. Security Pac. Nat'l Bank, 263 Ga. 296 , 430 S.E.2d 732 (1993).

In the case of a loan secured by both real and personal property, the provision of O.C.G.A. § 11-9-504 for liquidation of the guarantor's personal property "in a commercially reasonable manner" did not apply where the lender chose to exercise its "rights and remedies in respect of the real property" as permitted under former O.C.G.A. § 11-9-501(4). Senske v. Harris Trust & Sav. Bank, 233 Ga. App. 407 , 504 S.E.2d 272 (1998).

Applicability to Small Business Administration loans. - O.C.G.A. § 44-14-161(a) governs actions between a defendant debtor and the Small Business Administration (SBA) in which the SBA seeks to recover the deficiency. United States v. Yates, 774 F. Supp. 1368 (M.D. Ga. 1991).

O.C.G.A. § 18-2-1 gives an expansive definition of "debtor" as the term should be understood in O.C.G.A. § 44-14-161 . First Nat'l Bank & Trust Co. v. Kunes, 230 Ga. 888 , 199 S.E.2d 776 (1973).

O.C.G.A. § 44-14-161 , by using the word "debtor," included all who were presently subject to payment of the debt, or who might be subjected to payment thereof, if within the knowledge of the payee of the note. First Nat'l Bank & Trust Co. v. Kunes, 128 Ga. App. 565 , 197 S.E.2d 446 , aff'd, 230 Ga. 888 , 199 S.E.2d 776 (1973).

The term "debtor" in O.C.G.A. § 44-14-161(c) , appears to refer to the debtor on the underlying debt, i.e., the promissory note, as that is the only party against whom the deficiency may be enforced. Commercial Exch. Bank v. Johnson, 197 Ga. App. 529 , 398 S.E.2d 817 (1990).

O.C.G.A. § 44-14-161(a) applies to both primary debtors and guarantors; an action for the balance remaining on a note following a foreclosure sale against a guarantor rather than the primary debtor is still an action for a deficiency judgment under that section and is barred if no confirmation was obtained. United States v. Yates, 774 F. Supp. 1368 (M.D. Ga. 1991).

The definition of "debtor" in O.C.G.A. § 44-14-162.1 does not apply to O.C.G.A. § 44-14-161 . Hill v. Moye, 221 Ga. App. 411 , 471 S.E.2d 910 (1996).

It would not matter for purposes of O.C.G.A. § 44-14-161 whether the debtors were primarily or secondarily liable on the debt. First Nat'l Bank & Trust Co. v. Kunes, 230 Ga. 888 , 199 S.E.2d 776 (1973).

Signers of an indemnity agreement are "debtors" within the meaning of O.C.G.A. § 44-14-161 immediately upon the default on the promissory notes and as such should receive notice of confirmation proceedings and be given an opportunity to contest the approval of the sales before claims for the balance of the indebtedness can be prosecuted against them. First Nat'l Bank & Trust Co. v. Kunes, 230 Ga. 888 , 199 S.E.2d 776 (1973).

The term "debtor" as used in O.C.G.A. § 44-14-161 includes a guarantor of the debt. Ricks v. United States, 434 F. Supp. 1262 (S.D. Ga. 1976).

Term "debtor" inapplicable to guarantor having limited liability. - The term "debtor" in O.C.G.A. § 44-14-161(c) is inapplicable to guarantors and sureties in circumstances where the guarantor has limited liability as to the underlying debt. Commercial Exch. Bank v. Johnson, 197 Ga. App. 529 , 398 S.E.2d 817 (1990).

O.C.G.A. § 44-14-161 's purpose is to pass upon the notice, advertisement, and regularity of the sale and to reinsure that the property was sold for a fair value. It provides debtors with formidable protection against gross deficiency judgments. Wall v. Federal Land Bank, 240 Ga. 236 , 240 S.E.2d 76 (1977).

O.C.G.A. § 44-14-161 does not purport to affect the validity of sales but just to prevent deficiency judgments in addition to unfair sales. It was intended to supplement the debtor's right to set aside the sale. FDIC v. Dye, 642 F.2d 837 (5th Cir. 1981).

The public policy behind confirmation proceedings is not to impose an affirmative duty upon the foreclosing party to obtain the true market value of the property. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980).

Protection of debtor from double payment. - The strongest ground of public policy for the enforcement of statutes requiring confirmation in foreclosure proceedings is to protect the debtor from being subjected to double payment in cases where the property was purchased for a sum less than its market value. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981).

Confirmation statutes are thought necessary to prevent inequities that arise when a creditor buys property on which it has foreclosed at a low price when property values are depressed and the economy is recessionary, and then proceeds to seek a personal judgment against the debtor for the difference between the low price the creditor has paid for the property at the foreclosure sale and the balance of the debt. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981); Stamps v. Ford Motor Co., 650 F. Supp. 390 (N.D. Ga. 1986).

The courts consistently strike down schemes aimed at avoiding the deficiency legislation by illusory changes in form; a flimsy avoidance device based upon an intermediate surety would have no chance of success. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981).

Guarantors and sureties are protected by O.C.G.A. § 44-14-161 . Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981).

O.C.G.A. § 44-14-161 does not operate to extinguish a debt; it just limits the creditor's remedies. Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851 (5th Cir. 1979).

O.C.G.A. § 44-14-161 does not extinguish the deficiency debt; rather, it limits the creditor's remedies. Hence, a creditor retains the option of selling other security to recover the deficiency. Citizens Bank v. Wiggins, 167 Bankr. 992 (M.D. Ga. 1994).

O.C.G.A. § 44-14-161 is not applicable to a note and security deed executed prior to the passage of the Act. Atlantic Loan Co. v. Peterson, 181 Ga. 266 , 182 S.E. 15 (1935); Guardian Life Ins. Co. of Am. v. Laird, 181 Ga. 416 , 182 S.E. 617 (1935).

Creditor legally may seek, should a deficiency exist, to foreclose upon additional collateral, regardless of its compliance with O.C.G.A. § 44-14-161 . A creditor does not, however, have an "unqualified right" to additional collateral when such collateral is under the exclusive, equitable jurisdiction of the bankruptcy court. Synovus Bank v. Brooks (In re Brooks), 479 Bankr. 917 (Bankr. N.D. Ga. 2012).

Section inapplicable where conveyance by warranty deed. - Creditor's failure to seek confirmation of any sale of property pursuant to O.C.G.A. § 44-14-161 did not bar the creditor from seeking a deficiency judgment, where the property owner voluntarily conveyed the property to the creditor by warranty deed for the express purpose of avoiding non-judicial foreclosure, and that section was therefore inapplicable as a matter of law. Ashburn Bank v. Reinhardt, 183 Ga. App. 292 , 358 S.E.2d 675 (1987).

Merger of deeds securing same property. - When two deeds secure the same property and are held by the same creditor, the deeds merge and confirmation of the sale is required. United States v. Yates, 774 F. Supp. 1368 (M.D. Ga. 1991).

The purchaser at public outcry, whether a party to the debt, or a third person, bids at the sale with full knowledge of enactment of O.C.G.A. § 44-14-161 , which clearly contains the language that "the court may, for good cause shown, order a resale of the property," and the purchaser is bound by this language in that section. Davie v. Sheffield, 123 Ga. App. 223 , 180 S.E.2d 263 (1971).

Questions of fact remained to be determined. - Grant of summary judgment to the creditors was reversed because questions of fact existed as to whether one creditor's failure to confirm the foreclosure sale barred the claims asserted by it and the other creditor as well as a question of fact existed as to whether all of the debts at issue, including the 2004 loan, were owed to a single creditor and were given for the same purpose. Bryant v. Optima Int'l, 339 Ga. App. 696 , 792 S.E.2d 489 (2016).

When foreclosure sale is final. - The crying of a sale on the courthouse steps is only a step toward finalizing a foreclosure sale and does not, without more, serve as evidence of a consummated foreclosure sale. Gooden v. Buffalo Sav. Bank, 21 Bankr. 456 (Bankr. N.D. Ga. 1982).

A foreclosure sale is not final until the deed is transferred. Gooden v. Buffalo Sav. Bank, 21 Bankr. 456 (Bankr. N.D. Ga. 1982).

Creditor not required to foreclose prior to seeking judgment on a note. - Trial court's decision granting summary judgment in favor of a creditor on the creditor's suit on a promissory note and guaranty executed by debtors was proper. The creditor was not required to foreclose on the property securing the note and obtain judicial confirmation under O.C.G.A. § 44-14-161(a) prior to seeking judgment on the note. Reese Developers, Inc. v. First State Bank, 306 Ga. App. 13 , 701 S.E.2d 505 (2010).

O.C.G.A. § 44-14-161(a) did not bar a bank from first suing the guarantors on their guarantees and then, eleven months later, conducting a nonjudicial foreclosure sale of the collateral because, at the time the bank filed suit on the guarantees, the bank had no deficiency to recover because the bank had not conducted a nonjudicial sale of the property. State Bank of Tex. v. Patel, F.3d (11th Cir. Sept. 30, 2011)(Unpublished).

Foreclosure sale properly conducted and consummated with bank as purchaser. - Foreclosure sales were properly conducted and consummated under O.C.G.A. § 44-14-161 because a bank purchased the secured properties at the sale after the debtor defaulted on promissory notes to the bank, the requisite procedures for the sale were followed, and the fact that the bank conveyed the debtor's interest to the bank's wholly-owned subsidiary under a separate agreement did not undercut the underlying sales. Peachtree Homes, Inc. v. Bank of America, N.A., 315 Ga. App. 243 , 726 S.E.2d 737 (2012).

Property omitted from appraisal meant invalid foreclosure sale. - Good cause existed to believe that the property did not sell for true market value because the lender's bid at the foreclosure sale was based on an appraisal that did not include the entire land mass or full extent of the property at issue. Based on this clear omission in the appraisal, the trial court was authorized to find that the property did not sell for fair market value at the foreclosure sale. Ciuperca v. RES-GA Seven, LLC, 319 Ga. App. 61 , 735 S.E.2d 107 (2012).

Cited in Skeffington v. Rowland, 52 Ga. App. 619 , 184 S.E. 330 (1936); Smith v. Associated Mtg. Cos., 186 Ga. 121 , 197 S.E. 222 (1938); Tingle v. Atlanta Fed. Sav. & Loan Ass'n, 211 Ga. 636 , 87 S.E.2d 841 (1955); Sale City Peanut & Milling Co. v. Planters & Citizens Bank, 107 Ga. App. 463 , 130 S.E.2d 518 (1963); In re Am. Ventures, Inc., 340 F. Supp. 279 (N.D. Ga. 1971); Thompson v. Maslia, 127 Ga. App. 758 , 195 S.E.2d 238 (1972); First Nat'l Bank & Trust Co. v. Kunes, 128 Ga. App. 565 , 197 S.E.2d 446 (1973); First Nat'l Bank & Trust Co. v. Kunes, 230 Ga. 888 , 199 S.E.2d 776 (1973); Murray v. Hasty, 132 Ga. App. 125 , 207 S.E.2d 602 (1974); Jolly v. Egerton, 132 Ga. App. 243 , 207 S.E.2d 634 (1974); Classic Enters., Inc. v. Continental Mtg. Investors, 135 Ga. App. 105 , 217 S.E.2d 411 (1975); Collier v. Sinkoe, 135 Ga. App. 732 , 218 S.E.2d 910 (1975); Kent v. Scott Hudgens Realty & Mtg., Inc., 138 Ga. App. 30 , 225 S.E.2d 447 (1976); Kilgore v. Life Ins. Co., 138 Ga. App. 890 , 227 S.E.2d 860 (1976); Jones v. Hamilton Mtg. Corp., 139 Ga. App. 239 , 228 S.E.2d 170 (1976); Story v. Gwinnett Bank & Trust Co., 140 Ga. App. 533 , 231 S.E.2d 525 (1976); Keever v. GECC, 141 Ga. App. 864 , 234 S.E.2d 696 (1977); Adams v. Gwinnett Com. Bank, 238 Ga. 722 , 235 S.E.2d 476 (1977); First Nat'l Bank v. Ferrell, 239 Ga. 8 , 235 S.E.2d 507 (1977); Gilbert v. Arneson, 142 Ga. App. 205 , 235 S.E.2d 647 (1977); Goodman v. Vinson, 142 Ga. App. 420 , 236 S.E.2d 153 (1977); Shaw v. Cousins Mtg. & Equity Invs., 142 Ga. App. 773 , 236 S.E.2d 919 (1977); Baker v. NEI Corp., 144 Ga. App. 165 , 241 S.E.2d 4 (1977); Saul v. Vaughn & Co., 240 Ga. 301 , 241 S.E.2d 180 (1977); FDIC v. Ivey-Matherly Constr. Co., 144 Ga. App. 313 , 241 S.E.2d 264 (1977); Fleming v. Federal Land Bank, 144 Ga. App. 371 , 241 S.E.2d 271 (1977); Oglethorpe Co. v. United States, 558 F.2d 590 (Ct. Cl. 1977); Stone v. Citizens & S. Nat'l Bank, 145 Ga. App. 601 , 244 S.E.2d 135 (1978); Grizzle v. Federal Land Bank, 145 Ga. App. 385 , 244 S.E.2d 362 (1978); Emerson v. Cousins Mtg. & Equity Invs., 145 Ga. App. 883 , 244 S.E.2d 890 (1978); Boyce v. Hughes, 241 Ga. 357 , 245 S.E.2d 308 (1978); Tally v. Atlanta Nat'l Real Estate Trust, 146 Ga. App. 585 , 246 S.E.2d 700 (1978); Teri-Lu, Inc. v. Georgia R.R. Bank & Trust Co., 147 Ga. App. 860 , 250 S.E.2d 548 (1978); Corbin v. Aetna Life & Cas. Co., 447 F. Supp. 646 (N.D. Ga. 1978); Five Dee Ranch Corp. v. Federal Land Bank, 148 Ga. App. 734 , 252 S.E.2d 662 (1979); Mills v. Federal Land Bank, 149 Ga. App. 600 , 255 S.E.2d 77 (1979); Mallett v. Fulford, 149 Ga. App. 773 , 256 S.E.2d 49 (1979); Hoover & Morris Dev. Co. v. FDIC, 149 Ga. App. 855 , 256 S.E.2d 140 (1979); Thomas v. Henry, 150 Ga. App. 792 , 258 S.E.2d 710 (1979); Mansell v. Pappas, 156 Ga. App. 272 , 274 S.E.2d 588 (1980); FDIC v. New London Enters., Ltd., 619 F.2d 1099 (5th Cir. 1980); Harris & Tilley, Inc. v. First Nat'l Bank, 157 Ga. App. 88 , 276 S.E.2d 137 (1981); Farmers Bank v. Hubbard, 247 Ga. 431 , 276 S.E.2d 622 (1981); Atlantic Bank & Trust Co. v. Fox, 157 Ga. App. 673 , 278 S.E.2d 474 (1981); Dunn v. Sliauter, 158 Ga. App. 462 , 280 S.E.2d 885 (1981); Sens v. Decatur Fed. Sav. & Loan Ass'n, 159 Ga. App. 767 , 285 S.E.2d 226 (1981); Kennedy v. Trust Co. Bank, 160 Ga. App. 733 , 288 S.E.2d 87 (1981); Huckabee v. First Nat'l Bank & Trust Co., 161 Ga. App. 140, 288 S.E.2d 252 (1982); Alaska S. Co. v. First Nat'l Bank, 161 Ga. App. 241 , 288 S.E.2d 315 (1982); Weintraub v. Cobb Bank & Trust Co., 249 Ga. 148 , 288 S.E.2d 553 (1982); Slaughter v. Ford Motor Credit Co., 164 Ga. App. 428 , 296 S.E.2d 428 (1982); Gunnells v. Crump, 172 Ga. App. 607 , 323 S.E.2d 903 (1984); Martin v. Federal Land Bank, 173 Ga. App. 142 , 325 S.E.2d 787 (1984); Worth v. Douglas Prod. Credit Ass'n, 173 Ga. App. 808 , 328 S.E.2d 421 (1985); Malak v. McGinnis, 257 Ga. 622 , 361 S.E.2d 798 (1987); Robinson v. Kemp Motor Sales, Inc., 185 Ga. App. 492 , 364 S.E.2d 623 (1988); Hall v. Bank S., 186 Ga. App. 860 , 368 S.E.2d 810 (1988); HSL/LA Jolla Belvedere Enters. v. Federal Sav. & Loan Ins. Corp., 201 Ga. App. 447 , 411 S.E.2d 329 (1991); Peterson v. First Nat'l Bank, 201 Ga. App. 762 , 412 S.E.2d 579 (1991); Marett Properties v. Centerbank Mtg. Co., 204 Ga. App. 265 , 419 S.E.2d 113 (1992); Phelan v. Wells Fargo Credit Corp., 207 Ga. App. 54 , 427 S.E.2d 46 (1993); Spencer v. Southtrust Bank, 208 Ga. App. 538 , 430 S.E.2d 853 (1993); Stewart Title Guar. Co. v. Coburn, 211 Ga. App. 357 , 439 S.E.2d 69 (1993); Security Pac. Credit Corp. v. Savannah, Ltd., 162 Bankr. 912 (Bankr. S.D. Ga. 1993); Lund v. Commonwealth Mtg. Assurance Co., 216 Ga. App. 322 , 454 S.E.2d 194 (1995); Fayette Promenade, LLC v. Branch Banking & Trust Co., 258 Ga. App. 323 , 574 S.E.2d 319 (2002); Graham v. Casa Invs. Co., 274 Ga. App. 59 , 616 S.E.2d 833 (2005); State v. Brown, 333 Ga. App. 643 , 777 S.E.2d 27 (2015).

Sales Made on Foreclosure Under Power of Sale

Court of Appeals would not construe O.C.G.A. § 44-14-161 , which is operative only in the limited circumstance that the sale of the property does not satisfy the underlying debt and then solely in the discretion of the parties, so as to engraft judicially upon the power of sale a tacit requirement to seek and secure confirmation in every instance that the power is exercised or face the possibility of suit merely because the debtor is of the belief fair market value was not obtained. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980).

O.C.G.A. § 44-14-161 lays down a condition precedent to obtaining a deficiency judgment in cases where "any real estate is sold on foreclosure, without legal process, under powers contained in security deeds," and the sale does not cover the amount of the debt. On its face, that section refers only to the foreclosure procedure. Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1 , 147 S.E.2d 31 (1966).

In a foreclosure sale, issues which go to the heart of the underlying obligation itself should be raised within the confines of a subsequent action for a deficiency judgment. Alexander v. Weems, 157 Ga. App. 507 , 277 S.E.2d 793 (1981).

Debt secured. - A note for a downpayment is not a part of the "debt secured" for the balance owing unless so described in the instruments themselves. Murray v. Hasty, 132 Ga. App. 125 , 207 S.E.2d 602 (1974).

Intent of parties. - That portion of mortgage containing the power of sale is to be construed so as to effectuate the intention of the parties, and the power must be exercised in accordance with the intention of the parties as indicated in the clause in the mortgage conferring the power. The power is conferred for the purpose of enabling the mortgagee to collect the debt. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980).

When a power of sale is exercised all that is required of the foreclosing party is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980).

The foreclosing party is not an insurer of the results of the exercise of the power of sale; that party's only obligation is to sell according to the terms of the deed, in good faith, and to obtain the amount produced by such a sale. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980).

The remedy by sale will be taken to have satisfied the primary obligation to pay the debt unless the creditor conforms to the law by making a proper showing that the security in fact brought in its true market value, which is then credited against the primary obligation. Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1 , 147 S.E.2d 31 (1966).

Where property sold under foreclosure brings the full amount of the debt secured by a deed to secure debt, O.C.G.A. § 44-14-161 is inapplicable since that section only applies where the sale brings less than the amount of the debt secured by the deed. Nationwide Fin. Corp. v. Banks, 147 Ga. App. 73 , 248 S.E.2d 54 (1978).

A creditor with notes secured by a deed to secure a debt is not put to an election, but may pursue remedies under both instruments concurrently until the creditor obtains a satisfaction of the debt under either. Norwood Realty Co. v. First Fed. Sav. & Loan Ass'n, 99 Ga. App. 692 , 109 S.E.2d 844 (1959); Brown v. Georgia State Bank, 141 Ga. App. 570 , 234 S.E.2d 151 (1977); Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321 , 254 S.E.2d 475 (1979).

A creditor who holds a promissory note secured by a deed is not put to an election of remedies as to whether the creditor shall sue upon the note or exercise a power of sale contained in the deed, but the creditor may do either, or pursue both remedies concurrently until the debt is satisfied. Taylor v. Thompson, 158 Ga. App. 671 , 282 S.E.2d 157 (1981).

Available remedies. - There is nothing in O.C.G.A. § 44-14-161 which says that the creditor may not, if the creditor chooses, obtain satisfaction of the debt by reducing it to judgment and levying it on whatever property the creditor chooses, whether or not it has been pledged as security for the particular debt evidenced by the note. Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1 , 147 S.E.2d 31 (1966).

The holder of a note who is also the grantee in a deed to secure the indebtedness of the note is not forced to exercise the power of sale in the deed. The holder may sue on the note or exercise the power of sale. Trust Inv. & Dev. Co. v. First Ga. Bank, 238 Ga. 309 , 232 S.E.2d 828 (1977); Stewart v. Diehl, 219 Ga. App. 821 , 466 S.E.2d 913 (1996).

A holder of a note who is also the grantee of a deed to secure the indebtedness of the note is not forced to exercise the power of sale in the deed to secure the debt. On the contrary, the holder may at holder's option elect to sue on the note and to exercise rights pursuant to O.C.G.A. § 44-14-210 or to exercise the power of sale, to seek judicial confirmation of the sale and to sue for deficiency pursuant to O.C.G.A. § 44-14-161 . Brown v. Rooks, 240 Ga. 674 , 242 S.E.2d 128 (1978).

A secured creditor has an option of either proceeding to suit on the note, or of foreclosure by exercise of the power of sale, seeking confirmation and then suing for the deficiency. Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321 , 254 S.E.2d 475 (1979).

Failure to satisfy untacked judgment from proceeds of foreclosure sale of security deed not a "deficiency" under section. - When defendant-assignee was assigned a note that was in default and a security deed by defendant-assignor, the assignee's judgment, not being a contractual obligation, did not tack on to the note and become one obligation; since the judgment does not tack, the failure to satisfy the judgment from the proceeds of a foreclosure sale of the security deed under a power of sale contained therein does not constitute a "deficiency" within the meaning of O.C.G.A. § 44-14-161 . Cook v. F & M Bank, 247 Ga. 661 , 279 S.E.2d 199 (1981).

When a creditor who holds a promissory note secured by a deed to secure debt containing a power of sale sues on the note and obtains a money judgment and thereafter elects to exercise the power of sale in the deed to secure debt, and the proceeds of such sale are not sufficient to satisfy the judgment, the creditor is not required to comply with O.C.G.A. § 44-14-161 before attempting to enforce further the judgment. Taylor v. Thompson, 158 Ga. App. 671 , 282 S.E.2d 157 (1981).

Claims not barred as improper deficiency actions. - Trial court erred in ruling that a bank's claims against borrowers and guarantors for breach of promissory notes were barred as improper deficiency actions under O.C.G.A. § 44-14-161(a) due to the bank's failure to seek confirmation after the foreclosure auctions because although the bank conducted and bid at foreclosure auctions of the real property that secured the notes, the transfer of a borrower's right of possession and the borrower's equity of redemption to the bank as the foreclosure sale purchaser never occurred; three days after the foreclosure auctions, the bank notified the borrowers that the bank rescinded any actions taken with respect to foreclosure and that the foreclosures were not and would not be consummated, and by definition, the confirmation procedure had no application when there had been no foreclosure sale. Legacy Cmtys. Group, Inc. v. Branch Banking & Trust Co., 310 Ga. App. 466 , 713 S.E.2d 670 (2011), aff'd in part, rev'd in part, 290 Ga. 724 , 723 S.E.2d 674 , vacated in part, 316 Ga. App. 496 , 729 S.E.2d 612 (2012).

Waiver of confirmation. - When a buyer of foreclosed properties bought the properties for less than the amounts owed, but the buyer's efforts at confirmation of the sales failed, the buyer was nevertheless entitled to pursue the guarantors of the notes on the properties for the deficiency because the guarantors had waived "any and all rights or defenses based on suretyship," and the confirmation defense under O.C.G.A. § 44-14-161(a) was based on suretyship. York v. RES-GA LJY, LLC, 336 Ga. App. 253 , 784 S.E.2d 96 (2016).

Decision of the court of appeals that upheld deficiency judgments against the guarantors was affirmed as the guarantors waived any defense based on the failure of the creditor to confirm the relevant foreclosure sales because the contractual language of the commercial guaranties made it clear that the guarantors waived any defenses under an anti-deficiency law such as O.C.G.A. § 44-14-161 ; and such a waiver was permitted by law. York v. RES-GA LJY, LLC, 300 Ga. 869 , 799 S.E.2d 235 (2017).

Where various forms of collateral, including two pieces of real estate, were provided as security for a single agreement, and both pieces of real estate were foreclosed but only one foreclosure was confirmed, all obligations under the agreement were discharged and any further actions under the agreement were barred. Surety Managers, Inc. v. Stanford, 633 F.2d 709 (5th Cir. 1980), cert. denied, 454 U.S. 828, 102 S. Ct. 121 , 70 L. Ed. 2 d 104 (1981).

Effect of dragnet clauses. - Where a deed to secure debt given to secure a specific note described therein, containing a dragnet or open-end clause making the property conveyed thereby security for all other debts and obligations either then or thereafter owed by the grantor to the grantee, if foreclosed by exercise of the power of sale in the security deed for which no confirmation of sale was sought, the grantee is not barred from maintaining an action to recover on another note between the same parties, subsequently made for another loan and secured by a security deed on a different property. Vaughn & Co. v. Saul, 143 Ga. App. 74 , 237 S.E.2d 622 (1977).

Where there are separate debts arising from separate contractual obligations, failure to confirm the foreclosure arising from one of the obligations does not bar action on separate obligation, even if the obligations relate to same subject matter. Surety Managers, Inc. v. Stanford, 633 F.2d 709 (5th Cir. 1980), cert. denied, 454 U.S. 828, 102 S. Ct. 121 , 70 L. Ed. 2 d 104 (1981); Clements v. Fleet Fin., Inc., 206 Ga. App. 736 , 426 S.E.2d 910 (1992).

O.C.G.A. § 44-14-161 did not bar an automobile credit corporation from pursuing a recovery under notes and security deeds relating to loans from business assets and inventory that were separate obligations from that securing a real estate loan sold at an unconfirmed foreclosure sale. GMAC v. Newton, 213 Ga. App. 405 , 444 S.E.2d 805 (1994).

Trial court did not err by granting summary judgment to the lender in the lender's suit on a note because the mortgage loans were held by different entities when the other lender foreclosed on the lender's first-priority security deed, thus, the loans were not inextricably intertwined and the deficiency could be collected by the lender. Hildebrand v. Bank of America, N.A., 332 Ga. App. 175 , 772 S.E.2d 790 (2015).

Creditor may sue only on independent obligation. - A creditor's action against debtors to recover on a balloon note with a cross default clause after default on a separate purchase money note, after the creditor purchased the property personally under powers contained in the security deed and did not obtain judicial confirmation of the foreclosure sale, was a prohibited attempt to recover a deficiency judgment on a debt secured by a purchase money security deed, not an attempt to recover on an independent, separate unsecured obligation. Tufts v. Levin, 213 Ga. App. 35 , 443 S.E.2d 681 (1994).

Subsequent sales. - The words "no action may be taken to obtain a deficiency judgment" do not inhibit subsequent sale under power of property other than the property which at a former sale under power had failed to "bring the amount of the debt." Salter v. Bank of Commerce, 189 Ga. 328 , 6 S.E.2d 290 (1939).

Irregular sale due to title status not shown. - The trial court properly entered an order confirming the sale of real property foreclosed on by a bank, under a power of sale contained in a deed to secure debt given by a debtor, as that debtor failed to show that any rights under O.C.G.A. § 44-14-161 or O.C.G.A. § 9-11-58 were jeopardized, and a claim that the sale was irregular due to the status of the property's title on the date of the sale fell outside of the ambit of § 44-14-161 . Friedman v. Regions Bank, 288 Ga. App. 57 , 653 S.E.2d 507 (2007).

Where mortgagors executed two separate loans and gave as security an interest in two separate parcels of real property, and subsequently combined the debts, with the separate parcels remaining as security, the confirmation requirement did not bar the lender, who had foreclosed on one of the properties without confirming the sale, from foreclosing on the other property. Lawson v. Habersham Bank, 233 Ga. App. 88 , 503 S.E.2d 341 (1998).

Confirmation and Approval of Sale
1. Nature of Proceeding

The confirmation required by O.C.G.A. § 44-14-161 is not a civil case within the meaning of Ga. Const. 1976, Art. VI, Sec. XIV, Para. VI (see, now, Ga. Const. 1983, Art. VI, Sec. II, Para. VI), requiring civil cases to be brought in the county where the defendant resides. Wall v. Federal Land Bank, 240 Ga. 236 , 240 S.E.2d 76 (1977); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

The confirmation required by O.C.G.A. § 44-14-161 is not an equitable proceeding. Taylor v. Thompson, 158 Ga. App. 671 , 282 S.E.2d 157 (1981).

O.C.G.A. § 44-14-161 merely provides for a proceeding whereby the court is called upon to determine whether the duty to conduct the sale according to the terms of the deed and in good faith has been met and the debtor's concomitant right to have the property extinguish debtor's debt to the maximum extent possible is protected. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980).

A confirmation proceeding is summary in nature. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

A confirmation proceeding is not a suit in equity. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

A confirmation proceeding is not an equitable proceeding. - O.C.G.A. § 44-14-161 does not state that the confirmation provided therein is an equitable proceeding, and it is not. Cases under that section therefore are not within the jurisdiction of the Supreme Court, but within the jurisdiction of the Court of Appeals. Dockery v. Parks, 224 Ga. 369 , 162 S.E.2d 332 (1968); Taylor v. Thompson, 158 Ga. App. 671 , 282 S.E.2d 157 (1981).

The confirmation hearing is not an action in personam, because no personal judgment is recovered. It is not an action in rem, because it does not adjudicate title. Wall v. Federal Land Bank, 240 Ga. 236 , 240 S.E.2d 76 (1977).

Confirmation proceeding not same as wrongful foreclosure suit. - Prior pending wrongful foreclosure action did not require the abatement and dismissal of a bank's application for confirmation under O.C.G.A. § 44-14-161 because the confirmation proceeding did not involve the same cause of action as the wrongful foreclosure suit, but was instead a special statutory proceeding and not a complaint which initiated a civil action or suit. BBC Land & Dev., Inc. v. Bank of N. Ga., 294 Ga. App. 759 , 670 S.E.2d 210 (2008).

Confirmation served as res judicata and collateral estoppel. - Trial court properly granted summary judgment to the lender on the borrower's wrongful foreclosure counterclaim because the earlier confirmation of the foreclosure sale precluded the claim under either the doctrine of res judicata and collateral estoppel. Flint Timber, L.P. v. AgSouth Farm Credit, ACA, 347 Ga. App. 271 , 819 S.E.2d 76 (2018).

Liability of parties not adjudicated. - Except as to the confirmed amount of the sale, the confirmation judgment does not establish the liability of any party with regards to the indebtedness. Harris & Tilley, Inc. v. First Nat'l Bank, 157 Ga. App. 88 , 276 S.E.2d 137 (1981).

Title to property. - The confirmation judgment is not a personal judgment against any party and, strictly speaking, it does not adjudicate the title of the property sold. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980); Harris & Tilley, Inc. v. First Nat'l Bank, 157 Ga. App. 88 , 276 S.E.2d 137 (1981).

The proceeding here is not a suit but an application to the judge of the superior. Jonesboro Inv. Trust Ass'n v. Donnelly, 141 Ga. App. 780 , 234 S.E.2d 349 (1977); Wammock v. Smith, 143 Ga. App. 186 , 237 S.E.2d 668 (1977); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Suit to void sale not equivalent. - While a petition to set aside is a suit in equity, a confirmation proceeding is an "application" limited in scope and requiring specified procedures. Georgia law, by establishing different tests for confirmation and for voiding sales, indicates the two are not equivalent. FDIC v. Dye, 642 F.2d 837 (5th Cir. 1981).

Not a proceeding against bankrupt. - Where the confirmation of the sale is the only act taking place after bankruptcy of debtor, it is neither the assertion of a lien against the bankrupt or the bankrupt's property, nor a "proceeding" against the bankrupt. Jonesboro Inv. Trust Ass'n v. Donnelly, 141 Ga. App. 780 , 234 S.E.2d 349 (1977).

This statutory framework does not authorize confirmation of sales of personalty. Gordon v. Weldon, 154 Ga. App. 531 , 268 S.E.2d 796 (1980).

Since O.C.G.A. § 44-14-161 does not apply to sales of personalty, the confirmation court is without authority to address matters concerning sales of personalty, even if they are related to the sale of realty; consequently, the issue of whether various items of equipment were sold separately or were included in the sale of a tract of land is not an issue that the confirmation may address. Walton Motor Sales, Inc. v. Ross, 736 F.2d 1449 (11th Cir. 1984).

Initiation of proceedings. - While O.C.G.A. § 44-14-161 provides that no sale made under a power shall be confirmed unless the superior court is satisfied the property brought its true market value, there is no requirement that the foreclosing party initiate proceedings to have the sale confirmed. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980).

Where the lender was not seeking a deficiency judgment against the borrower, it was under no duty to pursue confirmation of a sale; thus, the borrower could not use the confirmation statute to force the resale of property after the lender voluntarily moved to dismiss the proceeding. Gutherie v. Ford Equip. Leasing Co., 210 Ga. App. 763 , 437 S.E.2d 482 (1993).

Power to institute proceedings. - In a proceeding under the terms of O.C.G.A. § 44-14-161 providing for the confirmation and approval of sales of realty, sold on foreclosures, without legal process, under power contained in a security deed, such power is exercised by the grantee, who is the purchaser at such sale. Dupree v. Turner, 99 Ga. App. 332 , 108 S.E.2d 171 (1959).

The words "person instituting the foreclosure" mean the entity given the right to institute the proceedings under the terms of the instrument. This entity continues to exist in its successors in estate who become so by operation of law. Darby & Assocs. v. FDIC, 141 Ga. App. 78 , 232 S.E.2d 615 (1977), overruled on other grounds, Cartersville Developers, LLC v. Ga. Bank & Trust, 292 Ga. App. 399 , 644 S.E.2d 812 (2008).

Only the "person instituting the foreclosure proceedings" can seek confirmation of a sale. Cheek v. Savannah Valley Prod. Credit Ass'n, 244 Ga. 768 , 262 S.E.2d 90 (1979).

Issue in confirmation proceeding. - The issue in a confirmation proceeding is whether the property sold brought, at the time of the sale sought to be confirmed, its true market value; what the property may have brought or what it may have been regarded as being worth on the market at a time relative to the sale is not controlling. Kong v. Shearson Lehman Hutton Mtg. Corp., 211 Ga. App. 93 , 438 S.E.2d 132 (1993).

Limitations on confirmation proceedings. - Because a confirmation proceeding is limited to whether a sale is properly advertised and brought the fair market value of the land, issues regarding whether a security deed executed by the executor of an estate could and did secure a personal debt with an undivided interest in estate property could not have been put in issue and determined in the proceeding. Dorsey v. Mancuso, 249 Ga. App. 259 , 547 S.E.2d 787 (2001).

A confirmation judgment cannot be collaterally attacked in a subsequent deficiency action but is accorded the same respect as other judgments of a court of general jurisdiction. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Statute does not mandate separate evidentiary hearing for each property foreclosed. - Trial court did not abuse the court's discretion when the court consolidated the confirmation hearings on three foreclosure sales because O.C.G.A. § 44-14-161 did not mandate a separate evidentiary hearing for each property foreclosed. Belans v. Bank of Am., N.A., 306 Ga. App. 252 , 701 S.E.2d 889 (2010).

Failure to show waiver of confirmation process on part of guarantors. - As to foreclosure deficiency judgment, the trial court erred by denying the guarantors of the mortgage summary judgment because the loan documents failed to include an adequate waiver of the confirmation process required by O.C.G.A. § 44-14-161 . Apex Bank v. Thompson, 349 Ga. App. 285 , 826 S.E.2d 162 (2019).

Trial court erred by failing to confirm sale. - Trial court erred by denying a creditor's petition to confirm the foreclosure sale of six townhouses because the sale satisfied applicable notice and advertisement requirements and the uncontradicted evidence showed that the townhouses did sell for at least fair market value. RBC Real Estate Fin., Inc. v. Winmark Homes, Inc., 318 Ga. App. 507 , 736 S.E.2d 117 (2012).

2. Application in Out-of-State and Federal Courts

O.C.G.A. § 44-14-161 is obviously drawn so as to apply only to foreclosure sales in Georgia. Goodman v. Nadler, 113 Ga. App. 493 , 148 S.E.2d 480 (1966); Colodny v. Krause, 141 Ga. App. 134 , 232 S.E.2d 597 , cert. denied, 434 U.S. 892, 98 S. Ct. 267 , 54 L. Ed. 2 d 177 (1977); Kelly v. American Fed. Sav. & Loan Ass'n, 178 Ga. App. 542 , 343 S.E.2d 755 (1986).

Confirmation is not required where the land is not in Georgia. FDIC v. Hoover-Morris Enters., 642 F.2d 785 (5th Cir. 1981).

Statute cannot operate so as to deprive federal courts of jurisdiction to confirm a foreclosure sale in a case which is otherwise subject to federal jurisdiction. FDIC v. Windland Co., 245 Ga. 194 , 264 S.E.2d 11 (1980).

Trial court did not err in dismissing the bank's petition for confirmation of the foreclosure sale when, by filing the application with the court rather than the superior court judge, the bank failed to comply with the requirements of O.C.G.A. § 44-14-161(a) . Citizens Bank of Effingham v. Rocky Mt. Enterps., LLC, 308 Ga. App. 600 , 708 S.E.2d 557 (2011).

O.C.G.A. § 44-14-161 should be construed as allowing the confirmation proceedings to be brought in any United States district court which would otherwise present an available forum. Windland Co. v. FDIC, 151 Ga. App. 742 , 261 S.E.2d 407 (1979).

Confirmation proceedings conducted in federal district courts comply with O.C.G.A. § 44-14-161 for the purposes of deficiency suits later brought in state courts. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Courts of this state cannot refuse to entertain suit for a deficiency judgment where a federal court of proper jurisdiction has confirmed a foreclosure sale because the sale was not reported to the judge of the superior court of the county in which the land lies for confirmation and approval. FDIC v. Windland Co., 245 Ga. 194 , 264 S.E.2d 11 (1980).

When confirmation proceedings are heard, in federal court, O.C.G.A. § 44-14-161 , reasonably construed, requires only that the foreclosure sale be reported to the judge of the court in which proceedings are to be heard. FDIC v. M.C. Honea, Jr., Inc., 440 F. Supp. 1064 (N.D. Ga. 1977).

Although O.C.G.A. § 44-14-161 speaks in terms of confirmation by a state court judge, it has been held that when that section is applicable to a federal proceeding, it is sufficient that the sale be reported to and confirmed by the judge of the federal court in which confirmation is sought. United States v. Smith, 479 F. Supp. 804 (N.D. Ga. 1979).

Proceeding is within contemplation of automatic stay provisions of bankruptcy law. - Judicial confirmation is an action or proceeding in the nature of a civil suit to obtain a judicial determination of legal rights or remedies to enable the creditor to pursue recovery or collection of a claim for a deficiency against the debtor, and is an action or proceeding as contemplated by the automatic stay provisions of the federal bankruptcy law. Bank of Am. Nat'l Trust & Sav. Ass'n v. Virginia Hill Partners, 110 Bankr. 84 (Bankr. N.D. Ga. 1989).

Automatic stay, as it applied to the commencement of actions or proceedings against the debtor, terminated when the court entered the court's order on February 17, 2011, granting the debtor a discharge in bankruptcy, 11 U.S.C. § 362(c)(2)(C); notice of the order of discharge was served on the bank on February 19, 2011. Thus, when the bank foreclosed the following July or August of 2011, there was no stay in place; accordingly, 11 U.S.C. § 108(c)(1) controlled and the tolling under § 108(c) ended when the time within which the confirmation had to be reported to the state superior court lapsed thirty days after the foreclosure. Mt. Valley Cmty. Bank v. Freeman (In re Freeman), Bankr. (Bankr. M.D. Ga. Dec. 21, 2012).

O.C.G.A. § 44-14-161 is adopted as a part of the federal law governing the rights between a loan guarantor and the Small Business Administration. Since that section prohibits the entertaining of a suit for a deficiency judgment when there has been no compliance with the requirement for judicial confirmation of the foreclosure sale, the Small Business Administration cannot recover a deficiency judgment against a guarantor without showing a judicial confirmation. United States v. Dismuke, 616 F.2d 755 (5th Cir. 1980).

O.C.G.A. § 44-14-161 not applicable. - Where Small Business Administration was not attempting to collect on a deficiency judgment but rather was proceeding against the guarantor of corporate debt on the guarantor's direct and primary obligation to pay the debt of the defaulting corporate debtor, fact that SBA had not obtained information of sale of corporate property within 30 days did not preclude SBA from maintaining action against guarantor. Ricks v. United States, 434 F. Supp. 1262 (S.D. Ga. 1976).

Stay under federal law lifted to allow proceeding under statute. - Automatic stay was lifted under 11 U.S.C. § 362(d)(1) to permit a creditor to proceed with the confirmation of a foreclosure sale because, pursuant to O.C.G.A. § 44-14-161 , the creditor could not pursue the creditor's deficiency claim unless the sale was confirmed by the superior court within 30 days. In re McDaniel, Bankr. (Bankr. M.D. Ga. May 5, 2008).

Running of 30-day period. - Because the language in the stay relief order in this case was sufficiently close to the language of the stay relief order in In re Virginia Hill Partners I, 110 Bankr. 84 (Bankr. N.D. Ga. 1989), the stay was not lifted to permit the creditor to commence proceedings to confirm the sale, including reporting the sale as required by Georgia law. The 30-day period under the Georgia confirmation statute would not begin to run here until either the bankruptcy was dismissed or the court lifted the automatic stay. Haugen v. Multibank 2009-1 Cre Venture, LLC (In re LaPrade's Marina, LLC), 566 Bankr. 84 (Bankr. N.D. Ga. 2017).

3. Report of Sale

Requirement not jurisdictional. - The requirement that the report of the sale shall be made to the judge of the superior court of the county in which the land lies is not a jurisdictional requirement. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Requirement may be waived. - The requirement that the report of the sale shall be made to the judge of the superior court of the county in which the land lies is a venue requirement which may be waived by the debtor. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

The word "report" is not a word of art, and its ordinary significance, as defined by Webster, is to give an account of, to relate, to tell. Dukes v. Ralston Purina Co., 127 Ga. App. 696 , 194 S.E.2d 630 (1972).

The judge personally is the one to whose attention the sale and its particulars must be brought. Goodman v. Vinson, 142 Ga. App. 420 , 236 S.E.2d 153 (1977).

Second reporting to judge of sale of property was not required of financial institution after the setting aside, for failure to serve notice of hearing to all interested parties, of an earlier confirmation of sale of property on foreclosure without legal process, since the financial institution had timely reported the sale before the confirmation was set aside; the order setting aside the earlier confirmation did not "erase the slate clean" of all previously filed documents - it merely reinstated the case in the trial court and returned it to the posture it had occupied prior to judgment. Rogers v. Fidelity Fed. Sav. & Loan Ass'n, 180 Ga. App. 330 , 349 S.E.2d 7 (1986).

Substantial compliance with report of sale by filing with judge's secretary. - Where plaintiff-appellant presented petition for confirmation and approval of a foreclosure sale at the chambers of the superior court judge, the petition was accepted by the judge's secretary and that the judge's secretary had the delegated authority to accept petitions in any ministerial matter, this was sufficient compliance with O.C.G.A. § 44-14-161(a) . Cornelia Bank v. Brown, 166 Ga. App. 68 , 303 S.E.2d 171 (1983).

There is no authority for making the word "report" mean "file." This is especially true inasmuch as O.C.G.A. § 44-14-161 makes no mention of reporting to or filing with the clerk, but specifically provides that the report is to be made to the judge. Dukes v. Ralston Purina Co., 127 Ga. App. 696 , 194 S.E.2d 630 (1972).

Report to clerk insufficient. - The presentation of the petition to the clerk will not suffice under O.C.G.A. § 44-14-161 specifically requiring a report of the sale "to the judge of the superior court of the county in which the land lies" and making no mention of the court or the clerk. Goodman v. Vinson, 142 Ga. App. 420 , 236 S.E.2d 153 (1977); John Alden Life Ins. Co. v. Gwinnett Plantation, Ltd., 220 Ga. App. 846 , 470 S.E.2d 482 (1996).

Filing of a confirmation petition with the clerk of court was insufficient to meet the mandates of O.C.G.A. § 44-14-161(a) . Lanier Bank & Trust Co. v. Nix, 221 Ga. App. 323 , 471 S.E.2d 229 (1996).

A mortgagor's filing of bankruptcy proceedings. - A mortgagor's filing of bankruptcy proceedings tolled the running of periods of limitation which would have otherwise expired during the period of a stay in bankruptcy until 30 days after termination of the stay. Where a stay was in effect when a foreclosure sale was held, the 30-day period provided in O.C.G.A. § 44-14-161 did not begin until 30 days after the bankruptcy was dismissed and the sale was not invalid because it was not reported within 30 days. Breeze v. Columbus Bank & Trust Co., 214 Ga. App. 534 , 448 S.E.2d 276 (1994).

The act of reporting a foreclosure sale is not an end in and of itself and serves no purpose except in connection with confirmation and approval. FDIC v. M.C. Honea, Jr., Inc., 440 F. Supp. 1064 (N.D. Ga. 1977).

The report requirement in O.C.G.A. § 44-14-161 is not intended to give notice to the debtor as such notice is also provided for. Goodman v. Vinson, 142 Ga. App. 420 , 236 S.E.2d 153 (1977).

The trial court did not err in concluding that O.C.G.A. § 44-14-161 governing foreclosures under power of sale did not contain a requirement for service of the report of sale on the debtor within 30 days. The 30-day report to the judge is not intended to give notice to the debtor. The notice requirement for the debtor is that the debtor be given at least five days notice of the confirmation hearing, which notice would include a copy of the report. Oviedo v. Connecticut Nat'l Bank, 194 Ga. App. 626 , 391 S.E.2d 417 , cert. denied, 194 Ga. App. 912 , 391 S.E.2d 417 (1990).

Report to federal judge. - O.C.G.A. § 44-14-161 contemplates that the report of a foreclosure sale be received by the same judge who is to confirm and approve the sale. Thus, if the confirmation action is brought in federal court, then the report must be made to the appropriate federal judge rather than to the judge of the superior court of the county in which the land lies. FDIC v. M.C. Honea, Jr., Inc., 440 F. Supp. 1064 (N.D. Ga. 1977).

The terms of O.C.G.A. § 44-14-161 were complied with where application to the superior court was made within 30 days, although judicial approval was rendered after 30 days. Dukes v. Ralston Purina Co., 127 Ga. App. 696 , 194 S.E.2d 630 (1972).

Report of the sale to a judge sitting as presiding judge of the superior court was sufficient to comply with O.C.G.A. § 44-14-161 ; it is not necessary to make the report to the specific judge to whom the case is assigned. Hernandez v. Resolution Trust Corp., 210 Ga. App. 538 , 436 S.E.2d 534 (1993).

Tender of report as evidence not required. - Nothing in the language of O.C.G.A. § 44-14-161(a) imposes an evidentiary or procedural requirement that the report to the superior court be formally tendered into evidence as an exhibit. Stepp v. Farm & Home Life Ins. Co., 222 Ga. App. 257 , 474 S.E.2d 108 (1996).

4. Confirmation

Need to confirm. - O.C.G.A. § 44-14-161 provides that if a creditor fails to obtain judicial confirmation of a foreclosure sale that the foreclosure purchase price of the property was the reasonable equivalent of the fair market value, the creditor may not pursue a deficiency claim against the debtor; however, a creditor need confirm a foreclosure only in order to realize its claim from any property to which its security interest does not extend. Empire Fin. Servs. v. Gingold (In re Real Estate W. Ventures), 170 Bankr. 736 (Bankr. N.D. Ga. 1993).

Following nonjudicial foreclosure, a creditor was barred from suing on a note without confirmation where there was but one promissory note and one deed to secure debt, and the only obligation the debtor owed the creditor was the note secured by the foreclosed property. Southeast Timerlands, Inc. v. Haiseal Timber, Inc., 224 Ga. App. 98 , 479 S.E.2d 443 (1996).

Grant of summary judgment to a bank in a mortgage foreclosure action because the bank was not required to comply with the confirmation of a foreclosure sale requirements under O.C.G.A. § 44-14-161 since the guaranties signed by the guarantors clearly waived the condition precedent requirement of the confirmation statute by virtue of the waiver clauses in the loan documents. Nine Twenty, LLC v. Bank of the Ozarks, 337 Ga. App. 180 , 786 S.E.2d 555 (2016).

Grant of summary judgment to bank in mortgage foreclosure action was reversed because the borrower created a genuine issue of fact with regard to whether the construction loan and second line of credit were for similar and related purposes, namely to improve secured property, so as to trigger the requirement of judicial confirmation before the bank could file suit against the borrower for breach of contract. Wells v. Regions Bank, 350 Ga. App. 652 , 829 S.E.2d 889 (2019).

Sale must be advertised in every county where property located. - Trial court did not err in denying a mortgagee's application for confirmation of a nonjudicial foreclosure sale because the court properly ruled that the mortgagee's advertisement failed to comport with the statutory requirements of O.C.G.A. § 44-14-162(a) ; a sale of real property under a power of sale made pursuant to § 44-14-162(a) must be advertised in every county where the property or any portion of the property is located. Nicholson Hills Dev. v. Branch Banking & Trust Co., 316 Ga. App. 857 , 730 S.E.2d 572 (2012).

Foreign limited liability company was not transacting business by petitioning for confirmation. - Trial court did not err by denying a mortgagor's motion to dismiss the foreclosure confirmation proceeding based on the mortgagee being a foreign limited liability company impermissibly transacting business in Georgia because a limited liability company was not considered to be transacting business in Georgia merely because it engaged in acquiring loan documents, conducting a foreclosure sale, purchasing the property at the sale, reporting the sale, and filing the confirmation petition. Powder Springs Holdings, LLC v. RL BB ACQ II-GA PSH, LLC, 325 Ga. App. 694 , 754 S.E.2d 655 (2014).

Sale properly confirmed. - Trial court did not err in confirming the November sale of certain real estate in a foreclosure action because the mortgagor failed to show that it was deprived of any protection afforded by O.C.G.A. § 44-16-161 as the confirmation proceeding commenced in connection with the November sale comprised a new action after the July sale was invalidated, all of the advertisement requirements were met, and the property was sold for its true market value. Howser Mill Homes, LLC v. Branch Banking & Trust Co., 318 Ga. App. 148 , 733 S.E.2d 441 (2012).

Trial court did not err by confirming a foreclosure sale because issues as to whether the foreclosing bank recorded an assignment of the deed to secure debt before the foreclosure sale and the validity of the assignment were irrelevant to the confirmation proceeding. River Walk Farm, L.P. v. First Citizens Bank & Trust Co., 321 Ga. App. 173 , 741 S.E.2d 165 (2013).

Trial court properly confirmed a foreclosure sale under O.C.G.A. § 44-14-161 because the borrower raised no issue to support reversal as the bank provided admissible testimony as to the advertisement, notice, and regularity of the actual sale, supporting documents, and no objection was made. Sugarloaf Plaza, LLC v. Touchmark National Bank, 319 Ga. App. 648 , 738 S.E.2d 104 (2013).

Trial court properly confirmed the foreclosure of an apartment complex because, although the valuations of the property were not identical, there was no evidence that the property was worth more than the bank paid at auction. Ga. Ltd. Partners, LLC v. City Nat'l Bank, 323 Ga. App. 766 , 748 S.E.2d 131 (2013).

The trial judge's confirmation is a condition precedent to the creditor being permitted to sue debtor for any money deficiency resulting from the sale. United States v. Golf Club Co., 435 F.2d 9 (5th Cir. 1970); Thompson v. Maslia, 127 Ga. App. 758 , 195 S.E.2d 238 (1972); Windland Co. v. FDIC, 151 Ga. App. 742 , 261 S.E.2d 407 (1979), rev'd on other grounds, 245 Ga. 194 , 264 S.E.2d 11 (1980).

O.C.G.A. § 44-14-161 requires a confirmation as a condition precedent to an action for a deficiency judgment. Commercial Exch. Bank v. Johnson, 197 Ga. App. 529 , 398 S.E.2d 817 (1990).

Where two notes were secured by the same deed and the same property, but the foreclosure advertisement only referenced one note, the action was nevertheless a suit for a deficiency judgment which was barred due to failure to obtain a confirmation. C.K.C., Inc. v. Free, 196 Ga. App. 280 , 395 S.E.2d 666 (1990); Ward v. Pembroke State Bank, 212 Ga. App. 322 , 441 S.E.2d 691 (1994).

Trial court did not abuse the court's discretion by ordering the resale of the property in a foreclosure confirmation proceeding because nothing in the record indicated that the trial court failed to exercise the court's discretion out of a belief that the bank was entitled to a resale merely because the bank had relied on a flawed appraisal; rather, the trial court found that the bank relied on a flawed appraisal in good faith and that the bank had shown good cause for a resale. Sanusi v. Cmty. & S. Bank, 330 Ga. App. 198 , 766 S.E.2d 815 (2014).

Confirmation is not a prerequisite to the finality of a foreclosure sale but only to seeking a deficiency in the case of a final foreclosure sale. Gooden v. Buffalo Sav. Bank, 21 Bankr. 456 (Bankr. N.D. Ga. 1982).

Failure to obtain confirmation does not prevent enforcement against additional security. - Trial court did not err in granting summary judgment to a note holder on the holder's suit against a debtor as a personal guarantor of the note because the failure to confirm the nonjudicial foreclosure sale pursuant to the security deed did not prevent the holder from seeking to enforce the holder's contractual right to recover against additional security on the debt. HWA Props., Inc. v. Cmty. & S. Bank, 322 Ga. App. 877 , 746 S.E.2d 609 (2013).

Because the record did not demonstrate that the promissory notes underlying a bank's claims were inextricably intertwined with any debt on six of the foreclosure sales, the trial court was not authorized to conclude that the bank's claims relating to those promissory notes were barred as impermissible attempts to obtain deficiency judgments. First Citizens Bank & Trust, Inc. v. Ruddell, 330 Ga. App. 82 , 766 S.E.2d 538 (2014).

In a bank's appeal of summary judgments entered against the bank and in favor of various defendants, which precluded the bank from recovering monies from the defendants owed under various promissory notes, credit agreements, and/or guaranties, the court affirmed some of the judgments and reversed others because the fact that the bank did not seek to have the sales of the realty confirmed was irrelevant to the defendant's liability. First Citizens Bank & Trust, Inc. v. Ruddell, 330 Ga. App. 82 , 766 S.E.2d 538 (2014).

Issue of standing irrelevant to confirmation proceeding. - Trial court did not err in confirming and approving a foreclosure sale pursuant to O.C.G.A. § 44-14-161 because the issue of a bank's standing to bring the confirmation action against the guarantors was not relevant to the confirmation proceeding which was commenced in accordance with O.C.G.A. § 44-14-161 (a); standing issues are outside the scope of a confirmation hearing. Boring v. State Bank & Trust Co., 307 Ga. App. 93 , 704 S.E.2d 207 (2010).

Property owner's claim that a bank was not a real party in interest was not relevant to a confirmation proceeding pursuant to O.C.G.A. § 44-14-162 , as the matter was commenced in accordance with O.C.G.A. § 44-14-161(a) by the person instituting the foreclosure proceedings; issues of standing and assignment were irrelevant to the confirmation proceeding. White Oak Homes, Inc. v. Cmty. Bank & Trust, 314 Ga. App. 502 , 724 S.E.2d 810 (2012), cert. denied, No. S12C1120, 2012 Ga. LEXIS 671 (Ga. 2012).

Confirmation properly denied. - Order denying a creditor's application for confirmation of a foreclosure sale was proper because the trial court, as the trier of fact, was authorized to weigh the evidence and judge the credibility of both experts to conclude that the creditor's expert's valuation under the discounted cash model was unreliable and the builder's expert, who used the bulk sales comparison approach, was more credible and used a more appropriate method. Eagle GA I SPE, LLC v. Atreus Cmtys. of Fairburn, Inc., 319 Ga. App. 844 , 738 S.E.2d 675 (2013).

Consummation. - Even where confirmation is withheld, a foreclosure may still be final if it is consummated. Gooden v. Buffalo Sav. Bank, 21 Bankr. 456 (Bankr. N.D. Ga. 1982).

There was evidence to support the trial court's finding that a foreclosure sale was consummated because a bank presented the testimony of an attorney that the attorney witnessed the foreclosure sale at issue, that the foreclosure sale occurred outside the annex of the county courthouse, that the sale consisted of several lots, which the attorney identified by their lot numbers, that the foreclosure notice was read in the notice's entirety and the sale was opened for bidding, that the bank submitted an opening bid, and that there were no other bidders. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655 , 708 S.E.2d 604 (2011).

Trial court properly declared that a bank's first nonjudicial foreclosure sale was not valid because the bank never consummated the bank's successful bid at the sale of the property securing the loan since the transfer of the borrower's right of possession and the bank's equity of redemption to the bank as the foreclosure sale purchaser never occurred; the bank did not transfer the borrower's right of possession to itself as the first foreclosure sale purchaser at the sale, and the bank did not apply sale proceeds to eliminate or reduce the borrower's obligation under the secured promissory note. Building Block Enterprises, LLC v. State Bank & Trust Company, 314 Ga. App. 147 , 723 S.E.2d 467 (2012), cert. denied, No. S12C1053, 2012 Ga. LEXIS 553 (Ga. 2012).

Compliance with section required before bringing action for deficiency judgment. - When the creditor wishes to exercise a power of foreclosure prior to obtaining a judgment on the note and thereby save time and expense, the creditor will be required to comply with O.C.G.A. § 44-14-161 before bringing any action for a deficiency judgment. Taylor v. Thompson, 158 Ga. App. 671 , 282 S.E.2d 157 (1981).

The fact that a creditor may choose not to seek foreclosure and pursue other remedies does not alter the fact that when the creditor does foreclose it must confirm in order to recover a deficiency judgment. Redman Indus., Inc. v. Tower Properties, Inc., 517 F. Supp. 144 (N.D. Ga. 1981).

The law requires that if the lender chooses to foreclose on the collateral, it must obtain confirmation of the sale in order to pursue an action for the deficiency. United States v. Yates, 774 F. Supp. 1368 (M.D. Ga. 1991).

Continuing to pursue a lawsuit on a promissory note after the foreclosure proceedings have been concluded constitutes an "action" on the part of the creditor to obtain a deficiency judgment against the debtor and would require compliance with O.C.G.A. § 44-14-161 . Vaughan v. Moore, 202 Ga. App. 592 , 415 S.E.2d 47 (1992).

Trial court's holding that a bank was not required to confirm a second nonjudicial foreclosure sale under O.C.G.A. § 44-14-161 before pursuing an action for a deficiency judgment against a guarantor was an erroneous advisory opinion because the bank did file a confirmation petition and, thus, the parties failed to show under O.C.G.A. § 9-4-2(a) that there was any justiciable controversy on the issue of whether it was required to do so. Building Block Enterprises, LLC v. State Bank & Trust Company, 314 Ga. App. 147 , 723 S.E.2d 467 (2012), cert. denied, No. S12C1053, 2012 Ga. LEXIS 553 (Ga. 2012).

Failure to comply with confirmation requirements precludes deficiency judgment. - Trial court erred by granting a note holder a deficiency judgment because since the note holder did not obtain a judgment on the note against the debtor prior to the foreclosure sale, it was required to comply with the confirmation requirements of O.C.G.A. § 44-14-161 in order to obtain a deficiency judgment on the note. HWA Props., Inc. v. Cmty. & S. Bank, 322 Ga. App. 877 , 746 S.E.2d 609 (2013).

Failure to obtain confirmation does not invalidate the remaining obligation; it simply renders it impossible for the holder to sue on it, just as would a discharge in bankruptcy of the maker, properly pleaded. Turpin v. North Am. Acceptance Corp., 119 Ga. App. 212 , 166 S.E.2d 588 (1969); Marler v. Rockmart Bank, 146 Ga. App. 548 , 246 S.E.2d 731 (1978).

Where the mortgagors' possible liability to mortgage insurer, not the lender, arose from a completely independent source than the debt mortgagors owed the lender, mortgage insurer's action to recover under a loan indemnity agreement was not barred by the lender's failure to have the foreclosure sale confirmed. Turner v. Commonwealth Mtg. Assurance Co., 207 Ga. App. 428 , 428 S.E.2d 398 (1993).

Not prevention of other remedies. - Failure to have a sale confirmed does not prevent a creditor from pursuing other contractual security on the debt. Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851 (5th Cir. 1979); Surety Managers, Inc. v. Stanford, 633 F.2d 709 (5th Cir. 1980), cert. denied, 454 U.S. 828, 102 S. Ct. 120 , 70 L. Ed. 2 d 104 (1981).

Failure to obtain confirmation of a sale under O.C.G.A. § 44-14-161 did not preclude the lender from filing a complaint against the individual debtor under 11 U.S.C.S. § 523(a)(4) or (a)(6) of the Bankruptcy Code, alleging a claim for conversion of accounts receivable which also secured the loan. Presidential Fin. Corp. v. Snead, 231 Bankr. 823 (Bankr. N.D. Ga. 1999).

Recovery of rents and profits not precluded by failure to obtain confirmation. - Bankruptcy creditor's failure to obtain judicial confirmation following foreclosure did not preclude the creditor from recovering rents and profits, where the property was sold for more than its fair market value and the rents and profits represented separate contractual security to which the creditor was entitled. In re Johnson, Wilson & Dillon, 123 Bankr. 439 (Bankr. N.D. Ga. 1990).

Simply limits remedies. - Failure to obtain confirmation of sale does not extinguish the debt; it simply limits the creditor's remedies. Surety Managers, Inc. v. Stanford, 633 F.2d 709 (5th Cir. 1980), cert. denied, 454 U.S. 828, 102 S. Ct. 121 , 70 L. Ed. 2 d 104 (1981).

Suit on deficiency impossible. - Failure to obtain confirmation of a sale under power simply renders it impossible for the holder to sue on the deficiency. Such failure does not operate to satisfy the debt or prevent the creditor from pursuing other available remedies. First Fed. Sav. & Loan Ass'n v. Fisher, 422 F. Supp. 1 (N.D. Ga. 1976), aff'd, 544 F.2d 902 (5th Cir. 1977).

Where the creditor bank did not have the foreclosure sale confirmed by the superior court, it could not take action under the state law to assert a deficiency claim. In re Wiggins, 167 Bankr. 990 (Bankr. M.D. Ga. 1993), aff'd, 167 Bankr. 992 (M.D. Ga. 1994).

Nature of deficiency. - Where a sale under power was had but no confirmation thereof was had under O.C.G.A. § 44-14-161 , no action could be brought for any deficiency under the terms of that section, even if the deficiency included attorney fees which had become a part of the principal at the time of the sale. Sockwell v. Pettus, 139 Ga. App. 311 , 228 S.E.2d 343 (1976).

Right to confirmation not waived. - Guaranty language was not sufficient to amount to a waiver of the guarantor's rights under the confirmation statute, where the guarantor gave the lender the power to conduct a foreclosure sale on the collateral, but the power was "to be exercised only to the extent permitted by law," and no confirmation was obtained. United States v. Yates, 774 F. Supp. 1368 (M.D. Ga. 1991).

If no confirmation is sought or, if sought, is not obtained, the debtor has secured the full benefit of the confirmation statute because the debt is, in effect, extinguished. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980).

There is no requirement in O.C.G.A. § 44-14-161 or otherwise that the grantee exercising the power of sale announce that the sale is subject to confirmation, or to delay transfer of the property until the confirmation is obtained. Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321 , 254 S.E.2d 475 (1979).

There is no confirmation prerequisite for a suit based on legal malpractice, where the action is based on foreclosure on a security deed and for failure to provide a valid security deed. Kirby v. Chester, 174 Ga. App. 881 , 331 S.E.2d 915 (1985).

Superior court is trier of fact. - In confirmation proceedings, the superior court sits as a trier of fact, and its findings and conclusions have the effect of a jury verdict. What value is, or may have been, is a question of fact to be resolved as others are and in so doing the superior court is the judge of the credibility of the witnesses and of the weight to be given the evidence. La Ronde, Ltd. v. Amsouth Bank, 203 Ga. App. 400 , 416 S.E.2d 881 (1992).

Confirmation not required. - Where a bank does not seek a deficiency as to the debt secured by the realty, but seeks to recover on a separate note that defendant signed as the indorser thereof, the fact that the bank did not seek to have the sale of the realty confirmed is irrelevant to defendant's liability. Breitzman v. Heritage Bank, 180 Ga. App. 171 , 348 S.E.2d 713 (1986).

Where the judgment obtained by the creditor was awarded only against borrower and not against the guarantors individually, since the guarantors were entitled only to the same rights as the borrower with regard to a creditor's attempt to collect a deficiency after foreclosure, and since the borrower could not have insisted on confirmation of the sale before the creditor attempted to collect the deficiency, it did not appear that the guarantors were entitled to any greater rights to do so before the deficiency was sought to be collected from them. Therefore, the creditor was not required to obtain judicial confirmation of its foreclosure sale of the borrower's property before attempting to collect the deficiency from the guarantors. Business Dev. Corp. v. Bickerstaff, 73 Bankr. 421 (Bankr. N.D. Ga. 1987).

Where a personal note of a corporation president and a note of the corporation arose from bank loans for separate and distinct purposes, notwithstanding the existence of only one security deed and a dragnet clause in the personal note that could be construed as indirectly subjecting foreclosed property that was collateral for the personal loan to constitute additional collateral for the corporate loan, an action by the bank against the corporation to collect the balance due on its note was not barred by failure of the bank to confirm foreclosure sale of the land. Baby Days, Inc. v. Bank of Adairsville, 218 Ga. App. 752 , 463 S.E.2d 171 (1995).

Bank that ceased efforts to foreclose on real estate securing borrowers' and guarantors' notes evidencing obligations to the bank and sued the borrowers and guarantors on the notes, brought a suit that was not an improper deficiency action, due to the bank's failure to obtain confirmation, because the bank was not required to obtain confirmation since: (1) no sale was consummated; (2) the bank could both sue on the notes and foreclose until the debt was paid; and (3) the borrowers and the guarantors were not harmed, as the borrowers' and the guarantors' interests were the same before and after the attempted sale, and no negligence, fraud, collusion, or bad faith was shown. Tampa Inv. Group, Inc. v. Branch Banking & Trust Co., 290 Ga. 724 , 723 S.E.2d 674 (2012).

Dragnet clause contained in initial loans did not effectively merge debts into one debt requiring judicial confirmation of the foreclosure sale because the loans made to debtors and a limited liability company (LLC) were separate; the debtors and a banks' predecessor were the original parties to the loans made to the debtors, and the LLC and another bank were the original parties to the loan made to the LLC. 3 West Invs., LLC v. Hamilton State Bank, 316 Ga. App. 796 , 728 S.E.2d 843 (2012), cert. denied, No. S12C1886, 2012 Ga. LEXIS 982 (Ga. 2012).

Because loans made to debtors were separate from a loan made to a limited liability company (LLC), confirmation of the nonjudicial foreclosure sale under O.C.G.A. § 44-14-161(a) was not required in order for a bank to pursue collection under the loan to the LLC. 3 West Invs., LLC v. Hamilton State Bank, 316 Ga. App. 796 , 728 S.E.2d 843 (2012), cert. denied, No. S12C1886, 2012 Ga. LEXIS 982 (Ga. 2012).

Because a lender was not seeking a deficiency judgment when the lender sued the guarantors of a mortgage loan, the denial of confirmation did not preclude the lender from obtaining a judgment against the guarantors for the difference between what the lender paid in the foreclosure sale and the unpaid balance of the debt, including taxes, penalties, and interest. Inland Mortg. Capital Corp. v. Chivas Retail Partners, LLC, 740 F.3d 1146 (7th Cir. 2014).

Defendants' guaranties for a promissory note waived the defendants' right to insist on judicial confirmation of foreclosure sale as a prerequisite to seeking a deficiency judgment as required by Georgia law. Coastal Bank v. Martin, F.3d (11th Cir. Nov. 20, 2017)(Unpublished).

Confirmation not required where sale follows judgment on note. - Where a creditor elects to resort to the courts and obtain a judgment on the note prior to exercising the power of sale, the creditor will not be required to have such sale confirmed before attempting further enforcement of the judgment. Taylor v. Thompson, 158 Ga. App. 671 , 282 S.E.2d 157 (1981).

Where a foreclosure sale has occurred after a default judgment has been entered, the failure to obtain confirmation of the sale does not affect the validity or enforceability of the judgment with respect to any amounts which may remain due thereunder. Georgia R.R. Bank & Trust Co. v. Griffith, 176 Ga. App. 198 , 335 S.E.2d 417 (1985).

Mortgage industrial revenue bonds were personal property and were not subject to the confirmation procedure. Merrill v. First Union Nat'l Bank, 224 Ga. App. 773 , 481 S.E.2d 890 (1997).

Failure to confirm does not estop a creditor from pursuing other contractual security on the debt. Taylor v. Thompson, 158 Ga. App. 671 , 282 S.E.2d 157 (1981); Worth v. First Nat'l Bank, 175 Ga. App. 297 , 333 S.E.2d 173 (1985); Mobley v. Commonwealth Mtg. Ins. Co., 264 Ga. 652 , 450 S.E.2d 205 (1994).

A creditor may seek to enforce a contractual right to pursue other contractual security for its debt following a foreclosure sale of real property without obtaining confirmation of the foreclosure, and guaranties and the deed to secure debt on guarantors' residence are additional security which the creditor can pursue to satisfy the debt owed to it by the borrower without confirming the foreclosure sale of the borrower's real property. Business Dev. Corp. v. Bickerstaff, 73 Bankr. 421 (Bankr. N.D. Ga. 1987).

Failure to obtain confirmation of a sale does not operate to extinguish the remaining debt; rather, it simply precludes the person exercising the power of sale from bringing action to obtain a deficiency judgment. Taylor v. Thompson, 158 Ga. App. 671 , 282 S.E.2d 157 (1981).

Failure to provide proof of confirmation did not prevent IRS from recognizing debtor's discharge-of- indebtedness income. - IRS was entitled to summary judgment on Chapter 7 debtors' claim that it miscalculated the amount of income the debtors had in 2006 when it added $19,898 to their income because a mortgage company forgave $19,898 of a $189,898 debt the debtors owed after it foreclosed a mortgage and sold the debtors' house for $170,000. The mortgage company's failure to provide proof that the sale was confirmed by a state court, pursuant to O.C.G.A. § 44-14-161 et seq., did not prevent the IRS from recognizing the debtors' discharge-of-indebtedness income. Godfrey v. IRS (In re Godfrey), Bankr. (Bankr. N.D. Ga. Aug. 31, 2009).

Foreclosure on separate security after failure to confirm. - Lender's failure to "confirm" the foreclosure sale of property given as security for a 1984 loan did not prohibit the federal Small Business Administration (SBA) from foreclosing on separate security given for a 1983 SBA loan to the same borrower. Regan v. United States Small Bus. Admin., 729 F. Supp. 1339 (S.D. Ga. 1990), aff'd, 926 F.2d 1078 (11th Cir. 1991).

Generally, notes made at different times to different creditors and for different collateral purposes are not subject to confirmation. Oakvale Rd. Assocs. v. Mortgage Recovery, 231 Ga. App. 414 , 499 S.E.2d 404 (1998).

Assignee could pursue confirmations. - Superior court correctly construed O.C.G.A. § 44-14-161 and properly allowed an assignee to pursue the confirmations of foreclosure sales because to the extent deficiencies remained after the foreclosures with respect to the underlying indebtedness, claims therefore belonged to the assignee; the original creditor of the underlying notes and the entity that instituted the foreclosure proceedings transferred the notes to the assignee. Titshaw v. Northeast Ga. Bank, 304 Ga. App. 712 , 697 S.E.2d 837 (2010).

Separate security obligation actionable. - Failure to confirm foreclosure under one security instrument did not bar lender from suing defendants on an independent, separate, unsecured obligation. Devin Lamplighter, Ltd. v. American Gen. Fin., Inc., 206 Ga. App. 747 , 426 S.E.2d 645 (1992).

Confirmation not required when debts are not inextricably intertwined. - Creditor, who foreclosed on three different tracts of land, each of which secured separate promissory notes, was able to seek a deficiency judgment on two notes, despite not having confirmed the foreclosure sale pursuant to O.C.G.A. § 44-14-161(a) , because the debts at issue were not "inextricably intertwined." In re Cox, 456 Bankr. 592 (Bankr. N.D. Ga. 2011).

Confirmation of intertwined debts. - Notes executed almost a year apart for different, although related, purposes in the same land were inextricably intertwined so that failure to obtain judicial confirmation of the first sale precluded a deficiency judgment after the second sale. Oakvale Rd. Assocs. v. Mortgage Recovery, 231 Ga. App. 414 , 499 S.E.2d 404 (1998).

As a maker's two debts to a bank were incurred for the same purpose, were secured by the same property, and both contained a cross-default clause, the two debts were inextricably intertwined. Thus, the bank's suit on the second promissory note constituted a claim for a deficiency judgment requiring judicial confirmation under O.C.G.A. § 44-14-161(a) of the foreclosure sale associated with the first note, and any further action by the bank to recover against the maker on the second note was barred by the bank's failure to comply with § 44-14-161(a) . Iwan Renovations, Inc. v. N. Atlanta Nat'l Bank, 296 Ga. App. 125 , 673 S.E.2d 632 (2009).

Lender's foreclosure sales and deficiency judgments were barred by O.C.G.A. § 44-14-161(a) because the lender failed to get judicial confirmation of the debts, which were inextricably intertwined- in that they were incurred for the same purpose, secured by the same property, held by the same creditor, and owed by the same debtor. Bank of N. Ga. v. Windermere Dev., Inc., 316 Ga. App. 33 , 728 S.E.2d 714 (2012).

Erroneous hearsay ruling did not warrant reversal. - Superior court did not err in confirming the nonjudicial foreclosure sale because the court's erroneous hearsay ruling was not harmful and did not warrant reversal; the ruling did not deprive a construction company and guarantors of an evidentiary basis to support their challenge to the regularity of the sale, and the superior court had a sufficient record to consider their argument and find that the sale was regular. Diplomat Constr., Inc. v. State Bank of Tex., 314 Ga. App. 889 , 726 S.E.2d 140 (2012).

Supersedeas does not apply to foreclosure confirmation proceeding. - Trial court erred by dismissing an investment company's request for confirmation of a second foreclosure sale under O.C.G.A. § 44-14-161(c) by finding that a supersedeas arose from the mortgagor's appeal because the supersedeas statute, O.C.G.A. § 5-6-46(a) , expressly only applied to civil cases, and did not apply to a foreclosure confirmation proceeding. Summit Inv. Mgmt. Acquisitions I, LLC v. Greg A. Becker Enters., Ltd., 317 Ga. App. 608 , 732 S.E.2d 286 (2012).

5. True Market Value

Market value defined. - The market value is the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who wishes to buy, but is not under a necessity to do so. Wachovia Mtg. Co. v. Moore, 138 Ga. App. 101 , 225 S.E.2d 460 (1976), overruled on other grounds, FDIC v. Ivey-Matherly Constr. Co., 144 Ga. App. 313 , 241 S.E.2d 264 (1977).

The focus of the definition of "market value" is the price that two parties agree will be paid for the property itself, without consideration of such collateral issues as the financial responsibility for or the nature and amount of expenses and closing costs to be paid to others in connection with buying or selling it. Wheeler v. Coastal Bank, 182 Ga. App. 112 , 354 S.E.2d 694 (1987).

"Fair market value" of real estate and "true market value" are used interchangeably by the appellate courts. Aaron v. Life Ins. Co. of Ga., 138 Ga. App. 286 , 226 S.E.2d 96 (1976).

What market value is under the circumstances is a question of fact to be resolved as others are, and the weight to be given it was for the judge in the nonjury hearing. Kent v. Scott Hudgens Realty & Mtg., Inc., 138 Ga. App. 30 , 225 S.E.2d 447 (1976).

Burden of proof is on the mortgagee to present evidence as to the fair market value of the property. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

O.C.G.A. § 44-14-161 requires that the trial judge make a determination as to whether the sale brought the property's true market value, not whether the price was grossly inadequate. FDIC v. Ivey-Matherly Constr. Co., 144 Ga. App. 313 , 241 S.E.2d 264 (1977); FDIC v. M.C. Honea, Jr., Inc., 440 F. Supp. 1064 (N.D. Ga. 1977); United States v. Smith, 479 F. Supp. 804 (N.D. Ga. 1979).

Appellate review of "market value." - On appellate review, the test is whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale. Tarleton v. Griffin Fed. Savs. Bank, 202 Ga. App. 454 , 415 S.E.2d 4 (1992).

Because a bank's appraiser correctly deducted the cost to complete the homes on the owners' properties from the "subject to" market value of the properties, and because the basis for the appraiser's opinion amounted to more than sheer speculation, the trial court's foreclosure confirmation order complied with O.C.G.A. § 44-14-161(b) by including findings of fact that supported the conclusion that each of the properties sold for the property's true market value. McBryar v. Branch Banking & Trust Co., 305 Ga. App. 857 , 700 S.E.2d 731 (2010).

Appellate court's review of the trial court's determination that a lender failed to produce evidence of the true market value is whether the record contains any evidence to support the findings of the trial court, and whether the appellate court views the evidence in the light most favorable to the trial court's judgment because O.C.G.A. § 44-14-161 specifically refers to "real estate" and "land" as the subject of the confirmation of sale procedure, not leased estates. GCCFC 2007-GGP Abercorn St. Ltd. P'ship v. Abercorn Common, LLLP, 316 Ga. App. 879 , 730 S.E.2d 589 (2012).

In reviewing the trial court's decision, the test is not whether the appellate court would have accepted a particular appraisal as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought the property's true market value at the foreclosure sale. Ga. Ltd. Partners, LLC v. City Nat'l Bank, 323 Ga. App. 766 , 748 S.E.2d 131 (2013).

Appellate court will not disturb methodology. - Where a bidder for property provided the court with the basis for the bidder's opinions regarding the fair market value of the property, and it appeared that the bidder's opinion was not based on sheer speculation, the appellate court could not second guess the methodology utilized to reach the opinion. La Ronde, Ltd. v. Amsouth Bank, 203 Ga. App. 400 , 416 S.E.2d 881 (1992).

Trial court's order confirming a foreclosure sale of property for $14,800,000.00 was proper as a lienholder's appraiser testified that the property's value was $13,290,000.00; because the appraiser's opinions were not based on sheer speculation, the appellate court did not second-guess the methodology. Wilson v. Prudential Indus. Props., LLC, 276 Ga. App. 180 , 622 S.E.2d 890 (2005).

In a foreclosure action, because the appeals court could not second guess the methodology used by an expert in appraising the market value of the property at issue, and the trial court had sufficient data to derive its own opinion as to the market value of the property at the time of the sale, it properly confirmed the foreclosure sale. Chamblee Hotels, LLC v. Chesterfield Mortg. Investors, Inc., 287 Ga. App. 342 , 651 S.E.2d 447 (2007), cert. denied, No. S08C0072, 2008 Ga. LEXIS 75 (Ga. 2008).

Dollar amount need not be established. - O.C.G.A. § 44-14-161 requires the trial court to call for sufficient evidence to satisfy the court as to what is the true market value of the property. It does not demand the court establish as a matter of fact and law what is the actual dollar amount of the true market value. American Century Mtg. Investors v. Strickland, 138 Ga. App. 657 , 227 S.E.2d 460 (1976); Echols v. Edwards, 185 Ga. App. 688 , 365 S.E.2d 844 (1988).

Must be accurate reflection. - Whether in bankruptcy or not, before a deficiency action may be brought by a creditor who forecloses on Georgia real estate, it must have the price at which the property sold judicially confirmed to be an accurate reflection of the property's fair market value. United States v. Oakland City Apts., Inc., 1 Bankr. 123 (Bankr. N.D. Ga. 1979).

The price brought at a public sale, after proper and lawful advertisement is prima facie the market value of the property sold as a general rule, absent anything to indicate that there was chilling of the bidding, fraud, or the like adversely affecting the sale. But under the terms of O.C.G.A. § 44-14-161 the applicant may not rely solely on such a prima facie showing; the applicant must introduce evidence showing the value of the property at the time of sale. Thompson v. Maslia, 127 Ga. App. 758 , 195 S.E.2d 238 (1972); Peachtree Mtg. Corp. v. First Nat'l Bank, 143 Ga. App. 17 , 237 S.E.2d 416 (1977).

Market value on date of sale. - Where initial foreclosure sales were set aside and properties ordered to be resold, sellers were required to show the true market value of the properties on the date of the resales, not on the date of the initial foreclosure sales. Kong v. Shearson Lehman Hutton Mtg. Corp., 211 Ga. App. 93 , 438 S.E.2d 132 (1993).

Testimony of the selling price of an identical piece of property does not establish precise market value as a matter of law. Smith v. Fidelity Fed. Sav. & Loan Ass'n, 149 Ga. App. 730 , 256 S.E.2d 43 (1979).

Appraisal that occurred five weeks before sale sufficient. - Because there was evidence of the parcels' value about five weeks before the foreclosure sales occurred, the appraisal date was relatively close to the date of the foreclosure sales, which was sufficient for the trial court to confirm the sales as required under O.C.G.A. § 44-14-161 . LRD, LLC v. State Bank & Trust Co., 326 Ga. App. 644 , 757 S.E.2d 251 (2014).

Expert testimony. - Assuming that the superior court erred by concluding that, under O.C.G.A. § 44-14-161(b) , the parties were limited to introducing evidence of the properties' value on only the date of the foreclosure sale, the borrowers induced the error and could not complain because the borrowers specifically argued to the superior court that the lender's evidence had to be excluded since the condition of the property after the foreclosure sale was not relevant to the true market value at the time of the sale; the borrowers did not show that the superior court disregarded their expert's testimony for valuing the property. Eayrs v. Wells Fargo Bank, N.A., 311 Ga. App. 504 , 716 S.E.2d 561 (2011).

Superior court did not err in confirming a foreclosure sale because the lender's expert explained the basis for the expert's methodology and testified about the sources upon which the expert relied, and as it appeared that the expert's opinion was not based on sheer speculation, the appellate court could not second-guess any methodology utilized to reach the opinion; the superior court expressly invited the borrowers to cross-examine the expert about the basis of the expert's opinions to verify that the opinions were not based on an inspector's condition report. Eayrs v. Wells Fargo Bank, N.A., 311 Ga. App. 504 , 716 S.E.2d 561 (2011).

Superior court did not err in confirming the nonjudicial foreclosure sale of a hotel leasehold interest held by a lender under a deed securing a promissory note a construction company executed because there was competent evidence supporting the superior court's finding that the auction brought the true market value for the property; the superior court found the lender's expert credible and the valuation methodology sound. Diplomat Constr., Inc. v. State Bank of Tex., 314 Ga. App. 889 , 726 S.E.2d 140 (2012).

Trial court did not abuse the court's discretion by admitting the expert testimony proffered by the mortgagee because the testimony was sufficient, competent evidence supporting the finding that the foreclosure sale should be confirmed and provided proof of the true market value as of the date of the foreclosure sale. Powder Springs Holdings, LLC v. RL BB ACQ II-GA PSH, LLC, 325 Ga. App. 694 , 754 S.E.2d 655 (2014).

Hearsay evidence insufficient to support finding of true market value. - At a foreclosure confirmation hearing held under O.C.G.A. § 44-14-161 , a trial court erred in relying on three appraisal reports to find that the foreclosed properties were sold at fair market value because the reports were hearsay: although the appraiser was present, the appraiser did not testify, and the bank's attorney merely stated in the appraiser's place that the sales were made at fair market value. Belans v. Bank of Am., 303 Ga. App. 35 , 692 S.E.2d 694 (2010).

Bulk sales analysis upheld. - Trial court did not err in confirming a foreclosure sale under O.C.G.A. § 44-14-161(b) even though expenses and carrying costs were deducted in determining true market value of the subdivision property and even when a bulk sales analysis resulted in a lower true market value than an analysis of each individual lot contained on the property. Trefren v. Freedom Bank, 300 Ga. App. 112 , 684 S.E.2d 144 (2009).

Trial court did not err in confirming foreclosure sales pursuant to O.C.G.A. § 44-14-161 because there was evidence to support the court's finding that the two properties sold for their true market value at foreclosure sale; although the appraisal of the bank's expert did not specifically provide the separate true market value for each parcel of lots, the expert's testimony and appraisal provided the methodology by which the separate value of each parcel could be obtained, i.e., multiplying the true market value of each lot by the number of lots in each parcel, and it was clear from the appraisal reports and testimony of the bank's expert and the expert of the debtor and guarantor that the valuation of each parcel would not change if the properties were sold separately or together as a bulk transaction. Battle Props. v. Branch Banking & Trust Co., 310 Ga. App. 217 , 712 S.E.2d 625 (2011).

What property may have brought or what it may have been regarded as being worth on the market at times relatively close to the date of sale may be considered as aids in arriving at market value at the time of sale. Thompson v. Maslia, 127 Ga. App. 758 , 195 S.E.2d 238 (1972).

It is no defense in Georgia if market values are depressed by general economic factors. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

If the trial judge is not satisfied that the foreclosure sale brought what in the judge's opinion approximates the true market value of the property, the judge is required to deny confirmation of the sale and, if necessary, to order a resale. American Century Mtg. Investors v. Strickland, 138 Ga. App. 657 , 227 S.E.2d 460 (1976).

Where realty and personalty are sold for a lump sum and it is impossible to tell what amount the realty sold for, the evidence does not show that the real property brought its true market value as required by O.C.G.A. § 44-14-161 and the trial judge errs if the sale is confirmed. Hinson v. First Nat'l Bank, 221 Ga. 408 , 144 S.E.2d 765 (1965); United States v. Golf Club Co., 435 F.2d 9 (5th Cir. 1970).

Evidence sufficient to show the fair market value. - Creditor's testimony regarding assignment of note and deed of trust from a bank to the creditor established that the assignments were made, although the issue of whether the creditor, as the person instituting the foreclosure action, was the real party in interest was irrelevant to a confirmation proceeding; the creditor's testimony about the creditor's experience with the property, how much the creditor had invested in it, how much the creditor's borrowed against it, its condition at the time of the foreclosure sale, and the creditor's opinion that he bid the fair market value for the property, along with the testimony of one of the buyers and the tax appraisal, was sufficient to show the fair market value of the property at the time of the sale. McCain v. Galloway, 267 Ga. App. 505 , 600 S.E.2d 449 (2004).

Mortgagee was entitled to confirmation of a foreclosure sale because the mortgagee showed that the property at issue sold for true market value as required under O.C.G.A. § 44-14-161 because a deduction by the mortgagee's expert for loss of rental income due to the incompletion of buildings on the property was proper as the property was worth more fully rented. Nash v. Compass Bank, 296 Ga. App. 874 , 676 S.E.2d 28 (2009).

Lender's appraiser's opinion as to foreclosed property's true market value at the time of foreclosure was properly admitted under former O.C.G.A. § 24-9-67.1(b) (see now O.C.G.A. § 24-7-702 ). The lender's expert's appraisal was based upon extensive facts and careful analysis taking into account the potential for future recovery of a down real estate market by the discounted flow method, which the borrower conceded was reliable. Blue Marlin Dev., LLC v. Branch Banking & Trust Co., 302 Ga. App. 120 , 690 S.E.2d 252 (2010).

Trial court did not err in confirming a nonjudicial sale of certain property since the trial court was not required to disregard the valuation opinion of the mortgagee's appraiser merely because it was based on the existing one-unit configuration of the property, and the evidence was sufficient to show that the appraiser's opinion was not based on sheer speculation; nothing in O.C.G.A. § 44-14-161 or prior case law requires a trial court in every instance to adopt the highest and best use as the basis for determining true market value and to reject any appraisal which was not explicitly based on the property's highest and best use. TKW Partners, LLC v. Archer Capital Fund, L.P., 302 Ga. App. 443 , 691 S.E.2d 300 (2010).

Trial court did not err in finding find that a property's "as-is" value, rather than a value based on its "highest and best use," was the true market value for purposes of O.C.G.A. § 44-14-161(b) , because two appraisers agreed on the value of the property as a single unit, and the trial court's finding that there was no variance between the experts as to the "true market value" of the property was construed to reflect that fact and not a misunderstanding as to the nature of the evidence; the trial court acknowledged that there was a dispute as to what the true value was and then ruled that the highest and best use of the property was not its proper value. TKW Partners, LLC v. Archer Capital Fund, L.P., 302 Ga. App. 443 , 691 S.E.2d 300 (2010).

Sufficient evidence supported confirmation of a lender's application for a foreclosure sale under O.C.G.A. 44-14-161(b) because the appraiser used a valid valuation method, and the appraisal was supported by competent evidence showing that the property's true market value was equivalent to the price the lender paid at a nonjudicial foreclosure sale. Greenwood Homes, Inc. v. Regions Bank, 302 Ga. App. 591 , 692 S.E.2d 42 (2010).

Evidence supported a trial court's conclusion that properties were sold for their true fair market values because there was no testimony as to the value of any personal property, and the record showed that the foreclosure sale involved only the sale of real property; a bank's expert appraiser testified as to the methodology the appraiser used to determine the value of each property sold, and the appraiser testified that the properties in the first sales had no appliances therein and that some in the third had no flooring, carpet, or appliances. Belans v. Bank of Am., N.A., 306 Ga. App. 252 , 701 S.E.2d 889 (2010).

Sufficient evidence supported the trial court's confirmation of a foreclosure sale pursuant to O.C.G.A. § 44-14-161 because the appraiser relied on the factual data collected by the appraiser's staff for the appraiser's valuation of the property, not on the staff's opinions as to the value of the property, and there was no evidence that the appraiser's valuation was based on sheer speculation; O.C.G.A. § 44-14-161 (b) does not preclude any specific method of property appraisal. Boring v. State Bank & Trust Co., 307 Ga. App. 93 , 704 S.E.2d 207 (2010).

Trial court did not err in confirming a non-judicial foreclosure sale of property to a bank because the record contained sufficient evidence to permit the trial court to determine that the foreclosure sale brought at least the true market value of the property as required by O.C.G.A. § 44-14-161(b) when the scope of an appraisal addendum included a re-inspection of the property and a review of changes in market conditions since the first appraisal and through the date of the foreclosure sale; even if the appraiser's recurring valuation for the property and cost-to-complete calculations strained credulity, the trial court was presented with additional, uncontested evidence to support the court's finding that the property sold for at least the property's true market value because the appraiser testified that the appraiser received no direction from the bank about the total to return when the appraiser reached $480,000 for the second time, and there was evidence that the true market value of the property could have actually been less than what the bank paid for the property. Atreus Cmtys. of Am., LLC v. KeyBank Nat'l Ass'n, 307 Ga. App. 716 , 706 S.E.2d 107 (2011).

Trial court did not err in confirming a foreclosure sale by a bank because the trial court was authorized to find that the bank's winning bid at the sale represented the true market value of the property; the trial court was entitled to rely upon the valuation of the property by the bank's expert, including the expert's utilization of a 15 percent discount for builder/buyer risk in valuing the uncompleted house on the property, because the expert testified that the calculation was arrived at based on the expert's consultation with two separate homebuilders, and the expert arrived at the ultimate valuation after inspecting the uncompleted, vandalized home and assessing the condition of the surrounding subdivision. Jimmy Britt Builders, Inc. v. Suntrust Bank, 307 Ga. App. 663 , 706 S.E.2d 665 (2011).

Because a foreclosure sale reflected the price that would be obtained in a sale under usual market conditions, and because deductions such as carrying costs and entrepreneurial profit factored directly into the price a willing buyer would pay for the properties, the trial court properly determined the properties' true market value under O.C.G.A. § 44-14-161(b) . Henderson Prop. Holdings, LLC v. Sea Island Bank, 310 Ga. App. 795 , 714 S.E.2d 382 (2011), cert. denied, No. S11C1787, 2011 Ga. LEXIS 991 (Ga. 2011).

Trial court did not err in confirming a nonjudicial foreclosure sale because the borrowers did not object to the testimony or the reports of the lender's appraiser as to the fair market value of the property, and there was no evidence that the appraiser's opinion was based on sheer speculation. O.C.G.A. § 44-14-161(b) did not preclude any specific method of property appraisal. Ivy Rd. Props., LLC v. First Citizens Bank & Trust Co., 311 Ga. App. 409 , 715 S.E.2d 809 (2011).

Superior court did not err in confirming a foreclosure sale because the borrowers did not show that the lender's scheduling and cancelling the foreclosure sale caused the properties to bring in less than the properties fair market value on the date of the sale. Eayrs v. Wells Fargo Bank, N.A., 311 Ga. App. 504 , 716 S.E.2d 561 (2011).

Because the mortgage guarantors did not rebut an appraiser's revised opinion of the true market value of a property, and because the revised value was less than the amount a bank bid in the bank's foreclosure sale, the trial court properly determined that the bank's bid, which brought at least the true market value of the property, complied with O.C.G.A. § 44-14-161(b) . Metro Land Holdings Invs., LLC v. Bank of Am., N.A., 311 Ga. App. 498 , 716 S.E.2d 566 (2011).

Order confirming a non-judicial foreclosure sale was not erroneous because there was evidence supporting the trial court's finding that the subject properties sold for at least the properties' true market value; the bank introduced the written appraisal reports and expert testimony from the bank's appraiser, which showed that the first property sold for $1,500 less than the property's value, which was within the range of the property's true market value, and the trial court's decision to adopt the determination of the bank's expert that the highest and best use of the property would be residential, and the expert's valuation method of calculating the retail value of the property by utilizing the sales comparison approach and then discounting that value to achieve the property's true market value, was not in error. River Forest, Inc. v. United Bank, 320 Ga. App. 115 , 739 S.E.2d 403 (2013).

Confirmation of a foreclosure sale of subdivided property for $530,000 was proper because there was some evidence that the fair market value of the lots was $5,500 to $6,600, which was considerably less than the actual sales price of $10,000 per lot, and the borrower's expert's opinion that the per lot value was $12,000 was not supported by any comparable sales. Lost Lake Dev. Corp. v. Cmty. & S. Bank, 325 Ga. App. 527 , 754 S.E.2d 114 (2014).

Evidence in the record, including the testimony of the demolition company owner regarding the cost of demolition, supported the trial court's determination that the price paid by the buyer represented the true market value of the property. Conyers 138, LLC v. ONH1, LLC, 341 Ga. App. 521 , 801 S.E.2d 318 (2017).

Evidence insufficient. - A party who explains arrival at a total price figure by adding component values, but provides no adequate explanation of how that party arrived at the value of the components, does not provide sufficient evidence to accurately ascertain the true market value so as to make a determination under O.C.G.A. § 44-14-161 . Mallett v. Fulford, 142 Ga. App. 200 , 235 S.E.2d 650 (1977).

Refusal to confirm a foreclosure sale was proper where the only evidence presented to the trial court as to the fair market value of the subject property was an appraisal submitted by an expert who failed to consider comparable properties close to the subject property which had much higher values than the more distant properties used by the assignees' expert, and which indicated that the true market value was much higher than the foreclosure sale price; the trial court found that the expert and the expert's appraisal were simply not believable. Foster v. Tycor, Inc., 267 Ga. App. 767 , 601 S.E.2d 172 (2004).

Confirmation of nonjudicial foreclosure sales of certain properties did not comply with O.C.G.A. § 44-14-161 because the only evidence at the confirmation hearing regarding the properties' true market value was the testimony of the creditor's counsel, which was insufficient. Belans v. Bank of Am., N. A., 303 Ga. App. 654 , 694 S.E.2d 725 (2010).

Superior court erred by confirming a foreclosure sale because no construction of the record would have authorized a finding that the sale price was at least the true market value of the property; the foreclosure sale amount was a matter of fact, and neither evidence nor stipulation of such amount was presented to the trial judge. Titshaw v. Northeast Ga. Bank, 304 Ga. App. 712 , 697 S.E.2d 837 (2010).

Because the sellers' appraiser failed to account for substantial improvements to the interior of the residence in developing the appraiser's opinion of the property's market value, the trial court properly denied the sellers' application for confirmation under O.C.G.A. § 44-14-161(b) . Hammock v. Issa, 310 Ga. App. 547 , 713 S.E.2d 717 (2011).

Superior court did not err in denying a lender's petition to confirm the foreclosure of a shopping center because the lender failed to convince the superior court, by a preponderance of the evidence, that the property sold for the property's true market value pursuant to O.C.G.A. § 44-14-161 ; the lender's expert appraised the leased fee interest in the property and not the fee simple interest. GCCFC 2007-GGP Abercorn St. Ltd. P'ship v. Abercorn Common, LLLP, 316 Ga. App. 879 , 730 S.E.2d 589 (2012).

In confirming foreclosure sale of property upon which was situated a condominium complex consisting of 30 partially constructed units, the court could calculate the true market value of the real estate as a single investment opportunity rather than by adding together the true market values of each of the separate residential units, where the security deed merely described the property as two tracts and contained no express requirement that the property be sold in individual units. Marion G. Davis, Inc. v. Cameron-Brown Co., 177 Ga. App. 646 , 340 S.E.2d 216 (1986).

Calculation of amount of loss with reasonable degree of certainity. - Trial court erred in basing the court's holding that the appellees were not liable for the deficiency on the court's finding that the appellant suffered no damages as a result of the recording of the materialman's liens because the appellant obtained an order confirming the foreclosure sale and, thus, met the court's burden of proof of showing the amount of loss in a manner in which the trial judge could calculate the amount of the loss with a reasonable degree of certainty. Fannie Mae v. Las Colinas Apartments, LLC, 346 Ga. App. 867 , 815 S.E.2d 334 (2018), cert. denied, No. S18C1616, 2019 Ga. LEXIS 177 (Ga. 2019).

Market value exceeding bid amount. - Trial court did not err in denying confirmation petition, where appraisals offered by both parties supported the court's conclusion that the market value of the condominium units involved had exceeded the amount bid for them at the foreclosure sales. First Nat'l Bank v. Childress-Ross Properties, Inc., 189 Ga. App. 765 , 377 S.E.2d 533 (1989).

A "quick sale value" does not constitute competent evidence of the "true market value" of real property within the meaning of O.C.G.A. § 44-14-161 . Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258 , 424 S.E.2d 889 (1992).

Trial court erred by confirming a foreclosure sale under O.C.G.A. § 44-14-161(b) based on an appraisal that discounted the value of each town home by $10,000 because the homes were in foreclosure because evidence of the "quick sale" value of the properties did not reflect the price that would have been obtained in a sale under the usual market conditions. Cartersville Developers, LLC. v. Ga. Bank & Trust, 292 Ga. App. 375 , 664 S.E.2d 783 (2008).

Although a foreclosure sale price was the same as the quick sale value, and the experts were not informed about two higher offers for a portion of the property before their appraisals, reversal of a decision confirming the foreclosure sale was not required because the expert's opinion was not based solely on the quick sale value but on other factors. Mundy Mill Dev., LLC v. ACR Prop. Servs., LP, 306 Ga. App. 730 , 703 S.E.2d 137 (2010).

Hearing
1. Powers and Duties of Court

O.C.G.A. § 44-14-161 does not violate Ga. Const. 1976, Art. VI, Sec. XV, Para. I (see now Ga. Const. 1983, Art. I, Sec. I, Para. XI) by failing to provide for the trial of issues of fact by jury. Harwell v. First Fed. Sav. & Loan Ass'n, 245 Ga. 757 , 267 S.E.2d 229 (1980).

No jury trial is required under O.C.G.A. § 44-14-161 . Kilgore v. Life Ins. Co., 138 Ga. App. 890 , 227 S.E.2d 860 (1976).

A right to a jury trial does not exist in confirmation proceedings brought in the state courts of Georgia. FDIC v. New London Enters., Ltd., 619 F.2d 1099 (5th Cir. 1980).

The duty of the court is to test the fairness of the technical procedure of the actual sale and to insure that the sale has brought at least the true market value of the property. Jones v. Hamilton Mtg. Corp., 140 Ga. App. 490 , 231 S.E.2d 491 (1976); Hamilton Mtg. Corp. v. Bowles, 142 Ga. App. 882 , 237 S.E.2d 198 (1977); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980); Harris & Tilley, Inc. v. First Nat'l Bank, 157 Ga. App. 88 , 276 S.E.2d 137 (1981); Alexander v. Weems, 157 Ga. App. 507 , 277 S.E.2d 793 (1981).

The judge sits as a trier of fact and the judge's findings and conclusions have the effect of a jury verdict. Thompson v. Maslia, 127 Ga. App. 758 , 195 S.E.2d 238 (1972); Alexander v. Weems, 157 Ga. App. 507 , 277 S.E.2d 793 (1981).

Judge's weight and credibility of evidence. - What value is, or may have been, is a question of fact to be resolved as others are. In so doing the trier of fact is the judge of the credibility of the witnesses and of the weight to be given the evidence. Thompson v. Maslia, 127 Ga. App. 758 , 195 S.E.2d 238 (1972); Alexander v. Weems, 157 Ga. App. 507 , 277 S.E.2d 793 (1981).

Findings required. - A judge hearing a confirmation of a nonjudicial sale of property is required to render a judgment with findings of fact. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

A judgment in an action to confirm a foreclosure sale is inadequate if it contains no specific finding concerning the sufficiency of the price brought at sale. Lanier v. Citizens State Bank, 186 Ga. App. 395 , 367 S.E.2d 585 (1988).

Sale may be declared void. - O.C.G.A. § 44-14-161 gives the judge authority to declare a sale of real estate on foreclosure to be absolutely void rather than merely to order another sale because of an irregularity. Tingle v. Atlanta Fed. Sav. & Loan Ass'n, 93 Ga. App. 393 , 91 S.E.2d 804 (1956).

A trial judge has the authority to rule upon a motion for revision during the same term. Thompson v. Maslia, 127 Ga. App. 758 , 195 S.E.2d 238 (1972).

Collateral estoppel and res judicata. - Confirmation court's holding that the land brought its true market value did not have either collateral estoppel or res judicata effect on the district court's consideration of the proceeds issue since the confirmation court is without authority to address matters concerning sales of personalty. Walton Motor Sales, Inc. v. Ross, 736 F.2d 1449 (11th Cir. 1984).

2. Issues
A. Generally

The confirmation proceeding is a statutory proceeding which by law determines only that the sale was properly advertised and brought the fair market value of the land. It originated as a means of protecting the debtor from being subject to double payment in cases where the property was purchased for a sum less than its fair market value and it provides an opportunity for debtors, including endorsers of the obligation, to contest the approval of the sales before claims for the balance of the indebtedness can be prosecuted against them. Harris & Tilley, Inc. v. First Nat'l Bank, 157 Ga. App. 88 , 276 S.E.2d 137 (1981).

A confirmation proceeding held in accordance with O.C.G.A. § 44-14-161 is extremely narrow in scope, the issues in such proceedings being the evaluation of real estate sold under power as to the date of its sale and the regularity of that sale. Alexander v. Weems, 157 Ga. App. 507 , 277 S.E.2d 793 (1981).

Requirements must be substantially met. - At a hearing for confirmation of a foreclosure sale, if either the notice or the advertisement does not substantially meet legal requirements, the sale should be set aside. But not every irregularity or deficiency at this point will void the sale. Walker v. Northeast Prod. Credit Ass'n, 148 Ga. App. 121 , 251 S.E.2d 92 (1978).

Court's inquiry should be limited. - The court's inquiry in a confirmation of a foreclosure sale should go only to the value of the real estate on the date of sale, in the course of the examination to determine the fairness of the technical procedures used, but only for the purpose of making sure that the sale was not chilled and the price bid was in fact market value. Shantha v. West Ga. Nat'l Bank, 145 Ga. App. 712 , 244 S.E.2d 643 (1978); Walker v. Northeast Prod. Credit Ass'n, 148 Ga. App. 121 , 251 S.E.2d 92 (1978); Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

The sole issue in the confirmation procedure under O.C.G.A. § 44-14-161 is the evaluation of the real estate as of the date of the sale. Hamilton Mtg. Corp. v. Bowles, 142 Ga. App. 882 , 237 S.E.2d 198 (1977).

O.C.G.A. § 44-14-161 does not contemplate that the court shall undertake to decide controversies between the parties as to the amount of debt or side agreements which could have been the basis of an injunction preventing the foreclosure sale. Jones v. Hamilton Mtg. Corp., 140 Ga. App. 490 , 231 S.E.2d 491 (1976); Hamilton Mtg. Corp. v. Bowles, 142 Ga. App. 882 , 237 S.E.2d 198 (1977); Harris & Tilley, Inc. v. First Nat'l Bank, 157 Ga. App. 88 , 276 S.E.2d 137 (1981).

In an action to confirm a sale under O.C.G.A. § 44-14-161 , the debtors were not permitted to raise the defense that intangible taxes had not been paid as required by O.C.G.A. § 48-6-77 ; alleged defenses to the original debt are not relevant to the confirmation proceeding. Guthrie v. Bank S., 195 Ga. App. 123 , 393 S.E.2d 60 (1990).

In every confirmation of sale case, the issue of a resale is always raised regardless of whether it has been affirmatively pleaded in creditor's complaint, if the debtor is afforded the opportunity to defend against confirmation as well as against a resale. Adams v. Gwinnett Com. Bank, 140 Ga. App. 233 , 230 S.E.2d 324 (1976), aff'd, 238 Ga. 722 , 235 S.E.2d 476 (1977); Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321 , 254 S.E.2d 475 (1979).

Default is not an issue in confirmation proceedings. Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321 , 254 S.E.2d 475 (1979).

Real parties in interest. - The issue of whether an assignee of the Federal Deposit Insurance Corporation was a real party in interest was not relevant to a confirmation proceeding which was commenced in accordance with O.C.G.A. § 44-14-161 by the person instituting the foreclosure proceedings. Sparti v. Joslin, 230 Ga. App. 346 , 496 S.E.2d 490 (1998).

The fact that a sale may have been conducted unfairly has no relevance in a confirmation of sale proceeding under O.C.G.A. § 44-14-161 , unless the unfairness relates to the requirements of notice, advertisement, and regularity. Keever v. GECC, 141 Ga. App. 864 , 234 S.E.2d 696 (1977).

B. Notice to Debtor

Any debtor not given timely notice may not be held liable in any subsequent deficiency action. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Actual notice or knowledge will not cure the failure to comply with the notice provision of O.C.G.A. § 44-14-161 . First Nat'l Bank & Trust Co. v. Kunes, 128 Ga. App. 565 , 197 S.E.2d 446 , aff'd, 230 Ga. 888 , 199 S.E.2d 776 (1973); Chastain Place, Inc. v. Bank S., 185 Ga. App. 178 , 363 S.E.2d 616 (1987).

The fact that the guarantor of a mortgage had actual notice of the hearing on a confirmation application did not change the requirement for valid personal service. Ameribank v. Quattlebaum, 220 Ga. App. 345 , 469 S.E.2d 462 (1996).

Where the guarantor of a mortgage was not named a party in a confirmation petition and was not given notice of the confirmation hearing as required by O.C.G.A. § 44-14-161 , the hearing should have been dismissed; notice given to the guarantor by the mortgagee's counsel did not satisfy the statutory requirement. Quattlebaum v. Ameribank, 227 Ga. App. 517 , 489 S.E.2d 319 (1997), aff'd, 269 Ga. 857 , 505 S.E.2d 476 (1998).

Personal service generally is required in order to give legal notice where no proceedings are pending between the parties at the time a notice is to be given. Henry v. Hiwassee Land Co., 246 Ga. 87 , 269 S.E.2d 2 (1980).

Purchasers who were responsible on the underlying debt were "debtors" within the meaning of O.C.G.A. § 44-14-161 and were entitled to notice by personal service. Hill v. Moye, 221 Ga. App. 411 , 471 S.E.2d 910 (1996).

Notice by mail. - The mailing of copies of the petition to the defendant and defendant's counsel within five days of the hearing, in the absence of a contention of nonreceipt thereof, constituted "notice" of the hearing as required by O.C.G.A. § 44-14-161 . Boardman v. Georgia R.R. Bank & Trust Co., 127 Ga. App. 63 , 192 S.E.2d 390 (1972), disapproved in Henry v. Hiwassee Land Co., 246 Ga. 87 , 269 S.E.2d 2 (1980).

Service by publication. - Service of a debtor by publication was found to be necessary by the trial court, and there was evidence to support this finding. One process server had attempted unsuccessfully to serve the guarantor at least 12 times, at four different addresses, and another attempted service at four different locations, including seven visits and hours of surveillance of what the server believed was the debtor's residence. Belans v. Bank of Am., 303 Ga. App. 35 , 692 S.E.2d 694 (2010).

Trial court erred when the court found that a debtor was served properly because there was no evidence that the requirements of publication under O.C.G.A. § 9-11-4(f)(1) were met, and a bank offered no evidence to show that the notice requirements of O.C.G.A. § 44-14-161 (c) were met; the published advertisement for service on the debtor provided no specifics as to the date or time of the confirmation hearing as was required under the confirmation statute, O.C.G.A. § 44-14-161 . Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655 , 708 S.E.2d 604 (2011).

The grantee in security deed was not required to give notice to the grantor of the grantee's intention to exercise the power of sale ten days before the running of the first advertisement for such sale, where plaintiff did not proceed with the first foreclosure proceeding for the reason that the defendant procured a restraining order against the foreclosure, and when that was dissolved plaintiff had every right, in the absence of an appeal, to exercise its rights under the power of sale by immediately recommencing the proceeding. Norwood Realty Co. v. First Fed. Sav. & Loan Ass'n, 99 Ga. App. 692 , 109 S.E.2d 844 (1959).

Notice to guarantors required unless waived. - Lender's compliance with the requirements contained in O.C.G.A. § 44-14-161 was a condition precedent to the lender's ability to pursue a guarantor for a deficiency after a foreclosure had been conducted but the guarantors had the contractual ability to waive the condition precedent requirement. PNC Bank, Nat'l Ass'n v. Smith, 298 Ga. 818 , 785 S.E.2d 505 (2016).

Notice held sufficient. - Where the defaulting property owners' attorney acknowledged at the confirmation hearing that proper notice was received of the confirmation hearing "two weeks ago or something like that" the bank was not barred from prosecuting the confirmation applications. Phillips v. Connecticut Nat'l Bank, 196 Ga. App. 477 , 396 S.E.2d 538 (1990).

Notice publication of a confirmation hearing for nonjudicial foreclosure sales of certain properties was sufficient because two process servers had unsuccessfully tried to personally serve a guarantor, including 12 attempts at four different locations. Belans v. Bank of Am., N. A., 303 Ga. App. 654 , 694 S.E.2d 725 (2010).

Trial court did not err in concluding that the debtors had been properly served pursuant to O.C.G.A. §§ 9-11-4 and 44-14-161(c) because there was undisputed evidence from which the trial court could have concluded that the debtors were attempting to evade service; a private process server, who had a description of a vehicle that had been parked at the address of one of the debtors, saw the vehicle and followed the vehicle, but the driver noticed the server, drove past the address of the house, and when the server pulled into the driveway after the driver and approached the garage door, which was not yet closed, and announced that the server had papers, no one responded. Winstar Dev., Inc. v. SunTrust Bank, 308 Ga. App. 655 , 708 S.E.2d 604 (2011).

Notice of a non-judicial foreclosure sale confirmation hearing was given to two debtors more than five days prior to the confirmation hearing, when a deputy left copies of the pleadings, including a rule nisi, at the debtors' home with the debtors' father, a person of suitable age and discretion then residing therein; this method of service complied with O.C.G.A. §§ 9-11-4(e)(7) and 44-14-161 to initiate a valid confirmation proceeding. Gulia v. North Atlanta Bank, 334 Ga. App. 701 , 780 S.E.2d 74 (2015), cert. denied, No. S16C0481, 2016 Ga. LEXIS 178 (Ga. 2016).

Notice held insufficient. - The fact that the debtor actually received a notice of hearing prepared by the lender was insufficient where the debtor was not named as a party on the application for confirmation and where the notice of hearing had not been directed by the court as required by O.C.G.A. § 44-14-161 . Ameribank v. Quattlebaum, 269 Ga. 857 , 505 S.E.2d 476 (1998).

Petitioners' motion to set aside an order confirming a non-judicial foreclosure sale was improperly denied as the evidence did not show that the bank provided the petitioners with the required notice of the rescheduled confirmation hearing because the drafts of the cover letters by the bank to be sent to the petitioners notifying the petitioners of the reset hearing date were addressed to only one petitioner, contained the wrong address, and did not include a letter to the second petitioner; the proper service addresses for the petitioners had been made part of the record; and no other evidence showed that the notices were written, properly addressed and duly mailed to the petitioners; thus, a non-amendable defect appeared on the face of the record. Nadel v. Branch Banking & Trust Company, 340 Ga. App. 213 , 797 S.E.2d 140 (2017).

C. Advertisement

The advertisement must meet the requirements of O.C.G.A. § 9-13-140 requiring a full and complete description of the property. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Reference to outstanding security deeds omitted. - When an advertisement states that the sale will be of the whole fee simple interest and for cash and does not mention outstanding security deeds, Georgia confirmation proceedings have addressed the issue of whether bidding was thereby chilled. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Advertisement sufficient. - Where the property description in the advertisement is the same as that in the loan deed, with the exception of certain lots expressly excepted because the plaintiff had previously released them to the defendant, and all of the property held by the plaintiff under the deed to secure debt which had not been previously released to the defendant was advertised, and no property not so held was included, the advertisement was sufficient as to the property, since it stated the amount owing it was also sufficient as to the debt. Norwood Realty Co. v. First Fed. Sav. & Loan Ass'n, 99 Ga. App. 692 , 109 S.E.2d 844 (1959).

The advertisement of sale showing the property was being sold as the property of the grantor in the deed to secure debt containing the power of sale under which the property was being advertised does not void the sale merely because the grantor in the deed to secure debt had, prior thereto, sold its equity of redemption to another subject to the deed to secure debt; nor is such sale void because the name of the party or parties in possession was not stated in the advertisement. Five Dee Ranch Corp. v. Federal Land Bank, 148 Ga. App. 734 , 252 S.E.2d 662 (1979).

Trial court's conclusion that the advertisement of foreclosure sales conformed to O.C.G.A. § 44-14-161 was supported by competent evidence because a bank's attorney testified that the attorney caused the advertisements to be run and provided the four dates upon which the advertisements were published during the month preceding the sale; the attorney also testified that the legal descriptions in the newspaper matched that contained in the security deeds and the deeds under power of sale. Belans v. Bank of Am., N.A., 306 Ga. App. 252 , 701 S.E.2d 889 (2010).

Superior court did not err in finding that a lender's advertisement of a nonjudicial foreclosure sale properly included a description of the property in accordance with O.C.G.A. § 9-13-140(a) because the legal description in the advertisement was identical to the description in the security deed by which the lender took its interest from a construction company and guarantors; thus, there was no discrepancy between the two, and the advertisement properly reflected the interest taken under the deed and available at the foreclosure sale. Diplomat Constr., Inc. v. State Bank of Tex., 314 Ga. App. 889 , 726 S.E.2d 140 (2012).

Admission of publisher's affidavit and tear sheet from newspaper indicating advertisement of foreclosure sale was published held proper. - In a foreclosure matter under O.C.G.A. § 44-14-161 , a trial court's admission of the publisher's affidavit and the tear sheet from the newspaper which indicated that the advertisement of the foreclosure sale was published on each of four listed dates, was proper, as those documents were not hearsay. White Oak Homes, Inc. v. Cmty. Bank & Trust, 314 Ga. App. 502 , 724 S.E.2d 810 (2012), cert. denied, No. S12C1120, 2012 Ga. LEXIS 671 (Ga. 2012).

3. Debtor's Rights

A debtor has the right to cross-examine witnesses and to present own evidence. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Objections may be raised. - While a debtor is not required to file an answer to the mortgagee's report, the debtor is permitted to raise objections. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Raising defenses. - A debtor may raise defenses which relate to the true market value or the specified issues of fairness in the technical procedures. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Counterclaims. - A debtor may not raise counterclaims or ask for any alleged excess resulting from the sale. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Grounds for injunction. - A debtor may not raise the issue of the existence of a default, the amount of the debt, or the existence of any side agreement which could have been the basis of an injunction preventing the foreclosure sale. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Affirmative relief for debtor. - If confirmation is sought and obtained, the debtor is likewise afforded the full measure to which the debtor is entitled, and extinguishment of the debt to the extent of the true market value of the property securing it; the debtor is entitled to no other form of affirmative relief under the confirmation statute. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980).

Addition of parties. - The Civil Practice Act, O.C.G.A. Ch. 9, T. 11, controls in an application to confirm a foreclosure sale and permits the adding of parties to the proceedings. An application should not be dismissed because additional parties are necessary for adjudication but additional parties may be added. Small Bus. Admin. v. Desai, 193 Ga. App. 852 , 389 S.E.2d 372 , cert. denied, 193 Ga. App. 911 , 389 S.E.2d 372 (1989).

Pursuant to the Civil Practice Act, O.C.G.A. Ch. 9, T. 11, the addition of parties to an application for confirmation relates back to the date of the original filing. Small Bus. Admin. v. Desai, 193 Ga. App. 852 , 389 S.E.2d 372 , cert. denied, 193 Ga. App. 911 , 389 S.E.2d 372 (1989).

An amendment to add the mortgagee as copetitioner to an application to confirm a foreclosure sale would be effective under the relation back rule even though the thirty-day period imposed by O.C.G.A. § 44-14-161 for reporting the sale and obtaining confirmation on it had expired by the time the mortgagee moved to be added as a party. Small Bus. Admin. v. Desai, 193 Ga. App. 852 , 389 S.E.2d 372 , cert. denied, 193 Ga. App. 911 , 389 S.E.2d 372 (1989).

Damages. - Even though power of sale in mortgage is conferred upon the grantee for the purpose of facilitating the grantee's collection of the amount of the underlying debt which is secured by the property, the power must be exercised fairly; breach of this duty to conduct the sale "fairly" gives rise to a claim for damages to the injured holder of the equity of redemption. Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980).

No right to jury trial. - There is no right to a jury trial on an application for confirmation under O.C.G.A. § 44-14-161 . BBC Land & Dev., Inc. v. Bank of N. Ga., 294 Ga. App. 759 , 670 S.E.2d 210 (2008).

4. Evidence

O.C.G.A. § 44-14-161 requires that evidence satisfactory to the court of the true market value of the property is a condition precedent to the confirmation. Goodman v. Nadler, 113 Ga. App. 493 , 148 S.E.2d 480 (1966).

Discovery procedures of the Civil Practice Act, O.C.G.A. Ch. 9, T. 11 are permitted in a confirmation proceeding because it is a special statutory proceeding and no statute establishes a contrary rule of discovery. Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. 514 , 467 S.E.2d 531 (1996).

Discovery is limited to the issues considered at the confirmation hearing and, thus, a debtor is permitted discovery only on the regularity of the sale and the market value of the property. Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. 514 , 467 S.E.2d 531 (1996).

The applicant for confirmation must introduce evidence sufficient to show that the price equaled the property's value. FDIC v. Dye, 642 F.2d 837 (5th Cir. 1981).

Inasmuch as the statute does not specifically require the taking of evidence by oral testimony nor is a jury trial mandated, the failure to proceed in such a fashion does not raise itself to the sort of inherently personal and fundamental right which may not be waived. Lewis v. First Nat'l Bank, 141 Ga. App. 338 , 233 S.E.2d 465 (1977).

Use of affidavits. - The better practice is to conduct a confirmation hearing by way of testimony, but affidavit evidence, by agreement will satisfy the requirements of O.C.G.A. § 44-14-161 . Lewis v. First Nat'l Bank, 141 Ga. App. 338 , 233 S.E.2d 465 (1977).

Ex parte affidavits should not be allowed in evidence in any trial when the evidence was finally adjudicated because admission denied the privilege of cross-examination as allowed by former O.C.G.A. § 24-9-64 (see now O.C.G.A. § 24-6-611 ). Lewis v. First Nat'l Bank, 141 Ga. App. 338 , 233 S.E.2d 465 (1977).

Allegations in motion to dismiss. - As against general demurrer (now motion to dismiss), there is no requirement that the one asking for confirmation must affirmatively allege what the true market value is. Hinson v. First Nat'l Bank, 221 Ga. 408 , 144 S.E.2d 765 (1965).

Evidence supported approval of a bank's foreclosure sale because the bank's expert testified that: (1) the value of the property did not exceed the amount paid by the bank; (2) the expert used both a cost and a market approach to determine the property's value; (3) the expert considered the percentage of the property that consisted of wetlands; and (4) the expert verified the comparable sales used to form the expert's opinion. Statesboro Blues Dev., LLC v. Farmers & Merchants. Bank, 301 Ga. App. 851 , 690 S.E.2d 205 (2010).

5. Review

Standard of review. - Where the trial judge, sitting as the trier of the facts, hears the evidence, the judge's finding based upon conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Thompson v. Maslia, 127 Ga. App. 758 , 195 S.E.2d 238 (1972); Thomas v. Henry, 150 Ga. App. 792 , 258 S.E.2d 710 (1979).

The trial court has considerable discretion in the conduct of a confirmation hearing and in determining the relief to be afforded but the finding of the trial court, as the trier of fact, must be supported by some evidence. Wheeler v. Coastal Bank, 182 Ga. App. 112 , 354 S.E.2d 694 (1987).

Assumption that trial court is correct. - No evidence having been produced showing a sale under the power contained in a deed to secure debt, the appellate court assumed the order of the court confirming the sale was correct. Worth v. Alma Exch. Bank & Trust, 171 Ga. App. 748 , 320 S.E.2d 816 (1984).

The trial court's determination that the sale reflects "true market value" will be affirmed, where there is no evidence that the sale was chilled or any fraud exerted. Smith v. Fidelity Fed. Sav. & Loan Ass'n, 149 Ga. App. 730 , 256 S.E.2d 43 (1979).

Change in value. - A reviewing court should not disturb the trial judge's findings merely because there is in the record evidence that at a time three months after the sale it may have acquired a different value. If that were true a confirmation could always be attacked because of a subsequent change in value. Thompson v. Maslia, 127 Ga. App. 758 , 195 S.E.2d 238 (1972).

Lack of special finding. - Evidence was sufficient to support a judgment of confirmation of sale under the exercise of the power contained in the security deed on the theory that the property brought its fair market value at such sale, and the judgment rendered was not subject to exception on the ground that the court did not make a special finding therein to this effect. Norwood Realty Co. v. First Fed. Sav. & Loan Ass'n, 99 Ga. App. 692 , 109 S.E.2d 844 (1959).

Objection too late. - Guarantor did not preserve for review the assertion that the report of the third sale was untimely because the objection to the timeliness of the report of the third sale did not come until the appeal following entry of the first confirmation order. Belans v. Bank of Am., N.A., 309 Ga. App. 208 , 709 S.E.2d 853 (2011).

Genuine issues of fact remained as to amount of damages. - In a mortgage foreclosure action, the grant of summary judgment to the bank as to the amount of damages owed on the note and guarantees was reversed because the discrepancies were material to the amount of unpaid principal, interest, and contractual attorney fees owed by the mortgagors; thus, material issues of fact existed as to the amount of damages. Mashburn Constr., L.P. v. CharterBank, 340 Ga. App. 580 , 798 S.E.2d 251 (2017).

Resale
1. Discretion of Court

Resale provision permissive, not mandatory. - The provision that resale "may be granted for good cause shown" in O.C.G.A. § 44-14-161(c) is entirely permissive, and not mandatory. It means there is no presumption in favor of resale and there is no entitlement to a resale. Resolution Trust Corp. v. Morrow Auto Ctr., Ltd., 216 Ga. App. 226 , 454 S.E.2d 138 (1995).

No presumption in favor of resale. - No presumption exists in favor of resale and there is no entitlement to a resale, either for mere failure to show the sale brought true market value, for a mere flawed appraisal, or for any reason. Sanusi v. Cmty. & S. Bank, 330 Ga. App. 198 , 766 S.E.2d 815 (2014).

The authority of the trial judge in O.C.G.A. § 44-14-161 to order a resale may be equated with the right to exercise legal discretion. Adams v. Gwinnett Com. Bank, 238 Ga. 722 , 235 S.E.2d 476 (1977).

O.C.G.A. § 44-14-161 plainly grants a trial court the discretionary power to order a resale. Adams v. Gwinnett Com. Bank, 140 Ga. App. 233 , 230 S.E.2d 324 (1976), aff'd, 238 Ga. 722 , 235 S.E.2d 476 (1977).

O.C.G.A. § 44-14-161(c) confers upon the trial court legal discretion in determining whether to order a resale. Government Nat'l Mtg. Ass'n v. Belue, 201 Ga. App. 661 , 411 S.E.2d 894 (1991).

The language of O.C.G.A. § 44-14-161 vests considerable discretion in the judge. Thompson v. Maslia, 127 Ga. App. 758 , 195 S.E.2d 238 (1972).

There is no requirement that the deed to secure debt itself must authorize a resale. Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321 , 254 S.E.2d 475 (1979).

Decision is the court's. - O.C.G.A. § 44-14-161 leaves the decision whether to order a resale of property sold pursuant to a power of sale, where the property fails to bring its fair market value, to the sound discretion of the trial court. United States v. Golf Club Co., 435 F.2d 9 (5th Cir. 1970).

O.C.G.A. § 44-14-161 imposes no duty on the court to order resales when property sold at a foreclosure sale brings less than its fair market value, but rather leaves the ordering of resales to the discretion of the trial court. United States v. Golf Club Co., 435 F.2d 9 (5th Cir. 1970).

Denial of resale not an abuse of discretion. - Trial court did not abuse the court's discretion in denying a resale because the creditor failed to show that either the trial court's ruling was unsupported by any evidence or that the court's ruling misstated or misapplied the relevant law. The creditor should have detected the flaws in the appraisal upon which the creditor relied as the creditor's decision-maker had the experience, sophistication, and resources to detect the flaws. RES-GA LJY, LLC v. Y. D. I., Inc., 322 Ga. App. 607 , 745 S.E.2d 820 (2013).

Resale order has the effect of setting aside prior sale. - Following confirmation of a foreclosure sale, the debtor argued that the lender did not have title to the property because the trial court had not rescinded an earlier foreclosure sale; however, the trial court's resale order had the effect of setting aside the first sale. Further, a challenge to title fell outside the ambit of a confirmation proceeding. Yellow Creek Invs., LLC v. Multibank 2009-1 CRE Venture, LLC, 329 Ga. App. 577 , 765 S.E.2d 728 (2014).

There is no abuse of the exercise of the trial court's discretion, as a matter of law, where no "good cause" has been shown which would demand a foreclosure resale. Five Dee Ranch Corp. v. Federal Land Bank, 148 Ga. App. 734 , 252 S.E.2d 662 (1979).

There is no abuse of discretion by the trial court in ordering a resale where there is evidence that the property did not bring its true market value, but the creditor's failure in this regard was not brought about by any failure to sell and buy the property intentionally at a price less than the true market value. Adams v. Gwinnett Com. Bank, 140 Ga. App. 233 , 230 S.E.2d 324 (1976), aff'd, 238 Ga. 722 , 235 S.E.2d 476 (1977).

Trial court did not err by ordering a resale of property after the court declined to confirm a nonjudicial foreclosure sale, as there was nothing to show that the court did not base the court's order on the court's own discretion or that the court acted under any belief in a mandate to order a resale simply because the property failed to sell for fair market value pursuant to O.C.G.A. § 44-14-161(c) . Vill. at Lake Lanier, LLC v. State Bank & Trust Co., 314 Ga. App. 498 , 724 S.E.2d 806 (2012).

The court does not err in ordering a resale where there is evidence supporting the court's finding that the price received at the sale was inadequate, and O.C.G.A. § 44-14-161 authorizes such resale. Davie v. Sheffield, 123 Ga. App. 228 , 180 S.E.2d 263 (1971).

2. Good Cause

A failure to sell for the true market value constitutes good cause for ordering a resale. Adams v. Gwinnett Com. Bank, 140 Ga. App. 233 , 230 S.E.2d 324 (1976), aff'd, 238 Ga. 722 , 235 S.E.2d 476 (1977); Homes of Tomorrow, Inc. v. FDIC, 149 Ga. App. 321 , 254 S.E.2d 475 (1979); Damil, Inc. v. First Nat'l Bank, 165 Ga. App. 678 , 302 S.E.2d 600 (1983).

A resale may be had for mere inadequacy of price. Davie v. Sheffield, 123 Ga. App. 228 , 180 S.E.2d 263 (1971).

Good faith. - Georgia courts have granted resales only when they find that a mortgagee has in good faith bid a price less than the true market value. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

An order to resell under O.C.G.A. § 44-14-161 , which is technically an order to set aside a sale and also an order to resell, may be appropriate where the court denies confirmation of a sale for an inadequate price, but finds that the creditor acted in good faith in conducting the sale. FDIC v. Dye, 642 F.2d 837 (5th Cir. 1981).

Trial court did not err by ordering a resale of property after the court declined to confirm a nonjudicial foreclosure sale as, pursuant to O.C.G.A. § 44-14-161(c) , the court focused on the appropriate "good cause" standard rather than a standard based on "good faith"; the resale was properly ordered when the bank acted in good faith and when the property failed to sell for the property's true market value. Vill. at Lake Lanier, LLC v. State Bank & Trust Co., 314 Ga. App. 498 , 724 S.E.2d 806 (2012).

A defense to a resale order must bear upon the question of the good faith of the mortgagee in the conduct of the sale and bid, and must be a defense otherwise relevant to the issue of confirmation vel non. Weems v. McCloud, 619 F.2d 1081 (5th Cir. 1980).

Failure to prove good cause. - Trial court erred in ordering property to be resold under O.C.G.A. § 44-14-161(c) because the mortgagee did not meet the mortgagee's burden of proving good cause for the resale, and the mortgagor did not have the opportunity to defend against the same; by agreement of the parties and with the express consent of the trial court, the remaining issues relevant to the confirmation proceeding had been reserved for a later hearing, and thus, when the trial court ordered the resale, it had neither heard argument nor received any evidence related to the other aspects of the foreclosure sale or the desired outcome of the confirmation proceeding. Nicholson Hills Dev. v. Branch Banking & Trust Co., 316 Ga. App. 857 , 730 S.E.2d 572 (2012).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 613.

18 Am. Jur. Pleading and Practice Forms, Mortgages, § 193.

C.J.S. - 59A C.J.S., Mortgages, § 643.

ALR. - Power of equity in absence of statute to render deficiency judgment in foreclosure action, 34 A.L.R. 1015 .

Statute affecting mortgagee's rights and remedies in respect of deficiency as unconstitutional impairment of obligation of contract, 108 A.L.R. 891 ; 115 A.L.R. 435 ; 130 A.L.R. 1482 ; 133 A.L.R. 1473 .

Failure to make persons whose rights were subject to mortgage parties to foreclosure suit as affecting right to deficiency judgment, 108 A.L.R. 1351 .

Conflict of laws as to application of statute proscribing or limiting availability of action for deficiency after sale of collateral real estate, 44 A.L.R.3d 922.

Mortgages: effect upon obligation of guarantor or surety of statute forbidden, or restricting deficiency judgment, 49 A.L.R.3d 554.

Propriety of setting minimum or "upset price" for sale of property at judicial foreclosure, 4 A.L.R.5th 693.

Necessity of production of original note involved in mortgage foreclosure - twenty-first century cases, 86 A.L.R.6th 411.

44-14-162. Sales made on foreclosure under power of sale - Manner of advertisement and conduct necessary for validity; filing.

  1. No sale of real estate under powers contained in mortgages, deeds, or other lien contracts shall be valid unless the sale shall be advertised and conducted at the time and place and in the usual manner of the sheriff's sales in the county in which such real estate or a part thereof is located and unless notice of the sale shall have been given as required by Code Section 44-14-162.2. If the advertisement contains the street address, city, and ZIP Code of the property, such information shall be clearly set out in bold type. In addition to any other matter required to be included in the advertisement of the sale, if the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor to a new owner and an assumption by the new owner of the debt secured by said mortgage, security deed, or lien contract has been approved in writing by the secured creditor, then the advertisement should also include a recital of the fact of such transfer or conveyance and the name of the new owner, as long as information regarding any such assumption is readily discernable by the foreclosing creditor. Failure to include such a recital in the advertisement, however, shall not invalidate an otherwise valid foreclosure sale.
  2. The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located.

    (Ga. L. 1935, p. 381, § 2; Ga. L. 1981, p. 834, § 1; Ga. L. 2001, p. 856, § 1; Ga. L. 2008, p. 624, § 1/SB 531.)

The 2001 amendment, effective July 1, 2001, added the second through fourth sentences.

The 2008 amendment, effective May 13, 2008, designated the existing provisions as subsection (a), and added subsection (b).

Editor's notes. - Ga. L. 2001, p. 856, § 2, not codified by the General Assembly, provides that the 2001 amendment "shall become effective July 1, 2001, and shall apply with respect to sales under power which are first advertised on or after that date."

Law reviews. - For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For article, "Buying Distressed Commercial Real Estate: What are the Alternatives?," see 16 (No. 4) Ga. St. B.J. 18 (2010). For comment on Ruff v. Lee, 230 Ga. 426 , 197 S.E.2d 376 (1973), see 8 Ga. L. Rev. 264 (1973). For comment, "Are Fannie Mae and Freddie Mac State Actors? State Action, Due Process, and Nonjudicial Foreclosure," see 65 Emory L. J. 107 (2015).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

O.C.G.A. § 44-14-162 is constitutional, and a foreclosure pursuant to it does not violate procedural due process rights. National Community Bldrs., Inc. v. Citizens & S. Nat'l Bank, 232 Ga. 594 , 207 S.E.2d 510 (1974).

There is no denial of due process of law because no hearing is required before sale. Southern Mut. Inv. Corp. v. Thornton, 131 Ga. App. 765 , 206 S.E.2d 846 (1974).

Equal protection. - Since no meaningful government involvement to constitute state action is involved, any contention that O.C.G.A. § 44-14-162 violates the equal protection or due process provisions of the Constitution is without merit. Coffey Enters. Realty & Dev. Co. v. Holmes, 233 Ga. 937 , 213 S.E.2d 882 (1975).

No state action. - A creditor's power of sale is derived from the parties' contractual undertaking rather than from O.C.G.A. § 44-14-162 . Therefore, the mere enactment and enforcement of that section does not itself constitute state action. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).

O.C.G.A. § 44-14-162 is unconstitutional as to pre-existing contracts where the security deed contains contradictory provisions as to sale on default. Atlantic Loan Co. v. Peterson, 181 Ga. 266 , 182 S.E. 15 (1935); Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1 , 147 S.E.2d 31 (1966).

O.C.G.A. § 44-14-162 , unlike the personal property foreclosure Acts, does not itself create any rights in creditors. Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973); Global Indus., Inc. v. Harris, 376 F. Supp. 1379 (N.D. Ga. 1974).

Protects consumer interests. - O.C.G.A. § 44-14-162 provides minimal requirements for the exercise of any contractual power of sale contained in security instruments. In this sense, it may be deemed protective of consumer interests. Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973); Global Indus., Inc. v. Harris, 376 F. Supp. 1379 (N.D. Ga. 1974).

Power of sale contractual. - O.C.G.A. § 44-14-162 regulates the manner in which foreclosure sales under powers contained in security deeds are conducted; but, the creditor's power of sale is derived from the parties' contractual undertaking rather than from that section. Global Indus., Inc. v. Harris, 376 F. Supp. 1379 (N.D. Ga. 1974).

O.C.G.A. § 44-14-162 does not come into operation unless there already exists a power of sale contained in a deed to secure debt, mortgage, or other lien contract. It does not direct that a power of sale be employed; it merely specifies the minimal procedures to be employed once the parties have entered into a contractual relation. Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973); Global Indus., Inc. v. Harris, 376 F. Supp. 1379 (N.D. Ga. 1974).

Section does not authorize such sales. - O.C.G.A. § 44-14-162 merely regulates the manner in which foreclosure sales under powers contained in security deeds are conducted and does not even directly authorize such sales. Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975), rev'd on other grounds, 556 F.2d 356 (5th Cir. 1977).

Issues of standing and assignment not relevant. - Property owner's claim that a bank was not a real party in interest was not relevant to a confirmation proceeding pursuant to O.C.G.A. § 44-14-162 as the matter was commenced in accordance with O.C.G.A. § 44-14-161(a) by the person instituting the foreclosure proceedings; issues of standing and assignment were irrelevant to the confirmation proceeding. White Oak Homes, Inc. v. Cmty. Bank & Trust, 314 Ga. App. 502 , 724 S.E.2d 810 (2012), cert. denied, No. S12C1120, 2012 Ga. LEXIS 671 (Ga. 2012).

Inclusion of nonjudicial foreclosure in deed. - O.C.G.A. § 44-14-162 does govern the exercise of private powers of sale, but it does not require the inclusion of nonjudicial foreclosure in a deed to secure debt or a mortgage. Roberts v. Cameron-Brown Co., 556 F.2d 356 (5th Cir. 1977).

No confirmation where no indication of proper advertising or notification. - Where no evidence appeared in the transcript of the hearing on the confirmation petition tending to indicate either that the sale was properly advertised or that the landowner was properly notified of the sale, the judgment of confirmation must be reversed. Martin v. Federal Land Bank, 173 Ga. App. 142 , 325 S.E.2d 787 (1984), aff'd, 254 Ga. 610 , 333 S.E.2d 370 (1985).

Assignment recorded after notice of sale. - Because Georgia law requires only that the foreclosing entity record the security deed prior to the time of sale, that the assignment was recorded after the notice of sale under power was first published did not affect the trustee's authority to foreclose on the property after recordation. Phillips v. Ocwen Loan Servicing, F. Supp. 2d (N.D. Ga. Sept. 12, 2014).

Preservation for review. - Property owner's claim that a foreclosure advertisement did not comply with O.C.G.A. §§ 9-13-140(a) and 44-14-162 was waived on appeal due to the owner's failure to comply with Ga. Ct. App. R. 25(a)(1); the owner did not show how the enumeration of error was preserved for review, and it did not provide any relevant citation to the record to show that the claim of error was raised below. White Oak Homes, Inc. v. Cmty. Bank & Trust, 314 Ga. App. 502 , 724 S.E.2d 810 (2012), cert. denied, No. S12C1120, 2012 Ga. LEXIS 671 (Ga. 2012).

Resale of property when first sale invalid. - Trial court did not err in allowing a bank to resell property because the first foreclosure sale was invalid and, therefore, inoperative, and the bank cured the invalidity by conducting a second foreclosure; when the lender is also the purchaser at an invalid sale the lender can treat the sale as void and resell the property in the manner that the lender should have sold the property in the first place. Duke Galish, LLC v. SouthCrest Bank, 314 Ga. App. 801 , 726 S.E.2d 54 (2012).

Trial court did not err in allowing a bank to resell property because the borrower did not show that the bank acted in bad faith during the foreclosure process; the bank undertook to remedy the defect in the first foreclosure sale by dismissing the action to confirm the sale and by proceeding to foreclose again, after the assignment had been recorded. Duke Galish, LLC v. SouthCrest Bank, 314 Ga. App. 801 , 726 S.E.2d 54 (2012).

Trial court erred by failing to confirm sale. - Trial court erred by denying a creditor's petition to confirm the foreclosure sale of six townhouses because the sale satisfied applicable notice and advertisement requirements and the uncontradicted evidence showed that the townhouses did sell for at least fair market value. RBC Real Estate Fin., Inc. v. Winmark Homes, Inc., 318 Ga. App. 507 , 736 S.E.2d 117 (2012).

Borrowers lacked standing to challenge assignment of security deed. - In a wrongful foreclosure action, the district court did not err in concluding that the borrowers lacked standing to challenge the assignment of the security deed because, even though the assignment allegedly contained a patent defect in attestation, they were not parties to the assignment and had demonstrated no other right to challenge it. Haynes v. McCalla Raymer LLC, 793 F.3d 1246 (11th Cir. 2015).

Cited in Smith v. Associated Mtg. Cos., 186 Ga. 121 , 197 S.E. 222 (1938); Giordano v. Stubbs, 228 Ga. 75 , 184 S.E.2d 165 (1971); Thompson v. Maslia, 127 Ga. App. 758 , 195 S.E.2d 238 (1972); First Nat'l Bank & Trust Co. v. Kunes, 128 Ga. App. 565 , 197 S.E.2d 446 (1973); First Nat'l Bank & Trust Co. v. Kunes, 230 Ga. 888 , 199 S.E.2d 776 (1973); Giordano v. Stubbs, 356 F. Supp. 1041 (N.D. Ga. 1973); Kilgore v. Life Ins. Co., 138 Ga. App. 890 , 227 S.E.2d 860 (1976); Jones v. Hamilton Mtg. Corp., 139 Ga. App. 239 , 228 S.E.2d 170 (1976); FDIC v. Ivey-Matherly Constr. Co., 144 Ga. App. 313 , 241 S.E.2d 264 (1977); Fleming v. Federal Land Bank, 144 Ga. App. 371 , 241 S.E.2d 271 (1977); Grizzle v. Federal Land Bank, 145 Ga. App. 385 , 244 S.E.2d 362 (1978); Five Dee Ranch Corp. v. Federal Land Bank, 148 Ga. App. 734 , 252 S.E.2d 662 (1979); Heard v. Decatur Fed. Sav. & Loan Ass'n, 157 Ga. App. 130 , 276 S.E.2d 253 (1980); FDIC v. Dye, 642 F.2d 833 (5th Cir. 1981); Armstrong v. Lattimore, 164 Ga. App. 232 , 296 S.E.2d 188 (1982); United States v. Fidelity Capital Corp., 888 F.2d 1344 (11th Cir. 1989); First Nat'l Bank v. Loggins, 207 Ga. App. 814 , 429 S.E.2d 278 (1993); Dickens v. Calhoun First Nat'l Bank, 208 Ga. App. 489 , 431 S.E.2d 121 (1993); Cummings v. Anderson, 173 Bankr. 959 (Bankr. N.D. Ga. 1994); Ames v. JP Morgan Chase Bank, N.A., 298 Ga. 732 , 783 S.E.2d 614 (2016); McCalla Raymer, LLC v. Foxfire Acres, Inc., 356 Ga. App. 117 , 846 S.E.2d 404 (2020).

Notice

No notice beyond that required by law, the advertisement, and the contract is necessary. Southern Mut. Inv. Corp. v. Thornton, 131 Ga. App. 765 , 206 S.E.2d 846 (1974).

Holder of mortgage or trust deed not required to give notice. - In the absence of a specific provision to that effect, the holder of a mortgage or trust deed with power of sale is not required to give notice of the exercise of the power to a subsequent purchaser or incumbrancer; and the validity of the sale is not affected by the fact that such notice is not given. Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass'n, 247 Ga. 730 , 279 S.E.2d 442 (1981).

Right to notice other than by advertisement. - Only the property owner was entitled to receive any notice of the initiation of foreclosure proceedings other than by advertisement. Breitzman v. Heritage Bank, 180 Ga. App. 171 , 348 S.E.2d 713 (1986).

By receiving actual notice of foreclosure sale, appellant received more notice than law required, since notice by advertisement in accordance with O.C.G.A. § 44-14-162 is sufficient. McKinney v. South Boston Sav. Bank, 156 Ga. App. 114 , 274 S.E.2d 34 (1980).

The holder of a secondary deed to secure debt is not entitled to any notice beyond that called for by the contract. Ruff v. Lee, 230 Ga. 426 , 197 S.E.2d 376 (1973), for comment, see 8 Ga. L. Rev. 264 (1973).

Holders of inferior security deed assigned to foreclosing party were not entitled to receive and to rely upon notice of the exercise of power of sale in first security deed other than that provided for in the first security deed and O.C.G.A. § 44-14-162 . Kennedy v. Gwinnett Com. Bank, 155 Ga. App. 327 , 270 S.E.2d 867 (1980).

Junior lien holders and mortgagees are not entitled to any notice of sale except by publication under O.C.G.A. § 44-14-162 . Chattanooga Fed. Sav. & Loan Ass'n v. Northwest Recreational Activities, Inc., 4 Bankr. 33 (Bankr. N.D. Ga. 1980).

The fact that the advertisement did not state that the automatic stay provisions of the Bankruptcy Code had been lifted with respect to the debtor's property did not tend to "chill" the sale of the property. Shingler v. Coastal Plain Prod. Credit Ass'n, 180 Ga. App. 539 , 349 S.E.2d 785 (1986).

Failure to meet notice requirements. - At a hearing for confirmation of a foreclosure sale, if either the notice or the advertisement does not substantially meet legal requirements, the sale should be set aside; but, not every irregularity or deficiency at this point will void the sale. Walker v. Northeast Prod. Credit Ass'n, 148 Ga. App. 121 , 251 S.E.2d 92 (1978).

Foreclosure sale was void where the required legal advertisement was not published during the week immediately preceding the sale. Foster v. F & M Bank, 108 Bankr. 361 (Bankr. M.D. Ga. 1989).

The alleged failure to advertise the four weeks immediately preceding the sale pursuant to O.C.G.A. § 9-13-141 , would not render the sale absolutely void. Stripling v. F & M Bank, 175 Ga. App. 75 , 332 S.E.2d 373 (1985).

Advertisement which a bank published when the bank sold a bowling alley at a foreclosure sale, which provided a metes and bounds description of the property, was sufficient under O.C.G.A. §§ 9-13-40 and 44-14-162 to foreclose on and convey title only to the real property, and a trial was required to determine the amount of money the bank had to turn over to a Chapter 7 debtor's bankruptcy estate under 11 U.S.C. § 542 because the bank improperly sold the debtor's personal property. The court found that it could not determine on summary judgment whether bowling alley lanes and pin setters the bank sold were fixtures or personal property, and the court ordered the parties to present evidence on that issue at trial. Lubin v. Ga. Commerce Bank (In re Southern Bowling, Inc.), Bankr. (Bankr. N.D. Ga. Oct. 8, 2010).

Trial court's grant of summary judgment to a mortgagee was error in property owners' wrongful foreclosure action, as the foreclosure was invalid under O.C.G.A. § 44-14-162(a) since the notice did not comply with O.C.G.A. § 44-14-162.2(a) ; the notice not only did not properly identify the secured creditor, but rather, the notice misidentified the creditor. Reese v. Provident Funding Assocs., LLP, 317 Ga. App. 353 , 730 S.E.2d 551 (2012).

There remained a material question of fact as to plaintiff debtors' claim to set aside a foreclosure sale based on the lack of proper statutory notice called for in O.C.G.A. § 44-14-162(a) because, under O.C.G.A. § 44-14-162.2(b) , nonjudicial foreclosure procedure required that a "copy" of the notice submitted to the publisher be sent to the debtor. The notice sent to the debtors differed from the one published. Rainey v. FMF Capital, LLC, F. Supp. 2d (N.D. Ga. Mar. 30, 2012).

Trial court erred in dismissing a pro se borrower's complaint for wrongful foreclosure and breach of contract against the borrower's lender's alleged assignee; the trial court could not consider documents attached to the motion to dismiss, and the complaint adequately alleged failure to give the borrower notice and improper advertising, contrary to O.C.G.A. §§ 44-14-162(a) and 44-14-162.2 . Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750 , 751 S.E.2d 545 (2013).

Failure to include a reinstatement balance. - Notice of foreclosure under a power of sale contained in a deed to secure debt was not defective because it failed to provide a reinstatement balance. Wright v. Barnett Mtg. Co., 226 Ga. App. 94 , 485 S.E.2d 583 (1997).

Notice of foreclosure sale held sufficient. - Bank gave proper statutory notification of a foreclosure sale to property owners pursuant to O.C.G.A. § 44-14-162(a) when the bank sent to the property's address and the property owners' primary residence, by certified mail, a written notice of the foreclosure sale that specified the bank as the foreclosing party by name, address, and telephone number pursuant to O.C.G.A. § 44-14-162.2 . Mortensen v. Bank of Am., N.A., F. Supp. 2d (M.D. Ga. Nov. 17, 2011).

Foreclosure notice sent by a loan servicer or agent of a secured party was not defective under O.C.G.A. § 44-14-162 . Howard v. Mortg. Elec. Registration Sys., F. Supp. 2d (N.D. Ga. Aug. 17, 2012).

Foreclosure advertisement sufficient. - Foreclosure sale advertisement of a condominium development was sufficient although the advertisement did not note that several units in the development had been sold prior to the foreclosure. The description of the property was correct in itself, and the excepted units were identified on the courthouse steps at the time of the sale. Dan Woodley Cmtys., Inc. v. Suntrust Bank, 310 Ga. App. 656 , 714 S.E.2d 145 (2011).

Superior court did not err in finding that a lender's advertisement of a nonjudicial foreclosure sale properly included a description of the property in accordance with O.C.G.A. § 9-13-140(a) because the legal description in the advertisement was identical to the description in the security deed by which the lender took the lender's interest from a construction company and guarantors; thus, there was no discrepancy between the two, and the advertisement properly reflected the interest taken under the deed and available at the foreclosure sale. Diplomat Constr., Inc. v. State Bank of Tex., 314 Ga. App. 889 , 726 S.E.2d 140 (2012).

Sale properly confirmed. - Trial court did not err in confirming the November sale of certain real estate in a foreclosure action because the mortgagor failed to show that it was deprived of any protection afforded by O.C.G.A. § 44-16-161 as the confirmation proceeding commenced in connection with the November sale comprised a new action after the July sale was invalidated, all of the advertisement requirements were met, and the property was sold for its true market value. Howser Mill Homes, LLC v. Branch Banking & Trust Co., 318 Ga. App. 148 , 733 S.E.2d 441 (2012).

Sale must be advertised in every county where property located. - Trial court did not err in denying a mortgagee's application for confirmation of a nonjudicial foreclosure sale because the court properly ruled that the mortgagee's advertisement failed to comport with the statutory requirements of O.C.G.A. § 44-14-162(a) ; a sale of real property under a power of sale made pursuant to § 44-14-162(a) must be advertised in every county where the property or any portion of the property is located. Nicholson Hills Dev. v. Branch Banking & Trust Co., 316 Ga. App. 857 , 730 S.E.2d 572 (2012).

Conduct of Sale

Manner of sales. - O.C.G.A. § 44-14-162 requires that sales be advertised and conducted in the county in which the real estate is located and at the time, place and usual manner of sheriff's sales, not that sales under power are required to be conducted at the usual time of sheriff's sales in the particular county where the property is located. Butler v. Forsyth County Bank, 153 Ga. App. 122 , 264 S.E.2d 502 (1980).

Given evidence that a security deed was delivered to the clerk's office at 9:41 a.m. on the morning of the day of a foreclosure sale, and because the legal hours of sales were from 10:00 a.m. to 4:00 p.m., the assignment of the security deed to the assignee was filed prior to the sale as required by O.C.G.A. § 44-14-162(b) . L & K Enters., LLC v. City National Bank, N.A., 326 Ga. App. 744 , 755 S.E.2d 270 (2014).

Crucial point of inquiry on confirmation. - Not every irregularity furnishes a basis for voiding a foreclosure sale. The crucial point of the inquiry on confirmation is to insure that the sale was not chilled and the price bid was in fact market value. Stripling v. F & M Bank, 175 Ga. App. 75 , 332 S.E.2d 373 (1985).

Confirmation of sale. - The court's inquiry in a confirmation of a foreclosure sale should go only to the value of the real estate on the date of sale, in the course of the examination to determine which the fairness of the technical procedures used may be examined, but only for the purpose of making sure that the sale was not chilled and the price bid was in fact market value. Shantha v. West Ga. Nat'l Bank, 145 Ga. App. 712 , 244 S.E.2d 643 (1978); Walker v. Northeast Prod. Credit Ass'n, 148 Ga. App. 121 , 251 S.E.2d 92 (1978).

Whether in bankruptcy or not, before a deficiency action may be brought by a creditor who forecloses on Georgia real estate, it must have the price at which the property sold judicially confirmed to be an accurate reflection of the property's fair market value. United States v. Oakland City Apts., Inc., 1 Bankr. 123 (Bankr. N.D. Ga. 1979).

Trial court did not err by confirming a foreclosure sale because issues as to whether the foreclosing bank recorded an assignment of the deed to secure debt before the foreclosure sale and the validity of the assignment were irrelevant to the confirmation proceeding. River Walk Farm, L.P. v. First Citizens Bank & Trust Co., 321 Ga. App. 173 , 741 S.E.2d 165 (2013).

Payment of surplus received from sale. - Grantee of deeds to secure debt had to pay to grantors the surplus from a foreclosure sale of two properties to the grantee's agent and a subsequent transfer of the properties to third parties for profit. Tower Fin. Servs., Inc. v. Smith, 204 Ga. App. 910 , 423 S.E.2d 257 , cert. denied, 204 Ga. App. 922 , 423 S.E.2d 257 (1992).

Upon the failure of a purchaser to comply with a high bid, a property sold at public auction may not be conveyed to the next highest bidder without complying with the terms of O.C.G.A. §§ 9-13-161 and 44-14-162 . Little v. Fleet Fin., 224 Ga. App. 498 , 481 S.E.2d 552 (1997).

Credit sale not found. - If a sheriff's sale was, in other respects, lawful, the mere fact that the sheriff gave a bidder to whom the property had been sold time within which to raise the money to pay for the property would not render it a credit sale. Dorsey v. North Am. Life Ins. Co., 217 Ga. 650 , 123 S.E.2d 919 (1962).

Sale not consummated prior to bankruptcy. - Because a creditor conducted a foreclosure sale of a bankruptcy debtor's property shortly before the debtor filed a bankruptcy petition, the debtor retained a right of redemption which passed to the bankruptcy estate since the sale was not consummated by payment of the bid amount and execution of a deed prior to the debtor's bankruptcy. Chase Home Fin. LLC v. Geiger (In re Geiger), 340 Bankr. 422 (Bankr. M.D. Ga. 2006).

No entitlement to relief. - Borrower who claimed that a mortgage company, a company (LLC) that serviced the borrower's loan, the mortgage company's nominee, and the LLC's foreclosure counsel violated the borrower's rights when they refused to rescind a mortgage and foreclosed on investment property failed to allege facts which showed that the LLC or the nominee violated state law, the Truth in Lending Act, 15 U.S.C. § 1601 et seq., or the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and the court denied the borrower's request for a temporary restraining order or a preliminary injunction prohibiting foreclosure. The borrower incorrectly cited O.C.G.A. § 44-14-236 as the basis for the borrower's claims under state law, and the borrower failed to allege facts that entitled the borrower to relief under O.C.G.A. § 44-14-162 et seq., Georgia's nonjudicial foreclosure statute. Hennington v. Greenpoint Mortg. Funding, Inc., F. Supp. 2d (N.D. Ga. May 15, 2009).

Wrongful foreclosure claim sufficiently pled. - Trial court erred by dismissing the mortgagors' complaint for wrongful foreclosure because, construed in the light most favorable to the mortgagors, the complaint sufficiently alleged that the bank owed obligations to the mortgagors under the security deed and that the bank breached those contractual obligations by going forward with the foreclosure sale despite the error in the published foreclosure advertisements. Racette v. Bank of Am., N.A., 318 Ga. App. 171 , 733 S.E.2d 457 (2012).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 573 et seq.

C.J.S. - 59A C.J.S., Mortgages, § 626 et seq.

ALR. - Statute affecting mortgagee's rights and remedies in respect of deficiency as unconstitutional impairment of obligation of contract, 108 A.L.R. 891 ; 115 A.L.R. 435 ; 130 A.L.R. 1482 ; 133 A.L.R. 1473 .

Recognition of action for damages for wrongful foreclosure - types of actions, 82 A.L.R.6th 43.

Necessity of production of original note involved in mortgage foreclosure - twenty-first century cases, 86 A.L.R.6th 411.

44-14-162.1. Sales made on foreclosure under power of sale - Mailing of notice to debtor - "Debtor" defined.

As used in Code Sections 44-14-162.2 through 44-14-162.4, the term "debtor" means the grantor of the mortgage, security deed, or other lien contract. In the event the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor, the term "debtor" shall mean the current owner of the property encumbered by the debt, if the identity of such owner has been made known to and acknowledged by the secured creditor prior to the time the secured creditor is required to give notice pursuant to Code Section 44-14-162.2.

(Ga. L. 1981, p. 834, § 2.)

Law reviews. - For note, "Opportunity Costs: Nonjudicial Foreclosure and the Subprime Mortgage Crisis in Georgia," see 25 Ga. St. U. L. Rev. 1205 (2009).

JUDICIAL DECISIONS

The definition of "debtor" in O.C.G.A. § 44-162.1 does not apply to O.C.G.A. § 44-14-161 . Hill v. Moye, 221 Ga. App. 411 , 471 S.E.2d 910 (1996).

Right to notice other than by advertisement. - Only the property owner was entitled to receive any notice of the initiation of foreclosure proceedings other than by advertisement. Breitzman v. Heritage Bank, 180 Ga. App. 171 , 348 S.E.2d 713 (1986).

No confirmation where no indication of proper advertising or notification. - Where no evidence appeared in the transcript of the hearing on the confirmation petition tending to indicate either that the sale was properly advertised or that the landowner was properly notified of the sale, the judgment of confirmation must be reversed. Martin v. Federal Land Bank, 173 Ga. App. 142 , 325 S.E.2d 787 (1984), aff'd, 254 Ga. 610 , 333 S.E.2d 370 (1985).

Notice of foreclosure held sufficient. - Trial court did not err in granting a bank and a law firm summary judgment in a former husband's action alleging that they wrongfully foreclosed on property that the husband obtained from his former wife via a divorce decree because the bank and law firm provided the wife with notice of the impending foreclosure sale as required under the terms of the security deed and O.C.G.A. § 44-14-162.2 ; because the husband did not obtain any legal interest in the property until the quitclaim deed from his wife was filed, he was not the owner of the property at the time the bank and law firm were required to provide notice of the foreclosure sale. Farris v. First Fin. Bank, 313 Ga. App. 460 , 722 S.E.2d 89 (2011).

Requirements for notice to debtor. - Trial court did not err in finding the lending company failed to comply with the foreclosure notice provisions of O.C.G.A. § 44-14-162.2 because the company's attorney failed to offer any reasonable explanation as to why, despite knowing that the debtor was the record owner of the properties, the company only sent the notices to the predecessor in interest, and its agent, and the lending company was not entitled to equitable estoppel despite actual notice to the debtor. DIP Lending I, LLC v. Cleveland Avenue Properties, LLC, 345 Ga. App. 155 , 812 S.E.2d 532 (2018).

Damages for wrongful foreclosure without notice. - In a suit brought by a purchaser seeking damages for wrongful foreclosure of certain real property after two foreclosure sales, the trial court erred in granting the second foreclosing bank attorney fees under O.C.G.A. § 9-15-14 , based on frivolous litigation, as that second bank had knowledge of the purchaser's acquisition of the property via the first foreclosure, therefore, the purchaser's suit did not lack substantial justification as to the second bank and the second bank's failure to provide proper notice of the sale to the purchaser. Roylston v. Bank of Am., N.A., 290 Ga. App. 556 , 660 S.E.2d 412 (2008).

Trial court erred by failing to confirm sale. - Trial court erred by denying a creditor's petition to confirm the foreclosure sale of six townhouses because the sale satisfied applicable notice and advertisement requirements and the uncontradicted evidence showed that the townhouses did sell for at least fair market value. RBC Real Estate Fin., Inc. v. Winmark Homes, Inc., 318 Ga. App. 507 , 736 S.E.2d 117 (2012).

Cited in TKW Partners, LLC v. Archer Capital Fund, L.P., 302 Ga. App. 443 , 691 S.E.2d 300 (2010).

44-14-162.2. Sales made on foreclosure under power of sale - Mailing or delivery of notice to debtor - Procedure.

  1. Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor. The notice required by this Code section shall be deemed given on the official postmark day or day on which it is received for delivery by a commercial delivery firm. Nothing in this subsection shall be construed to require a secured creditor to negotiate, amend, or modify the terms of a mortgage instrument.
  2. The notice required by subsection (a) of this Code section shall be given by mailing or delivering to the debtor a copy of the notice of sale to be submitted to the publisher.

    (Ga. L. 1981, p. 834, § 2; Ga. L. 2000, p. 1589, § 3; Ga. L. 2001, p. 1212, § 6; Ga. L. 2008, p. 624, § 2/SB 531.)

The 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the second sentence of subsection (a).

The 2001 amendment, effective July 1, 2001, added "or day on which it is received for delivery by a commercial delivery firm" at the end of the last sentence in subsection (a) and inserted "or delivering" in subsection (b).

The 2008 amendment, effective May 13, 2008, in subsection (a), substituted "30 days" for "15 days" in the first sentence, inserted ", shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor," near the beginning of the second sentence, and added the last sentence; and, in subsection (b), deleted "the published legal advertisement or a copy of" preceding "the notice" and inserted "to be" near the end.

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

Ga. L. 2001, p. 1212, § 7, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2001.

Law reviews. - For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010). For annual survey on real property, see 65 Mercer L. Rev. 233 (2013).

JUDICIAL DECISIONS

Notice via certified mail to property address is sufficient to comply with O.C.G.A. § 44-14-162.2 despite lender's actual notice of debtor's new address where debtor failed to provide written notice to lender of debtor's new address. Zeller v. Home Fed. Savs. & Loan Ass'n, 220 Ga. App. 843 , 471 S.E.2d 1 (1996); Wright v. Barnett Mtg. Co., 226 Ga. App. 94 , 485 S.E.2d 583 (1997).

Notice sufficient when sent to property address. - In an action that arose from foreclosure proceedings on two rental properties owned by the plaintiff, the plaintiff's claim for wrongful foreclosure pursuant to O.C.G.A. § 44-14-162.2 based on improper notice was dismissed because based on the plaintiff's concession that notices were sent to the rental properties it was clear that the notice defendants provided was sufficient; if the plaintiff wished to receive notice at a location other than the rental properties, the plaintiff was required to specify another address in writing, and the defendants' actual knowledge of the plaintiff's California address did not trigger a duty for the defendants to send the notice to that address. Desouza v. Fed. Home Mortg. Corp., F. Supp. 2d (S.D. Ga. Aug. 6, 2012).

Borrower's claim that the lenders' notices of foreclosure were defective because the notices were mailed to the rental properties and not to the borrower's California residential address, in violation of O.C.G.A. § 44-14-162.2(a) , was rejected because the borrower never notified the lenders of the borrower's address, although the lenders had actual knowledge of the borrower's address. DeSouza v. Fed. Home Mortg. Corp., F.3d (11th Cir. July 16, 2014)(Unpublished).

Requirements for notice to debtor. - O.C.G.A. § 44-14-162.2 does not require a secured creditor to be identified in the notice to the debtors as all the statute requires is the name, address, and telephone number of the entity with authority to negotiate, amend, and modify the terms of the mortgage with the debtor. You v. JP Morgan Chase Bank, N.A., 293 Ga. 67 , 743 S.E.2d 428 (2013).

Where a homeowner appealed a district court's decision to grant a Fed. R. Civ. P. 12(b)(6) motion in favor of a bank, the homeowner unsuccessfully contended that the foreclosure notice letter violated O.C.G.A. § 44-14-162.2 because it failed to identify the secured creditor. That statute did not categorically require the foreclosure notice to name either the secured creditor or the note holder. Abdullahi v. Bank of Am., 549 Fed. Appx. 864 (11th Cir. 2013)(Unpublished).

Trial court did not err in finding the lending company failed to comply with the foreclosure notice provisions of O.C.G.A. § 44-14-162.2 because the company's attorney failed to offer any reasonable explanation as to why, despite knowing that the debtor was the record owner of the properties, the company only sent the notices to the predecessor in interest, and its agent, and the lending company was not entitled to equitable estoppel despite actual notice to the debtor. DIP Lending I, LLC v. Cleveland Avenue Properties, LLC, 345 Ga. App. 155 , 812 S.E.2d 532 (2018).

Claim under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., was not sufficiently alleged against a law firm representing the bank because the firm's involvement was limited to two statutorily required foreclosure notifications that the firm sent to homeowners and there was no allegation that the firm had engaged in conduct related to debt collection. Saint Vil v. Perimeter Mortg. Funding Corp., F.3d (11th Cir. Oct. 30, 2015)(Unpublished).

Debtor has no standing to challenge assignment. - Trial court properly granted the defendants' motion to dismiss the plaintiff's breach of contract claim for failure to state a claim because the notice of foreclosure that was attached to and incorporated into the complaint clearly showed that it included the required information and was, thus, sufficient as a matter of law under O.C.G.A. § 44-14-162.2 . Bankston v. RES-GA Twelve, LLC, 334 Ga. App. 302 , 779 S.E.2d 80 (2015).

Lower court correctly determined that the debtors lacked standing to challenge the assignment of the security deed to a bank because the security deed afforded the debtors no right to dispute the assignment as the debtors were not third-party beneficiaries of the assignment as a whole and were not intended to directly benefit from the transfer of the power of sale. Ames v. JP Morgan Chase Bank, N.A., 298 Ga. 732 , 783 S.E.2d 614 (2016).

Notice of foreclosure sale held sufficient. - Because the debtor failed to send written notice of the correct address of the subject property to the bank or its agents, and could not assert an absent grantee's priority to escape the consequences of his own failure to provide a correct property address to all future holders of the note and deed, the foreclosure sale was not set aside; thus, the trial court properly granted summary judgment to the bank and the assignees of the security interest on the ground that the bank provided sufficient notice of the foreclosure sale. Jackson v. Bank One, 287 Ga. App. 791 , 652 S.E.2d 849 (2007), cert. denied, No. S08C0335, 2008 Ga. LEXIS 169 (Ga. 2008).

Trial court did not err in confirming a nonjudicial sale of certain property because the mortgagee's notice of foreclosure substantially complied with the requirements of O.C.G.A. § 44-14-162.2 and was legally sufficient for purposes of confirming the sale since the notice included the name, address, and telephone number of the mortgagee's attorney; O.C.G.A. § 44-14-162.2 does not require the individual or entity be expressly identified as having full authority to negotiate, amend, and modify all terms of the mortgage. TKW Partners, LLC v. Archer Capital Fund, L.P., 302 Ga. App. 443 , 691 S.E.2d 300 (2010).

Creditor's notice of a foreclosure sale that was sent to the debtor's original address listed in the loan documents complied with O.C.G.A. § 44-14-162.2 , although the creditor was aware that the debtor had a new address. The debtor's obligation to provide written notice of the address change was not satisfied by a phone call to the creditor, nor the debtor's return address on the debtor's payment envelopes, nor even the creditor's actual notice of the new address. Colbert v. Branch Banking & Trust Co., 302 Ga. App. 687 , 691 S.E.2d 598 (2010).

Trial court did not err in granting a bank and a law firm summary judgment in a former husband's action alleging that they wrongfully foreclosed on property that the husband obtained from the former wife via a divorce decree because the bank and law firm provided the wife with notice of the impending foreclosure sale as required under the terms of the security deed and O.C.G.A. § 44-14-162.2 ; because the husband did not obtain any legal interest in the property until the quitclaim deed from his wife was filed, the husband was not the owner of the property at the time the bank and law firm were required to provide notice of the foreclosure sale. Farris v. First Fin. Bank, 313 Ga. App. 460 , 722 S.E.2d 89 (2011).

Bank gave proper statutory notification of a foreclosure sale to property owners pursuant to O.C.G.A. § 44-14-162(a) when the bank sent to the property's address and the property owners' primary residence, by certified mail, a written notice of the foreclosure sale that specified the bank as the foreclosing party by name, address, and telephone number pursuant to O.C.G.A. § 44-14-162.2 . Mortensen v. Bank of Am., N.A., F. Supp. 2d (M.D. Ga. Nov. 17, 2011).

Former spouse did not demonstrate that a bank and law firm failed to comply with O.C.G.A. § 44-14-162.2(a) because following the former spouse's alleged acquisition of the property, the former spouse provided no evidence that a written request was made that the bank and law firm send any notices regarding the property to a different address; thus, the bank and law firm complied with the statute by the certified mailing of the foreclosure notice to the property address. Farris v. First Fin. Bank, 313 Ga. App. 460 , 722 S.E.2d 89 (2011).

Foreclosure Notice document - whose authenticity had not been challenged by plaintiff - clearly demonstrated that the Notice complied with all statutory requirements where the trustee was the proper secured creditor and was identified, the Notice was sent to the property address, which was authorized under the statute, and plaintiff had not alleged that plaintiff requested the Notice be sent to an alternate address. Bowman v. U.S. Bank Nat'l Ass'n, F. Supp. 2d (N.D. Ga. Aug. 1, 2013).

District court did not err in dismissing the debtor's wrongful foreclosure claim against the bank and a law firm without leave to amend because the debtor could no longer amend as a matter of course, and amending the complaint would be futile as the debtor alleged no facts suggesting that the bank did not have legal right to foreclose, and the record reflected that the bank, through the law firm, gave adequate notice, so the debtor would not have been able to state a claim under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k, wrongful foreclosure claim, or trespass claim as each of those claims would have been predicated on improper foreclosure proceedings. Muhammad v. JPMorgan Chase Bank, NA, F.3d (11th Cir. May 29, 2014)(Unpublished).

Foreclosure notice substantially complied with Georgia's statutory notice requirements, even though the notice incorrectly identified the loan servicer as the entity with full authority to modify the borrowers' loan because the servicer directed the borrowers to Fannie Mae, the entity with full authority to modify their loan. Haynes v. McCalla Raymer LLC, 793 F.3d 1246 (11th Cir. 2015).

In an action by a decedent's estate administrator, seeking to enjoin, inter alia, the non-judicial foreclosure sale of certain real property, the district court had subject matter jurisdiction because a foreclosure law firm had been fraudulently joined due to the lack of a possible claim against it as the notice of sale identified the proper entity with full authority to negotiate, amend, and modify all terms of the mortgage. Shannon v. Albertelli Firm, P.C., F.3d (11th Cir. May 7, 2015)(Unpublished).

In an action by a decedent's estate administrator, seeking to enjoin, inter alia, the non-judicial foreclosure sale of certain real property, notice was appropriate because it identified the entity with full authority to negotiate, amend, and modify all terms of the mortgage, although another entity held the note. Shannon v. Albertelli Firm, P.C., F.3d (11th Cir. May 7, 2015)(Unpublished).

When a homeowner appealed a district court's Fed. R. Civ. P. 12(b)(6) dismissal of a case arising from an attempted non-judicial foreclosure, the homeowner's claim that the notice of foreclosure was deficient because the notice omitted the words full and all was rejected. Kurtzman v. Nationstar Mortg. LLC, F.3d (11th Cir. Oct. 10, 2017)(Unpublished).

Notice of foreclosure proceedings sufficient. - Trial court did not err in granting summary judgment in favor of the mortgagee in a wrongful foreclosure action because the mortgagee submitted evidence that the mortgagee's attorney mailed written notice of the initiation of foreclosure proceedings on the mortgagor by certified mail and by regular mail to the property address and to the mortgagor's post office box and, although there is no evidence that the mortgagor received any of the notices, the evidence of the proof of mailing was sufficient. Thompson-El v. Bank of Am., N.A., 327 Ga. App. 309 , 759 S.E.2d 49 (2014).

Trial court did not err in finding that the foreclosure notice satisfied the requirements of O.C.G.A. § 44-14-162.2 because the loan servicing corporation complied with the statute by sending the mortgagor a notice of foreclosure more than 30 days before the non-judicial foreclosure sale and the notice specifically informed the mortgagor that the loan servicing corporation had authority to negotiate, amend, and modify all terms of their note and security deed. Reese v. Provident Funding Assocs., LLP, 327 Ga. App. 266 , 758 S.E.2d 329 (2014).

Lender directed the homeowners to Fannie Mae to modify their loan and the notice the homeowners received substantially complied with the statutory notice requirements. Haynes v. McCalla Raymer, LLC, F.3d (11th Cir. July 10, 2015)(Unpublished).

Requirement that a notice of foreclosure must be sent by the secured party means by the foreclosing party, i.e., the name of the party with the authority to negotiate, amend, and modify the terms of the loan, and the required notice need not expressly identify the foreclosing party as a secured creditor. Sheely v. Bank of Am., N.A., 36 F. Supp. 3d 1364 (N.D. Ga. 2014).

District court did not err in granting summary judgment to a mortgage company on the pro se plaintiffs' wrongful foreclosure claim as there were no genuine issues of material fact; as a matter of contract, the mortgage company complied with all the terms of the security deed's power of sale provision, and the notice of default also showed that it substantially complied with the statutory requirements of O.C.G.A. § 44-14-162.2(a) . Aning v. Fannie Mae, 633 Fed. Appx. 773 (11th Cir. 2016)(Unpublished).

Material question of fact regarding sufficiency of notice. - There remained a material question of fact as to plaintiff debtors' claim to set aside a foreclosure sale based on the lack of proper statutory notice because, under O.C.G.A. § 44-14-162.2(b) , nonjudicial foreclosure procedure required that a "copy" of the notice submitted to the publisher be sent to the debtor. The notice sent to the debtors differed from the one published. Rainey v. FMF Capital, LLC, F. Supp. 2d (N.D. Ga. Mar. 30, 2012).

Trial court erred in granting summary judgment to a loan servicer on a borrower's claim for wrongful foreclosure because there was evidence that the servicer failed to provide notice of the foreclosure to the borrower's attorney as the borrower had requested in compliance with O.C.G.A. § 44-14-162.2 . Zhong v. PNC Bank, N.A., 345 Ga. App. 135 , 812 S.E.2d 514 (2018), cert. denied, No. S18C1034, 2018 Ga. LEXIS 696 (Ga. 2018), cert. denied, No. S18C1032, 2018 Ga. LEXIS 700 (Ga. 2018).

Notice held insufficient. - Trial court's grant of summary judgment to a mortgagee was error in property owners' wrongful foreclosure action, as the foreclosure was invalid under O.C.G.A. § 44-14-162(a) since the notice did not comply with O.C.G.A. § 44-14-162.2(a) ; the notice not only did not properly identify the secured creditor, but rather, the notice misidentified the creditor. Reese v. Provident Funding Assocs., LLP, 317 Ga. App. 353 , 730 S.E.2d 551 (2012).

While the bank's first letter was sent by certified mail, it was not a notice of the initiation of proceedings to exercise a power of sale, but was an initial correspondence letter and the bank's second letter to the debtors was a notice of foreclosure sale for the property, but was only sent by first class mail, which did not satisfy the requirements of O.C.G.A. § 44-14-162.2(a) . Peters v. CertusBank Nat'l Ass'n, 329 Ga. App. 29 , 763 S.E.2d 498 (2014).

Right to notice other than by advertisement. - Only the property owner was entitled to receive any notice of the initiation of foreclosure proceedings other than by advertisement. Breitzman v. Heritage Bank, 180 Ga. App. 171 , 348 S.E.2d 713 (1986).

Deed of sale need not be set aside where only 14 days' notice was received by property owner who had defaulted on installment payments, even though O.C.G.A. § 44-14-162.4 requires that a deed under power contain a recital setting forth the giving of 15-day notice. Abdalla v. Reagin Enters., Inc., 256 Ga. 279 , 347 S.E.2d 585 (1986).

Actual receipt of properly mailed notice immaterial. - Where it was undisputed that the grantee mailed a notification of the sale under power correctly addressed to the grantor in accordance with O.C.G.A. § 44-14-162.2 , the actual receipt (or want of receipt) by the grantor of the notice of sale under power was immaterial to the right of the grantee to sale under power. McCollum v. Pope, 261 Ga. 835 , 411 S.E.2d 874 (1992).

The notice is complete upon mailing to the address of record with the creditor and the debtor's actual receipt of the notice is immaterial. Davis v. Victor Warren Properties, Inc., 216 Bankr. 898 (Bankr. N.D. Ga. 1997).

Trial court properly refused to set aside a foreclosure sale and a deed under a power of sale, as plaintiffs, first and second mortgagors, received the 15-day notice of the sale that was required by O.C.G.A. § 44-14-162.2 ; plaintiffs' failure to accept the certified letter containing the notice constituted receipt, as the letter was properly addressed and mailed to their post office box. Arrington v. Reynolds, 255 Ga. App. 291 , 564 S.E.2d 870 (2002).

Although the debtors did not receive the Notice of Acceleration and Foreclosure because it was delivered to and signed for by their granddaughter who lives next door, it was undisputed that the Notice was correctly addressed. Accordingly, the lack of receipt was immaterial under Georgia law. 21st Mortg. Corp. v. Johnson (In re Johnson), Bankr. (Bankr. S.D. Ga. Feb. 18, 2015).

Chapter 13 debtor's wrongful foreclosure claim failed because the bank mailed notice of the sale under power to the debtor in accordance with the requirements of Georgia law, and actual receipt was immaterial to the right of the bank. Because there was no state action involved, constitutional due process was not implicated. McCallum v. Bank of Am., N.A. (In re McCallum), Bankr. (Bankr. M.D. Ga. Mar. 22, 2018).

Foreclosure of unimproved lots. - The notice requirements of O.C.G.A. § 44-14-162.2 were not applicable to the foreclosure of unimproved lots. Stepp v. Farm & Home Life Ins. Co., 222 Ga. App. 257 , 474 S.E.2d 108 (1996).

Complaint was not sufficient to state a claim. - Borrower was not allowed to add a claim under O.C.G.A. § 44-14-162.2 against the assignee lender since the claims were based on the assertion that the assignee did not have full authority to negotiate, amend, and modify the terms of the loan because it was merely a servicing agent, the Georgia Supreme Court had indicated that a servicing agent could have full authority within the meaning of § 44-14-162.2 , and the assignee was specifically assigned both the security deed and the promissory note as well as all powers, options, privileges, and immunities arising under those instruments. Hall v. HSBC Mortg. Servs., F.3d (11th Cir. Sept. 19, 2014)(Unpublished).

Claim for wrongful foreclosure was insufficient to state a claim because the foreclosing bank, as the assignee of a deed of trust, had authority to conduct the non-judicial foreclosure despite the fact the bank did not hold the note. Muhammad v. JP Morgan Chase Bank, N.A., F. Supp. 2d (N.D. Ga. June 19, 2013).

Complaint stated claim for wrongful foreclosure. - Trial court erred in dismissing a pro se borrower's complaint for wrongful foreclosure and breach of contract against his lender's alleged assignee; the trial court could not consider documents attached to the motion to dismiss, and the complaint adequately alleged failure to give the borrower notice and improper advertising, contrary to O.C.G.A. §§ 44-14-162.2 and 44-14-162(a) . Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750 , 751 S.E.2d 545 (2013).

Damages for wrongful foreclosure without notice. - In a suit brought by a purchaser seeking damages for wrongful foreclosure of certain real property after two foreclosure sales, the trial court erred in granting the second foreclosing bank attorney fees under O.C.G.A. § 9-15-14 , based on frivolous litigation, as that second bank had knowledge of the purchaser's acquisition of the property via the first foreclosure, therefore, the purchaser's suit did not lack substantial justification as to the second bank and the second's bank failure to provide proper notice of the sale to the purchaser. Roylston v. Bank of Am., N.A., 290 Ga. App. 556 , 660 S.E.2d 412 (2008).

Allegation of failure to provide notice supports wrongful foreclosure claim. - Trial court erred in finding that a mortgagor's claim that the mortgagee breached the mortgagee's duty in failing to provide proper notice of the foreclosure sale showed no basis for a wrongful foreclosure claim because an allegation that the lender failed to provide notice of foreclosure as required by O.C.G.A. § 44-14-162.2 supported a wrongful foreclosure claim under Georgia law and the trial court erroneously considered the mortgagee's evidence outside of the pleadings. Mbigi v. Wells Fargo Home Mortg., 336 Ga. App. 316 , 785 S.E.2d 8 (2016).

Application to foreclosure sales. - Trial court properly granted summary judgment to two banks in a purchaser's suit seeking the excess proceeds from two foreclosure sales and damages based upon claims that the banks failing to provide proper notice of the foreclosure sales as required by the Georgia Residential Mortgage Act, O.C.G.A. § 44-14-162.2 , did not apply to the foreclosure sales at issue, rather, the statute only applies to the sale of a mortgage loan. Roylston v. Bank of Am., N.A., 290 Ga. App. 556 , 660 S.E.2d 412 (2008).

Rescission of foreclosure sale. - Trial court properly granted summary judgment to a bank in a suit alleging wrongful rescission by a purchaser after the bank rescinded a foreclosure sale because the case law holding that substantial compliance with O.C.G.A. § 44-14-162.2 is sufficient in the notice to the debtor did not apply retroactively to avoid the bank's avail of the safe harbor provision of O.C.G.A. § 9-13-172.1(d)(1). Stowers v. Branch Banking & Trust Co., 317 Ga. App. 893 , 731 S.E.2d 367 (2012).

Res judicata barred subsequent suit against bank following foreclosure. - Trial court properly granted the bank's motion to dismiss the plaintiffs' breach of contract and wrongful foreclosure claims under O.C.G.A. § 9-11-12(b)(6) because the plaintiffs' previous litigation against the bank could have included the plaintiffs' new claims and, thus, were barred by the doctrine of res judicata. Harris v. Deutsche Bank Nat'l Trust Co., 338 Ga. App. 838 , 792 S.E.2d 111 (2016).

Proof of notice was insufficient to support motion to dismiss. - Court found that the notice of foreclosure letter did not meet all of the statutory requirements of O.C.G.A. § 44-14-162.2 . The notice failed to indicate whether it was sent by registered or certified mail or statutory overnight delivery, and thus the court could not dismiss the borrower's wrongful foreclosure claim on this basis. Rule v. Chase Home Fin. LLC, F. Supp. 2d (M.D. Ga. May 18, 2012).

Wrongful foreclosure claim was unavailing. - In a wrongful foreclosure action, the property owner did not show that a bank breached a legal duty owed to the owner with respect to providing notice under O.C.G.A. § 44-14-162.2 because the owner did not show that the bank breached a legal duty owed to the owner, the owner's wrongful foreclosure claim was unavailing. Carr v. U.S. Bank, N.A., F.3d (11th Cir. Sept. 5, 2013)(Unpublished).

Trial court erred by failing to confirm sale. - Trial court erred by denying a creditor's petition to confirm the foreclosure sale of six townhouses because the sale satisfied applicable notice and advertisement requirements and the uncontradicted evidence showed that the townhouses did sell for at least fair market value. RBC Real Estate Fin., Inc. v. Winmark Homes, Inc., 318 Ga. App. 507 , 736 S.E.2d 117 (2012).

Cited in Funderburke v. Kellet, 257 Ga. 822 , 364 S.E.2d 845 (1988); Dickens v. Calhoun First Nat'l Bank, 197 Ga. App. 517 , 398 S.E.2d 814 (1990).

RESEARCH REFERENCES

ALR. - Recognition of action for damages for wrongful foreclosure - types of actions, 82 A.L.R.6th 43.

44-14-162.3. Sales made on foreclosure under power of sale - Waiver or release of notice requirement.

No waiver or release of the notice requirement of Code Section 44-14-162.2 shall be valid when made in or contemporaneously with the security instrument containing the power of nonjudicial foreclosure sale; but, notwithstanding the requirements of Code Sections 44-14-162.1, 44-14-162.2, this Code section, and Code Section 44-14-162.4, a subsequent quitclaim deed in lieu of foreclosure shall be valid and effective as such.

(Ga. L. 1981, p. 834, § 2; Ga. L. 2002, p. 415, § 44; Ga. L. 2009, p. 614, § 2/SB 141; Ga. L. 2012, p. 1079, § 1/SB 333.)

The 2002 amendment, effective April 18, 2002, part of an Act to revise, modernize, and correct the Code, substituted ", 44-14-162.2, this Code section, and Code Section" for "through" in subsection (c).

The 2009 amendment, effective July 1, 2009, deleted former subsection (b) which read: "The notice requirement of Code Section 44-14-162.2 shall apply to all nonjudicial foreclosure sales under a mortgage, security deed, or other lien contract taking place after July 1, 1981, this Code section being procedural and remedial in purpose."; and redesignated former subsection (c) as present subsection (b).

The 2012 amendment, effective July 1, 2012, deleted former subsection (a), which read: "The notice requirement of Code Section 44-14-162.2 shall apply only to the exercise of a power of sale of property all or part of which is to be used as a dwelling place by the debtor at the time the mortgage, security deed, or lien contract is entered into."; and deleted the subsection (b) designation. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2012, p. 1079, § 3/SB 333, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2012, and shall apply to sales made on foreclosure under power of sale executed on or after July 1, 2012."

Law reviews. - For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For article, "Georgia Foreclosure Confirmation Proceedings in Today's Recessionary Real Estate World: Back to the Future," see 16 (No. 4) Ga. St. B.J. 11 (2010). For annual survey on real property, see 64 Mercer L. Rev. 255 (2012).

JUDICIAL DECISIONS

Foreclosure of unimproved lots. - The notice requirements of O.C.G.A. § 44-14-162.2 were not applicable to the foreclosure of unimproved lots. Stepp v. Farm & Home Life Ins. Co., 222 Ga. App. 257 , 474 S.E.2d 108 (1996).

Cited in Funderburke v. Kellet, 257 Ga. 822 , 364 S.E.2d 845 (1988); RBC Real Estate Fin., Inc. v. Winmark Homes, Inc., 318 Ga. App. 507 , 736 S.E.2d 117 (2012).

44-14-162.4. Sales made on foreclosure under power of sale - Recitals in deeds as to meeting of notice requirement.

All deeds under power shall contain recitals setting forth the giving of notice in compliance with Code Section 44-14-162.2. The effect of such recitals shall be to protect the validity of the title of any subsequent purchaser in good faith other than the lender.

(Ga. L. 1981, p. 834, § 2; Ga. L. 2012, p. 1079, § 2/SB 333.)

The 2012 amendment, effective July 1, 2012, deleted "or a statement of the facts which render the same inapplicable thereto, which facts may include, without limitation, the nonresidential character of the property" at the end of the first sentence. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2012, p. 1079, § 3/SB 333, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2012, and shall apply to sales made on foreclosure under power of sale executed on or after July 1, 2012."

JUDICIAL DECISIONS

Deed of sale need not be set aside where only 14 days' notice was received by property owner who had defaulted on installment payments, even though O.C.G.A. § 44-14-162.4 requires that a deed under power contain a recital setting forth the giving of 15-day notice. Abdalla v. Reagin Enters., Inc., 256 Ga. 279 , 347 S.E.2d 585 (1986).

44-14-163. Vacation of certain judgments prior to sale - Jurisdiction, power, and authority.

When a judgment is rendered upon any obligation secured by a deed to secure debt, a bond for title to realty, or a bill of sale to personalty given under Code Section 44-14-60, the court which rendered the judgment shall have the jurisdiction, power, and authority to vacate and set aside the judgment at any time before the sale of the property described in the deed, bond for title, or bill of sale is made upon the motion of the attorney of the plaintiff in execution and of the attorney of the defendant in execution and the payment of the costs. The jurisdiction, power, and authority to vacate and set aside a judgment as provided in this Code section shall extend to a judgment on a purchase-money note, a conditional sale contract where a title is reserved as security or a bond for title is given, a judgment and decree foreclosing a mortgage, and all other cases where it is necessary under Code Section 44-14-210 to reconvey property to the defendant in execution for the purpose of levy and sale.

(Ga. L. 1927, p. 220, § 1; Code 1933, § 110-801.)

RESEARCH REFERENCES

ALR. - Taking note for price as waiver of reservation of title under conditional sale, 13 A.L.R. 1044 ; 55 A.L.R. 1160 .

Power of lower court to set aside, on ground of fraud, judgment entered pursuant to mandate of, or affirmed by, review court, 146 A.L.R. 1230 .

Vacation or setting aside of judgment as to one or more of multiple parties against whom rendered as requiring its vacation as to all, 42 A.L.R.2d 1030.

Consent as ground for vacating judgment, or granting new trial, in civil case, after expiration of term or time prescribed by statute or rules of court, 3 A.L.R.3d 1191.

44-14-164. Vacation of certain judgments prior to sale - Cancellation of execution; invalidation of deed made for purpose of levy and sale; notation on record.

Whenever a judgment is so vacated and set aside, the clerk of the court in which it was rendered shall mark the fi. fa. issued on the judgment "canceled"; and the clerk of the superior court shall enter the same upon the general execution docket and make thereon an appropriate reference to the order vacating the judgment. Whenever a judgment is vacated and set aside as provided in Code Section 44-14-163, any deed reconveying the property to the defendant in fi. fa. for the purpose of levy and sale shall be automatically canceled and rendered null and void by virtue of this Code section; and the clerk of the superior court shall enter on the record of such deed or reconveyance, when recorded, the word "canceled" and shall make an appropriate reference to the order vacating the judgment.

(Ga. L. 1927, p. 220, § 2; Code 1933, § 110-802.)

RESEARCH REFERENCES

ALR. - Taking note for price as waiver of reservation of title under conditional sale, 13 A.L.R. 1044 ; 55 A.L.R. 1060 .

Rights and remedies respecting improvements made in reliance on a decree or order as to title or possession of real property which is subsequently reversed, 30 A.L.R. 936 .

Reversal of judgment as affecting another judgment based on the reversed judgment and rendered pending the appeal, 81 A.L.R. 712 .

44-14-165. Vacation of certain judgments prior to sale - Effect.

When a judgment is vacated and set aside as provided by Code Sections 44-14-163 and 44-14-164, the obligation upon which the judgment was rendered, as well as the deed, bond for title, bill of sale securing the same, and other instruments mentioned in Code Section 44-14-163, shall be fully restored in all respects to their original status which existed prior to the commencement of the action in which the judgment was rendered; and thereafter the instruments shall be for all purposes whatsoever legally of force and effect as if an action had not been instituted and a judgment had not been obtained on the obligation.

(Ga. L. 1927, p. 220, § 3; Code 1933, § 110-803.)

RESEARCH REFERENCES

ALR. - Rights and remedies respecting improvements made in reliance on a decree or order as to title or possession of real property which is subsequently reversed, 30 A.L.R. 936 .

PART 2 F ORECLOSURE ON MORTGAGES

Law reviews. - For note discussing how an open end or dragnet clause within a deed to secure debt ensnares subsequent purchasers of real property in light of Commercial Bank v. Readd, 240 Ga. 519 , 242 S.E.2d 25 (1978), see 30 Mercer L. Rev. 363 (1978).

RESEARCH REFERENCES

ALR. - Power of court to authorize discontinuance of public service corporation upon foreclosing a mortgage on its plant, 8 A.L.R. 238 .

Sale under power in mortgage or trust deed as affected by inadequacy of price, 8 A.L.R. 1001 .

Effect of foreclosure of mortgage as terminating lease, 14 A.L.R. 664 .

Contracts requiring vendor or mortgagee to look to property alone for payment, 17 A.L.R. 714 .

Right of mortgagee to receiver, 36 A.L.R. 609 ; 55 A.L.R. 533 ; 87 A.L.R. 1008 ; 111 A.L.R. 730 .

Remedies in respect of mortgage on real property in another state or the debt secured thereby, 42 A.L.R. 470 .

Reacquisition by mortgagor, or his grantee, of the title through foreclosure of first mortgage as affecting rights under a second mortgage to which the property was subject before the foreclosure, 51 A.L.R. 445 ; 111 A.L.R. 1285 .

Validity and effect of provision in insurance policy for forfeiture upon foreclosure, or commencement of foreclosure, or other proceeding to enforce a mortgage, 57 A.L.R. 1044 .

Rights and remedies of purchaser under foreclosure sale where foreclosure proceedings are imperfect or irregular, 73 A.L.R. 612 .

Validity of mortgage securing unlimited future advances, 81 A.L.R. 631 .

Right under mortgage by co-owners of undivided interests to foreclose as against less than all of such interests, 82 A.L.R. 1347 .

Power of court or receiver pending foreclosure suit and before sale as regards rental or other conditions of occupation, with respect to persons in possession under lease or agreement subordinate to mortgage, 86 A.L.R. 366 .

Power of Legislature or court to protect bondholders as class, without consent of all of them, against sacrifice of property on foreclosure, 88 A.L.R. 1270 .

Financial depression as justification of moratorium or other relief to mortgagors, 90 A.L.R. 1330 ; 94 A.L.R. 1352 ; 96 A.L.R. 853 ; 97 A.L.R. 1123 ; 104 A.L.R. 375 .

Misstatement as to amount of liens against the property in notice of sale under power in real estate mortgage, as affecting validity of sale or as ground for avoiding it, 91 A.L.R. 731 .

Implied power of trustee under mortgage or deed of trust who purchases property in behalf of bondholders at foreclosure sale, to give new mortgage, 95 A.L.R. 527 .

Rights of tenant who holds over after expiration of term with consent of the then owner as against mortgagee or lienor pending the original term, or their successors in interest, 98 A.L.R. 216 .

Covenant in real estate mortgage to pay taxes as surviving foreclosure, 99 A.L.R. 581 .

Liability of mortgagee or mortgaged property for expenses of receivership not sought by him, or for expenditures by receiver in connection with the property, 104 A.L.R. 990 .

Failure to take judgment for deficiency in suit to foreclose mortgage brought after appointment of receiver or trustee in bankruptcy of mortgagor as affecting right to its allowance as claim in insolvency or bankruptcy proceedings, 104 A.L.R. 1141 .

Liability of mortgagee for damages because of wrongful foreclosure or improper execution of rightful foreclosure, 108 A.L.R. 592 .

Relation and rights inter se of purchaser under foreclosure of mortgage and tenant under lease subsequent to mortgage, 109 A.L.R. 447 .

Provisions in mortgage of real property, or decree of foreclosure, or extraneous agreements, as affecting right of purchaser at foreclosure to what would otherwise pass as part of the realty, 110 A.L.R. 347 .

Right to maintain single suit to foreclose separate mortgages, securing same debt or portions thereof, upon real property in different counties, 110 A.L.R. 1477 .

Release of mortgagor (or intermediate grantee who has assumed the mortgage) by subsequent dealings between his grantee and mortgagee, 112 A.L.R. 1324 .

Right to join state (or officer who represents state) in mortgage foreclosure suit in order to cut off interest acquired by state subject to the mortgage, 113 A.L.R. 1511 .

Accountability of mortgagee or pledgee for profit made upon resale of the property after purchase thereof at foreclosure or other enforcement sale, 117 A.L.R. 863 .

Strict foreclosure as remedy where claimant of title, interest, or lien subordinate to mortgage was not made party to prior judicial foreclosure and sale, 118 A.L.R. 769 .

Judgment for debt without foreclosure of mortgage securing it as affecting mortgage, or right to foreclose the same, where no execution or attachment is levied under the judgment, 121 A.L.R. 917 .

Sale in inverse order of alienation, 131 A.L.R. 4 .

Right of junior lienor in respect of redemption as affected by failure to make him a party to suit to foreclose senior mortgage or properly to serve him with process in such suit, 134 A.L.R. 1490 .

Validity and effect, as against mortgagee or purchaser upon foreclosure, of mortgagor's assignment of rents to third person, 146 A.L.R. 1133 .

Waiver of right to foreclose mortgage, 148 A.L.R. 686 .

Opening mortgage foreclosure decree to bring in omitted parties, 155 A.L.R. 66 .

Extension of time to redeem from mortgage foreclosure sale, by agreement or other acts of one person entitled to redeem, as inuring to benefit of other person entitled to redeem, 161 A.L.R. 201 .

Foreclosure of mortgage or trust deed as affecting easement claimed in, over, or under property, 46 A.L.R.2d 1197.

Foreclosure sale or mortgaged real estate as a whole or in parcels, 61 A.L.R.2d 505.

Right of junior mortgagee whose mortgage covers only a part of land subject to first mortgage to redeem pro tanto, where he was not bound by foreclosure sale, 46 A.L.R.3d 1362.

Failure to keep up insurance as justifying foreclosure under acceleration provision in mortgage or deed of trust, 69 A.L.R.3d 774.

44-14-180. Manner of foreclosing; petition; rule; venue.

Mortgages on real estate may be foreclosed in the following manner:

  1. Any person who applies and who is entitled to foreclose the mortgage shall, by himself or his attorney, petition the superior court of the county wherein the mortgaged property is located, which petition shall contain a statement of the case, the amount of the petitioner's demand, and a description of the property mortgaged;
  2. Upon the filing of the petition, the court shall grant a rule directing that the principal, the interest, and the costs be paid into court. The rule shall be published twice a month for two months or served on the mortgagor or his special agent or attorney at least 30 days prior to the time at which the money is directed to be paid into the court; and
  3. Notwithstanding paragraphs (1) and (2) of this Code section, where the land covered by the mortgage shall consist of a single tract of land divided by a county line or county lines, the mortgage may be foreclosed on the entire tract in either of the counties in which part of it is located; but, if the mortgagor shall reside upon the land, the mortgage shall be foreclosed in the county of his residence.

    (Laws 1829, Cobb's 1851 Digest, pp. 570, 572; Laws 1836, Cobb's 1851 Digest, p. 572; Code 1863, § 3866; Code 1868, § 3886; Code 1873, § 3962; Ga. L. 1878-79, p. 50, § 1; Code 1882, § 3962; Civil Code 1895, § 2743; Civil Code 1910, § 3276; Ga. L. 1920, p. 78, § 1; Code 1933, § 67-201.)

Law reviews. - For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B.J. 254 (1972).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Foreclosure consequences of power to mortgage. Adams v. Mayor of Rome, 59 Ga. 765 (1877).

Proceeding statutory. - The proceeding to foreclose under O.C.G.A. § 44-14-180 was statutory, and not an equitable action. Smith v. First Nat'l Bank, 143 Ga. 543 , 85 S.E. 696 (1915).

Locus of land gives jurisdiction. - Under O.C.G.A. § 44-14-180 the locus of the land gives jurisdiction, and the only judgment the court can pass is that the lands shall be sold to satisfy the debt. No other property can be levied on. DeGive v. Lewis, 52 Ga. 588 (1874).

Where judgment is granted in the county of the mortgagor's residence, which is not where the land is situated, the claimant of the land under a mortgage fi. fa. may raise the objection on the trial of the claim. Hackenhull v. Westbrook, 53 Ga. 285 (1874).

Venue of attorney's liens. - A proceeding to foreclose an attorney's lien upon real property is to be brought as is a proceeding to foreclose a mortgage upon property of like kind; and hence the venue of such a proceeding is the county wherein the land lies as provided for in O.C.G.A. § 44-14-180 . McCalla v. Nichols, 102 Ga. 28 , 28 S.E. 988 (1897).

The action fails, where there is a total absence of a rule nisi in a mortgage foreclosure, and the mere filing of the petition will not suffice to authorize the action to be treated as commenced and pending. York v. Edwards, 52 Ga. App. 388 , 183 S.E. 339 (1936).

Effect of waiver of statutory requirements. - Waivers by the defendant of statutory requirements, of O.C.G.A. §§ 44-14-180 and 44-14-181 , and consents that the rules nisi and absolute may be issued and the mortgage finally foreclosed at the first term, do not bind third persons, nor confer such jurisdiction on the court as will authorize it to render a final judgment of foreclosure at the first term. As to third persons such a judgment is void. Smith v. First Nat'l Bank, 143 Ga. 543 , 85 S.E. 696 (1915).

A petition, under O.C.G.A. § 44-14-180 is a pleading and may be amended as a pleading. Ledbetter v. McWilliams, 90 Ga. 43 , 15 S.E. 634 (1892).

Foreclosure as action within statute of limitations. George v. Gardner, 49 Ga. 441 (1873).

In seeking to foreclose a mortgage which on its face appears to be barred by the statute of limitations, where the desire is to avoid the bar by reason of a new promise of partial payment, such relieving facts must be alleged with sufficient certainty under O.C.G.A. § 44-14-180 to enable the defendant to meet the same by plea as well as proof. Jesup v. Epping, 66 Ga. 334 (1881).

Proceedings were not barred by the limitations statute. York v. Edwards, 52 Ga. App. 388 , 183 S.E. 339 (1936).

Pendency of proceedings no hindrance to other actions. - The pendency of proceedings to foreclose a mortgage under O.C.G.A. § 44-14-180 , is no hindrance to a regular action upon the notes to secure which the mortgage was given. Juchter v. Boehm, Bendheim & Co., 63 Ga. 71 (1879).

Lack of title in mortgagor. - Where the mortgagor of land has no title to it, but only a bargain for it, with part payment of the purchase money, the mortgagee cannot have the aid of a court of equity to foreclose the mortgage as against the holder of the title, without offering to pay the remainder of the purchase money. Crummey v. Mechanics' & Sav. Bank, 30 Ga. 670 (1860).

Debt not due at commencement of terms. - Although, when the term commenced at which the rule nisi to foreclose was taken, the debt, to secure which the mortgage was given, was not due, yet if, when the petition and rule nisi were represented, the debt had matured and the rule nisi was served on the defendant more than three months (now 30 days) before the next term, at which the money due on the mortgage was required to be paid; this is all that the mortgagee was entitled to under O.C.G.A. § 44-14-180 . Hart v. Altmeyer & Co., 74 Ga. 367 (1884).

The evidence in a claim case pending a fi. fa. on a mortgage was sufficient to show that a rule nisi and a rule absolute were granted. Redding v. Anderson, 144 Ga. 100 , 86 S.E. 241 (1915).

No appeal lies from a rule absolute awarded by the court for the foreclosure of a mortgage. Clifton v. Livor, 24 Ga. 91 (1858).

For discussion of the effect on O.C.G.A. § 44-14-180 of certain laws not directly amending that section, see Swift v. Van Dyke, 98 Ga. 725 , 26 S.E. 59 (1896).

Cited in Allen v. Glenn, 87 Ga. 414 , 13 S.E. 565 (1891); Michelson v. Cunningham, 96 Ga. 601 , 24 S.E. 144 (1895); Lankford v. Peterson, 20 Ga. App. 147 , 92 S.E. 764 (1917); Green v. Spires, 189 Ga. 719 , 7 S.E.2d 246 (1940); Banks v. Employees Loan & Thrift Corp., 112 Ga. App. 38 , 143 S.E.2d 787 (1965); Walker v. Small Equip. Co., 114 Ga. App. 603 , 152 S.E.2d 629 (1966); Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975); Wright v. Barnett Mtg. Co., 226 Ga. App. 94 , 485 S.E.2d 583 (1997).

Service

Process compared. - While the rule nisi signed by the judge differs from the process issued by the clerk in ordinary cases, in that there must be personal service or service by publication, and the leaving of a copy at the defendant's residence is not sufficient, as well as differing in other respects, it is nevertheless in many respects analogous to regular process. York v. Edwards, 52 Ga. App. 388 , 183 S.E. 339 (1936).

Rule is only process. - In a statutory proceeding to foreclose a mortgage on realty, the only "process" that is necessary is the rule nisi prescribed by O.C.G.A. § 44-14-180 , and the only prayer for process that is necessary is a prayer for such a rule. Smith v. Downing Co., 21 Ga. App. 741 , 95 S.E. 19 (1896). See also Montgomery v. King, 123 Ga. 14 , 50 S.E. 963 (1905).

Service by publications. - Where the plaintiff seeks a judgment in rem, and not a judgment in personam, service by publication, in accordance with the terms of O.C.G.A. § 44-14-180 , is no less effective than personal service. Smith v. Downing Co., 21 Ga. App. 741 , 95 S.E. 19 (1918).

Leaving a copy at defendant's residence. - In cases of foreclosure of mortgages, the service must be personal, or by publication under O.C.G.A. § 44-14-180 . Service by leaving a copy at the residence of the defendant is not sufficient. Dykes v. McClung, 74 Ga. 382 (1884); Hobby v. Bunch, 83 Ga. 1 , 10 S.E. 113 , 20 Am. St. R. 301 (1899); Southern State Phosphate & Fertilizer Co. v. Clark, 149 Ga. 647 , 101 S.E. 536 (1919).

If the only service of the rule nisi to foreclose the mortgage under O.C.G.A. § 44-14-180 , was by leaving copy at the most notorious place of abode of the defendant, and there was no personal service, this furnished a good ground of defense to the foreclosure. Meeks v. Johnson, 75 Ga. 629 (1885).

The service of the rule on a trustee to foreclose mortgage on land, is sufficient under O.C.G.A. § 44-14-180 ; and the cestui que trust need not be made a party. Wood v. Nisbet, 20 Ga. 72 (1856).

Service by an unofficial person is not legal under O.C.G.A. § 44-14-180 . Falvey v. Jones, 80 Ga. 130 , 4 S.E. 264 (1887); Hobby v. Bunch, 83 Ga. 1 , 10 S.E. 113 , 20 Am. St. R. 301 (1899); Montgomery v. King, 123 Ga. 14 , 50 S.E. 963 (1905); Southern States Phosphate & Fertilizer Co. v. Clark, 19 Ga. App. 376 , 91 S.E. 573 (1917); Southern States Phosphate & Fertilizer Co. v. Clark, 149 Ga. 647 , 101 S.E. 536 (1919).

Where the entry of service is signed by one assuming to act as deputy sheriff, and an affidavit of illegality is interposed alleging that such person is not in fact a deputy sheriff, if both the sheriff and the person acting as deputy sheriff are not made parties to the traverse, there is no such attack upon the return as would justify a judgment setting it aside, and on motion such a ground of illegality should be dismissed. Southern States Phosphate & Fertilizer Co. v. Clark, 19 Ga. App. 376 , 91 S.E. 573 (1917).

Day of serving rule counted. - The day on which the rule nisi to foreclose a mortgage on land was served should be counted. English v. Ozburn, 59 Ga. 392 (1877).

The return day in case of a foreclosure of a mortgage on real estate, under O.C.G.A. § 44-14-180 , was the day to which the rule nisi was returnable. Swint v. Milner Banking Co., 30 Ga. App. 733 , 119 S.E. 336 (1923).

Late service returnable to next term. - Where a rule nisi upon a petition to foreclose was issued more than three months (now 30 days) before the next term of court, at which term the mortgagor was required to pay the money into court, and personal service of the rule nisi was effected prior to the term at which the payment was required to be made, but too late to be due service to that term, it would go over and become returnable to the next succeeding term. Vaughan v. F & M Bank, 145 Ga. 338 , 89 S.E. 195 (1916).

Where quarterly terms of the superior court in a particular county are provided for by law, and, a rule nisi on a petition to foreclose a mortgage on realty is granted at one term under O.C.G.A. § 44-14-180 , and the first day of the next regular succeeding term will occur within less than three months (now 30 days) after the grant of the rule nisi, it should be made returnable to the first term thereafter for which lawful service can be had, or the next term but one. Southern States Phosphate & Fertilizer Co. v. Clark, 19 Ga. App. 376 , 91 S.E. 573 (1917).

As in the case of ordinary process served an insufficient length of time before the appearance term, which O.C.G.A. § 44-14-180 makes good for the next succeeding term, a rule nisi issued upon a petition to foreclose a mortgage upon realty, service of which is made prior to the term at which the mortgagee is directed to pay the money into court, but too late to be due service for that term, goes over, and becomes returnable to the next succeeding term. York v. Edwards, 52 Ga. App. 388 , 183 S.E. 339 (1936).

Effect of defective service. - Where service of a rule nisi was acknowledged by the mortgagors four days before the rule absolute was granted by the court, and the judgment absolute recited that the mortgagors named had "acknowledged service on this rule nisi," such defective service did not render the judgment absolute void, but voidable. Milltown Lumber Co. v. Blitch, 146 Ga. 253 , 91 S.E. 62 (1916).

In the service of a rule nisi issued by the judge in proceedings to foreclose an attorney's lien on land, analogous to a rule nisi in mortgage foreclosure proceedings, the service of an ordinary copy instead of a certified copy of the rule nisi, especially when in effect so provided in the rule nisi, does not render the service and proceedings void. York v. Edwards, 52 Ga. App. 388 , 183 S.E. 339 (1936).

A recital of service under O.C.G.A. § 44-14-180 , if silent as to the mode of service, is to be read in connection with the sheriff's return. Hobby v. Bunch, 83 Ga. 1 , 10 S.E. 113 , 20 Am. St. R. 301 (1899).

Correction of irregularities. - Where valid process has been issued with an action setting out a cause of action, and there has been no sufficient service through no fault or laches of the plaintiff or plaintiff's attorney, the judge may by order provide for the correction of any mere irregularity in the process or service; and after the perfection of service, even though subsequent to the return term, such service will relate to the date of the filing of the petition, which will be treated as the time of commencement of the action. York v. Edwards, 52 Ga. App. 388 , 183 S.E. 339 (1936).

Right of creditor of mortgagor to show improper service. - Where service was regularly returned as made upon a special agent of the mortgagor, a creditor of the mortgagor could not dispute the legality of the service by showing that the person served was not in fact a special agent, it not appearing that the mortgagor had repudiated the service. Flannery & Co. v. Baldwin Fertilizer Co., 94 Ga. 696 , 21 S.E. 587 (1894).

Attorneys' liens. - A proceeding to foreclose an attorney's lien upon real property is to be brought as is a proceeding to foreclose a mortgage upon land; the process is a rule nisi issued by the court, and not a process issued by the clerk as in ordinary cases. Moss v. Strickland, 138 Ga. 539 , 75 S.E. 622 (1912); York v. Edwards, 52 Ga. App. 388 , 183 S.E. 339 (1936).

Time of rendering judgment on attorney's lien. - When a petition for foreclosure of an attorney's lien was filed in the superior court during a regular term thereof, under O.C.G.A. § 44-14-180 , and thereafter the defendant acknowledged due and legal service of such proceedings, the court had jurisdiction to render a judgment of foreclosure at its next succeeding term. Ray v. Hixon, 107 Ga. 768 , 33 S.E. 692 (1899).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, §§ 629, 630, 658, 660.

C.J.S. - 59A C.J.S., Mortgages, § 739 et seq.

ALR. - Provision in land contract against removal of buildings as affecting rights of third person under chattel mortgage or conditional sale, 30 A.L.R. 542 .

Foreclosure of one mortgage as affecting another mortgage on the property held by the same party, 39 A.L.R. 1485 .

Tender after acceleration clause has become operative as preventing foreclosure of mortgage, 41 A.L.R. 732 .

Mortgagor's statutory right to redeem or his right to possession after foreclosure as subject to levy and seizure by creditors, 42 A.L.R. 884 ; 57 A.L.R. 1128 .

Relief to person who by mistake has foreclosed real estate mortgage in manner inimical to his own interests, 42 A.L.R. 1192 .

Liability of grantee assuming mortgage debt to mortgagee or one in privity with him, 47 A.L.R. 339 .

Right to litigate validity of tax title in suit to foreclose mortgage, 85 A.L.R. 1073 .

Application of rents and profits in hands of receiver appointed in mortgage foreclosure proceedings, to the payment of taxes, 88 A.L.R. 1352 .

Financial depression as justification of moratorium or other relief to mortgagor, 97 A.L.R. 1123 ; 104 A.L.R. 375 .

Judicial foreclosure of mortgage as affecting one who was not personally served within jurisdiction and did not appear, as regards the value of the property or the adequacy of the bid in foreclosure, in a subsequent action to enforce his personal liability on the obligation secured by the mortgage, 120 A.L.R. 1366 .

Personal representatives, or nonlien creditors, of deceased mortgagor or of deceased grantee of premises subject to mortgage (with or without assumption of mortgage debt), as necessary or proper parties to foreclosure suit, 124 A.L.R. 784 .

Waiver by mortgagor, his grantee, etc., of statutory provision for exclusive remedy in respect of mortgage or debt secured, 146 A.L.R. 1348 .

Bar of limitation against action on debt secured by mortgage as affecting suit to foreclose mortgage, 161 A.L.R. 886 .

Misstatement in trustee's or mortgagee's report as to amount for which property has been sold under power of sale as ground for avoiding sale, 22 A.L.R.2d 979.

Bankruptcy court's injunction against mortgage or lien enforcement proceedings commenced, before bankruptcy, in another court, 40 A.L.R.2d 663.

Redemption rights of vendee defaulting under executory land sale contract after foreclosure sale or foreclosure decree enforcing vendor's lien or rights, 51 A.L.R.2d 672.

Construction of provision in real estate mortgage, land contract, or other security instrument for release of separate parcels of land as payments are made, 41 A.L.R.3d 7.

44-14-181. Proceedings by personal representative when mortgagee deceased.

If the person entitled to foreclose a mortgage on real estate is dead, the application and proceeding to foreclose may be made and prosecuted by his executor or administrator.

(Orig. Code 1863, § 3867; Code 1868, § 3887; Code 1873, § 3963; Code 1882, § 3963; Civil Code 1895, § 2744; Civil Code 1910, § 3277; Code 1933, § 67-202.)

JUDICIAL DECISIONS

The administrator of the mortgagee is entitled to foreclose at law against the administrator of the mortgagor, and the heirs of the mortgagor are not necessary parties. Dixon v. Cuyler, 27 Ga. 248 (1859).

Foreclosure in administrative capacity. - When a mortgage, made to W, his heirs and assigns, was transferred by W, by written assignment to J as administrator of S, deceased, such assignment, if properly stamped, conveyed the mortgage to the estate, and it became assets in the hands of the administrator, and the proceedings to foreclose it, must be in the name of said J, as administrator and not in an individual character. Flagg & Fish v. Johnston, 39 Ga. 27 (1869).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 1110.

C.J.S. - 59A C.J.S., Mortgages, § 708 et seq.

ALR. - Revivor or other steps necessary in event of mortgagee's death after sale of property but before confirmation of sale, 150 A.L.R. 502 .

44-14-182. Foreclosure by transferee.

An endorsement to order or in blank by the payee of a mortgage note gives the endorsee or the holder for value the right to foreclose the mortgage in his own name. A mortgage transferred without written assignment may be foreclosed in the name of the mortgagee bringing the action for the use of such assignee; and proceedings begun in the name of the transferee may be amended by making the mortgagee a party before or after the judgment.

(Civil Code 1895, § 2745; Civil Code 1910, § 3278; Code 1933, § 67-203.)

History of section. - This section was codified from the decisions of Nicholson v. Whaley, 90 Ga. 257 , 16 S.E. 84 (1892); Burgwyn & Bros. Tobacco Co. v. Bentley & Co., 90 Ga. 508 , 16 S.E. 216 (1892), and Setze v. First Nat'l Bank, 140 Ga. 603 , 79 S.E. 540 (1913). It appeared for the first time in the Code of 1895.

JUDICIAL DECISIONS

Holder of note. - A blank endorsement of the payee of a mortgage note is sufficient to pass the legal title in the note and mortgage to the holder thereof, and the mortgage may be foreclosed by the holder in the holder's own name. Patillo v. Hallet & Davis Piano Co., 26 Ga. App. 327 , 106 S.E. 206 (1921).

Holder using mortgagee's name. - The purchaser of notes secured by mortgage may foreclose the mortgage at law by using the name of the mortgagee for the purchaser's use, even against the consent of the mortgagee, by giving proper indemnity. Calhoun v. Tullass, 35 Ga. 119 (1866).

Transferee foreclosing where first foreclosure irregular. - A transferee of a mortgage fi. fa. can foreclose the mortgage in own name as transferee, if for any reason the first foreclosure on which the fi. fa. is based is irregular or defective. Ragan v. Coley & Bro., 4 Ga. App. 421 , 61 S.E. 862 (1908).

Amendment of parties. - Although the bearer of a mortgage, as such, has no right to foreclose it in the bearer's own name, yet where it appears that one so proceeding had, in fact, a transfer in writing to the bearer personally, the verbal inaccuracy in describing the character as plaintiff could have been amended. Taylor v. Blasingame, 73 Ga. 111 (1884).

Amendment of judgment after adjournment. - After the adjournment of the term at which it was rendered, a judgment cannot be amended on the merits of the cause by reason of facts or conditions subsequently transpiring. Richards v. McHan, 139 Ga. 37 , 76 S.E. 382 (1912).

Evidence justifying recovery. - In an action upon a mortgage note, instituted by the payee for the use of an assignee, where it appears that the assignee is the holder of the legal title, the assignee is the real party at interest. Although the petition may not be amended by striking the name of the nominal party plaintiff and substituting therefor the name of the assignee as plaintiff, there may nevertheless be a recovery for the plaintiff upon evidence which sustains only the right of the assignee to recover, where such evidence has been admitted without objection. Carden v. Hall, 34 Ga. App. 806 , 131 S.E. 296 (1926).

Cited in Montgomery v. King, 123 Ga. 14 , 50 S.E. 963 (1905).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, §§ 1017, 1019.

C.J.S. - 59 C.J.S., Mortgages, § 352.

ALR. - One taking assignment of mortgage in payment of or as collateral security for prior debt as a bona fide purchaser, 80 A.L.R. 395 .

Mortgagee's rights in respect of assumption clause in deed as affected by invalidity or avoidability of clause as between grantor and grantee, 100 A.L.R. 911 .

Personal liability of purchaser of property subject to chattel mortgage, to the mortgagee, 100 A.L.R. 1038 .

Release of vendee (or intermediate assignee of vendee's interest) by subsequent dealings between assignee and vendor, 125 A.L.R. 979 .

44-14-183. Proceedings against personal representative when mortgagor deceased.

When the mortgagor is dead, the proceedings to foreclose the mortgage on real estate may be instituted against his executor or administrator.

(Orig. Code 1863, § 3870; Code 1868, § 3890; Code 1873, § 3966; Code 1882, § 3966; Civil Code 1895, § 2748; Civil Code 1910, § 3281; Code 1933, § 67-204.)

JUDICIAL DECISIONS

If a mortgagor dies insolvent, and there is no administration on mortgagor's estate, and the equity of redemption has been sold, the mortgagee may proceed to foreclose, in equity, against such purchaser and the purchaser's vendees. May & Stokes v. Rawson, 21 Ga. 461 (1857).

Sale. - If, pending a regular proceeding to foreclose a mortgage upon realty given by a testator, the executor validly sells the mortgaged property, this will bar the rendition of a judgment of foreclosure. Reed v. Aubrey, 91 Ga. 435 , 17 S.E. 1022 , 44 Am. St. R. (1893). See also Newsom v. Carlton, 59 Ga. 516 (1877).

Cited in Harvey v. Beasley, 144 Ga. 517 , 87 S.E. 655 (1916).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 1295.

C.J.S. - 59 C.J.S., Mortgages, § 550.

ALR. - Necessity in suit to foreclose mortgage on property of decedent of joining as parties devisees or heirs of decedent, and effect of failure to do so, 119 A.L.R. 807 .

Personal representatives, or nonlien creditors, of deceased mortgagor or of deceased grantee of premises subject to mortgage (with or without assumption of mortgage debt), as necessary or proper parties to foreclosure suit, 124 A.L.R. 784 .

44-14-184. Defense against foreclosure; verification.

When a rule nisi to foreclose a mortgage on real estate has been granted and published or served as required in Code Section 44-14-180, the mortgagor or his special agent or attorney may appear at the time at which the money is directed to be paid and file his objections to the foreclosure of the mortgage and may set up and avail himself of any defense which he might lawfully set up in an ordinary action instituted on the debt or demand secured by the mortgage and which defense shows that the applicant is not entitled to the foreclosure sought or that the amount claimed is not due; provided, however, that the facts of the defense shall be verified by the affidavit of the mortgagor or his special agent or attorney at the time of the filing of the affidavit.

(Laws 1799, Cobb's 1851 Digest, p. 510; Laws 1839, Cobb's 1851 Digest, p. 572; Code 1863, § 3868; Code 1868, § 3888; Code 1873, § 3964; Code 1882, § 3964; Civil Code 1895, § 2746; Civil Code 1910, § 3279; Code 1933, § 67-301.)

Law reviews. - For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

An appeal is not the defendant's remedy where a counteraffidavit filed by the defendant to a mortgage foreclosure in a justice's court is dismissed for insufficiency because it sets up no defense to the foreclosure but constitutes a claim of title to the property filed by the defendant personally. Wage Earners' Real Estate Co. v. Gaulden, 43 Ga. App. 702 , 159 S.E. 910 (1931).

Cited in Lankford v. Peterson, 20 Ga. App. 147 , 92 S.E. 764 (1917); Smith v. Cone, 171 Ga. 697 , 156 S.E. 612 (1931); Green v. Spires, 189 Ga. 719 , 7 S.E.2d 246 (1940); Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975).

Defenses

Accumulative defenses. - In a proceeding to foreclose, it is competent for the mortgagor, at the second term, to show cause why the rule absolute should not be granted, that the mortgage debt is usurious, that it is founded upon a gaming consideration, or that it was contracted to compound a felony, or that the mortgage was given under duress or has been released, or to avail any other defense which goes to show that the mortgagee is not "entitled" to a judgment of foreclosure, or, that the amount claimed is not due. Dixon v. Cuyler, 27 Ga. 248 (1859).

Where a defense is purely equitable, a party is not foreclosed from asserting a right, by suffering judgment at law to go against that party by reason of sickness. Clifton v. Livor, 24 Ga. 91 (1858).

Property subject to bankruptcy. - That mortgaged property is subject to be administered in bankruptcy will not entitle the mortgagor to resist the administration of it by foreclosure and sale under proceedings in the appropriate court of the state. Broach v. Powell, 79 Ga. 79 , 3 S.E. 763 (1887).

That the defendant has been adjudged a bankrupt, and the property covered by the mortgage regularly set apart to defendant as defendant's exemption, is not a good plea in bar to the foreclosure of said mortgage, where it is not alleged that the mortgagee proved the lien in the bankrupt court, or that the assignee has interfered in any manner with the mortgage. Cumming v. Clegg, 52 Ga. 605 (1874). See also Hatcher v. Jones, 53 Ga. 208 (1874).

A discharge in bankruptcy is no defense to the foreclosure of a mortgage executed more than four months prior to the filing of the petition in bankruptcy, when the debt secured by the mortgage has not been proved in the bankrupt court. Camp v. Young, 119 Ga. 981 , 47 S.E. 560 (1904). See also Evans v. Rounsaville & Bro., 115 Ga. 684 , 42 S.E. 100 (1902).

Stay pending bankruptcy determination. - A plea interposed to a proceeding to foreclose a mortgage on land, that, pending the proceedings to foreclose, the mortgagor was adjudicated a bankrupt, and praying that such proceedings be stayed until the question of the discharge in bankruptcy of the mortgagor is determined, is not good. Carter v. Peoples Nat'l Bank, 109 Ga. 573 , 35 S.E. 61 (1900).

Homestead. - Where a homestead was set apart under the Constitution of 1868, and a mortgage on the homestead property was given in 1898, it was permissible for the defendant to set up the homestead in defense under O.C.G.A. § 44-14-184 to an action to foreclose the mortgage. Ach & Co. v. Milam, 118 Ga. 105 , 44 S.E. 870 (1903).

In an action against a mortgagor individually to foreclose a mortgage on land, it is no defense to the foreclosure that after the mortgage was given a part of the land covered by the mortgage had been set apart to the defendant as the head of a family for a homestead. Rathel v. Fort, 134 Ga. 268 , 67 S.E. 417 (1910).

Property subjected to support of others. - Where property has been mortgaged, which is subject to the support of the mother of the mortgagors during her natural life, and proceedings are instituted to foreclose by the mortgagees, there is no good legal or equitable ground why the mortgages should not be foreclosed, as between the mortgagors and mortgagees. Colquitt & Baggs v. Tarver, 45 Ga. 631 (1872).

That the land covered by a mortgage lien had been set apart to the widow of the mortgagor as a year's support, over objections filed by the mortgagee, constituted no defense to the foreclosure of the mortgage. Derrick v. Sams, 98 Ga. 397 , 25 S.E. 509 , 58 Am. St. R. 309 (1896).

Lack of title in deceased owner. - Where a person executed a mortgage upon certain property, that person's administrator is estopped, in an action brought to foreclose the mortgage, to plead want of title in intestate at the time the mortgage was executed. Carter & Woolfolk v. Jackson, 115 Ga. 676 , 42 S.E. 46 (1902).

Forgery of deed in vendor's title. - To the foreclosure of a mortgage on land for the purchase money thereof, it was no defense that one of the deeds in the vendor's title appeared on its face to be a forgery; there being no allegation that the vendor warranted the title to the vendee, nor that there was fraud in the transaction, nor that any of the purchase money had been paid. O'Neal v. Carmichael, 84 Ga. 511 , 11 S.E. 352 (1890).

Trust property mortgaged. - In a proceeding to foreclose a mortgage on real estate, the mortgagor cannot set up as a defense against the mortgagee, that the property so mortgaged was trust property, and that the mortgagor had no right to mortgage it. Boisclair v. Jones, 36 Ga. 499 (1867).

A plea of not indebted, though supplemented by the allegation that the mortgage "was obtained by fraud on the part of the plaintiff," without alleging the particular fraudulent acts relied upon to defeat a recovery, is not such an issuable defense as prevents the granting of a rule absolute. Woods v. Roberts, 97 Ga. 254 , 22 S.E. 986 (1895).

Debt not due. - In view of O.C.G.A. § 44-14-184 a plea which denied that the debt was due, and alleged want of consideration and fraud in the procurement of the draft to secure which the mortgage was made, should not have been dismissed on demurrer (now motion to dismiss). Hall v. Davis, 73 Ga. 101 (1884).

Fraud in procurement of draft. - See Hall v. Davis, 73 Ga. 101 (1884).

Usury. - Upon a rule to foreclose a mortgage, the mortgagor may show, by way of defense, that the contract upon which it was given was usurious. Bailey v. Lumpkin, 1 Ga. 392 (1846).

Payment. - A mortgage on land given to secure the payment of promissory notes cannot, after they have been paid, be foreclosed. Ryan v. Rice, 109 Ga. 448 , 34 S.E. 569 (1899).

A general allegation in an answer, that the mortgagee has paid $50.00 or $60.00 for which no credit has been given, and that the mortgagee is unable to give the sum or date of each payment, without alleging to whom, or when, or where such payments were made, is subject to demurrer (now motion to dismiss). Montgomery v. King, 125 Ga. 388 , 54 S.E. 135 (1906).

Payment as jury question. - Whether the consideration for which a mortgage is alleged to have been executed, is bona fide, or merely colorable to defraud creditors, or so inadequate as to constitute a badge of fraud, is a question of fact for the jury. Williams v. C. & G.H. Kelsey & Halsted, 6 Ga. 365 (1849).

Holder's title to note invalid. - The proceedings were instituted to foreclose a mortgage, in the name of the original mortgagee, for the use of certain persons to whom it was alleged that the security notes had been transferred, and no effort was made to cut off any defense which the mortgagor might have, a mere denial that the title to the notes was in the usees, and an allegation that they held such notes only as securities, did not furnish any valid defense to the foreclosure. Montgomery v. King, 125 Ga. 388 , 54 S.E. 135 (1906).

Setoff. - A mortgagor may plead damages arising from a breach of an independent contract, as a setoff in bar of a proceeding to foreclose a mortgage on land, under O.C.G.A. § 44-14-184 . Mahone v. Elliott, 141 Ga. 214 , 80 S.E. 713 (1914). See also Alston v. J.W. Wheatley & Co., 47 Ga. 646 (1873).

In a proceeding to foreclose a chattel mortgage, the mortgagor is not entitled to plead the defense of setoff in such a summary proceeding, since this defense is not one which goes to the justice of plaintiff's demand. Glass v. Adams, 44 Ga. App. 437 , 161 S.E. 630 (1931).

Judgment improperly rendered. - A petition filed by the defendant to set aside and vacate a judgment of foreclosure improperly rendered, and to enjoin the sale of defendant's property under a levy of the execution issued thereon, was not subject to a general demurrer (now motion to dismiss) in view of O.C.G.A. § 44-14-184 . Walton v. Wilkinson Bolton Co., 158 Ga. 13 , 123 S.E. 103 (1924).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 676.

C.J.S. - 59A C.J.S., Mortgages, § 700.

ALR. - Tender after acceleration clause has become operative as preventing foreclosure of mortgage, 41 A.L.R. 732 .

Judicial foreclosure of mortgage as affecting one who was not personally served within jurisdiction and did not appear, a regards the value of the property or the adequacy of the bid in foreclosure, in a subsequent action to enforce his personal liability on the obligation secured by the mortgage, 120 A.L.R. 1366 .

Necessity of production of original note involved in mortgage foreclosure - twenty-first century cases, 86 A.L.R.6th 411.

44-14-185. Defenses by third persons; right of purchaser not party to foreclosure to go behind judgment.

If the mortgagor or his special agent or attorney fails to set up a defense as provided in Code Section 44-14-184, it shall not be competent for any third person to interpose a defense and neither will the court itself, of its own motion, do so. However, one who purchases mortgaged property prior to the commencement of statutory proceedings to foreclose and who is not a party to the proceedings is not bound by the judgment of foreclosure and may, when the mortgage fi. fa. is levied, go behind the judgment and set up the defense that the mortgage could not be legally enforced against him whenever this is necessary and proper to establish the claim of title upon which he relies.

(Orig. Code 1863, § 3869; Code 1868, § 3889; Code 1873, § 3965; Code 1882, § 3965; Civil Code 1895, § 2747; Civil Code 1910, § 3280; Code 1933, § 67-302.)

History of section. - This section is derived from the decisions in Osborne v. Rice, 107 Ga. 281 , 33 S.E. 54 (1899), and Simmerson v. Herringdine, 166 Ga. 143 , 142 S.E. 687 (1928).

JUDICIAL DECISIONS

In general. - A third person, who is not a party to the record, will not be permitted to make objections to the foreclosure of a mortgage, under O.C.G.A. § 44-14-185 , until that person has been regularly made a party by the judgment of the court but those not parties are not concluded by judgment. McDougald v. Hall, 3 Ga. 174 (1847); Jackson v. Stanford, 19 Ga. 14 (1855); Sutton v. Sutton, 25 Ga. 383 (1858); A.J. Williams & Co. v. Terrell, 54 Ga. 462 (1875); Lilienthal v. Champion, 58 Ga. 158 (1877); Frost v. Borders, 59 Ga. 817 (1877).

To set up a cause of action pursuant to O.C.G.A. § 44-14-185 a purchaser of mortgaged property must show some reason why the foreclosure could not have been legally enforced as against the purchaser's claim of title. Covington v. GMAC, 102 Ga. App. 683 , 117 S.E.2d 554 (1960).

Spouses. - In an action by a wife to cancel a deed of conveyance made by her to her husband and a mortgage on the same property made by her husband to a creditor, the wife was not estopped by the judgment foreclosing the mortgage upon the property in a statutory proceeding by the creditor against the husband, she not being a party thereto. Simmons Hdwe. Co. v. Timmons, 180 Ga. 531 , 179 S.E. 726 (1935).

Junior vendees. - A foreclosure of a mortgage by the statutory method, to which proceeding a junior vendee of the land is not a party, while not conclusive on such vendee is valid as between the holder of the mortgage and the mortgagor. Roberts v. Atlanta Cem. Ass'n, 146 Ga. 490 , 91 S.E. 675 (1917).

Junior mortgagees. - Under O.C.G.A. § 44-14-185 which does not require or permit a junior mortgagee to become a party to a statutory proceeding to foreclose the senior mortgage, where the property has been sold in such foreclosure proceedings the remedy of the junior mortgagee is by a bill to redeem. American Loan & Trust Co. v. Atlanta Elec. Ry., 99 F. 313 (N.D. Ga. 1899).

Creditors who are not parties, have no right to intervene to prevent a foreclosure, by virtue of O.C.G.A. § 44-14-185 , but they may resort to equity to prevent the foreclosure of a fraudulent mortgage which jeopardizes their rights. Albany & Renssellaer Iron & Steel Co. v. Southern Agric. Works, 76 Ga. 135 , 2 Am. St. R. 26 (1886).

Intervention by noncreditors. - In a statutory proceeding by rule nisi to foreclose a mortgage, it is not competent for parties who claim that property belonging to them has been misappropriated, and that they have an interest in the property of the mortgagor, to intervene as defendants to the foreclosure of the mortgage and seek equitable decrees in their favor in such proceeding, by reason of O.C.G.A. § 44-14-185 . If they have any equitable rights, they cannot be thus asserted. Trust Co. v. Sessions, 136 Ga. 862 , 72 S.E. 347 (1911).

Defendant estopped from denying title. - By virtue of O.C.G.A. § 44-14-185 the defendant was estopped by deed from denying title to the mortgaged premises, and neither defendant nor the court, at defendant's suggestion, could intervene for the protection of the rights of a third person, who would not be bound by a judgment to which defendant was not, and could not be made, a party. Hall v. Davis, 73 Ga. 101 (1884).

A claimant against a mortgage fi. fa. cannot take advantage of the fact that the mortgage was foreclosed within 12 months from the granting of letters of administration upon the estate of the deceased mortgagor. Baker v. Shephard, 30 Ga. 706 (1860).

Collateral attack. - All others, than parties or privies, may attack the judgment of foreclosure whenever and wherever it comes in their way and may therefore attack it collaterally. Johnston v. Crawley, 22 Ga. 348 (1857).

RESEARCH REFERENCES

ALR. - One taking assignment of mortgage in payment of or as collateral security for prior debt as a bona fide purchaser, 80 A.L.R. 395 .

Judicial foreclosure of mortgage as affecting one who was not personally served within jurisdiction and did not appear, a regards the value of the property or the adequacy of the bid in foreclosure, in a subsequent action to enforce his personal liability on the obligation secured by the mortgage, 120 A.L.R. 1366 .

44-14-186. Jury trial.

When proceedings to foreclose a mortgage shall be instituted and a defense shall be set up thereto, the issue shall be submitted to and tried by a jury.

(Orig. Code 1863, § 3871; Code 1868, § 3891; Code 1873, § 3967; Code 1882, § 3967; Civil Code 1895, § 2749; Civil Code 1910, § 3282; Code 1933, § 67-303.)

Cross references. - Juries, Ch. 12, T. 15.

JUDICIAL DECISIONS

At what term issue tried. - Where a rule nisi on a petition to foreclose in the superior court directed that the money due on the mortgage be paid into court on or before the first day of the term next immediately succeeding the term at which it was granted, and the rule was served on the defendant at least three months (now 30 days) before the term designated for the payment, the issue made by a defense filed at that term was triable at that term. Lankford v. Peterson, 20 Ga. App. 147 , 92 S.E. 764 (1917).

RESEARCH REFERENCES

ALR. - Tender after acceleration clause has become operative as preventing foreclosure of mortgage, 41 A.L.R. 732 .

Right to jury trial of issues as to personal judgment for deficiency in suit to foreclose mortgage, 112 A.L.R. 1492 .

44-14-187. Judgment; sale of mortgaged property.

When the mortgagor, after being directed so to do, fails to pay the principal, interest, and costs as required by Code Section 44-14-230 and fails to set up and sustain his defense against the foreclosure of the mortgage, the court shall give judgment for the amount which may be due on the mortgage and shall order the mortgaged property to be sold in the manner and under the same regulations which govern sheriffs' sales under execution.

(Laws 1790, Cobb's 1851 Digest, p. 571; Code 1863, § 3872; Ga. L. 1866, p. 25, § 1; Code 1868, § 3892; Code 1873, § 3968; Code 1882, § 3968; Civil Code 1895, § 2750; Civil Code 1910, § 3283; Code 1933, § 67-401.)

JUDICIAL DECISIONS

Conclusiveness of judgment. - Ordinarily a judgment of foreclosure bars only the rights of the mortgagor, the mortgagor's heirs and legal representatives. Howard v. Gresham, 27 Ga. 347 (1859).

A decree foreclosing a mortgage is conclusive upon the defendant in the bill, and upon any purchaser from defendant who purchased after the decree was rendered. Gunn v. Wades, 62 Ga. 20 (1878).

The foreclosure of a mortgage is conclusive between parties and privies, and in a subsequent controversy between them evidence is not admissible to go behind the judgment of foreclosure. Spinks v. Glenn, 67 Ga. 744 (1881).

Amendment to rule absolute to show credits is not allowed. Cherry v. Home Bldg. & Loan Ass'n, 57 Ga. 361 (1876).

Impeachment of judgment. - Upon the trial of a claim case, where the claimant claims through a judgment of foreclosure of mortgage, made by the defendant in execution to defendant's vendor, the plaintiff in execution may impeach that judgment and mortgage, and prove it fraudulent on the trial. Williams v. Martin, 7 Ga. 377 (1849).

Burden of proof in impeachment. - Where on its face a mortgage fi. fa. is valid, the burden of proving that it was based on an invalid judgment of foreclosure is on the claimant. Redding v. Anderson, 144 Ga. 100 , 86 S.E. 241 (1915).

A judgment foreclosing a mortgage, is not within O.C.G.A. § 9-12-61 providing for the dormancy of judgments. Butt v. Maddox, 7 Ga. 495 (1849); Horton v. Clark, 40 Ga. 412 (1869); Redding v. Anderson, 144 Ga. 100 , 86 S.E. 241 (1915).

Sufficiency of judgment. - A judgment of foreclosure of real estate which substantially complies with O.C.G.A. § 44-14-187 is sufficient. Dickerson v. Powell, 21 Ga. 143 (1857).

On the trial of a rule to foreclose a mortgage, the main question is, whether the plaintiff is entitled to recover, as respects the mortgaged property title debt which the mortgage describes, and if not the whole, how much of it. A verdict for so many dollars as principal, with interest, is sufficiently formal and full. O.C.G.A. § 44-14-187 directs what judgment is to be rendered by way of rule absolute in the foreclosure proceeding. Byrd v. Turpin, 62 Ga. 591 (1879).

Court's judgment without jury. - When the mortgagor, upon proceedings to foreclose a mortgage, fails to pay the money into court as directed by the rule nisi duly served upon the mortgagor, and also fails to set up and maintain any defense against the foreclosure of the mortgage, there is, in such case, no issue for trial by jury, and it is the province of the court, upon hearing competent and sufficient evidence, to render judgment under O.C.G.A. § 44-14-187 for the amount which may be due on such mortgage and to order the mortgaged property sold. Ray v. Atlanta Banking Co., 110 Ga. 305 , 35 S.E. 117 (1900). See also Sutton v. Gunn, 86 Ga. 652 , 12 S.E. 979 (1891).

Levy on property in possession of third person. - It is not a trespass for a sheriff to levy a mortgage fi. fa. upon the mortgaged property named in the process, in the possession of a third person and held by that person adversely to the mortgagor - in such a case the sheriff has no discretion, but must levy at all events. Wallace v. Holly, 13 Ga. 389 , 58 Am. Dec. 518 (1853).

Property described in levy. - Whether the property described in the levy was the same as that described in the mortgage and the rule absolute was a question of fact and not of law. Ray v. Atlanta Banking Co., 110 Ga. 305 , 35 S.E. 117 (1900).

Effect of omissions on levy. - Where the sheriff, while making the levy, omitted to recite that the land was levied upon as the property of the defendant named in the execution, the levy was not for that reason void, or inadmissible upon the trial of a claim case between the plaintiff in execution and a third person. Thorton v. Ferguson, 133 Ga. 825 , 67 S.E. 97 , 144 Am. St. R. 226 (1910).

Rights of purchaser at sale. - A bona fide purchaser of land under a mortgage fi. fa. will be protected in title, notwithstanding any irregularity in the proceeding of the foreclosure. DeLorme v. Pease, 19 Ga. 220 (1856).

Where property sold under a void foreclosure of a mortgage as the property of a mortgagor, has been purchased at sheriff's sale, and the purchase money applied to the payment of the mortgage, and the sale and purchase are afterwards set aside and declared void, the purchaser can be subrogated to the rights which the mortgagee originally had to have the mortgage foreclosed and the property therein conveyed sold in discharge of the lien of the mortgage. Dutcher v. Hobby, 86 Ga. 198 , 12 S.E. 356 , 22 Am. St. R. 444 , 10 L.R.A. 472 (1890).

Bona fide purchaser in possession for four years. - Judgments on foreclosure of mortgages are not within the provisions of O.C.G.A. § 9-12-93 , providing that a bona fide purchase of real property and possession for four years discharges the property "from the lien of any judgment against the person from whom he purchased." Redding v. Anderson, 144 Ga. 100 , 86 S.E. 241 (1915).

Resale. - Where, under the express or implied terms of a sale, the purchase price was to be paid upon delivery of the goods, and the vendor, without collecting the purchase price, nevertheless proceeded to make delivery in pursuance of the contract, and the vendee, after such delivery, proceeded to resell the goods to a bona fide purchaser for value, the rights of such innocent third person were governed by the provisions of O.C.G.A. §§ 44-14-187 through 44-14-189 relative to conditional sales, and the vendor could recover the goods from such innocent purchaser, where the terms of sale had not been reduced to writing and recorded as required by these sections. Brumby Chair Co. v. City of Columbus, 46 Ga. App. 163 , 167 S.E. 221 (1932).

Rights of mortgagor's creditors. - It was held under O.C.G.A. § 44-14-187 that if a mortgage debt be infected with usury, and the mortgagor is insolvent, it is the equitable right of a creditor of the mortgagor to compel the mortgagee to purge the claim of the usury charged their common debtor. Parker v. Barnesville Sav. Bank, 107 Ga. 650 , 34 S.E. 365 (1899).

Cited in Lathrop & Co. v. Brown, 65 Ga. 312 (1880); Ach & Co. v. Milam, 118 Ga. 105 , 44 S.E. 870 (1903); Dumas v. Tyus, 147 Ga. 307 , 93 S.E. 894 (1917); James v. Douglasville Banking Co., 26 Ga. App. 509 , 106 S.E. 595 (1921).

RESEARCH REFERENCES

18 Am. Jur. Pleading and Practice Forms, Mortgages, § 41.

ALR. - Priority as between judgment entered and deed or mortgage filed on same day, 37 A.L.R. 268 .

Financial depression or lack of market as ground for enjoining sale under a mortgage or deed of trust to secure debts, 82 A.L.R. 976 ; 90 A.L.R. 1330 ; 94 A.L.R. 1352 ; 96 A.L.R. 853 ; 97 A.L.R. 1123 ; 104 A.L.R. 375 .

Protection of mortgagor or owner of mortgaged property, on foreclosure sale, by fixing upset or minimum price, requiring credit of specified amount on mortgage debt, or denying or limiting amount of deficiency judgment, 85 A.L.R. 1480 ; 89 A.L.R. 1087 ; 90 A.L.R. 1330 ; 94 A.L.R. 1352 ; 96 A.L.R. 853 ; 97 A.L.R. 1123 ; 104 A.L.R. 375 .

Mortgagor in possession as liable to receiver for occupational rent; right to receiver as affected by mortgagor being in possession, 91 A.L.R. 1236 .

Remedy of, and damages recoverable by, mortgagor in case of a premature sale under mortgage, 97 A.L.R. 1059 .

Insurance: mortgagor or privy as sole and unconditional owner after judgment of foreclosure and during redemption period, 107 A.L.R. 1201 .

Right of creditor or mortgagee to redeem from his own sale, 108 A.L.R. 993 .

Personal liability to mortgagor, as distinguished from mortgagee, of vendee of mortgaged premises who does not in terms assume or agree to pay mortgage, 111 A.L.R. 1114 .

Reacquisition by mortgagor, or his grantee, of the title through foreclosure of first mortgage as affecting rights under a second mortgage to which the property was subject before the foreclosure, 111 A.L.R. 1285 .

Judicial foreclosure of mortgage as affecting one who was not personally served within jurisdiction and did not appear, as regards the value of the property or the adequacy of the bid in foreclosure, in a subsequent action to enforce his personal liability on the obligation secured by the mortgage, 120 A.L.R. 1366 .

Rights and remedies of mortgagee where mortgaged property is bid in on foreclosure as less than mortgage debt and it is redeemed by mortgagor or latter's grantee, 128 A.L.R. 796 .

Price obtained at foreclosure sale as affecting liability of guarantor of mortgage debt, 128 A.L.R. 975 .

Creditor or encumbrancer redeeming from mortgage sale as acquiring title and rights of sale purchaser, 135 A.L.R. 196 .

Revivor or other steps necessary in event of mortgagee's death after sale of property but before confirmation of sale, 150 A.L.R. 502 .

Redemption by trustee or beneficiaries from mortgage foreclosure sale, 159 A.L.R. 477 .

Redemption rights of vendee defaulting under executory land sale contract after foreclosure sale or foreclosure decree enforcing vendor's lien or rights, 51 A.L.R.2d 672.

Foreclosure sale of mortgaged real estate as a whole or in parcels, 61 A.L.R.2d 505.

Rights of holder of "first refusal" option on real property in event of sale at foreclosure or other involuntary sale, 17 A.L.R.3d 962.

Mortgages effect upon obligation of guarantor or surety of statute forbidden, or restricting deficiency judgment, 49 A.L.R.3d 554.

Right of vendee under executory land contract to lien for amount paid on purchase price as against subsequent creditors of or purchasers from vendor, 82 A.L.R.3d 1040.

44-14-188. Effect of judgment on one purchasing during pendency of proceedings.

After proceedings to foreclose the mortgage have been begun, a purchaser from the mortgagor shall be bound by the judgment of foreclosure.

(Civil Code 1895, § 2376; Civil Code 1910, § 3269; Code 1933, § 67-402.)

History of section. - This section was codified from the decision of Stokes v. Maxwell, 59 Ga. 78 (1877), which held that the purchaser of land subject to the lien of the mortgage, who buys after the mortgagor has been sued and served with the rule nisi to foreclose the mortgage, will be concluded by the judgment of foreclosure, although the mortgagor was not served until after the term to which the rule was returnable.

JUDICIAL DECISIONS

Rights of one who purchases prior to commencement of proceedings. - One who purchases mortgaged property, prior to the commencement of statutory proceedings to foreclose, and who is not a party to such proceedings, is not bound by the judgment of foreclosure, and may, when the mortgage fi. fa. is levied, go behind the judgment and set up that the mortgage was barred by the statute of limitations at the date of the filing of the petition to foreclose. Washington Exch. Bank v. Holland & Co., 121 Ga. 305 , 48 S.E. 912 (1904).

Resale. - Where, under the express or implied terms of a sale, the purchase price was to be paid upon delivery of the goods, and the vendor, without collecting the purchase price, nevertheless proceeded to make delivery in pursuance of the contract, and the vendee, after such delivery, proceeded to resell the goods to a bona fide purchaser for value, the rights of such innocent third person were governed by the provisions of O.C.G.A. §§ 44-14-187 through 44-14-189 relative to conditional sales, and the vendor could recover the goods from such innocent purchaser, where the terms of sale had not been reduced to writing and recorded as required by these sections. Brumby Chair Co. v. City of Columbus, 46 Ga. App. 163 , 167 S.E. 221 (1932).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 1240.

ALR. - Reacquisition by mortgagor, or his grantee, of the title through foreclosure of first mortgage as affecting rights under a second mortgage to which the property was subject before the foreclosure, 111 A.L.R. 1285 .

44-14-189. Rights of purchaser at void or irregular sale.

A purchaser at a void or irregular judicial sale under the foreclosure of a mortgage shall succeed to all of the interests of the mortgagee.

(Civil Code 1895, § 5471; Civil Code 1910, § 6076; Code 1933, § 67-403.)

History of section. - This section is a codification of the principle enunciated in Dutcher v. Hobby, 86 Ga. 198 , 12 S.E. 356 , 22 Am. St. R. 444 , 10 L.R.A. 472 (1890).

JUDICIAL DECISIONS

O.C.G.A. § 44-14-189 is based on the doctrine of subrogation. Ashley v. Cook, 109 Ga. 653 , 35 S.E. 89 (1900).

For a discussion of the doctrine of subrogation, see Wilkins, Neely & Jones v. Gibson, 113 Ga. 31 , 38 S.E. 374 , 84 Am. St. R. 204 (1901); Hiers v. Exum, 158 Ga. 19 , 122 S.E. 784 (1924).

O.C.G.A. § 44-14-189 included sales under a judgment which set up a special lien granted by a security deed. Ashley v. Cook, 109 Ga. 653 , 35 S.E. 89 (1900). See also Ray v. Pitman, 119 Ga. 678 , 46 S.E. 849 (1904) and Hamilton v. Rogers, 126 Ga. 27 , 54 S.E. 926 (1906).

O.C.G.A. § 44-14-189 does not apply where the purchasers at the void judicial sale were the mortgagees in the mortgage which was foreclosed. Kirland v. Gaskins, Paulk & Co., 20 Ga. App. 235 , 92 S.E. 965 (1917).

Foreclosure for benefit of purchaser. - The purchaser at a void sale under a power in a mortgage may have the mortgage foreclosed for the purchaser's benefit. Wilkins v. McGehee, 86 Ga. 764 , 13 S.E. 84 (1891).

Resale. - Where, under the express or implied terms of a sale, the purchase price was to be paid upon delivery of the goods, and the vendor, without collecting the purchase price, nevertheless proceeded to make delivery in pursuance of the contract, and the vendee, after such delivery, proceeded to resell the goods to a bona fide purchaser for value, the rights of such innocent third person were governed by the provisions of O.C.G.A. §§ 44-14-187 through 44-14-189 relative to conditional sales, and the vendor could recover the goods from such innocent purchaser, where the terms of sale had not been reduced to writing and recorded as required by these sections. Brumby Chair Co. v. City of Columbus, 46 Ga. App. 163 , 167 S.E. 221 (1932).

RESEARCH REFERENCES

23 Am. Jur. Pleading and Practice Forms, Subrogation, § 2.

ALR. - Rights in mortgage security, of mortgagor or intermediate grantee who pays the mortgage debt after conveying the property, 2 A.L.R. 242 .

44-14-190. Disposition of proceeds.

The money arising from the sale of mortgaged property sold under the regulations prescribed in this part shall be paid to the person foreclosing the mortgage unless claimed by some other lien which by law has priority of payment over the mortgage; and, when there is any surplus after paying off the mortgage and other liens, the surplus shall be paid to the mortgagor or his agent.

(Laws 1799, Cobb's 1851 Digest, p. 571; Code 1863, § 3873; Code 1868, § 3893; Code 1873, § 3969; Code 1882, § 3969; Civil Code 1895, § 2751; Civil Code 1910, § 3284; Code 1933, § 67-501.)

Law reviews. - For survey article on real property law, see 60 Mercer L. Rev. 345 (2008).

JUDICIAL DECISIONS

Oldest lien has priority. - The mortgagee, having the oldest lien, was equitably entitled to have the proceeds in the hands of the sheriff applied thereto. Winter v. Garrard, 7 Ga. 183 (1849). See also Thomson v. McCordel, 27 Ga. 273 (1859).

Payment of surplus. - Grantee of deeds to secure debt had to pay to grantors the surplus from a foreclosure sale of two properties to the grantee's agent and a subsequent transfer of the properties to third parties for profit. Tower Fin. Servs., Inc. v. Smith, 204 Ga. App. 910 , 423 S.E.2d 257 , cert. denied, 204 Ga. App. 922 , 423 S.E.2d 257 (1992).

Second mortgage referring to older mortgage. - A first mortgage was entitled to priority over a second which recited that there was an older mortgage on the same property, in a distribution of the proceeds of the mortgaged property, raised at a sale made by a receiver. Kiser & Co. v. Carrollton Dry Goods Co., 96 Ga. 760 , 22 S.E. 303 (1895).

Two mortgages executed on the same day are of equal date, and if both are recorded in time, are entitled to share pro rata in a fund not sufficient to satisfy them both. The law will not note fractions of a day except to prevent injustice, and in cases specially provided for by law. Russell v. C.D. Carr & Co., 38 Ga. 459 (1868).

Where facts apparent on the faces of mortgages executed on same day show that it was the intention of the parties to give the preference to one over the others, that lien so preferred will be enforced. Coleman & Co. v. Carhart, 74 Ga. 392 (1884).

When there is a fund in court on which a judgment creditor can lay hands without trouble, expense or delay, a court of equity will not, at the instance of other creditors, holding junior mortgage liens on the fund, force the judgment creditor to proceed with a judgment against property in the hands of third persons, where the judgment creditor must encounter expense and delay in collecting the debt. Behn & Foster v. William H. Young & Co., 21 Ga. 207 (1857).

Judgment obtained between mortgage and novation. - On a rule for distribution of money in the sheriff's hands, judgments junior to mortgages to a party will prevail over a mortgage fi. fa. junior to the judgments and founded on a mortgage to that party, alleged to have been given in renewal of the former mortgages, but shown by the record to be a novation. Williams & Co. v. Donalson, 84 Ga. 593 , 10 S.E. 1015 (1890).

Judgment younger than mortgage but older than general judgment on same. - The owner of a mortgage on realty did not foreclose the mortgage, but obtained a general judgment on the debt secured by it, and the property embraced in the mortgage was sold by the sheriff. Another creditor, who had a judgment younger than the mortgage but older than the general judgment brought a rule against the sheriff for distribution of the funds realized from the sale of the property and the fund was properly awarded to the older of the two judgments. Thomasville Live Stock Co. v. Burney, 19 Ga. App. 703 , 91 S.E. 1062 (1917).

Creditor holding bonds as collateral. - At a time subsequent to the deposit of bonds with a creditor as collateral, the creditor became the purchaser of the bonds under circumstances which rendered void the transaction culminating in a sale of the bonds to the creditor. If the sale was void, the holder of the bonds claiming to be the purchaser was relegated to the position of holder of the bonds as collateral security, and as such was the proper beneficiary in the proceedings to foreclose the trust deed to secure the payment of the bonds. Valdosta M. & W.R.R. v. Valdosta Bank & Trust Co., 144 Ga. 761 , 87 S.E. 1083 (1916).

Damages for wrongful foreclosure. - Measure of damages for wrongful foreclosure was the fair market value of the property foreclosed rather than the full bid price at a foreclosure sale to an agent of the grantee, in light of the grantee's subsequent sale of the property to a good faith purchaser which prevented the grantors from redeeming their equity. Tower Fin. Servs., Inc. v. Smith, 204 Ga. App. 910 , 423 S.E.2d 257 , cert. denied, 204 Ga. App. 922 , 423 S.E.2d 257 (1992).

In a suit brought by a purchaser seeking damages for wrongful foreclosure of certain real property after two foreclosure sales, the trial court erred in granting the second foreclosing bank attorney fees under O.C.G.A. § 9-15-14 , based on frivolous litigation since the second bank had knowledge of the purchaser's acquisition of the property via the first foreclosure, therefore, the purchaser's suit did not lack substantial justification as to the second bank and the second bank's failure to provide proper notice of the sale to the purchaser. Roylston v. Bank of Am., N.A., 290 Ga. App. 556 , 660 S.E.2d 412 (2008).

Cited in Tefft v. Sternberg, 40 F. 2, 5 L.R.A. 221 (S.D. Ga. 1887); Mixon v. Stanley, 100 Ga. 372 , 28 S.E. 440 (1897); Caldwell v. Loeb, 742 F. Supp. 650 (N.D. Ga. 1990).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 778.

18 Am. Jur. Pleading and Practice Forms, Mortgages, § 232.

C.J.S. - 59A C.J.S., Mortgages, §§ 960, 961.

ALR. - Garnishment of money in escrow, 10 A.L.R. 741 .

Taxes not ascribable to property sold as a charge on proceeds of judicial or foreclosure sale, 58 A.L.R. 1220 .

Financial depression or lack of market as ground for enjoining sale under a mortgage or deed of trust to secure debt, 82 A.L.R. 976 ; 90 A.L.R. 1330 ; 94 A.L.R. 1352 ; 96 A.L.R. 853 ; 97 A.L.R. 1123 ; 104 A.L.R. 375 .

Protection of mortgagor or owner of mortgaged property, on foreclosure sale, by fixing upset or minimum price, requiring credit of specified amount on mortgage debt, or denying or limiting amount of deficiency judgment, 89 A.L.R. 1087 ; 90 A.L.R. 1330 ; 94 A.L.R. 1352 ; 96 A.L.R. 853 ; 97 A.L.R. 1123 ; 104 A.L.R. 375 .

Personal liability to mortgagor, as distinguished from mortgagee, of vendee of mortgaged premises who does not in term assume or agree to pay mortgage, 111 A.L.R. 1114 .

Rights in respect of surplus arising upon foreclosure sale of entire property covered by first mortgage, as between junior mortgagee of part of the property, and holders of liens upon other part subject to first mortgage, 119 A.L.R. 1109 .

Rights and remedies of mortgagee where mortgaged property is bid in on foreclosure as less than mortgage debt and it is redeemed by mortgagor or latter's grantee, 128 A.L.R. 796 .

Right of true owner to recover proceeds of sale or lease of real property made by another in the belief that he was the owner of the property, 133 A.L.R. 1443 .

Constitutionality of statute which in effect limits judgment after crediting thereon fair market value of property purchased by him at execution sale, 144 A.L.R. 858 .

Rights in respect of proceeds of an award in eminent domain proceedings made after mortgage foreclosure sale, 170 A.L.R. 272 .

Recognition of action for damages for wrongful foreclosure - general views, 81 A.L.R.6th 161.

44-14-191. Treatment of proceeds of sale when debt due in installments.

If the mortgage is given to secure a debt due by installments and is foreclosed before any one of the installments falls due and there is a surplus of funds as provided in Code Section 44-14-190, the court may retain the funds or order them to be invested to meet the unpaid installments.

(Orig. Code 1863, § 3874; Code 1868, § 3894; Code 1873, § 3970; Code 1882, § 3970; Civil Code 1895, § 2752; Civil Code 1910, § 3285; Code 1933, § 67-502.)

JUDICIAL DECISIONS

Cited in Smith v. Bowne, 60 Ga. 484 (1878); Hatcher v. Chancey, 71 Ga. 689 (1883); Littleton v. Spell, 77 Ga. 227 , 2 S.E. 935 (1886); Strickland v. Lowry Nat'l Bank, 140 Ga. 653 , 79 S.E. 539 (1913); Miller Serv., Inc. v. Miller, 77 Ga. App. 413 , 48 S.E.2d 761 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 55 Am. Jur. 2d, Mortgages, § 785.

ALR. - Right of holder of interest coupons through one who had guaranteed their payment to share with holder of principal obligation in proceeds of mortgage security, 41 A.L.R. 1254 .

Financial depression or lack of market as ground for enjoining sale under a mortgage or deed of trust to secure debt, 82 A.L.R. 976 ; 90 A.L.R. 1330 ; 94 A.L.R. 1352 ; 96 A.L.R. 853 ; 97 A.L.R. 1123 ; 104 A.L.R. 375 .

Protection of mortgagor or owner of mortgaged property, on foreclosure sale, by fixing upset or minimum price, requiring credit of specified amount on mortgage debt, or denying or limiting amount of deficiency judgment, 89 A.L.R. 1087 ; 90 A.L.R. 1330 ; 94 A.L.R. 1352 ; 96 A.L.R. 853 ; 97 A.L.R. 1123 ; 104 A.L.R. 375 .

Excess of payment for one period as applicable to subsequent period under contract or mortgage providing for periodic payments, 89 A.L.R.3d 947.

PART 3 F ORECLOSURE OF DEEDS TO SECURE DEBT, PURCHASE CONTRACTS, AND BONDS FOR TITLE

JUDICIAL DECISIONS

Priority. - As between secured creditors in a real property senior creditor foreclosure situation, junior creditors' rights are only as protected under the foreclosure requirements. Chattanooga Fed. Sav. & Loan Ass'n v. Northwest Recreational Activities, Inc., 4 Bankr. 33 (Bankr. N.D. Ga. 1980).

Cited in Scroggins v. Harper, 138 Ga. App. 783 , 227 S.E.2d 513 (1976).

RESEARCH REFERENCES

ALR. - Reservation of vendor's lien as preventing severance of estate in mineral from estate in surface by deed otherwise having that effect, 29 A.L.R. 618 .

Jurisdiction of court in suit to foreclose mortgage securing issue of bonds to pass upon proposed reorganization plan, 109 A.L.R. 1139 .

Rights in proceeds of vehicle collision policy, under "loss-payable" clause, of conditional seller, chattel mortgagee, or the like, of vehicle where there has been improper repossession or foreclosure after the damage, 46 A.L.R.2d 992.

Foreclosure sale of mortgaged real estate as a whole or in parcels, 61 A.L.R.2d 505.

44-14-210. Execution and recordation of quitclaim deed following judgment; levy and sale; disposition of proceeds; notice.

  1. In cases where a contract to purchase or a bond for title has been made, where purchase money has been partly paid, or where a deed to secure a debt has been executed and the purchase money or secured debt has been reduced to judgment by the payee, assignee, or holder of the debt, the holder of the legal title or, if dead, his executor or administrator, without order of any court, shall make and execute to the defendant in fi. fa. or, if he is dead, to his executor or administrator a quitclaim conveyance to the real or personal property and shall file and have the quitclaim conveyance recorded in the clerk's office. Thereupon, the property may be levied upon and sold as other property of the defendant; and the proceeds shall be applied to the payment of the judgment or, if there are conflicting claims, the proceeds shall be applied as determined in proceedings had for that purpose.
  2. In all cases provided for in subsection (a) of this Code section, notice of the levy and time of sale shall be given by the levying officer to the vendor or holder of the title given to secure the debt, if known, and also to the defendant in fi. fa. and, in case of death, to their legal representatives. Depositing a properly addressed and stamped letter in the post office shall be deemed sufficient notice under this subsection.

    (Laws 1847, Cobb's 1851 Digest, p. 517; Laws 1850, Cobb's 1851 Digest, p. 518; Code 1863, § 3581; Code 1868, § 3604; Code 1873, § 3654; Code 1882, §§ 1970, 3654; Ga. L. 1894, p. 100, §§ 1, 3; Civil Code 1895, §§ 5432, 5434; Civil Code 1910, §§ 6037, 6039; Code 1933, §§ 39-202, 67-1501.)

JUDICIAL DECISIONS

ANALYSIS

General Consideration

For case discussing history of O.C.G.A. § 44-14-210 , see Coleman v. Maclean & Co., 101 Ga. 308 , 28 S.E. 861 (1897); Maddox v. Arthur, 122 Ga. 671 , 50 S.E. 668 (1905).

For cases discussing the effect of the Act of 1894, see Johnson v. Equitable Sec. Co., 114 Ga. 604 , 40 S.E. 787 , 56 L.R.A. 933 (1902); Smith v. Fourth Nat'l Bank, 145 Ga. 741 , 89 S.E. 762 (1916); Cooke v. Adams Bros. Co., 148 Ga. 289 , 96 S.E. 499 (1918); Jordan Mercantile Co. v. Brooks, 149 Ga. 157 , 99 S.E. 289 (1919).

Constitutionality. - See Brown v. Rooks, 240 Ga. 674 , 242 S.E.2d 128 (1978).

Bank's right to contract for power of sale and state regulation of banking do not constitute state action. - The statutory authorization of the right of a creditor bank to contract with debtors for a power of sale under a deed to secure debt does not, when combined with the state's general regulation of the banking industry's loan making procedures, convert the exercise of such power of sale into state action; therefore, any contention that the creditor's exercise of its power of sale under the deed to secure debt violates the debtors' rights to procedural due process under U.S. Const., Amend. 14 is without merit. Ray v. Bank of Covington, 247 Ga. 758 , 279 S.E.2d 425 (1981).

Remedy distinct. - The remedies provided by O.C.G.A. §§ 44-14-210 and 44-14-280 are distinct and altogether independent of each other. Jackson v. Parks, 49 Ga. App. 29 , 174 S.E. 203 (1934).

O.C.G.A. § 44-14-210 applies only to a regular sale under final judgment. Bradley v. GMAC, 51 Ga. App. 609 , 181 S.E. 188 (1935).

"Judgment" defined. - When the holder of a deed to secure debt pursues the remedy provided in O.C.G.A. § 44-14-210 , it is essential that the purchase-money or secured debt be reduced to judgment. The "judgment" here referred to means a judgment in personam against the maker of the debt. Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524 , 13 S.E.2d 165 (1941).

It would not be correct to hold that in codifying O.C.G.A. § 44-14-210 the words therein, "and the purchase money or secured debt has been reduced to judgment," mean other than a judgment on the debt, i.e., a personal judgment against the defendant for the amount of the debt. Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524 , 13 S.E.2d 165 (1941).

Not applicable to attachments. - O.C.G.A. § 44-14-210 applies to a levy and sale of the property under a final judgment, but not to an attachment and seizure of the property thereon. Johnson v. Walter J. Wood Stove Co., 6 Ga. App. 65 , 64 S.E. 287 (1909).

Not applicable to junior creditors and claimants. - Ordinarily junior creditors and claimants of property have an adequate remedy at law and are not entitled to the equitable relief provided in O.C.G.A. § 44-14-210 . Rucker v. Tabor & Almand, 133 Ga. 720 , 66 S.E. 917 (1910); Western Union Tel. Co. v. Brown & Randolph Co., 154 Ga. 229 , 114 S.E. 36 (1922).

A trustee in bankruptcy may take advantage of O.C.G.A. § 44-14-210 , construed in connection with the powers given the trustee by bankruptcy law, as to a debtor's property secured by deed. Bank of Manchester v. Birmingham Trust & Sav. Co., 156 Ga. 486 , 119 S.E. 603 (1923).

In bankruptcy proceedings the date of the security deed, not that of the judgment thereon, prevails, and, consequently, the plaintiff may bring the property involved to sale under the provisions of O.C.G.A. § 44-14-210 if the deed has been executed more than four months prior to the filing of the petition in bankruptcy. Harvard v. Davis, 145 Ga. 580 , 89 S.E. 740 (1916).

Compliance not prerequisite to jurisdiction. - Nothing in O.C.G.A. § 44-14-210 indicates that compliance with it was intended to be made a prerequisite to the attaching of a court's jurisdiction of a suit brought for the foreclosure of a security deed. First Nat'l Bank v. Charles Broadway Rouss, Inc., 61 F.2d 489 (5th Cir. 1932), cert. denied, 287 U.S. 670, 53 S. Ct. 314 , 77 L. Ed. 577 (1933).

A city court has jurisdiction to give the remedy provided in O.C.G.A. § 44-14-210 , for the suit mentioned is not a case respecting title to land. Edenfield v. Bank of Millen, 7 Ga. App. 645 , 67 S.E. 896 (1910).

The requirements of O.C.G.A. § 44-14-210 must be complied with before a valid sale of property in which a plaintiff in attachment has reserved title. Rhodes & Son Furn. Co. v. Jenkins, 2 Ga. App. 475 , 58 S.E. 897 (1907); Johnson v. Walter J. Wood Stove Co., 6 Ga. App. 65 , 64 S.E. 287 (1909).

Effect of noncompliance. - Strict compliance with the law was formerly required, on pain of the denial of the remedy; but since the passage of this act the creditor by a failure to comply strictly with its provisions is deprived only of that to which the creditor would have been entitled upon strict compliance therewith. In any case the creditor retains all the ordinary remedies that a title can give, and also such of those given by this Act to which the creditor remains entitled. Williamson v. Orient Ins. Co., 100 Ga. 791 , 28 S.E. 914 (1897).

Where a plaintiff seeking the remedy given by O.C.G.A. §§ 44-14-210 and 44-14-211 does not fully comply with their provisions, the claimant to the property affected will prevail by reason of such noncompliance. Black v. Gate City Coffin Co., 115 Ga. 15 , 41 S.E. 259 (1902); Sloan v. Loftis, 157 Ga. 93 , 120 S.E. 781 (1923).

Transfers by creditor. - The creditor may transfer the whole or any part of the debt secured and with it the real estate as security. Hunt v. New England Mtg. Sec. Co., 92 Ga. 720 , 19 S.E. 27 (1893); Moss & Co. v. Stokely, 107 Ga. 233 , 33 S.E. 61 (1899); Cumming v. McDade, 118 Ga. 612 , 45 S.E. 479 (1903).

Simple endorsement of the deed is not sufficient under O.C.G.A. § 44-14-210 to transfer the debt secured and with it the property as security. Sheppard v. Reese, 114 Ga. 411 , 40 S.E. 282 (1901).

A transfer of property among defendants affords no ground for illegality when the plaintiff, pursing the remedy provided by O.C.G.A. § 44-14-210 , recovers judgment against one or more of them. Stocking v. Moury, 129 Ga. 257 , 58 S.E. 712 (1907).

Administrator's petition for marshalling no stay to creditor's use of remedy. - See Royal v. Edinburgh-American Land Mtg. Co., 143 Ga. 347 , 85 S.E. 190 (1915).

Cited in Faircloth v. St. Johns, 44 Ga. 603 (1872); Estes v. Ivey, 53 Ga. 52 (1874); Tufts v. Little, 56 Ga. 139 (1876); Scroggins v. Hoadley, 56 Ga. 165 (1876); Griggs v. Strippling, 59 Ga. 500 (1877); Chappell v. Boyd, 61 Ga. 662 (1878); Dykes v. McVay, 67 Ga. 502 (1881); Hines v. Rutherford, 67 Ga. 606 (1881); Stewart v. Berry, 84 Ga. 177 , 10 S.E. 601 (1882); Raisin v. Statham, 22 F. 144 (S.D. Ga. 1884); Roland v. Coleman & Co., 76 Ga. 652 (1886); Carhart v. Reviere, 78 Ga. 173 , 1 S.E. 222 (1886); Hunt v. Harbor, 80 Ga. 746 , 6 S.E. 596 (1888); Crawford v. Pritchard, 81 Ga. 14 , 6 S.E. 689 (1888); Parrott v. Baker, 82 Ga. 364 , 9 S.E. 1068 (1889); Stewart v. Berry, 84 Ga. 177 , 10 S.E. 601 (1890); Hill v. Cole, 84 Ga. 245 , 10 S.E. 739 (1890); Cade v. Jenkins, 88 Ga. 791 , 15 S.E. 292 (1892); Duncan v. Clark, 96 Ga. 263 , 22 S.E. 927 (1895); Coleman v. MacLean & Co., 101 Ga. 303 , 28 S.E. 861 (1897); Johnson v. Equitable Sec. Co., 114 Ga. 604 , 40 S.E. 787 , 56 L.R.A. 933 (1902); Maddox v. Arthur, 122 Ga. 671 , 50 S.E. 668 (1905); Coates v. Jones, 142 Ga. 237 , 82 S.E. 649 (1914); Corley v. Jarrell, 36 Ga. App. 225 , 136 S.E. 177 (1926); Trust Co. v. Mobley, 40 Ga. App. 468 , 150 S.E. 169 (1929); Bentley v. Phillips, 171 Ga. 866 , 156 S.E. 898 (1930); Cook v. Cochran, 42 Ga. App. 478 , 156 S.E. 465 (1931); White v. First Nat'l Bank, 174 Ga. 281 , 162 S.E. 701 (1932); Woodward v. La Porte, 181 Ga. 731 , 184 S.E. 280 (1936); Campbell v. Gormley, 184 Ga. 647 , 192 S.E. 430 (1937); Wheeler v. Layman Foundation, 188 Ga. 267 , 3 S.E.2d 645 (1939); Georgia Sec. Co. v. Prim, 191 Ga. 267 , 11 S.E.2d 885 (1940); Gooch v. Citizens & S. Nat'l Bank, 195 Ga. 244 , 24 S.E.2d 40 (1943); Sampson v. Vann, 203 Ga. 612 , 48 S.E.2d 293 (1948); Denny v. C.L. Fain Co., 84 Ga. App. 477 , 66 S.E.2d 260 (1951); Chambless v. Cain, 109 Ga. App. 163 , 135 S.E.2d 463 (1964); Teri-Lu, Inc. v. Georgia R.R. Bank & Trust Co., 147 Ga. App. 860 , 250 S.E.2d 548 (1978); Taylor v. Thompson, 158 Ga. App. 671 , 282 S.E.2d 157 (1981); Vineville Capital Group, LLC v. McCook, 329 Ga. App. 790 , 766 S.E.2d 156 (2014).

Debt Reduced to Judgment
1. Bond for Title

Conditions for passage of title. - A grantor has a durable interest in the property covered by the bond only after redemption has been made by the grantor or by a judgment creditor desiring to subject the property: no title passes on sale unless the holder of the bond for title has legal title. Buchan v. Williamson, 131 Ga. 501 , 62 S.E. 815 (1908). See also Ramey v. Denny, 133 Ga. 751 , 66 S.E. 918 (1910).

A grantor's equitable interest under a bond for title is not leviable. Virginia-Carolina Chem. Co. v. Rylee, 139 Ga. 669 , 78 S.E. 27 (1913).

When interest becomes leviable. - Where a deed to secure an indebtedness has been made and bond for title given to the grantor to make a reconveyance upon payment of the debt, the grantor has not a leviable interest until redemption has been made either by the grantor or by a judgment creditor desiring to subject the property. Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84 , 169 S.E. 337 (1933).

Where a trustee holds a bond for title for a person who has paid part of the purchase money, the latter does not have such an interest in the property as may be levied upon under O.C.G.A. § 44-14-210 . Goldman v. Dent, 102 Ga. 9 , 29 S.E. 138 (1897).

Interest of purchaser holding bond. - Where a grantor conveys property which is security for a debt to a purchaser who agrees to pay the debt, the creditor of the grantor may nevertheless pursue a remedy under O.C.G.A. § 44-14-210 against the grantor and have the property sold, notwithstanding that no notice is given to the purchaser and that the latter holds a bond for title from the grantor, for the purchaser's equitable interest under the bond must succumb to the legal interest acquired by the creditor. Scott v. Paisley, 158 Ga. 876 , 124 S.E. 726 (1924), aff'd, 271 U.S. 632, 46 S. Ct. 591 , 70 L. Ed. 1123 (1926).

2. Purchase Money Partially Paid

Rights of vendor when purchase money unpaid. - Upon the failure of the purchaser or transferee to pay the purchase-money the vendor may sue for the land, or the vendor may sue the purchaser upon the notes given for such purchase-money, under the provisions of O.C.G.A. § 44-14-210 , or, as the land remains liable for the purchase-money the vendor may call upon such assignee to pay the balance of the purchase-money, render the land, or have it sold to satisfy the debt. McHan v. Stansell, 39 Ga. 197 (1869); Alston v. Wingfield, 53 Ga. 18 (1874); Couch v. Crane, 142 Ga. 22 , 82 S.E. 459 (1914).

When a party seeks a levy and sale of property under O.C.G.A. § 44-14-210 , it is not selecting the exclusive method by which it can satisfy its judgment but is merely availing itself of a remedy that will provide payment toward the judgment balance; there is nothing in O.C.G.A. § 44-14-210 that precludes a judgment debtor from seeking further relief if its judgment is not satisfied after application of the sale proceeds. Southern Land & Cattle Co. v. Brock, 218 Ga. App. 297 , 460 S.E.2d 843 (1995).

The same remedies obtain in favor of a transferee of a note for the purchase price of property. Henry v. McAllister, 93 Ga. 667 , 20 S.E. 66 (1894); Maddox v. Arthur, 122 Ga. 671 , 50 S.E. 668 (1905). See also Ray v. Anderson, 119 Ga. 926 , 47 S.E. 205 (1904); Guarantee Trust & Banking Co. v. American Nat'l Bank, 15 Ga. App. 778 , 84 S.E. 222 (1915).

Nature and scope of remedy. - This remedy is in the nature of a proceeding in rem, and does not seek a personal judgment against the assignee. Its scope is to subject the land to the payment of the purchase money. Dunson v. Lewis, 156 Ga. 692 , 119 S.E. 846 (1923).

Transfer of installment notes. - O.C.G.A. § 44-14-210 does not authorize a vendor of land who has taken several notes for the unpaid purchase-money thereof to transfer them to different persons and to convey to each of them an undivided interest in the property in proportion to the part of the unpaid purchase-money so transferred to the vendor, and thus empower such transferee to obtain judgment, file a deed, and sell such undivided interest in the manner pointed out by O.C.G.A. § 44-14-210 , or to obtain a general judgment against the purchaser together with a special lien upon the undivided interest in the land so conveyed. Strickland v. Lowry Nat'l Bank, 140 Ga. 653 , 79 S.E. 539 (1913).

3. Deed to Secure Debt

Remedy not exclusive. - In general, see Dykes v. McVay, 67 Ga. 502 (1881); Hines v. Rutherford, 67 Ga. 606 (1881); Ashley v. Cook, 109 Ga. 653 , 35 S.E. 89 (1900).

Alternate remedies. - The remedies given by the law and by O.C.G.A. § 44-14-210 are alternate, not concurrent. Couch v. Crane, 142 Ga. 22 , 82 S.E. 459 (1914).

A creditor may foreclose writing as mortgage if the creditor does not wish to utilize the remedy afforded by O.C.G.A. § 44-14-210 . Macon Sav. Bank v. Jones Motor Co., 168 Ga. 805 , 149 S.E. 217 (1929); Ryals v. Lindsay, 176 Ga. 7 , 167 S.E. 284 (1932).

Trover. - Procuring a judgment under O.C.G.A. § 44-14-210 does not impair the plaintiff's right to trover provided there has been no execution of the judgment. Mitchell v. Castlen, 5 Ga. App. 134 , 62 S.E. 731 (1908).

Election of remedies not required. - A creditor, who holds a promissory note secured by a deed, is not put to an election of remedies as to whether the creditor shall sue upon the note or exercise a power of sale contained in the deed, but the creditor may do either, or pursue both remedies concurrently until the debt is satisfied. Pico, Inc. v. Mickel, 138 Ga. App. 856 , 230 S.E.2d 488 (1976), aff'd, 238 Ga. 218 , 232 S.E.2d 841 (1977); Trust Inv. & Dev. Co. v. First Ga. Bank, 238 Ga. 309 , 232 S.E.2d 828 (1977); Brown v. Georgia State Bank, 141 Ga. App. 570 , 234 S.E.2d 151 (1977); Brown v. Rooks, 240 Ga. 674 , 242 S.E.2d 128 (1978).

Sufficiency of security deed. - Where debtor gave a security deed to creditor which did not contain formal language but did convey property described in the deed, such deed was sufficient to invest creditor with such title that the creditor could execute a valid reconveyance to the debtor for the purpose of levy and sale. Woodward v. La Porte, 181 Ga. 731 , 184 S.E. 280 (1936).

Proof that the defendant had title when defendant made the security deed to the plaintiff is sufficient to make out a prima facie case against a third party claimant in favor of the plaintiff in fi. fa., notwithstanding the entry of levy stated the claimant was in possession at the time of the levy. Heaton v. Hayes, 188 Ga. 632 , 4 S.E.2d 570 (1939).

Quitclaim Deed

Delivery of deed to debtor is not required under O.C.G.A. § 44-14-210 . Denton Bros. v. Hannah, 12 Ga. App. 494 , 77 S.E. 672 (1913); Terrell v. Gould, 168 Ga. 607 , 148 S.E. 515 (1929); Alsabrook v. Prudential Ins. Co. of Am., 46 Ga. App. 400 , 167 S.E. 735 (1933).

Fact that the quitclaim deed was never delivered to the defendant did not render it void. Alsabrook v. Prudential Ins. Co. of Am., 46 Ga. App. 400 , 167 S.E. 735 (1933).

It is the duty of the vendor to convey the land by quitclaim deed to the purchaser for the purpose of levy and sale under O.C.G.A. § 44-14-210 ; when the vendor holds title as security for payment of purchase money; and upon a refusal by the vendor to make such a conveyance, a court of equity will compel the vendor to make such conveyance. Campbell v. Gormley, 184 Ga. 647 , 192 S.E. 430 (1937).

Proper person to execute deed. - Under O.C.G.A. § 44-14-210 , the "holder of the legal title," and not the original vendor, is the proper person to execute the quitclaim deed under the fi. fa. If a note only is transferred and no deed is made conveying the legal title to the land as security, then it is necessary, after the transferee has obtained judgment, that the vendor execute a quitclaim deed to the purchaser before the fi. fa. could have been levied, because in that event the vendor would have continued to be the holder of the legal title. Swinson v. Shurling, 162 Ga. 604 , 134 S.E. 613 (1926).

Where the holder of the legal title under a deed to secure debt, executed a power of attorney empowering the holder's named attorney in fact to bring suit on papers comprising the deed and evidence of debt, to cause the property to be sold under levy after judgment, and to bid in the property in the name of such holder of the legal title, this authority included, as a "necessary and usual means" of selling the property, the right to execute the quitclaim reconveyance to the debtor, record of which in the clerk's office is made by O.C.G.A. § 44-14-210 , a prerequisite to a valid levy and sale of the property. Johnson v. Johnson, 184 Ga. 783 , 193 S.E. 345 (1937).

When reconveyance not required. - Where a warranty deed to secure a debt contains no defeasance clause, and no bond to reconvey is executed contemporaneously therewith - the grantee being given the power to sell the land at public outcry upon default in the payment of the debt - it is not necessary that title be again placed in the grantor in order to bring the property to sale. Penn Mut. Life Ins. Co. v. Donalson, 177 Ga. 84 , 169 S.E. 337 (1933).

Reconveyance is not necessary before the issuance of attachment and seizure of the property thereunder. Bradley v. GMAC, 51 Ga. App. 609 , 181 S.E. 188 (1935).

Effect on sale. - Where land is conveyed by a deed to secure a debt, and the grantee or the grantee's assignee obtains a judgment against the debtor and has the land levied on and sold under execution, without filing and having recorded a deed reconveying the land to the debtor, the levy and sale are void, but where a sale is made solely by virtue of a power of sale in the security deed, no reconveyance to the grantor is necessary. Williams Realty & Loan Co. v. Simmons, 188 Ga. 184 , 3 S.E.2d 580 (1939).

Nature of title passed. - Regardless of the time intervening between the date of the execution of a quitclaim deed and a levy and sale of the property therein conveyed, the grantee would never by virtue of such a deed acquire title to the land for any purpose other than to authorize its sale under the levy, nor would the grantee in the security deed thereby forfeit rights and title under the security deed for any purpose other than to enable the grantee to have a legal levy and sale of the premises involved. Minchew v. Juniata College, 188 Ga. 517 , 4 S.E.2d 212 (1939).

Where a grantee in a security deed reduces claim to judgment and executes to the defendant in fi. fa. a quitclaim deed for the purpose of levy and sale, which deed is duly recorded, and the property is sold by the sheriff, and the holder of the security deed becomes the purchaser at such sale, such reconveyance is in effect "in escrow" only for the purpose specified, and does not divest the grantee in the security deed of rights thereunder. Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322 , 26 S.E.2d 727 (1943).

Time of execution. - Where the quitclaim deed to the debtor was executed before the issuance of the execution, this did not render the quitclaim deed inoperative. Alsabrook v. Prudential Ins. Co. of Am., 46 Ga. App. 400 , 167 S.E. 735 (1933).

The fact that the vendor had previously conveyed the land by warranty deed to one of the purchasers is not in compliance with the requirements of O.C.G.A. § 44-14-210 . Holbrook v. Adams, 166 Ga. 871 , 144 S.E. 657 (1928).

Where there was no evidence to show that the plaintiff, the grantee in a security deed, had executed a quitclaim deed to the grantor in the security deed for the purpose of levy and sale, the trial court erred in directing a verdict finding the property subject to the plaintiff's execution. Sparks v. Sparks, 193 Ga. 368 , 18 S.E.2d 556 (1942).

Accounting to other creditors. - Where a creditor grantee in a security deed obtains judgment, and sells the land without a deed of reconveyance as required by O.C.G.A. § 44-14-210 , but goes into possession of the land and receives the rents, or has the use of the land personally, the creditor becomes chargeable with its proper rental, and must, in a proceeding with other judgment creditors, involving the distribution of the proceeds of other land covered by their liens, make an accounting for such rents by reducing the amount of the creditor's claim accordingly. Williams Realty & Loan Co. v. Simmons, 188 Ga. 184 , 3 S.E.2d 580 (1939).

Filing and Recording

Necessity for filing and recording deed. - Though a claim may be reduced to judgment and a quitclaim deed to the defendant in fi. fa. duly executed and signed, as required by O.C.G.A. § 44-14-210 , yet there can be no valid levy based upon such judgment unless such deed be duly filed and recorded. National Bank v. Danforth, 80 Ga. 55 , 7 S.E. 546 (1887); Dedge v. Bennett, 138 Ga. 787 , 76 S.E. 52 (1912); Coates v. Jones, 142 Ga. 237 , 82 S.E. 649 (1914). See also Brunson v. Grant, 48 Ga. 394 (1873).

The property is not subject to levy and sale on a judgment for the secured debt until it has been reconveyed to the debtor, and until such reconveyance has been filed and recorded in the office of the clerk of the superior court. Callaway v. Life Ins. Co., 166 Ga. 818 , 144 S.E. 381 (1928).

When filing not required. - A vendor abandoning this remedy in favor of ejectment need not file the deed. Hines v. Rutherford, 67 Ga. 606 (1881).

Place of recording. - When the defendant's land lies partly in each of two counties and a levy is sought upon the entire tract, the deed must be recorded in each county. Cade v. Larned, 99 Ga. 588 , 27 S.E. 166 (1896).

Time of recording. - Where the vendor of land executed a quitclaim deed thereto for the purpose of levying the execution which issued upon the judgment against the vendee for the unpaid purchase-money, such deed, filed and recorded before the levy, is not invalid for such purpose, although not recorded until after the death of the vendor. Terrell v. Gould, 168 Ga. 607 , 148 S.E. 515 (1929).

When the first deed filed is defective another may be filed. Moss v. Lovett, 99 Ga. 321 , 25 S.E. 649 (1896).

Levy and Sale

The words "may be levied" as used in O.C.G.A. § 44-14-210 are permissive, not mandatory. Hines v. Rutherford, 67 Ga. 606 (1881).

Prerequisites to levy. - Before a sheriff can levy upon the land as the land of the defendant in fi. fa., the legal title thereto had to be put in the defendant in fi. fa. by executing a quitclaim deed in favor of the defendant and filing and having the same recorded in the clerk's office of the county where the land is. Alsabrook v. Prudential Ins. Co. of Am., 46 Ga. App. 400 , 167 S.E. 735 (1933).

Rights of junior lienholders. - Creditors of a vendee, before a deed from vendor to vendee has been filed and recorded under the provisions of O.C.G.A. § 44-14-210 , cannot themselves subject the land to levy and sale, their liens being inferior to those of the vendor. Harvill v. Lowe, 47 Ga. 214 (1872).

If there be a failure to enter on an execution made under O.C.G.A. § 44-14-210 a credit which should be so entered, this will not of itself be sufficient grounds to warrant the grant of an injunction to arrest a levy and sale thereunder. Brown v. Wilson, 56 Ga. 534 (1876).

Discretion of levying officer. - In the case of a levy upon land, made in pursuance of the mandate of the court directing the sale of specific property under a final judgment of foreclosure against the defendant, the levying officer has no discretion, but the officer's duty is to levy on the specific property to pay the judgment; nor would the officer be authorized in the seizure of any person's interest in the property except that of the defendant. Heaton v. Hayes, 188 Ga. 632 , 4 S.E.2d 570 (1939).

Effect of sheriff's deed. - The title, legal and equitable, of the creditor becomes complete and indefeasible when the creditor obtains the sheriff's deed conveying to the creditor as a purchaser at the official sale the property in dispute. Crawford v. Pritchard, 81 Ga. 14 , 6 S.E. 689 (1888); Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524 , 13 S.E.2d 165 (1941).

If the possession acquired be by virtue of a void sale by the sheriff, the creditor acquires no more right to the property than if the creditor had taken possession under the security deed on account of default in the payment of the debt. Hirsch v. Northwestern Mut. Life Ins. Co., 191 Ga. 524 , 13 S.E.2d 165 (1941).

Notice

No notice required when parties all informed. Palmer v. Simpson, 69 Ga. 792 (1883).

Persons not entitled to notice. - There is no principle entitling purchasers who purchased land which was subject to the security deed to notice of the exercise of this statutory power by the creditor, and that in failing to provide such notice O.C.G.A. § 44-14-210 does not deprive them of property without due process of law or deny them the equal protection of the laws. Scott v. Paisley, 271 U.S. 632, 46 S. Ct. 591 , 70 L. Ed. 1123 (1926).

Where the holder of a security deed assigns such deed and conveys the property therein described, the assignee takes all rights, title, and powers of the assignor in the security deed, and such assignor is precluded by a judgment of foreclosure of such deed from thereafter claiming a reversionary interest in the land embraced in the deed, although the assignor had no notice of the foreclosure proceedings. Owens v. Conyers, 189 Ga. 793 , 7 S.E.2d 675 (1940).

Failure to give notice. - When a defendant in execution is the vendee of land, and has only a bond for titles, and a portion of the purchase money has been paid, and the land is levied on and sold by judgments against the vendee, and no notice is given as required by O.C.G.A. § 44-14-210 , nothing is sold but the interest of the defendant, and the vendor cannot claim any of the proceeds on the ground that the vendor's purchase money is not all paid. The vendor's remedy is by filing a deed and selling the land, or by action of ejectment on legal title. Estes v. Ivey, 53 Ga. 52 (1874).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, §§ 232, 244. 55 Am. Jur. 2d, Mortgages, § 572 et seq. 68 Am. Jur. 2d, Secured Transactions, § 572 et seq.

24A Am. Jur. Pleading and Practice Forms, Vendor and Purchaser, § 3.

C.J.S. - 33 C.J.S., Executions, § 45. 59A C.J.S., Mortgages, § 690 et seq.

ALR. - Judgment as lien on judgment debtor's equitable interest in real property, 30 A.L.R. 504 .

Rights or interests covered by quitclaim deed, 44 A.L.R. 1266 ; 162 A.L.R. 556 .

Recording laws as applied to power of attorney under which deed or mortgagee is executed, 114 A.L.R. 660 .

Constitutionality of provision for service by publication of notice of proceeding by purchaser at tax sale to foreclose delinquent owner's right of redemption, or of other proceeding perfect tax purchaser's title, 145 A.L.R. 597 .

Interest of vendee under executory contract as subject to execution, judgment lien, or attachment, 1 A.L.R.2d 727.

44-14-211. Attachment against grantor in deed to realty to secure debt; execution and recordation of quitclaim, levy, and deed following judgment; sale; disposition of proceeds.

In all cases where a deed to land has been executed to secure a debt or the performance of an obligation and the grantor therein is or becomes thereafter liable to the process of attachment, an attachment may issue against him at the instance of the payee, assignee, or holder of the debt or obligation upon his compliance with the provisions of law relating to attachments. The attachment shall be levied upon the land described in the deed, and the subsequent proceedings shall be in all respects as prescribed by law in relation to attachments. The holder of the legal title of the land described in the deed or, if dead, his executor or administrator may make and execute, without order of any court, for the purpose of levy and sale after the rendition of judgment in attachment and the issuance of execution thereon, a quitclaim deed of conveyance of the land to the grantor in the deed and may file the same for record in the office of the clerk of the superior court of the county where the land is located. When a judgment is obtained upon the attachment and the deed is so filed and recorded, the execution issued upon the judgment may be levied upon the land and the land may be sold as other property of the defendant. The proceeds arising from the sale shall be applied to the payment of the judgment or, if there are conflicting claims, the proceeds shall be applied as determined in proceedings had for that purpose; provided, however, this Code section shall not apply unless the debt or debts or liabilities so secured have become due under the terms of the contract creating the obligation or obligations.

(Ga. L. 1918, p. 133, § 1; Code 1933, § 67-1502.)

JUDICIAL DECISIONS

Election of remedies. - The holder of a note who is also the grantee in a deed to secure the indebtedness of the note is not forced to exercise the power of sale in the deed. The holder may sue on the note or exercise the power of sale. Trust Inv. & Dev. Co. v. First Ga. Bank, 238 Ga. 309 , 232 S.E.2d 828 (1977).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Attachment and Garnishment, §§ 144-146. 55 Am. Jur. 2d, Mortgages, § 525.

C.J.S. - 7 C.J.S., Attachment, §§ 49, 54.

PART 4 F ORECLOSURES ON PERSONALTY

Cross references. - Die, molds, forms, and patterns, Art. 8, Ch. 12, T. 44.

Law reviews. - For article surveying Georgia cases in the area of commercial law from June 1979 through May 1980, see 32 Mercer L. Rev. 11 (1980). For article, "Nonjudicial Foreclosures in Georgia: Fresh Doubts, Issues and Strategies," see 23 Ga. St. B.J. 123 (1987). For note discussing execution and levy as a means of enforcing security interest in light of Article 9, Part 5 of the Uniform Commercial Code, see 3 Ga. L. Rev. 198 (1968). For comment discussing due process problems with Georgia's personal property foreclosure procedure prior to the adoption of the 1974 Acts, in light of Hall v. Stone, 229 Ga. 96 , 189 S.E.2d 403 (1972), see 9 Ga. St. B.J. 336 (1973).

JUDICIAL DECISIONS

Application of §§ 9-11-1 through 9-11-1 32. - A claim for indebtedness, whether filed in a separate action or in the same action as a foreclosure proceeding under O.C.G.A. § 44-14-230 et seq., must stand or fall upon the principles set forth in O.C.G.A. §§ 9-11-1 through 9-11-132 , including, but not limited to, process and service of process, and may not be "piggy-backed" into court using the special rules applicable to foreclosure actions under O.C.G.A. § 44-14-230 et seq. Porter v. Midland-Guardian Co., 242 Ga. 1 , 247 S.E.2d 743 (1978); Dein v. Citizens Jewelry Co., 149 Ga. App. 340 , 254 S.E.2d 403 (1979); Good Housekeeping Shops v. Hines, 150 Ga. App. 240 , 257 S.E.2d 205 (1979).

As a proceeding under O.C.G.A. Ch. 14, T. 44 is a special statutory proceeding, the rules in O.C.G.A. §§ 9-11-12(a) and 9-11-56 regarding the time periods granted for the filing of an answer and the filing of and hearing on a motion for summary judgment are not applicable. Adams v. Citizens & S. Nat'l Bank, 132 Ga. App. 622 , 208 S.E.2d 628 (1974).

Sections 9-13-120 through 9-13-129 apply to the use of an affidavit of illegality to halt an execution proceeding on a writ of possession issued pursuant to a proceeding under O.C.G.A. § 44-14-230 et seq. Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412 , 249 S.E.2d 133 (1978).

An affidavit of illegality will lie to halt an execution which the defendant in a foreclosure case swears is proceeding illegally. Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412 , 249 S.E.2d 133 (1978).

An affidavit of illegality does not have to be accompanied by bond unless the defendant desires to maintain possession of the property. Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412 , 249 S.E.2d 133 (1978).

Finality of judgments. - The Supreme Court has ruled that O.C.G.A. § 5-6-34 is determinative as to the finality of judgments entered under O.C.G.A. § 44-14-230 et seq. Jordan v. Ford Motor Credit Co., 147 Ga. App. 515 , 249 S.E.2d 327 (1978).

Default judgments. - O.C.G.A. § 44-14-230 et seq. specifically contemplates that under limited circumstances a default judgment is authorized which will fully adjudicate "all of the amount due." Porter v. Midland-Guardian Co., 145 Ga. App. 262 , 243 S.E.2d 595 , rev'd on other grounds, 242 Ga. 1 , 247 S.E.2d 743 (1978).

Money judgment. - There is no provision in O.C.G.A. § 44-14-230 et seq. allowing a money judgment for the full amount of the indebtedness, as distinguished from a deficiency judgment, to be taken against the debtor other than in O.C.G.A. § 44-14-269 which only applies to immediate writs of possession under O.C.G.A. § 44-14-260 et seq., which sections pertain alone to commercial transactions, and not to consumer transactions. Jordan v. Ford Motor Credit Co., 147 Ga. App. 515 , 249 S.E.2d 327 (1978).

Where seller of jewelry instituted action under O.C.G.A. § 44-14-230 et seq. which provided the sole basis for jurisdiction, the trial court erred in entering a money judgment. Dein v. Citizens Jewelry Co., 149 Ga. App. 340 , 254 S.E.2d 403 (1979).

A person holding a conditional sale contract may pursue any number of consistent remedies to enforce the payment of the debt until it is satisfied. Obtaining a judgment on the note and foreclosure of the security device are consistent remedies, and the utilization of one will not constitute either an election or abandonment of the other. Porter v. Midland-Guardian Co., 145 Ga. App. 262 , 243 S.E.2d 595 , rev'd on other grounds, 242 Ga. 1 , 247 S.E.2d 743 (1978).

A creditor may bring separate actions to foreclose a security interest and on an indebtedness, and accordingly, both remedies may be sought in the same action. Porter v. Midland-Guardian Co., 242 Ga. 1 , 247 S.E.2d 743 (1978).

Cited in Continental Cas. Co. v. Bibb Chevrolet Co., 49 Ga. App. 523 , 176 S.E. 418 (1934); McLendon v. Lemon, 79 Ga. App. 751 , 54 S.E.2d 437 (1949); Candler I-20 Properties v. Inn Keepers Supply Co., 137 Ga. App. 94 , 222 S.E.2d 881 (1975); Harrison v. Goodyear Serv. Stores, 137 Ga. App. 223 , 223 S.E.2d 261 (1976); Fowler v. Ford Motor Credit Co., 143 Ga. App. 680 , 240 S.E.2d 608 (1977); Pittard v. Griggs, 148 Ga. App. 663 , 252 S.E.2d 181 (1979); King Orthopedic Appliances, Inc. v. Medical Funding Servs., Inc., 152 Ga. App. 544 , 263 S.E.2d 485 (1979).

OPINIONS OF THE ATTORNEY GENERAL

A justice of the peace may only honor applications for writs of possession as provided by former Chapter 67-7 (now O.C.G.A. § 44-14-230 et seq.) when the amount in controversy does not exceed $200.00. 1974 Op. Att'y Gen. No. U74-104.

RESEARCH REFERENCES

ALR. - Term "increase," in description in chattel mortgage on animals, as including increase other than by generation, 1 A.L.R. 554 .

Uniting interest of chattel mortgagor and mortgagee in same person as merger, 29 A.L.R. 702 .

Provision in land contract against removal of buildings as affecting rights of third person under chattel mortgage or conditional sale, 30 A.L.R. 542 .

Remedies in respect of mortgage on real property in another state or the debt secured thereby, 42 A.L.R. 470 .

Reacquisition by mortgagor, or his grantee, of the title through foreclosure of first mortgage as affecting rights under a second mortgage to which the property was subject before the foreclosure, 51 A.L.R. 445 ; 111 A.L.R. 1285 .

Who may take advantage of failure of chattel mortgagee to file renewal, 51 A.L.R. 591 .

Premature refiling of chattel mortgage, 63 A.L.R. 591 .

Powers of sale as including power to exchange, 63 A.L.R. 1003 .

Rights to attorneys' fees on enforcing chattel mortgage, 63 A.L.R. 1314 .

Requisites and sufficiency of change of possession under an unrecorded chattel mortgage, 79 A.L.R. 1018 .

Levy by chattel mortgagee under execution or attachment upon property covered by mortgage as affecting lien of mortgage, 92 A.L.R. 1277 .

Implied power of trustee under mortgage or deed of trust who purchases property in behalf of bondholders at foreclosure sale, to give new mortgage, 95 A.L.R. 527 .

Financial depression as justification of moratorium or other relief to mortgagor (including decisions under statutes in that regard), 104 A.L.R. 375 .

Liability of mortgagee or mortgaged property for expenses of receivership not sought by him, or for expenditures by receiver in connection with the property, 104 A.L.R. 990 .

Failure to take judgment for deficiency in suit to foreclose mortgage brought after appointment or receiver of trustee in bankruptcy of mortgagor as affecting right to its allowance as claim in insolvency or bankruptcy proceedings, 104 A.L.R. 1141 .

Liability of mortgagee for damages because of wrongful foreclosure or improper execution of rightful foreclosure, 108 A.L.R. 592 .

Accountability of mortgagee or pledgee for profit made upon resale of the property after purchase thereof at foreclosure or other enforcement sale, 117 A.L.R. 863 .

Waiver of right to foreclose mortgage, 148 A.L.R. 686 .

Necessity and sufficiency of notice of sale to mortgagor where chattel mortgage is sought to be foreclosed without judicial proceedings by sale under power, 30 A.L.R.2d 539.

Rights in proceeds of vehicle collision policy, under "loss-payable" clause, of conditional seller, chattel mortgagee, or the like, of vehicle where there has been improper repossession or foreclosure after the damage, 46 A.L.R.2d 992.

Subpart 1 In General

44-14-230. Authority to foreclose; execution; sale.

  1. Any person holding a security interest on personal property under a transaction governed by this part or by Title 11, the "Uniform Commercial Code," and wishing to foreclose the security interest shall be authorized to foreclose the security interest and shall be entitled to an execution directed to all and singular the sheriffs, the marshals, the constables, or their lawful deputies, of this state, which execution shall command the sale of the secured property to satisfy the amount due from the debtor, together with the costs of the proceedings to foreclose the security interest in accordance with the procedure specified in this part, together with an order directing the defendant or the party in possession to turn over to the sheriff, the marshal, the constable, or their lawful deputies the property sought to be foreclosed upon as provided for in subsection (d) of Code Section 44-14-233.
    1. As used in this subsection, the term "rental transaction" means the lease or rental of goods or personal property.
    2. Any owner of personal property leased or rented in a rental transaction who wishes to regain possession of such property as authorized by the terms of the transaction may obtain a writ of possession under this subpart in the same manner as is authorized for a holder of a security interest in personal property.
    3. Solely for the purpose of applying the procedures specified by this part to rental transactions and not for any other purposes, the owner of the property shall be considered to be a secured party and the rented or leased property shall be considered to be secured property. Proceedings to regain property under a rental transaction shall be as provided in this subpart, except that after a writ of possession is granted the rented or leased property shall be delivered to the owner and shall not be levied upon.

      (Laws 1799, Cobb's 1851 Digest, p. 571; Laws 1839, Cobb's 1851 Digest, p. 572; Code 1863, § 3875; Code 1868, § 3895; Ga. L. 1871-72, p. 20, § 1; Code 1873, § 3971; Code 1882, § 3971; Ga. L. 1882-83, p. 74, § 1; Ga. L. 1882-83, p. 109, § 1; Civil Code 1895, § 2753; Civil Code 1910, § 3286; Code 1933, § 67-701; Ga. L. 1974, p. 398, § 1; Ga. L. 1983, p. 724, § 1; Ga. L. 1984, p. 892, § 2; Ga. L. 1987, p. 3, § 44; Ga. L. 1987, p. 1023, § 1.)

Law reviews. - For article on this part and personal property foreclosures, see 11 Ga. St. B. J. 230 (1975). For article, "The Civil Jurisdiction of State and Magistrate Courts," see 24 Ga. St. B. J. 29 (1987). For article, "Foreclosure Diversion and Mediation in the States," see 33 Georgia St. U. L. Rev. 411 (2017).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the provisions, decisions under former Code 1933, § 67-701 as it existed prior to the revision by Ga. L. 1976, p. 398, § 1 are included in the annotations for this section.

Nature of proceedings. - Foreclosing a mortgage on personalty, under this section, is a proceeding at law. Manheim v. Claflin & Co., 81 Ga. 129 , 7 S.E. 284 (1888) (decided under former provisions).

A foreclosure under this section is such a disaffirmance of title by the mortgagee as waives the assertion of title, although the mortgage may be only a part of a contract which also contains a reservation of title, and although the instrument in question might either be foreclosed as a mortgage or afford the basis of an assertion of title in the payee by trover. Kennedy v. Manry, 6 Ga. App. 816 , 66 S.E. 29 (1909); Puett v. Edwards, 17 Ga. App. 645 , 88 S.E. 36 (1916) (decided under former provisions).

Remedy not exclusive. - A mortgagee of personalty may foreclose under this section and proceed at the same time on the mortgage debt by ordinary action. Juchter v. Boehm, Bendheim & Co., 63 Ga. 71 (1879) (decided under former provisions).

Substantial compliance required. - A substantial compliance with the method pointed out for foreclosing a chattel mortgage by this section is essential to a judgment of foreclosure. Duke v. Culpepper, 72 Ga. 842 (1884) (decided under former provisions).

If the requirements for the foreclosure of a chattel mortgage have been substantially complied with, and all defects in the proceedings appear to be amendable, the proceeding is not void, and third persons acquiring rights to the property sold thereunder will be protected therein. Hardy v. Luke, 18 Ga. App. 423 , 89 S.E. 540 (1916) (decided under former provisions).

Place of foreclosure. - A mortgage on personalty must be foreclosed in the county of the residence of the mortgagor, if a resident of this state; and that it is so foreclosed should affirmatively appear from the record. Rich v. Colquitt, 65 Ga. 113 (1880) (decided under former provisions).

The issuing of an execution is essential to a complete foreclosure of a chattel mortgage under this section. De Vaughn v. Byrom, 110 Ga. 904 , 36 S.E. 267 (1900) (decided under former provisions).

Execution is final process. - This section provides for issuance of an execution under which the property shall be levied on and sold. This is a summary remedy, and the fi. fa. is final process which may be levied immediately, without any provision for the holder of the note to give notice as prescribed in O.C.G.A. § 13-1-11 . Watters & Co. v. O'Neill, 151 Ga. 680 , 108 S.E. 35 (1921) (decided under former provisions).

This section does not make provision for the execution to be returnable to any particular term of court, so, O.C.G.A. § 9-13-9 would apply. Youmans v. Consumers Fin. Corp., 77 Ga. App. 373 , 48 S.E.2d 684 (1948) (decided under former provisions).

Finality of judgment. - The judgment of the trial court directing that the property be advertised and the proceeds of the sale paid under certain directions to the plaintiff is a final judgment. A judgment of a court having jurisdiction which provides for the control of the surplus of the funds derived from the sale of the property so as to protect the lien created for the unaccrued instalments of the debt in an action for the foreclosure of a bill of sale on personal property to secure a debt where a part of the payments provided for in the instrument sought to be foreclosed are past due and other payments not yet accrued, is a final judgment. Miller Serv., Inc. v. Miller, 77 Ga. App. 413 , 48 S.E.2d 761 (1948) (decided under former provisions).

A general judgment cannot be taken against the defendant in fi. fa. in a foreclosure brought under this section. Walker v. Small Equip. Co., 114 Ga. App. 603 , 152 S.E.2d 629 (1966) (decided under former provisions).

Purchase money notes. - A purchase money note for an amount exceeding $100.00, which contains a reservation of title to the personalty for the purchase price of which the note was given, and does not include a mortgage, cannot be foreclosed as a mortgage. Puett v. Edwards, 17 Ga. App. 645 , 88 S.E. 36 (1916) (decided under former provisions).

Single mortgage securing two creditors. - Where a debtor made a single mortgage covering a stock of goods to secure two creditors to the amounts respectively due them, the mortgage could be foreclosed in favor of both creditors at the same time; and such foreclosure would not be the joining of distinct and separate claims in the same action. Chamberlin & Co. v. Beck, Gregg & Co., 68 Ga. 346 (1882) (decided under former provisions).

Foreclosure on multiple securities. - A single foreclosure proceeding under this section between the same creditor and the identical defaulting debtor on multiple security instruments is valid, even though the conditional sale contracts involve different motor vehicles and were made on different dates. Dampier v. Citizens & S. Nat'l Bank, 129 Ga. App. 240 , 199 S.E.2d 330 (1973) (decided under former provisions).

Attorney's fees. - By the terms of a contract, attorneys fees were as much a part of the debt secured as were the notes themselves. The court was right in awarding ten per cent to the plaintiff's attorney as fees in the foreclosure under this section. McCall v. Walter, 71 Ga. 287 (1883) (decided under former provisions).

Mortgage to secure note for advances to make crop. - A chattel mortgage properly executed and recorded, to secure the payment of a promissory note given for advances to make a crop, is a valid mortgage, and may be foreclosed under this section. Stephens v. Tucker, 55 Ga. 543 (1875) (decided under former provisions).

Directing sheriff to sell. - A direction in a mortgage fi. fa. that of the personalty covered thereby the sheriff make a specified sum, is in effect a direction to sell for that purpose. Chamberlin & Co. v. Beck, Gregg & Co., 68 Ga. 346 (1882) (decided under former provisions).

Omissions or irregularities on the part of the sheriff are not chargeable to the buyer. The only questions with which a purchaser is concerned are the judgment, the levy, and the delivery of the property, all other questions are between the parties to the judgment and the sheriff. Parr & Wood Furn. Co. v. Barnett, 16 Ga. App. 550 , 85 S.E. 823 (1915) (decided under former provisions).

Rights of trustee in bankruptcy. - If a mortgage on personalty was foreclosed, as provided in this section, and the sheriff took possession, a trustee in bankruptcy of the mortgagor, appointed after a subsequent adjudication, would not have the right to have the property delivered to him, although the petition in involuntary bankruptcy was filed before the mortgage was foreclosed. The mere fact that in the bankruptcy proceeding a temporary receiver had been named, but had not taken possession when the sheriff seized the property under the mortgage foreclosures, would not alter the case. Neill v. Barbaree, 135 Ga. 771 , 70 S.E. 638 (1911) (decided under former provisions).

Upon summary foreclosure of a mortgage on personalty under this section and seizure of the property, the mortgagor or other creditor may contest the validity of the lien or the amount claimed to be due. A trustee in bankruptcy may do so. Neill v. Barbaree, 135 Ga. 771 , 70 S.E. 638 (1911) (decided under former provisions).

Failure to raise defenses. - Where a proceeding to foreclose a retention of title contract is instituted and the defendant's answer sets up no defense to the foreclosure proceeding and in fact, is not responsive to the foreclosure proceeding, but refers to a trover proceeding and nowhere denies that the amount claimed or any part thereof is due, the answer filed fails to set up any defense and is subject to dismissal. Little v. Yow, 69 Ga. App. 335 , 25 S.E.2d 232 (1943) (decided under former provisions).

Instructions. - It was not error for the trial court to fail to charge the substance of this section in the absence of a request. First Nat'l Bank v. Vinson, 102 Ga. App. 828 , 118 S.E.2d 225 (1960) (decided under former provisions).

Automobile lessor obtained no priority over mechanic's lien by initiating foreclosure. - Automobile lessor did not, merely by initiating a foreclosure action in regard to the vehicle, thereby acquire any status as a secured party for purposes of obtaining a priority over the holder of a prior validly perfected mechanic's lien. First Nat'l Bank v. Strother Ford, Inc., 188 Ga. App. 749 , 374 S.E.2d 203 (1988).

Cited in Evans v. Equico Lessors, 140 Ga. App. 583 , 231 S.E.2d 534 (1976); Rome Bank & Trust Co. v. Bradshaw, 143 Ga. App. 152 , 237 S.E.2d 612 (1977); Riviera Equip., Inc. v. Omega Equip. Corp., 147 Ga. App. 412 , 249 S.E.2d 133 (1978); Grover v. Vintage Credit Corp., 155 Ga. App. 759 , 272 S.E.2d 732 (1980); Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 , 274 S.E.2d 20 (1980); O'Kelly v. International Bus. Mach. Corp., 158 Ga. App. 509 , 281 S.E.2d 275 (1981); Butler v. Home Furnishing Co., 163 Ga. App. 825 , 296 S.E.2d 121 (1982); Deutz-Allis Credit Corp. v. Phillips, 183 Ga. App. 760 , 360 S.E.2d 29 (1987); Yamaha of Atlanta, Inc. v. Yamaha Motor Corp., 188 Ga. App. 413 , 373 S.E.2d 95 (1988); Technology Distrib., Inc. v. American Computer Technology, Inc., 199 Ga. App. 785 , 405 S.E.2d 907 (1991).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, §§ 572 et seq., 637 et seq.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 355-359, 364, 398, 412-422, 425.

ALR. - Relief to person who by mistake has foreclosed real estate mortgage in manner inimical to his own interests, 42 A.L.R. 1192 .

Chattel mortgagee's failure to pursue proper course after taking possession as affecting personal liability of mortgagor, 47 A.L.R. 582 .

Purchase by pledgee of subject of pledge, 76 A.L.R. 705 ; 37 A.L.R.2d 1381.

Exclusiveness of statutory method of enforcing chattel mortgage, 88 A.L.R. 912 .

Validity, construction, and application of insecurity clause in chattel mortgage, 125 A.L.R. 313 .

Rights and remedies of mortgagee where mortgaged property is bid in on foreclosure as less than mortgage debt and it is redeemed by mortgagor or latter's grantee, 128 A.L.R. 796 .

Attachment as affected by release or modification of lien to which property was subject when attachment was levied, 128 A.L.R. 1392 .

Mortgagee's purchase at his own foreclosure sale as affecting right of subrogation against him arising out of facts antedating the sale, 141 A.L.R. 1217 .

Rights in proceeds of vehicle collision policy, under "loss-payable" clause, of conditional seller, chattel mortgagee, or the like, of vehicle where there has been improper repossession or foreclosure after the damage, 46 A.L.R.2d 992.

What conduct by repossessing chattel mortgagee or conditional vendor entails tort liability, 99 A.L.R.2d 358.

Replevin or claim-and-delivery: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract, 45 A.L.R.3d 1233.

Failure to keep up insurance as justifying foreclosure under acceleration provision in mortgage or deed of trust, 69 A.L.R.3d 774.

44-14-231. Petition for writ of possession; affidavit.

Upon a statement of the facts under oath, any person holding a security interest on personal property and wishing to foreclose the security interest may petition, by affidavit, either in person or by his or her agent or attorney in fact or at law, for a writ of possession. Such affidavit shall be made pursuant to the requirements of Code Section 9-10-113 and forwarded with the petition to the appropriate judge, magistrate, or clerk in the county where the debtor may reside or where the secured property is located.

(Code 1933, § 67-702, enacted by Ga. L. 1974, p. 398, § 1; Ga. L. 1975, p. 1213, § 1; Ga. L. 1978, p. 1705, § 1; Ga. L. 1983, p. 884, § 4-1; Ga. L. 1987, p. 1023, § 2; Ga. L. 2002, p. 630, § 3.)

The 2002 amendment, effective July 1, 2002, inserted "or her" and substituted ". Such affidavit shall be made pursuant to the requirements of Code Section 9-10-113" for "before any judge of the superior court, any magistrate, any judge of any other court having jurisdiction over such proceedings, or any clerk of any such court within the county where the debtor may reside or where the secured property is located. If the person holding the security interest is not a resident of the county where the debtor resides or where the secured property is located, any oath required by this Code section may be made before a judge of any court of record within this state" near the middle.

Law reviews. - For article on this part and personal property foreclosures, see 11 Ga. St. B.J. 230 (1975).

JUDICIAL DECISIONS

Venue. - An action under O.C.G.A. § 44-14-231 is not a "civil action" within the meaning of Ga. Const. 1983, Art. VI, Sec. II, Para. VI, and thus venue is proper in a county other than that of the defendant's residence. McClintock v. Wellington Trade, Inc., 252 Ga. 563 , 315 S.E.2d 428 (1984).

An action pursuant to O.C.G.A. § 44-14-231 is not limited to proceeding only against a debtor who is in possession of the property, but contemplates that the defendant may be someone who is in possession of the property other than the debtor. Camilla Cotton Oil Co. v. C.I.T. Corp., 143 Ga. App. 840 , 240 S.E.2d 212 (1977); Sylvester Motor & Tractor Co. v. Farmers Bank, 153 Ga. App. 614 , 266 S.E.2d 293 (1980).

Rights determined. - Like writ of possession, writ of immediate possession, whether upheld or dissolved, determines only right to possession pending final decision on merits. Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 , 274 S.E.2d 20 (1980).

Judicial immunity for magistrate judge. - Given that, in Georgia, issuance of writs of possession is delegated to magistrates by Georgia law, the debtor's complaint against the magistrate judge was subject to dismissal for failure to state a claim because the magistrate judge was acting as an arm of the state and was therefore entitled to Eleventh Amendment immunity; the judge was also acting within the judge's judicial capacity and therefore entitled to judicial immunity. Singleton v. Yoder's Storage Bldgs., LLC (In re Singleton), Bankr. (Bankr. S.D. Ga. Sept. 20, 2017).

Oath administered by unauthorized person. - Where oath made before notary public and not by party authorized to issue summons, all subsequent proceedings were nugatory. Jordan v. Ford Motor Credit Co., 141 Ga. App. 280 , 233 S.E.2d 256 (1977).

Amendable defect. - Where a party seeking to foreclose a security interest in personal property sues out a writ of possession based on a petition not under oath, in violation of O.C.G.A. § 44-14-231 , the failure is an amendable defect under O.C.G.A. §§ 9-11-1 through 9-11-1 32 and does not render the proceedings void. C.E. Morgan Bldg. Prods., Inc. v. Safe-Lite Mfg., Inc., 244 Ga. 475 , 260 S.E.2d 870 (1979).

Failure to raise timely objection. - Where the parties went to trial on the merits of the plaintiff's petition for writ of possession seeking to foreclose security interest in personal property, without the defendant's raising any objection concerning the plaintiff's failure to verify the petition until appeal, the objection came too late. C.E. Morgan Bldg. Prods., Inc. v. Safe-Lite Mfg., Inc., 244 Ga. 475 , 260 S.E.2d 870 (1979).

Court cannot command return of property, dispensing with levy on secured property. - O.C.G.A. § 44-14-231 authorizes a court having jurisdiction to grant a writ of possession to secured property; it does not authorize a state court judge to command affirmatively that the defendant return the property and thus allow a plaintiff to dispense with a levy made on the secured property. Ponderosa Granite Co. v. First Nat'l Bank, 173 Ga. App. 105 , 325 S.E.2d 591 (1984).

Default judgments. - O.C.G.A. § 44-14-269 deals with petitions for immediate writ of possession and is inapplicable to a proceeding dealing with a petition for a writ of possession under O.C.G.A. § 44-14-231 . Spencer v. Taylor, 144 Ga. App. 641 , 242 S.E.2d 308 (1978).

Res judicata and collateral estoppel did not apply. - Trial court did not err in ruling for a creditor in the creditor's action against a debtor pursuant to O.C.G.A. § 44-14-231 to foreclose on personal property and to recover monies lent and unpaid because the doctrines of res judicata and collateral estoppel did not apply when the merits of the creditor's claims for foreclosure and monies lent had not been previously adjudicated by a court of competent jurisdiction; the issue before an administrative law judge (ALJ) in the Office of State Administrative Hearings was limited to whether the Georgia Department of Revenue acted properly in cancelling the creditor's certificate of title to a vehicle, and the issue of the debtor's failure to pay the debtor's debt to the creditor was not an issue litigated and decided in the administrative proceeding. Allen v. Santana, 303 Ga. App. 844 , 695 S.E.2d 314 (2010).

Cited in Bouldin v. Haverty Furn. Cos., 136 Ga. App. 30 , 220 S.E.2d 48 (1975); Wallace v. Aetna Fin. Co., 137 Ga. App. 580 , 224 S.E.2d 517 (1976); Bank of S. v. Hammock, 140 Ga. App. 552 , 231 S.E.2d 407 (1976); Coppage v. Mellon Bank, 150 Ga. App. 92 , 256 S.E.2d 671 (1979); Grover v. Vintage Credit Corp., 155 Ga. App. 759 , 272 S.E.2d 732 (1980); Citizens & S. Nat'l Bank v. Abbott, 158 Ga. App. 651 , 281 S.E.2d 625 (1981); Barnett v. First Fed. Sav. & Loan Ass'n, 169 Ga. App. 396 , 313 S.E.2d 115 (1984); Grant v. GECC, 764 F.2d 1404 (11th Cir. 1985); Bledsoe v. Central Ga. Prod. Credit Ass'n, 180 Ga. App. 598 , 349 S.E.2d 821 (1986); Deere Park & Assocs. v. C H Furniture Source, LLC, 296 Ga. App. 382 , 674 S.E.2d 635 (2009).

OPINIONS OF THE ATTORNEY GENERAL

A justice of the peace may only honor applications for writs of possession as provided by O.C.G.A. § 44-14-230 et seq. when the amount in controversy does not exceed $200.00. 1974 Op. Att'y Gen. No. U74-104.

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, §§ 590-606.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 272, 405-408.

ALR. - Relief to person who by mistake has foreclosed real estate mortgage in manner inimical to his own interests, 42 A.L.R. 1192 .

Chattel mortgagee's failure to pursue proper course after taking possession as affecting personal liability of mortgagor, 47 A.L.R. 582 .

Jurisdiction of court of state other than that in which property is located to redeem from or enforce a chattel mortgage debt secured thereby, 69 A.L.R. 622 .

Bankruptcy court's injunction against mortgage or lien enforcement proceedings commenced, before bankruptcy, in another court, 40 A.L.R.2d 663.

Maintenance of replevin or similar possessory remedy by cotenant, or security transaction creditor thereof, against other cotenants, 93 A.L.R.2d 358.

44-14-232. Summons; service on defendant; debtor's duty to notify creditor of address changes; form.

  1. When the petition provided for in Code Section 44-14-231 is made, the judge, the magistrate, or the clerk shall grant and issue a summons as prescribed in this Code section to the sheriff, his deputy or marshal, or any lawful constable of the county where the debtor resides or the secured property is located. Service shall be made by the officer by delivering a copy of the summons attached to a copy of the petition to the defendant personally; or, if the officer is unable to serve the defendant personally, service may be had by delivering the summons and the petition to any person sui juris residing on the premises; or, if no such person is found residing on the premises after reasonable effort, service may be had by tacking a copy of the summons and the petition on the door of the premises and, on the same day of the tacking, by enclosing, directing, stamping, and mailing by first-class mail a copy of the summons and the petition to the defendant at his last known address, if any, and making an entry of this action on the petition filed in the case.
  2. The summons served on the defendant pursuant to subsection (a) of this Code section shall command and require the defendant to answer either orally or in writing within seven days from the date of the actual service unless the seventh day is a Saturday, a Sunday, or a legal holiday, in which case the answer may be made on the next day which is not a Saturday, a Sunday, or a legal holiday.
  3. It shall be the obligation of the debtor to advise the secured creditor of any change of his address subsequent to the date of the granting of the security interest.
  4. The form of the summons shall be uniform in every county of this state and is prescribed as follows:

    (Code 1933, § 67-703, enacted by Ga. L. 1974, p. 398, § 1; Ga. L. 1978, p. 1705, § 2; Ga. L. 1982, p. 3, § 44; Ga. L. 1987, p. 1023, § 3; Ga. L. 1999, p. 81, § 44; Ga. L. 2002, p. 415, § 44.)

"IN THE __________ COURT OF __________ COUNTY

STATE OF GEORGIA

(Style of case) CIVIL ACTION NO. ____________

SUMMONS

TO THE ABOVE-NAMED DEFENDANT: The defendant ________ herein ____________ hereby commanded and required personally or by attorney to file with the Clerk of the ______________ Court of ______________ County (insert location) within seven days from the date of service of the within affidavit and summons, or on the first business day thereafter if the seventh day falls on a Saturday, a Sunday, or a legal holiday, then and there to answer said affidavit in writing or orally. If the defendant fails to answer on or before the seventh day from the date of service, the defendant may reopen the default as a matter of right by making an answer within seven days after the date of the default notwithstanding the provision of Code Section 9-11-55 of the Official Code of Georgia Annotated. If the seventh day is a Saturday, a Sunday, or a legal holiday, the answer may be made on the next day which is not a Saturday, a Sunday, or a legal holiday. The last possible date on which the defendant may answer is the ______ day of ________________________, ________. If answer is not so made, a writ of possession shall issue against you as by law provided, pursuant to plaintiff's affidavit. Witness the Honorable __________________________, Judge of said Court. This ______ day of ________________________, ________. __________________________ Clerk, __________ Court of __________ County Service perfected on defendant, this ________ day of ________________________, ________. __________________________ Sheriff, deputy, marshal or constable"

The 2002 amendment, effective April 18, 2002, part of an Act to revise, modernize, and correct the Code, revised spelling in subsection (d).

Law reviews. - For article on this part and personal property foreclosures, see 11 Ga. St. B.J. 230 (1975).

JUDICIAL DECISIONS

The trial court acquires no jurisdiction over defendant in the absence of service in accordance with the statutory mandate, or the waiver thereof. McGowan v. W.S. Badcock Corp., 144 Ga. App. 255 , 240 S.E.2d 779 (1977).

The fact that defendant acquires knowledge of the pending suit does not cure the defective service. McGowan v. W.S. Badcock Corp., 144 Ga. App. 255 , 240 S.E.2d 779 (1977).

Instructions. - It was not error for the trial court to fail to charge the substance of O.C.G.A. § 44-14-232 in the absence of a request. First Nat'l Bank v. Vinson, 102 Ga. App. 828 , 118 S.E.2d 225 (1960).

Where the plaintiff in a mortgage execution wrongfully causes personal property described in the execution to be brought from Alabama into Georgia for the purpose of having it levied upon under the execution, a levy on the property under such circumstances is illegal and void, in the absence of acquiescence and consent of the mortgagor. Robinson v. Smith, 80 Ga. App. 151 , 55 S.E.2d 638 (1949).

Notice required where parties intended contract preempted by federal law. - A mobile home financing contract which was silent with regard to foreclosure and repossession did not permit the creditor to repossess by self help without notice (O.C.G.A. § 11-9-503 ), or to foreclose upon seven-days notice pursuant to a writ of possession (O.C.G.A. § 44-14-232 ), for the simple reason that the parties intended to enter a contract preempted by federal law, which requires 30 days notice to a defaulting debtor prior to repossession or foreclosure. Grant v. GECC, 764 F.2d 1404 (11th Cir. 1985), cert. denied, 476 U.S. 1124, 106 S. Ct. 1993 , 90 L. Ed. 2 d 673 (1986).

Cited in Adams v. Citizens & S. Nat'l Bank, 132 Ga. App. 622 , 208 S.E.2d 628 (1974); Harper v. First Nat'l Bank, 133 Ga. App. 690 , 212 S.E.2d 20 (1975); Favors v. Vintage Credit Corp., 141 Ga. App. 47 , 232 S.E.2d 387 (1977); Jordan v. Ford Motor Credit Co., 141 Ga. App. 280 , 233 S.E.2d 256 (1977); First Nat'l Bank v. Baker, 142 Ga. App. 870 , 237 S.E.2d 233 (1977); Porter v. Midland-Guardian Co., 145 Ga. App. 262 , 243 S.E.2d 595 (1978); Porter v. Midland-Guardian Co., 242 Ga. 1 , 247 S.E.2d 743 (1978); Good Housekeeping Shops v. Hines, 150 Ga. App. 240 , 257 S.E.2d 205 (1979); Grover v. Vintage Credit Corp., 155 Ga. App. 759 , 272 S.E.2d 732 (1980); Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 , 274 S.E.2d 20 (1980); Steele v. Bank of Dalton, 168 Ga. App. 224 , 308 S.E.2d 577 (1983); Smith v. GMAC, 178 Ga. App. 848 , 344 S.E.2d 768 (1986); Bledsoe v. Central Ga. Prod. Credit Ass'n, 180 Ga. App. 598 , 349 S.E.2d 821 (1986); Johnson v. First Carolina Fin. Corp., 200 Ga. App. 340 , 408 S.E.2d 151 (1991); Oduok v. Wedean Props., 319 Ga. App. 785 , 738 S.E.2d 626 (2013).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, §§ 607-614.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 399, 404.

ALR. - Right of holder of interest coupons through one who had guaranteed their payment to share with holder of principal obligation in proceeds of mortgage security, 41 A.L.R. 1254 .

Replevin or claim-and-delivery: Modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract, 45 A.L.R.3d 1233.

44-14-233. Answer; reopening the default; granting writ upon default; trial; order to turn over property to sheriff or other.

  1. If the defendant fails to answer on or before the date provided in subsection (b) of Code Section 44-14-232, the defendant may reopen the default as a matter of right by making an answer within seven days after the date of the default notwithstanding the provisions of Code Section 9-11-55. If the seventh day is a Saturday, a Sunday, or a legal holiday, the answer may be made on the next day which is not a Saturday, a Sunday, or a legal holiday.
  2. If the defendant fails to answer or open the default, the court shall grant a writ of possession and, if otherwise permitted by this part, the plaintiff shall be entitled to a verdict and a judgment by default in open court or in chambers and without the intervention of a jury for all of the amount due, together with costs, as if every item and paragraph of the affidavit provided for in Code Section 44-14-231 were supported by proper evidence.
  3. The defendant may answer either in writing or orally. If the defendant answers orally, the substance thereof shall be endorsed by the court on the petition. The answer may contain any legal or equitable defense or counterclaim. If the defendant answers, a trial of the issues shall be had in accordance with the procedure prescribed for civil actions in courts of record. Every effort shall be made by the trial court to expedite a trial of the issues and place the case on the next available calendar. However, the trial shall not be held before seven days have elapsed from the date the defendant files his answer. The defendant shall be allowed to remain in possession of the secured property pending the final outcome of the litigation, provided that the defendant complies with Code Section 44-14-234.
  4. The court shall issue an order directing the defendant or person in possession of property sought to be foreclosed to turn over said property to the sheriff, marshal, constable, or their lawful deputies whenever that court issues a writ of possession for personal property pursuant to this part.
  5. A suggested form for the order authorized under subsection (d) of this Code section is as follows:

    (Code 1933, § 67-704, enacted by Ga. L. 1974, p. 398, § 1; Ga. L. 1978, p. 1705, § 3; Ga. L. 1987, p. 1023, § 4; Ga. L. 1999, p. 81, § 44.)

"IN THE __________ COURT OF __________ COUNTY

STATE OF GEORGIA

(Style of case) CIVIL ACTION NO. ________________________________________________________________

ORDER

A writ of possession having been issued against the defendant for personal property to be foreclosed upon, it is: ORDERED that the defendant or the party in possession of the property specified in that writ of possession be and that person is hereby directed to turn over to the sheriff, marshal, or constable of __________ County or his lawful deputies, or to any sheriff, marshal, or constable of this state or their lawful deputies, the (describe property), instanter, or advise said officer of the location of the property if same is not in defendant's possession. SO ORDERED, this ______ day of ________________________, ________. __________________________ JUDGE PRESENTED BY: __________________________ Attorney's name and address"

Law reviews. - For article on this part and personal property foreclosures, see 11 Ga. St. B.J. 230 (1975). For article, "The Civil Jurisdiction of State and Magistrate Courts," see 24 Ga. St. B.J. 29 (1987).

JUDICIAL DECISIONS

The purpose in enacting O.C.G.A. § 44-14-233 was to give defendants who are unrepresented by counsel and who are unschooled in the law an opportunity to state their defenses orally to the court as best they can and to have the substance of their defenses endorsed on the dispossessory warrant, thereby making a record upon which the case may proceed in the trial and appellate courts. Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525 , 258 S.E.2d 139 (1979).

The Personal Property Foreclosure Act requires the making of a contemporaneous record, and it must be strictly construed and observed. Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525 , 258 S.E.2d 139 (1979).

Request for jury trial and demand for a court reporter is no "answer" to a petition for a writ of possession. The trial court is therefore mandated by law to issue the writ of possession, which does not amount to a denial of the constitutional right to a jury trial. Banks v. Borg-Warner Acceptance Corp., 168 Ga. App. 46 , 308 S.E.2d 54 (1983).

The failure to endorse an answer upon the petition at the time of the hearing is not an amendable defect so as to be cured by judgment or subsequent "supplemental record." Brown v. Wilson Chevrolet-Olds, Inc., 150 Ga. App. 525 , 258 S.E.2d 139 (1979).

O.C.G.A. § 44-14-230 et seq. specifically contemplates that under limited circumstances a default judgment is authorized which will fully adjudicate "all of the amount due." Porter v. Midland-Guardian Co., 145 Ga. App. 262 , 243 S.E.2d 595 , rev'd on other grounds, 242 Ga. 1 , 247 S.E.2d 743 (1978).

Default judgment entered prior to seven-day period following the original default is voidable during that seven-day period and may be set aside. However, where the defendant files no answer or other pleadings during that time, a later motion to set aside the judgment comes too late. Steele v. Bank of Dalton, 168 Ga. App. 224 , 308 S.E.2d 577 (1983).

Answer untimely. - In an action for an immediate writ of possession against borrowers who had defaulted, the bank's motion to dismiss the borrowers' answer and counterclaim was properly granted, because the borrowers failed to open the default judgment as a matter of right within seven days, as required by O.C.G.A. § 44-14-233(a) and, thus, the case remained in default. Mathis v. River City Bank, 317 Ga. App. 560 , 731 S.E.2d 788 (2012).

There is no provision in O.C.G.A. § 44-14-233 allowing a judgment by default for all of the amount due, together with costs. Spencer v. Taylor, 144 Ga. App. 641 , 242 S.E.2d 308 (1978).

Defendant's failure to post bond entitled plaintiff to immediate writ of possession. - Consulting company sued a store for breach of contract; the store's debt to the company was secured by UCC financing statements on the store's inventory. The company was entitled to an immediate writ of possession because after the suit was filed, the store sold and transferred merchandise subject to the company's security interest without posting bond as required by O.C.G.A. §§ 44-14-234(3) and 44-14-237 . Deere Park & Assocs. v. C H Furniture Source, LLC, 296 Ga. App. 382 , 674 S.E.2d 635 (2009).

Judgment reversed when owner not accorded statutory procedures. - Trial court improperly issued the court's final judgment without affording the owner the procedures accorded the owner by O.C.G.A. § 44-14-233(c) . The earlier hearing did not amount to a trial since it was neither noticed nor understood as such by the parties or the trial court, which issued a ruling only on the interlocutory matter of the registry payments at its conclusion. Ware v. Vanderbilt Mortg. & Fin., Inc., 320 Ga. App. 702 , 740 S.E.2d 691 (2013).

Cited in Harper v. First Nat'l Bank, 133 Ga. App. 690 , 212 S.E.2d 20 (1975); Greene v. Citizens & S. Bank, 134 Ga. App. 73 , 213 S.E.2d 175 (1975); Candler I-20 Properties v. Inn Keepers Supply Co., 137 Ga. App. 94 , 222 S.E.2d 881 (1975); Wallace v. Aetna Fin. Co., 137 Ga. App. 580 , 224 S.E.2d 517 (1976); Jordan v. F & M Bank, 138 Ga. App. 43 , 225 S.E.2d 498 (1976); Bank of S. v. Hammock, 140 Ga. App. 552 , 231 S.E.2d 407 (1976); Brock v. GMAC, 140 Ga. App. 526 , 231 S.E.2d 524 (1976); Favors v. Vintage Credit Corp., 141 Ga. App. 47 , 232 S.E.2d 387 (1977); First Nat'l Bank v. Baker, 142 Ga. App. 870 , 237 S.E.2d 233 (1977); Flanders v. Commercial Credit Equip. Corp., 145 Ga. App. 193 , 243 S.E.2d 525 (1978); Chapman v. Bank of Cumming, 150 Ga. App. 85 , 256 S.E.2d 601 (1979); Grover v. Vintage Credit Corp., 155 Ga. App. 759 , 272 S.E.2d 732 (1980); Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 , 274 S.E.2d 20 (1980); Jones v. First Carolina Fin. Corp., 158 Ga. App. 818 , 282 S.E.2d 364 (1981); Smith v. GMAC, 178 Ga. App. 848 , 344 S.E.2d 768 (1986); Hill v. First Community Bank, 180 Ga. App. 772 , 350 S.E.2d 486 (1986).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, § 572.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 355, 400, 405, 411.

ALR. - Right to litigate validity of tax title in suit to foreclose mortgage, 85 A.L.R. 1073 .

Right to jury trial of issues as to personal judgment for deficiency in suit to foreclose mortgage, 112 A.L.R. 1492 .

44-14-234. Payment into court; issuance of writ; possession and disposition of property pending resolution; disposition of payments.

In any foreclosure action, the defendant shall comply with the following provisions:

  1. Where the issue of the right of possession cannot be finally determined within two weeks from the date of service of the copy of the summons, the defendant shall be required to pay into the registry of the trial court:
    1. All past due amounts which are admitted to be due and for which there are no allegations of defenses or claims which, if proven, would offset said amounts alleged past due; and
    2. All amounts of unaccelerated payments which become due after the issuance of the summons as said amounts of payments become due;

      provided, however, that, in lieu of the payments, the defendant shall be allowed to submit a receipt to the court indicating that the payments have been made to the secured creditor. In the event that the amount of the payments actually due or to become due is in controversy, the court shall determine the amount to be paid into the court in the same manner as provided in paragraph (2) of this Code section;

  2. If the plaintiff and the defendant disagree as to the amounts actually due or to become due, the court shall set a hearing date to determine the amount to be paid into the court. At the hearing, the parties may submit to the court any evidence of the amounts actually due or to become due, including any security agreement and evidence of any claims or defenses arising out of the same transaction, for the purpose of establishing the actual amount of the payments to be paid into the registry of the court;
  3. After the date of the service of the summons as provided in Code Section 44-14-232, the defendant shall not transfer, remove, or convey the secured property without posting bond as provided in Code Section 44-14-237;
  4. If the defendant fails to comply with any provision of this Code section to the detriment of the plaintiff, the court shall issue a writ of possession. The issuance of a writ of possession shall not affect the merits of the case but shall only affect the right to possession pending a final decision on the merits; and
  5. The court shall order the clerk of the court to pay to the plaintiff the amounts paid into the registry of the court as the payments are made; provided, however, that, if the defendant claims that he is entitled to all or a part of the funds and such claim is an issue of controversy in the litigation, the court shall order the clerk to pay to the plaintiff without delay only that portion of the funds to which the defendant has made no claim in the proceedings. That part of the funds which is a matter of controversy in the litigation shall remain in the registry of the court until a final determination of the issues.

    (Code 1933, § 67-705, enacted by Ga. L. 1974, p. 398, § 1; Ga. L. 1982, p. 3, § 44; Ga. L. 1987, p. 1023, § 5.)

Law reviews. - For article on this part and personal property foreclosures, see 11 Ga. St. B.J. 230 (1975). For article surveying Georgia cases dealing with commercial law from June 1977 through May 1978, see 30 Mercer L. Rev. 15 (1978).

JUDICIAL DECISIONS

A writ of possession issued under O.C.G.A. § 44-14-234(4) is interlocutory in character. Greene v. Citizens & S. Bank, 134 Ga. App. 73 , 213 S.E.2d 175 (1975).

The trial judge is not authorized to issue a writ of possession pursuant to the provisions of O.C.G.A. § 44-14-234(4) where the defendants set forth several bases for relief and as a matter of law the pleadings do not reveal the absence of any defense. Jordan v. F & M Bank, 138 Ga. App. 43 , 225 S.E.2d 498 (1976).

Appellate procedure. - Since appeal to a writ of possession is not based on a final judgment, an appellant must follow the provisions of O.C.G.A. § 5-6-34 for an interlocutory appeal. Dein v. Citizens Jewelry Co., 145 Ga. App. 118 , 243 S.E.2d 286 (1978).

An order entered pursuant to O.C.G.A. § 44-14-234 is not final and thus a direct appeal from such order will not lie. Foskey v. Bank of Alapaha, 147 Ga. App. 541 , 249 S.E.2d 346 (1978); Cavender v. First Nat'l Bank, 173 Ga. App. 660 , 327 S.E.2d 789 (1985).

Defendants are not required to make payments into the registry of the court where the defendants set forth several bases for denying the relief, and, as a matter of law, the pleadings do not reveal the absence of any defense. Jordan v. F & M Bank, 138 Ga. App. 43 , 225 S.E.2d 498 (1976).

The defendant is not required to pay into the registry of the court disputed past due amounts or accelerated payments. Such issues must be resolved on trial and not on a hearing purportedly under O.C.G.A. § 44-14-234 . Smalls v. Harrison, 150 Ga. App. 473 , 258 S.E.2d 227 (1979); Cavender v. First Nat'l Bank, 173 Ga. App. 660 , 327 S.E.2d 789 (1985).

Defendant's failure to post bond entitled plaintiff to immediate writ of possession. - Consulting company sued a store for breach of contract; the store's debt to the company was secured by UCC financing statements on the store's inventory. The company was entitled to an immediate writ of possession because after the suit was filed, the store sold and transferred merchandise subject to the company's security interest without posting bond as required by O.C.G.A. §§ 44-14-234(3) and 44-14-237 . Deere Park & Assocs. v. C H Furniture Source, LLC, 296 Ga. App. 382 , 674 S.E.2d 635 (2009).

Evidence of past due amounts. - At an evidentiary hearing under O.C.G.A. § 44-14-234 the trial judge only determines the amounts actually to become due. As to amounts past due no procedure for a hearing is provided. Thus, as the Appeals Court construes the Act, no evidence of past due amounts should be considered and the trial judge should only determine whether there are allegations of defenses or claims which would offset amounts alleged past due. Foskey v. Bank of Alapaha, 147 Ga. App. 541 , 249 S.E.2d 346 (1978).

Complaint moot on appeal. - Complaint on appeal concerning the issuance of writ of possession and a court order requiring the defendant to pay sums of money into the court's registry pursuant to O.C.G.A. § 44-14-234 was rendered moot by the entry of a final decision in trial court. Dein v. Citizens Jewelry Co., 149 Ga. App. 340 , 254 S.E.2d 403 (1979).

Funds improperly disbursed. - Where appellants' initial complaint disputed only part of the funds paid into the registry, in subsequent amendments to their complaint, appellants asserted additional defenses to the disbursement of any of the moneys which had been paid into the registry, the court improperly disbursed the registry funds prior to a final determination of the issues still in controversy. Daniel v. Roby, 151 Ga. App. 486 , 260 S.E.2d 397 (1979).

Where a petition for writ of possession is premature at the time of a first judgment in a case, if evidence and inferences show that at the time of the rendition of a second order, defendant is in default, the petition at the time of the second hearing and order still has viability and is not subject to dismissal for being premature. Good Housekeeping Shops v. Hines, 150 Ga. App. 240 , 257 S.E.2d 205 (1979).

Cited in Candler I-20 Properties v. Inn Keepers Supply Co., 137 Ga. App. 94 , 222 S.E.2d 881 (1975); Bank of S. v. Hammock, 140 Ga. App. 552 , 231 S.E.2d 407 (1976); Coppage v. Mellon Bank, 142 Ga. App. 12 , 234 S.E.2d 824 (1977); Ford Motor Credit Co. v. Mells, 155 Ga. App. 202 , 270 S.E.2d 372 (1980); Grover v. Vintage Credit Corp., 155 Ga. App. 759 , 272 S.E.2d 732 (1980); Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 , 274 S.E.2d 20 (1980); Barnett v. First Fed. Sav. & Loan Ass'n, 169 Ga. App. 396 , 313 S.E.2d 115 (1984); Smith v. GMAC, 178 Ga. App. 848 , 344 S.E.2d 768 (1986); Deutz-Allis Credit Corp. v. Phillips, 183 Ga. App. 760 , 360 S.E.2d 29 (1987); Robenolt v. Chrysler Fin. Servs. Corp., 201 Ga. App. 168 , 410 S.E.2d 365 (1991); Roberts v. Windsor Credit Servs., 301 Ga. App. 393 , 687 S.E.2d 647 (2009).

RESEARCH REFERENCES

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 407-409.

ALR. - Chattel mortgage on property consumable in use, 49 A.L.R. 1495 .

Purchase by pledgee of subject of pledge, 76 A.L.R. 705 ; 37 A.L.R.2d 1381.

Right of mortgagee lawfully in possession, or one entitled to his rights, to retain possession until debt is paid, although debt or right to foreclose is barred by limitation, 115 A.L.R. 339 .

44-14-235. Appeals; possession pending appeal.

Any judgment by the court shall be appealable pursuant to Chapters 2, 3, 6, and 7 of Title 5 or any other applicable law. If the judgment of the court awards possession of the secured property to the plaintiff and the defendant appeals this judgment, the defendant shall remain in possession of the secured property, provided that the defendant complies with all of the provisions of Code Section 44-14-234 until the issue has been finally determined on appeal.

(Code 1933, § 67-706, enacted by Ga. L. 1974, p. 398, § 1.)

Law reviews. - For article on this part and personal property foreclosures, see 11 Ga. St. B.J. 230 (1975).

JUDICIAL DECISIONS

Cited in Jordan v. F & M Bank, 138 Ga. App. 43 , 225 S.E.2d 498 (1976); Coppage v. Mellon Bank, 142 Ga. App. 12 , 234 S.E.2d 824 (1977); First Nat'l Bank v. Baker, 142 Ga. App. 870 , 237 S.E.2d 233 (1977); Sumner v. Adel Banking Co., 241 Ga. 563 , 246 S.E.2d 680 (1978); King Orthopedic Appliances, Inc. v. Medical Funding Servs., Inc., 152 Ga. App. 544 , 263 S.E.2d 485 (1979); Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 , 274 S.E.2d 20 (1980); Golden v. Gray, 156 Ga. App. 596 , 275 S.E.2d 162 (1980); Robenolt v. Chrysler Fin. Servs. Corp., 201 Ga. App. 168 , 410 S.E.2d 365 (1991).

44-14-236. Execution and levy; retention by plaintiff; sale.

Whenever a writ of possession is granted pursuant to a petition filed in accordance with Code Section 44-14-231, a levy may be made on the secured property by the sheriff, the deputy, the marshal, the constable, or a duly qualified levying officer of the court pursuant to the writ of possession. At the option of the plaintiff, the sheriff, the deputy, the marshal, the constable, or a duly qualified levying officer of the court shall either surrender the secured property to the plaintiff for retention or disposition in accordance with Article 9 of Title 11 or shall advertise and sell the same as in the case of levy and sale under execution.

(Code 1933, § 67-707, enacted by Ga. L. 1974, p. 398, § 1.)

Law reviews. - For article on this part and personal property foreclosures, see 11 Ga. St. B.J. 230 (1975).

JUDICIAL DECISIONS

Extent of court's authority. - While O.C.G.A. § 44-14-236 authorizes a court having jurisdiction to grant a writ of possession to the secured property, it does not authorize a state court judge to command affirmatively that the defendant return the property and thus allow a plaintiff to dispense with a levy made on the secured property by the sheriff, deputy, marshal, constable or a duly qualified levying officer of the court. Riviera Equip., Inc. v. Omega Equip. Corp., 145 Ga. App. 640 , 244 S.E.2d 139 (1978).

Cited in Bank of S. v. Hammock, 140 Ga. App. 552 , 231 S.E.2d 407 (1976); Sumner v. Adel Banking Co., 241 Ga. 563 , 246 S.E.2d 680 (1978); Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 , 274 S.E.2d 20 (1980); Hennington v. Greenpoint Mortg. Funding, Inc., F. Supp. 2d (N.D. Ga. May 15, 2009).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, § 575.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 407, 425.

ALR. - Purchase by pledgee of subject of pledge, 76 A.L.R. 705 ; 37 A.L.R.2d 1381.

44-14-237. Transfer, movement, or conveyance of property by defendant after posting of bond.

In all cases where the defendant may desire to transfer, remove, or convey any of the secured property after the service of the summons and after having an opportunity to answer, the defendant shall post bond for the delivery of the property at the time and place of sale. The bond shall be with good security for a sum equal to the value of the property or the amount of the alleged remaining balance, whichever is less. The value of the property shall be estimated by the judge, the magistrate, or the clerk. Upon the approval of the bond by the judge, the magistrate, or the clerk, the defendant may transfer, remove, or convey such property as may be approved by the judge, the magistrate, or the clerk.

(Code 1933, § 67-709, enacted by Ga. L. 1974, p. 398, § 1; Code 1933, § 67-708, as redesignated by Ga. L. 1975, p. 1213, § 3; Ga. L. 1987, p. 1023, § 6.)

Law reviews. - For article on this part and personal property foreclosures, see 11 Ga. St. B.J. 230 (1975).

JUDICIAL DECISIONS

Defendant's failure to post bond entitled plaintiff to immediate writ of possession. - Consulting company sued a store for breach of contract; the store's debt to the company was secured by UCC financing statements on the store's inventory. The company was entitled to an immediate writ of possession because after the suit was filed, the store sold and transferred merchandise subject to the company's security interest without posting bond as required by O.C.G.A. §§ 44-14-234(3) and 44-14-237 . Deere Park & Assocs. v. C H Furniture Source, LLC, 296 Ga. App. 382 , 674 S.E.2d 635 (2009).

Cited in Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 , 274 S.E.2d 20 (1980).

RESEARCH REFERENCES

C.J.S. - 14 C.J.S., Chattel Mortgages, § 408.

44-14-238. Foreclosure when debts due in installments; treatment of surplus.

If a mortgage on personalty is given to secure several debts falling due at different times, the mortgagee may foreclose when the first debt becomes due; and the court will control the surplus so as to protect the lien created for the debts not due.

(Orig. Code 1863, § 1967; Code 1868, § 1955; Code 1873, § 1965; Code 1882, § 1965; Civil Code 1895, § 2739; Civil Code 1910, § 3272; Code 1933, § 67-1001.)

JUDICIAL DECISIONS

In this state there can be but one foreclosure of a mortgage. Strickland v. Lowry Nat'l Bank, 140 Ga. 653 , 79 S.E. 539 (1913).

The policy of the law is against repeated foreclosures of the same mortgage, and in harmony with this policy, this provision is made for a single foreclosure where the debt secured thereby falls due in installments. Georgia Realty Co. v. Bank of Covington, 19 Ga. App. 219 , 91 S.E. 267 (1917).

Judgment final. - A judgment which provides for the control of the surplus of the funds under O.C.G.A. § 44-14-238 is a final judgment. Miller Serv., Inc. v. Miller, 77 Ga. App. 413 , 48 S.E.2d 761 (1948).

Control over surplus. - Under O.C.G.A. § 44-14-238 , the court will control the surplus so as to protect the lien created for the debts or installments not due. The court may order the part which is in judgment to be paid, and the balance to be invested to meet the indebtedness still unpaid. Hatcher v. Chancey, 71 Ga. 689 (1883). See also McCurry v. Pitner, 159 Ga. 807 , 126 S.E. 781 (1925).

Equitable relief. - Under O.C.G.A. § 44-14-238 where partial payments were made on the first two installments, but nothing was paid on the third, and the purchaser was wholly unable to pay for the land, the vendor might, by equitable proceedings, obtain judgment for the indebtedness, and a decree ordering the sale of the land and providing that, if, after paying the installments due, there should remain a surplus, the sheriff should return it to satisfy the installment thereafter to become due. If the debtor be insolvent, this could be done as well where title was retained as security as where a mortgage is taken for that purpose. Littleton v. Spell, 77 Ga. 227 , 2 S.E. 935 (1887).

Notes payable in specifics. - It makes no difference, under O.C.G.A. § 44-14-238 , that notes, to secure which the mortgage was given, are payable in specifics. Hatcher v. Chancey, 71 Ga. 689 (1883).

Separate notes for interest. - A mortgage to secure a promissory note for a stated amount of principal, and separate notes maturing at different times for the interest to accrue thereon, cannot, in advance of the maturity of the principal note, unless specially so stipulated, be absolutely foreclosed for the full amount of the principal and the matured interest notes, and the collection thereof summarily enforced by a process amounting to no more than an ordinary mortgage execution. In such a case the remedy provided by O.C.G.A. § 44-14-238 is available. Cumberland Island Co. v. Bunkley, 108 Ga. 756 , 33 S.E. 183 (1899).

Mortgage by tenants in common. - When a mortgage was executed by two tenants in common, it may be foreclosed against one as to that tenant's interest. Baker v. Shepherd, 37 Ga. 12 (1867).

Where two give a lien on their separate interests in the same property to a common creditor, the mortgage may be foreclosed separately against each. Baker v. Shephard, 30 Ga. 706 (1860).

Security notes passed to several holders. - A mortgage having been made to secure several negotiable notes, and the notes having been passed to several different holders, and one of the holders having obtained a general judgment, and another having foreclosed the mortgage in the name of the mortgagee for use, a sale of the premises under the general judgment passed the title free from the mortgage lien. The notes not covered by either judgment cannot be enforced against the land, but are thrown, in equity, upon the fund produced by the sale, for their pro rata share thereof. Smith v. Bowne, 60 Ga. 484 (1878).

Cited in Jones v. Lawrence, 18 Ga. 277 (1855); Lawrence v. Jones, 20 Ga. 342 (1856); Lathrop & Co. v. Brown, 65 Ga. 312 (1880); Paul v. Roney, 94 Ga. 133 , 21 S.E. 283 (1894).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, §§ 557, 572, 590-606, 734-736.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 183, 360.

ALR. - Validity, construction, and application of insecurity clause in chattel mortgage, 125 A.L.R. 313 .

Excess of payment for one period as applicable to subsequent period under contract or mortgage providing for periodic payments, 89 A.L.R.3d 947.

44-14-239. Foreclosure before debt due - Grounds; affidavit.

Whenever a process of attachment may be legally brought against any person upon any debt or demand secured by a mortgage on personal property, or whenever the purchaser of mortgaged property is seeking to remove the property outside of the county, or when the defendant is seeking to dispose fraudulently or is fraudulently disposing of the mortgaged property and a disposal of the property will lessen the security, the creditor may foreclose his mortgage in the manner prescribed by law, except that the affidavit need not state that the debt or demand is due but shall state that the debtor has placed himself in one of the positions where a process of attachment could legally issue against him, or that the defendant is disposing or seeking to dispose of the mortgaged property and that a disposal of the property will lessen the security and shall state the amount of the debt or demand claimed and when the debt will be due.

(Ga. L. 1882-83, p. 109, § 1; Civil Code 1895, § 2754; Civil Code 1910, § 3287; Civil Code 1933, § 67-1002.)

JUDICIAL DECISIONS

An affidavit to foreclose a mortgage under O.C.G.A. § 44-14-239 is amendable. Bainbridge Stock Co. v. Krause-McFarlin Co., 8 Ga. App. 220 , 68 S.E. 1013 (1910); Hardy v. Luke, 18 Ga. App. 423 , 89 S.E. 540 (1916).

Evidence of intention to make fraudulent disposal. - Where a chattel mortgage is foreclosed and levied before its maturity, under O.C.G.A. §§ 18-3-1 and 44-14-239 , upon the grounds that the mortgagor is actually disposing or attempting to dispose of the mortgaged property so as to lessen the security, and that the mortgagor is about to remove from the county of residence, it is not necessary for the plaintiff to show that the defendant was attempting to dispose of the property or was about to remove from the county on the very day upon which the affidavit to obtain the foreclosure was made. It is sufficient to show the existence of such a present design or intention and the defendant's purpose to carry it into execution at or about the time of the foreclosure. Louis Stix & Co. v. S. Pump & Co., 36 Ga. 526 (1867); Perryman v. Pope, 102 Ga. 502 , 31 S.E. 37 (1897); Nichols v. Ward, 27 Ga. App. 501 , 108 S.E. 832 (1921).

Allegations insufficient. - An allegation in an affidavit for the foreclosure of a mortgage before maturity of the debt, that the "defendants" are about to remove the mortgaged property beyond the limits of the county, is not a compliance with O.C.G.A. § 44-14-239 where the affidavit does not show that the defendants are purchasers of the mortgaged property. Upchurch v. Nichols, 15 Ga. App. 359 , 83 S.E. 273 (1914).

Sufficiency of statement as to when debt due. - The requirement in O.C.G.A. § 44-14-239 that the affidavit shall state when the amount of the debt or demand "will be due," was sufficiently met by the assertion in the affidavit of foreclosure that "there is now due on said mortgage the sum of $500.00 principal and $15.00 interest, and that the amount of said several sums is now due." Hardy v. Luke, 18 Ga. App. 423 , 89 S.E. 540 (1916).

Cited in Hayes v. Savannah Chem. Co., 17 Ga. App. 376 , 86 S.E. 1073 (1915).

RESEARCH REFERENCES

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 356, 360.

ALR. - Validity, construction, and application of insecurity clause in chattel mortgage, 125 A.L.R. 313 .

Failure to keep up insurance as justifying foreclosure under acceleration provision in mortgage or deed of trust, 69 A.L.R.3d 774.

44-14-240. Foreclosure before debt due - Levy and sale; disposition of proceeds.

All subsequent proceedings respecting the levy and sale of the mortgaged property shall be conducted in the manner prescribed by law; and the money realized from the sale of the property shall be disbursed by the proper officer under the terms and rules prescribed by law, except that the money shall not be paid over to the plaintiff in fi. fa. until the debt secured by the mortgage becomes due.

(Ga. L. 1882-83, p. 109, § 2; Civil Code 1895, § 2755; Civil Code 1910, § 3288; Code 1933, § 67-1003.)

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, § 575.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 407, 425.

44-14-241. Foreclosure before debt due - Affidavit of illegality; bond; trial of issue.

After the levy of the execution on the mortgaged property, the defendant may file his affidavit of illegality, in which affidavit he may avail himself of any defense that he could have set up in an ordinary action upon the demand secured by the mortgage and may show that he is not justly indebted to the plaintiff in the sum claimed in the affidavit of foreclosure. The subsequent proceedings, as to the giving of bond and the trial of the issue made in the case, shall be conducted in the manner prescribed by Code Section 44-14-233.

(Ga. L. 1882-83, p. 109, § 3; Civil Code 1895, § 2756; Civil Code 1910, § 3289; Code 1933, § 67-1004.)

JUDICIAL DECISIONS

The mortgagor may, in an affidavit of illegality, set up any defense the mortgagor might have urged in an action on the note secured by the mortgage and which goes to show that the amount claimed is not due and owing by the mortgagor. Fellows v. Sapp, 45 Ga. App. 89 , 163 S.E. 314 (1932).

Setoff not available. - In an affidavit of illegality to the foreclosure of a mortgage on personalty, the mortgagor may utilize the defense of recoupment; but the mortgagor cannot plead setoff in such a proceeding. Holleman v. Commercial Credit Co., 66 Ga. App. 772 , 19 S.E.2d 336 (1942).

It was error to dismiss an affidavit of illegality, on motion, on the ground that it was not the proper remedy of the defendant, without passing upon its merits. Crawford v. Scott, 137 Ga. 760 , 74 S.E. 520 (1912).

Cited in Anderson v. Hilton & Dodge Lumber Co., 121 Ga. 688 , 49 S.E. 725 (1905); Berry v. Robinson & Overton, 122 Ga. 575 , 50 S.E. 378 (1905); Berckmans v. Tarnok, 151 Ga. 117 , 106 S.E. 2 (1921); Hartman v. Citizens' Bank & Trust Co., 47 Ga. App. 562 , 171 S.E. 195 (1933); Coolidge v. Sandwich, 49 Ga. App. 564 , 176 S.E. 525 (1934); Wilder Bros. v. Montgomery, 51 Ga. App. 231 , 179 S.E. 861 (1935).

Subpart 2 Foreclosures Arising out of Commercial Transactions

44-14-260. Definitions.

As used in this subpart, the term:

  1. "Commercial transaction" means a transaction which gives rise to an obligation to pay for goods sold or leased, services rendered, or moneys loaned for use in the conduct of a business or profession and not for personal consumption.
  2. "Consumer transaction" means the sale, lease, or rental of goods, services, or property, real or personal, primarily for personal, family, or household purposes.
  3. "Waiver" means a written statement signed by the defendant, which statement contains language clearly and unambiguously waiving any and all rights the defendant may have to a notice prior to seizure by a creditor having an interest in personal property of the defendant. No waiver shall be effective unless the interest sought to be foreclosed upon arose out of a commercial transaction.

    (Code 1933, § 67-718, enacted by Ga. L. 1975, p. 1213, § 3.)

JUDICIAL DECISIONS

Motor home loan consumer transaction. - Because motor homes are generally used for personal purposes rather than commercial ones, the trial court properly concluded that a loan transaction between original motor home purchaser and bank was a consumer transaction. Washington State Employees Credit Union v. Robinson, 206 Ga. App. 782 , 427 S.E.2d 15 (1992).

Cited in Porter v. Midland-Guardian Co., 242 Ga. 1 , 247 S.E.2d 743 (1978); Sumner v. Adel Banking Co., 244 Ga. 73 , 259 S.E.2d 32 (1979).

RESEARCH REFERENCES

Am. Jur. 2d. - 68 Am. Jur. 2d, Secured Transactions, §§ 23, 590-606.

C.J.S. - 14 C.J.S., Chattel Mortgages, § 370.

ALR. - Chattel mortgage on property consumable in use, 49 A.L.R. 1495 .

44-14-261. Petition for immediate writ of possession; verification; exemption of consumer transactions.

Any person seeking to foreclose an interest in personal property arising out of a commercial transaction under this subpart may seek an immediate writ of possession from the court before which the petition is filed if the petition contains a statement of facts, under oath, by the petitioner or his agent or attorney which sets forth the basis of the petitioner's claim and a sufficient ground for the issuance of an immediate writ of possession. No such writ shall issue on an interest arising out of a consumer transaction; provided, however, that an immediate writ of possession may issue for merchandise or services rendered on merchandise which was paid for, in whole or in part, by a bad check as the term "bad check" is defined in Code Section 44-14-516.

(Code 1933, § 67-709, enacted by Ga. L. 1975, p. 1213, § 3; Ga. L. 1989, p. 803, § 1.)

Law reviews. - For article on Chapter 67-7 (now this part,) and personal property foreclosures, see 11 Ga. St. B.J. 230 (1975).

JUDICIAL DECISIONS

Filing a foreclosure petition is not a jurisdictional prerequisite to a creditor's right to seek an immediate writ of possession. Flateau v. Reinhardt, Whitley & Wilmot, 220 Ga. App. 188 , 469 S.E.2d 222 (1996).

Cited in Sumner v. Adel Banking Co., 241 Ga. 563 , 246 S.E.2d 780 (1978); Porter v. Midland-Guardian Co., 242 Ga. 1 , 247 S.E.2d 743 (1978); Sumner v. Adel Banking Co., 244 Ga. 73 , 259 S.E.2d 32 (1979); Deutz-Allis Credit Corp. v. Phillips, 183 Ga. App. 760 , 360 S.E.2d 29 (1987).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, §§ 590-606, 607-614.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 185, 405.

ALR. - Chattel mortgage on property consumable in use, 49 A.L.R. 1495 .

Bankruptcy court's injunction against mortgage or lien enforcement proceedings commenced, before bankruptcy, in another court, 40 A.L.R.2d 663.

44-14-262. Grounds for immediate writ of possession.

The petitioner seeking an immediate writ of possession shall allege under oath specific facts sufficient to show that it is within the power of the defendant to conceal, waste, encumber, convert, convey, or remove from the jurisdiction of the court the property which is the subject matter of the petition or that the petitioner's postjudgment remedy would otherwise be inadequate.

(Code 1933, § 67-710, enacted by Ga. L. 1975, p. 1213, § 3.)

JUDICIAL DECISIONS

As to who shall have possession pending trial of merits of foreclosure, the merits of foreclosure itself and particularly defenses and counterclaims thereto have no actual relevancy to this question. Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 , 274 S.E.2d 20 (1980).

It is error to rule on merits of foreclosure while ostensibly determining merits of writ of immediate possession. Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 , 274 S.E.2d 20 (1980).

Cited in Sumner v. Adel Banking Co., 244 Ga. 73 , 259 S.E.2d 32 (1979).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, § 121.

C.J.S. - 14 C.J.S., Chattel Mortgages, § 241.

ALR. - Chattel mortgagee's failure to pursue proper course after taking possession as affecting personal liability of mortgagor, 47 A.L.R. 582 .

Right of mortgagee lawfully in possession, or one entitled to his rights, to retain possession until debt is paid, although debt or right to foreclose is barred by limitation, 115 A.L.R. 339 .

44-14-263. Bond or waiver required.

The petition for an immediate writ of possession shall be accompanied by a waiver, as defined in Code Section 44-14-260, or the petitioner shall furnish a bond in the amount of the petitioner's claim for the payment of damages which the defendant may sustain if the writ is obtained wrongfully.

(Code 1933, § 67-711, enacted by Ga. L. 1975, p. 1213, § 3.)

JUDICIAL DECISIONS

Not available to defendant. - A defendant, as against a plaintiff (i.e., by counterclaim), cannot utilize the provisions of O.C.G.A. § 44-14-263 . Solomon Refrigeration, Inc. v. Osburn, 148 Ga. App. 772 , 252 S.E.2d 686 (1979).

Attorneys' fees. - There is no statutory provision providing for recovery of attorneys' fees in suits involving immediate writs of possession. Solomon Refrigeration, Inc. v. Osburn, 148 Ga. App. 772 , 252 S.E.2d 686 (1979).

Cited in Sumner v. Adel Banking Co., 244 Ga. 73 , 259 S.E.2d 32 (1979).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, § 734.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 229, 233.

44-14-264. Issuance of writ; procedure when showing insufficient.

The court before which the petition is pending shall issue a writ for immediate possession upon finding that the petitioner has complied with Code Sections 44-14-261 through 44-14-263. If the petitioner is found not to have made sufficient showing to obtain an immediate writ of possession, the court may nevertheless treat the petition as one being filed under Code Section 44-14-231 and may proceed accordingly.

(Code 1933, § 67-712, enacted by Ga. L. 1975, p. 1213, § 3.)

RESEARCH REFERENCES

ALR. - Right of mortgagee lawfully in possession, or one entitled to his rights, to retain possession until debt is paid, although debt or right to foreclose is barred by limitation, 115 A.L.R. 339 .

44-14-265. Service of notice to defendant.

When an immediate writ of possession has been granted, a copy of the petition, the affidavits, the waiver or bond, and the order shall be served in any manner provided in Code Section 44-14-232 as if the petition were one filed under Code Section 44-14-231.

(Code 1933, § 67-713, enacted by Ga. L. 1975, p. 1213, § 3.)

JUDICIAL DECISIONS

Cited in Bank of S. v. Hammock, 140 Ga. App. 552 , 231 S.E.2d 407 (1976).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, §§ 607-614.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 183, 404.

44-14-266. Execution and levy.

Upon the granting of a writ of immediate possession, the action shall proceed in the manner provided under Code Section 44-14-236.

(Code 1933, § 67-714, enacted by Ga. L. 1975, p. 1213, § 3.)

JUDICIAL DECISIONS

Cited in Sumner v. Adel Banking Co., 241 Ga. 563 , 246 S.E.2d 680 (1978).

44-14-267. Time for filing defenses.

At any time prior to the sale or other final disposition of the property by the levying officer or petitioner as provided for under Code Section 44-14-236 but no later than 30 days after service as provided for under Code Section 44-14-265, the defendant may appear and file any legal or equitable defense or counterclaim to the petitioner's claim for a writ of immediate possession. After the filing of such defense or counterclaim, a trial of any issue requiring a trial shall be had in accordance with the procedure prescribed for civil actions in courts of record.

(Code 1933, § 67-715, enacted by Ga. L. 1975, p. 1213, § 3; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Cited in Bank of S. v. Hammock, 140 Ga. App. 552 , 231 S.E.2d 407 (1976); Sumner v. Adel Banking Co., 241 Ga. 563 , 246 S.E.2d 680 (1978); Porter v. Midland-Guardian Co., 242 Ga. 1 , 247 S.E.2d 743 (1978); Sumner v. Adel Banking Co., 244 Ga. 73 , 259 S.E.2d 32 (1979); Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 , 274 S.E.2d 20 (1980); Golden v. Gray, 156 Ga. App. 596 , 275 S.E.2d 162 (1980).

RESEARCH REFERENCES

C.J.S. - 14 C.J.S., Chattel Mortgages, § 400.

ALR. - Right of mortgagee lawfully in possession, or one entitled to his rights, to retain possession until debt is paid, although debt or right to foreclose is barred by limitation, 115 A.L.R. 339 .

44-14-268. Motion for dissolution of writ; payment of claim or furnishing of bond; procedure upon dissolution of writ.

  1. At any time within which the defendant may file defenses as provided for under Code Section 44-14-267, the defendant may:
    1. Move for a dissolution of the writ, which motion shall be granted unless the petitioner proves the grounds upon which the writ was issued; or
    2. Pay to the court the full amount of the petitioner's claim, including costs, or furnish a bond with good and sufficient security for the value of the property as determined after hearing by the court before which the matter is pending or a bond for the amount of petitioner's claim, including costs, whichever is less.
  2. If the writ is dissolved under paragraph (1) or (2) of subsection (a) of this Code section, the action shall proceed on the petitioner's claim as if no writ had issued; and any issue requiring trial shall be had in accordance with the procedure prescribed for civil actions in courts of record.

    (Code 1933, § 67-716, enacted by Ga. L. 1975, p. 1213, § 3.)

JUDICIAL DECISIONS

A defendant may regain possession of repossessed property at that time which defendant pays into court the full amount of petitioner's claim including costs or furnishes a proper bond. Sumner v. Adel Banking Co., 244 Ga. 73 , 259 S.E.2d 32 (1979).

Defendant is entitled to trial on defenses to foreclosure and counterclaims whether defendant retains possession under O.C.G.A. § 44-14-268(a) or whether defendant gives it up. Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 , 274 S.E.2d 20 (1980).

Error to rule on merits of foreclosure while ostensibly determining merits of writ of immediate possession. Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 , 274 S.E.2d 20 (1980).

Cited in Sumner v. Adel Banking Co., 241 Ga. 563 , 246 S.E.2d 680 (1978); Golden v. Gray, 156 Ga. App. 596 , 275 S.E.2d 162 (1980); Deutz-Allis Credit Corp. v. Phillips, 183 Ga. App. 760 , 360 S.E.2d 29 (1987).

RESEARCH REFERENCES

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 236-238.

ALR. - Right of mortgagee lawfully in possession, or one entitled to his rights, to retain possession until debt is paid, although debt or right to foreclose is barred by limitation, 115 A.L.R. 339 .

44-14-269. Default judgment.

Upon the failure of the defendant to appear and answer within the time provided in Code Section 44-14-267, if the service on the defendant was made in such a manner as to comply with Code Section 9-11-4, a default judgment shall be entered against the defendant for the full amount of the petitioner's claim.

(Code 1933, § 67-717, enacted by Ga. L. 1975, p. 1213, § 3.)

JUDICIAL DECISIONS

O.C.G.A. § 44-14-269 deals with petitions for immediate writ of possession and is inapplicable to a proceeding dealing with a petition for a writ of possession under O.C.G.A. § 44-14-230 . Spencer v. Taylor, 144 Ga. App. 641 , 242 S.E.2d 308 (1978).

O.C.G.A. § 44-14-269 only applies to immediate writs of possession under O.C.G.A. § 44-14-260 et seq., which sections pertain alone to commercial transactions, and not to consumer transactions, as those terms are defined in O.C.G.A. § 44-14-260 . Porter v. Midland-Guardian Co., 242 Ga. 1 , 247 S.E.2d 743 (1978).

Cited in Wallace v. Aetna Fin. Co., 137 Ga. App. 580 , 224 S.E.2d 517 (1976); Porter v. Midland-Guardian Co., 145 Ga. App. 262 , 243 S.E.2d 595 (1978).

RESEARCH REFERENCES

C.J.S. - 14 C.J.S., Chattel Mortgages, § 411.

Subpart 3 Foreclosures on Bills of Sale or Contracts Retaining Title

RESEARCH REFERENCES

ALR. - Rights as between conditional seller and one claiming under or through sale or mortgage by buyer which is subject to the seller's reservation of title, 87 A.L.R. 941 .

Rights in proceeds of vehicle collision policy, under "loss-payable" clause, of conditional seller, chattel mortgagee, or the like, of vehicle where there has been improper repossession or foreclosure after the damage, 46 A.L.R.2d 992.

Relative rights as between assignee of conditional seller and a subsequent buyer from the conditional seller after repossession or the like, 72 A.L.R.2d 342.

Sufficiency of description in chattel mortgage as covering all property of a particular kind, 2 A.L.R.3d 839; 30 A.L.R.3d 9; 25 A.L.R.5th 696.

Specific performance of land contract notwithstanding failure of vendee to make required payments on time, 55 A.L.R.3d 10.

Equipment leases as security interest within Uniform Commercial Code sec. 1-201(37), 76 A.L.R.3d 11.

Sufficiency of address of debtor in financing statement required by UCC sec. 9-402(1), 99 A.L.R.3d 807.

Sufficiency of address of secured party in financing statement required under UCC sec. 9-402(1), 99 A.L.R.3d 1080.

Sufficiency of description of collateral in financing statement under UCC secs. 9-110 and 9-402, 100 A.L.R.3d 10.

What is "commercially reasonable" disposition of collateral required by UCC sec. 9-504(3), 7 A.L.R.4th 308.

Sufficiency of secured party's notification of sale or other intended disposition of collateral under UCC sec. 9-504(3), 11 A.L.R.4th 241.

Construction and effect of "future advances" clauses under UCC Article 9, 90 A.L.R.4th 859.

44-14-280. Manner of foreclosure.

The owner of any bill of sale or written contract retaining title to personal property to secure a debt may foreclose the contractor bill of sale in the same manner as mortgages on personal property are foreclosed.

(Ga. L. 1899, p. 82, § 1; Civil Code 1910, § 3298; Ga. L. 1921, p. 114, § 1; Code 1933, § 67-1601.)

JUDICIAL DECISIONS

The remedies provided by O.C.G.A. §§ 44-14-210 and 44-14-280 are distinct and altogether independent of each other. Macon Sav. Bank v. Jones Motor Co., 168 Ga. 805 , 149 S.E. 217 (1929); Jackson v. Parks, 49 Ga. App. 29 , 174 S.E. 203 (1934).

Remedy not exclusive. - In a contract for the sale of personal property, where the purchaser agrees that upon default in any payment due under the contract the purchaser will voluntarily surrender the property to the seller, to be sold and the proceeds applied upon the indebtedness, or agrees that upon such default the seller may institute trover proceedings to recover the property, etc., these remedies are cumulative of the seller's right to collect the indebtedness in any other manner as provided by law; and the seller's failure to pursue, for the collection of the indebtedness, any method prescribed in the contract for that purpose, cannot be a defense against the seller's right to foreclose as provided by law under O.C.G.A. § 44-14-280 . Jones Motor Co. v. Macon Sav. Bank, 37 Ga. App. 767 , 142 S.E. 199 (1928), aff'd, 168 Ga. 805 , 149 S.E. 217 (1929).

The remedy provided in O.C.G.A. § 44-14-280 is not exclusive. The owner has the right also to bring trover. Hill v. Marshall, 18 Ga. App. 652 , 90 S.E. 175 (1916).

There is nothing inconsistent in trying to collect the purchase price and at the same time retaining title as security for the unpaid balance of the price. An effort to collect payment does not constitute an abandonment of the security. Turner v. Kay Jewelry Co., 101 Ga. App. 173 , 112 S.E.2d 783 (1960).

Seller not estopped. - A suit by the seller to foreclose the contract as a mortgage under O.C.G.A. § 44-14-280 does not estop the seller from afterwards bringing an action of trover for the property. Hilliard v. GMAC, 54 Ga. App. 105 , 187 S.E. 218 (1936); Turner v. Kay Jewelry Co., 101 Ga. App. 173 , 112 S.E.2d 783 (1960); Whitehead v. Southern Disct. Co., 109 Ga. App. 126 , 135 S.E.2d 496 (1964).

Effect of action on title. - Where personalty is sold and title retained in the seller as security for the balance of the purchase money, an action by the seller to foreclose the contract as a mortgage under O.C.G.A. § 44-14-280 , does not have the effect of transferring the title into the buyer. Hilliard v. GMAC, 54 Ga. App. 105 , 187 S.E. 218 (1936); Turner v. Kay Jewelry Co., 101 Ga. App. 173 , 112 S.E.2d 783 (1960); Whitehead v. Southern Disct. Co., 109 Ga. App. 126 , 135 S.E.2d 496 (1964).

A suit on a promise to pay the purchase price of the chattel to which the contract retains title does not admit that the title to the chattel is in the maker of the instrument. Turner v. Kay Jewelry Co., 101 Ga. App. 173 , 112 S.E.2d 783 (1960).

Chattel mortgage foreclosures law applies. - The foreclosure of a conditional sales contract is governed by the law which applies to chattel mortgage foreclosures. A.D.L. Sales Co. v. Gailey, 48 Ga. App. 798 , 173 S.E. 734 (1934); Dixon v. GMAC, 105 Ga. App. 413 , 124 S.E.2d 660 (1962).

A bill of sale to secure a debt may be foreclosed in the same manner as a chattel mortgage. Carroll v. Richards, 50 Ga. App. 272 , 178 S.E. 178 (1934); Miller Serv., Inc. v. Miller, 77 Ga. App. 413 , 48 S.E.2d 761 (1948).

Conveyance to debtor not required. - O.C.G.A. § 44-14-280 does not suggest or require that the owner of a bill of sale of personal property shall convey or reconvey to the debtor the personal property covered by such bill of sale, prior to the foreclosure of the contract in the manner in which mortgages are foreclosed, or the recordation of such a conveyance. Macon Sav. Bank v. Jones Motor Co., 168 Ga. 805 , 149 S.E. 217 (1929); Cobb v. Growers' Fin. Corp., 40 Ga. App. 442 , 149 S.E. 920 (1929).

Bill of sale. - A promissory note given by a purchaser of personal property, in which it is agreed that title shall remain in the seller until the purchase money is paid, is not a "bill of sale," and therefore cannot be foreclosed in a justice's court under O.C.G.A. § 44-14-280 . Berry v. Robinson & Overton, 122 Ga. 575 , 50 S.E. 378 (1905); Wynn & Robinson v. Tyner, 139 Ga. 765 , 78 S.E. 185 (1913).

Showing that bill given to secure debt. - An absolute bill of sale intended to secure a debt may be foreclosed as provided in O.C.G.A. § 44-14-280 , whether the fact that it is intended as security is shown by a bond to reconvey, or by other appropriate evidence. Denton Bros. v. Shields, 120 Ga. 1076 , 48 S.E. 423 (1904).

Conditional sales contract. - An instrument which recites that the promissory note embodied therein, for a specified amount payable in installments, is given "for the purchase money" of described property, and that "the title to the above described property is to remain in the [seller] until fully paid for," is a contract of conditional sale, retaining title in the seller until compliance by the purchaser with the conditions of the sale. Jett v. Gordon, 52 Ga. App. 370 , 183 S.E. 346 (1936).

Effect of homestead and exemption laws. - The setting aside of the property afterwards, as being exempt from levy and sale by virtue of the homestead and exemption laws, in no wise affected the previously acquired title of the lender. Where, after a levy upon the property under a proceeding to foreclose the bill of sale as provided in O.C.G.A. § 44-14-280 , the borrower filed a claim to the property, upon the ground that it was exempt from levy and sale by virtue of the homestead and exemption laws, and where it appeared from the claim filed that the property levied upon was impressed with exemption after the borrower had executed the bill of sale to secure the debt to the lender, the court did not err in dismissing the claim on demurrer (now motion to dismiss) and allowing the levy to proceed. Tarver v. Beneficial Loan Soc'y, 39 Ga. App. 646 , 148 S.E. 288 (1929).

Priority of lien. - The lien of an ordinary attachment upon which no judgment had been rendered is not superior to the claim of a vendor under a duly executed, but unrecorded, retention of title contract of sale of personal property which contract has been foreclosed under the provisions of O.C.G.A. § 44-14-280 . Bank of Ringgold v. West Publishing Co., 61 Ga. App. 426 , 6 S.E.2d 598 (1939).

Real parties in interest. - Where plaintiff was the named seller in a conditional sale contract, and had acquired title to the property involved prior to the commencement of its foreclosure proceedings, it was error to dismiss the case on the ground that it did not show sufficient interest in itself to maintain the action. Jack Fred Co. v. Lago, 96 Ga. App. 675 , 101 S.E.2d 165 (1957).

Instructions. - It was not error to fail to charge the substance of O.C.G.A. § 44-14-280 in the absence of a request; such a charge would not have aided the jury and the judge so charged that the jury could find a verdict based on whether they found pro or con as to specific facts. First Nat'l Bank v. Vinson, 102 Ga. App. 828 , 118 S.E.2d 225 (1960).

Cited in Searcy v. State, 114 Ga. 270 , 40 S.E. 235 (1901); Browder, Manget & Co. v. Blake & Madden, 135 Ga. 71 , 68 S.E. 837 (1910); Robinson v. Bothwell Grocery Co., 22 Ga. App. 56 , 95 S.E. 316 (1918); Kelley v. Overland Sales Co., 25 Ga. App. 277 , 103 S.E. 41 (1920); A.J. Evans Mktg. Agency v. Federated Fruit & Vegetable Growers, Inc., 170 Ga. 30 , 152 S.E. 49 (1930); Swint v. Adams, 42 Ga. App. 705 , 157 S.E. 249 (1931); GMAC v. Coggins, 178 Ga. 643 , 173 S.E. 841 (1934); Jackson v. Parks, 49 Ga. App. 29 , 174 S.E. 203 (1934); Coolidge v. Sandwich, 49 Ga. App. 564 , 176 S.E. 525 (1934); Spence v. Sterchi Bros. Stores, 52 Ga. App. 321 , 183 S.E. 128 (1935); Hilliman v. Attaway, 54 Ga. App. 464 , 188 S.E. 292 (1936); Holland v. Peerless Furn. Co., 60 Ga. App. 149 , 3 S.E.2d 138 (1939); Little v. Yow, 69 Ga. App. 335 , 25 S.E.2d 232 (1943); Potts v. Reconstruction Fin. Corp., 76 Ga. App. 796 , 47 S.E.2d 178 (1948); Atlas Auto Fin. Co. v. Atkins, 79 Ga. App. 91 , 53 S.E.2d 171 (1949); Carter v. Rich's, Inc., 83 Ga. App. 188 , 63 S.E.2d 241 (1951); Williams v. C.I.T. Credit Corp., 91 Ga. App. 725 , 87 S.E.2d 126 (1955); Associates Disct. Corp. v. Gentry, 96 Ga. App. 856 , 101 S.E.2d 891 (1958); James Talcott, Inc. v. De Witt, 216 Ga. 366 , 116 S.E.2d 563 (1960); Covington v. GMAC, 102 Ga. App. 683 , 117 S.E.2d 554 (1960); Sewell v. Peoples Loan & Fin. Co., 103 Ga. App. 155 , 118 S.E.2d 722 (1961); Hopkins v. West Publishing Co., 106 Ga. App. 596 , 127 S.E.2d 849 (1962); Walker v. Small Equip. Co., 114 Ga. App. 603 , 152 S.E.2d 629 (1966); Colter v. Consolidated Credit Corp., 115 Ga. App. 408 , 154 S.E.2d 713 (1967).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, § 572 et seq.

ALR. - Right of conditional seller to retake property without legal process, 146 A.L.R. 1331 .

What conduct by repossessing chattel mortgagee or conditional vendor entails tort liability, 99 A.L.R.2d 358.

Replevin or claim-and-delivery: modern view as to validity of statute or contractual provision authorizing summary repossession of consumer goods sold under retail installment sales contract, 45 A.L.R.3d 1233.

44-14-281. Proceedings after foreclosure; defenses.

In the event any bill of sale is foreclosed as provided in Code Section 44-14-280, the proceedings after foreclosure shall be the same as the proceedings to foreclose mortgages, with the same right to defend in the manner in which defenses to foreclosures of mortgages are now provided for by law.

(Ga. L. 1899, p. 82, § 2; Civil Code 1910, § 3299; Code 1933, § 67-1602.)

JUDICIAL DECISIONS

The debtor may, by affidavit of illegality, utilize any defense which the debtor might set up in an ordinary action upon the demand secured by a mortgage, and which goes to show that the amount claimed is not due and owing in a proceeding to foreclose a bill of sale retaining title to secure a debt. Atlas Auto Fin. Co. v. Atkins, 79 Ga. App. 91 , 53 S.E.2d 171 (1949).

While the debtor is permitted to utilize a valid defense of recoupment, the debtor is not entitled to plead the defense of setoff in such a summary proceeding, since the latter defense is not one which goes to the justice of the plaintiff's demand. Atlas Auto Fin. Co. v. Atkins, 79 Ga. App. 91 , 53 S.E.2d 171 (1949).

A general plea of no indebtedness is insufficient as setting out a defense in an affidavit of illegality to a statutory foreclosure of a retention of title contract of sale. Kent v. Rogers, 58 Ga. App. 835 , 200 S.E. 235 (1938).

In a suit to foreclose a contract retaining title to personalty, ground of an affidavit of illegality which states that the debt is not due and not unpaid and that the affidavit of foreclosure is untrue, pleads no facts showing that the amount claimed is not due, and, as a general denial, it is not an issuable defense which the defendant might have set up in an ordinary action upon the demand secured by the contract retaining title. Carter v. Rich's, Inc., 83 Ga. App. 188 , 63 S.E.2d 241 (1951).

Lack of authority. - Ordinarily, where a retention-of-title contract is foreclosed against property, that the employee who signed the contract in the partnership name was not authorized to execute an instrument of that nature on behalf of the partnership sets up a valid defense to the foreclosure. Long Tobacco Harvesting Co. v. Brannen, 98 Ga. App. 142 , 105 S.E.2d 390 (1958), later appeal, 99 Ga. App. 541 , 109 S.E.2d 90 (1959).

Failure to set up defense. - Where a proceeding to foreclose a retention of title contract is instituted and the defendant's answer sets up no defense to the foreclosure proceeding and, in fact, is not responsive to the foreclosure proceeding, but refers to a trover proceeding and nowhere denies that the amount claimed or any part thereof is due, the answer filed fails to set up any defense and is subject to dismissal. Little v. Yow, 69 Ga. App. 335 , 25 S.E.2d 232 (1943).

Cited in Macon Sav. Bank v. Jones Motor Co., 168 Ga. 805 , 149 S.E. 217 (1929); Coolidge v. Sandwich, 49 Ga. App. 564 , 176 S.E. 525 (1934); Spence v. Sterchi Bros. Stores, 52 Ga. App. 321 , 183 S.E. 128 (1935).

RESEARCH REFERENCES

C.J.S. - 14 C.J.S., Chattel Mortgages, § 405.

44-14-282. Levy and sale following execution and recording of bill of sale to defendant; priorities; disposition of proceeds.

When any judgment has been or shall be rendered in any court of this state upon any note or other evidence of debt given for the purchase money of personal property and where the title for the property has been retained in the vendor, it shall be lawful for the holder of the note or other evidence of debt in which title is retained to make, file, and have recorded in the office of the clerk of the superior court where the defendant resides a bill of sale to the defendant for the personal property or, if he is dead, to his executor or administrator or, if there is no executor or administrator, to the heirs of the deceased; and, if the holder of the note or other evidence of debt in which title is retained is dead, his executor or administrator may in like manner make and file such bill of sale without obtaining an order of the court for that purpose. Upon the filing of the bill of sale, the personal property may be levied on and sold under such judgment as in other cases; provided, however, that the judgment shall take and be a lien upon the personal property and the proceeds of the sale thereof, prior to all other judgments, claims, liens, and other encumbrances, until the judgment shall be fully paid and satisfied.

(Ga. L. 1887, p. 62, § 1; Code 1933, § 67-1603.)

History of section. - This section is derived from the decision in Jordan Mercantile Co. v. Brooks, 149 Ga. 157 , 99 S.E. 289 (1919).

JUDICIAL DECISIONS

Cited in Spence v. Sterchi Bros. Stores, 52 Ga. App. 321 , 183 S.E. 128 (1935); Long Tobacco Harvesting Co. v. Brannen, 98 Ga. App. 142 , 105 S.E.2d 390 (1958); Hatley v. Frey, 145 Ga. App. 658 , 244 S.E.2d 604 (1978).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, § 575.

C.J.S. - 14 C.J.S., Chattel Mortgages, § 342.

ALR. - Priority as between lien for repairs and the like, and right of seller under conditional sales contract, 36 A.L.R.2d 198.

Subpart 4 Foreclosures in Magistrate Court

RESEARCH REFERENCES

ALR. - Right to attorneys' fees on enforcing chattel mortgage, 63 A.L.R. 1314 .

44-14-300. Amount of mortgage; filing of affidavit; execution.

Any person having a mortgage on personal property to secure a debt not exceeding $100.00 in principal and desiring to foreclose the mortgage may, by himself, his agent, or his attorney, make an affidavit of the amount of the principal and the interest due on the mortgage, which affidavit shall be annexed to the mortgage. When the mortgage or verified copy with the affidavit annexed thereto shall be filed with any magistrate in the county where the mortgagor resides, if a resident of this state, or, if not a resident of this state, in the county where the mortgaged property is located, it shall be the duty of the magistrate to issue an execution directed to all and singular the sheriffs, the marshals, their deputies, and the constables of this state commanding the sale of the property to satisfy the principal, the interest, and the costs of the proceedings to foreclose the mortgage.

(Ga. L. 1878-79, p. 152, § 1; Code 1882, § 3974a; Ga. L. 1882-83, p. 67, § 1; Civil Code 1895, § 2760; Civil Code 1910, § 3293; Code 1933, § 67-901; Ga. L. 1983, p. 884, § 4-1; Ga. L. 1984, p. 22, § 44.)

JUDICIAL DECISIONS

Concurrent jurisdiction with county court. - A county court has no jurisdiction to try and determine an issue made upon the foreclosure of a chattel mortgage and a counter-affidavit filed thereto, where the amount involved is less than $50.00. In such cases, the justice's court of the district of the defendant's residence has jurisdiction under O.C.G.A. § 44-14-300 . Where the principal sum secured does not exceed $100.00, but is more than $50.00, the two courts have concurrent jurisdiction. Aycock v. Subers, 73 Ga. 807 (1884).

Filing papers with justice. - Where an affidavit to foreclose a chattel mortgage and the mortgage itself have been handed to a justice of the peace, this is a sufficient "filing" of these papers with that officer. Adams v. Goodwin, 99 Ga. 138 , 25 S.E. 24 (1896).

An annexation of an affidavit of foreclosure to the mortgage or a verified copy thereof is merely directory, and failure to annex affidavit does not void the writ of fieri facias issued pursuant thereto. Simpson v. Jones, 182 Ga. 544 , 186 S.E. 558 (1936).

Return to proper court. - Where a chattel mortgage was foreclosed in a justice's court under O.C.G.A. § 44-14-300 , and upon the levying of the execution issued thereunder a claim was interposed, it was properly returned to the court where the foreclosure took place and whence the execution issued. Ridling v. Stewart, 77 Ga. 539 (1886).

Cited in Hamilton v. Kerr, 84 Ga. 105 , 10 S.E. 502 (1889); De Vaughn v. Byrom, 110 Ga. 904 , 36 S.E. 267 (1900); Berry v. Robinson & Overton, 122 Ga. 575 , 50 S.E. 378 (1905); Kelley v. Overland Sales Co., 25 Ga. App. 277 , 103 S.E. 41 (1920).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, §§ 572 et seq., 637 et seq.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 355-359, 364, 398, 412-422, 425.

ALR. - Chattel mortgagee's failure to pursue proper course after taking possession as affecting personal liability of mortgagor, 47 A.L.R. 582 .

Purchase by pledgee of subject of pledge, 76 A.L.R. 705 ; 37 A.L.R.2d 1381.

Bankruptcy court's injunction against mortgage or lien enforcement proceedings commenced, before bankruptcy, in another court, 40 A.L.R.2d 663.

44-14-301. Notice to mortgagor.

It shall be the duty of the magistrate with whom the affidavit and the mortgage are filed to give notice to the mortgagor of the proceedings at the time of issuing the execution.

(Ga. L. 1880-81, p. 126, § 2; Code 1882, § 3974d; Civil Code 1895, § 2763; Civil Code 1910, § 3296; Code 1933, § 67-905; Ga. L. 1983, p. 884, § 4-1.)

JUDICIAL DECISIONS

O.C.G.A. § 44-14-301 is not applicable to superior courts. Golden v. J. M. Easterling & Sons, 37 Ga. App. 172 , 139 S.E. 102 (1927).

O.C.G.A. § 44-14-301 does not require that the execution shall recite that the notice has been given. Spooner v. Coachman, 18 Ga. App. 705 , 90 S.E. 373 (1916).

There was no error in refusing to dismiss a levy on the grounds that no notice was given under O.C.G.A. § 44-14-301 when the lack of notice was not raised until appeal. Spooner v. Coachman, 18 Ga. App. 705 , 90 S.E. 373 (1916).

Waiver. - Where there is no motion to dismiss the levy on the ground that the notice prescribed by O.C.G.A. § 44-14-301 had not been given, and the defendant in fi. fa., although reciting such failure, entered a plea to the merits without actual protestation, the failure to give the notice referred to must be taken as waived. McFarlin v. Reeves, 10 Ga. App. 581 , 73 S.E. 862 (1912); Futch v. Taylor, 22 Ga. App. 441 , 96 S.E. 183 (1918).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, §§ 607-614.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 399, 404.

44-14-302. Levy and sale of property; advertisement.

When the execution provided for by Code Section 44-14-300 is delivered to a constable, he shall levy on the property wherever it may be found; and, after advertising the same for ten days preceding the sale by giving a full description of the property to be sold and the process under which he is proceeding in a written advertisement at three or more public places in the district in which the property may be found, he shall put up and expose the property for sale as provided in this Code section; provided, however, that the sale shall be had within the legal hours of sale on a regular court day and at the usual place of holding magistrate courts for the district. The constable shall put up and expose the property for sale at the time and place and in the same manner as constable's sales are required to be held.

(Ga. L. 1878-79, p. 152, § 2; Ga. L. 1882-83, p. 67, § 1; Code 1882, § 3974b; Civil Code 1895, § 2761; Civil Code 1910, § 3294; Code 1933, § 67-902; Ga. L. 2003, p. 140, § 44.)

The 2003 amendment, effective May 14, 2003, part of an Act to revise, modernize, and correct the Code, substituted "magistrate" for "justice" near the end of the first sentence.

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, § 575.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 407, 425.

ALR. - Purchase by pledgee of subject of pledge, 76 A.L.R. 705 ; 37 A.L.R.2d 1381.

Protection of mortgagor or owner of mortgaged property, on foreclosure sale, by fixing upset or minimum price, requiring credit of specified amount on mortgage debt, or denying or limiting amount of deficiency judgment, 85 A.L.R. 1480 ; 89 A.L.R. 1087 ; 90 A.L.R. 1330 ; 94 A.L.R. 1352 ; 96 A.L.R. 853 ; 97 A.L.R. 1123 ; 104 A.L.R. 375 .

44-14-303. Defenses by mortgagor; hearing in magistrate's court.

The mortgagor may avail himself of any defense he may have to the foreclosure in the same manner and upon the same conditions as allowed by law in case of foreclosure of chattel mortgages in the superior courts. Whenever any such defense is filed by the mortgagor, the magistrate issuing the execution shall have the power and jurisdiction to hear and determine the issues made thereon as in other cases at law.

(Ga. L. 1878-79, p. 152, § 3; Code 1882, § 3974c; Civil Code 1895, § 2762; Civil Code 1910, § 3295; Code 1933, § 67-903; Ga. L. 1983, p. 884, § 3-31.)

JUDICIAL DECISIONS

Failure to raise defense. - Where a proceeding to foreclose a retention of title contract is instituted and the defendant's answer sets up no defense to the foreclosure proceeding and, in fact, is not responsive to the foreclosure proceeding, but refers to a trover proceeding and nowhere denies that the amount claimed or any part thereof is due, the answer filed fails to set up any defense and is subject to dismissal. Little v. Yow, 69 Ga. App. 335 , 25 S.E.2d 232 (1943).

Cited in Berry v. Robinson & Overton, 122 Ga. 575 , 50 S.E. 378 (1905).

RESEARCH REFERENCES

Am. Jur. 2d. - 69 Am. Jur. 2d, Secured Transactions, § 572.

C.J.S. - 14 C.J.S., Chattel Mortgages, §§ 355, 400, 405, 411.

ALR. - Effect of oral agreement to enlarge time for redemption from sale under mortgage or other lien on real property, 54 A.L.R. 1207 .

ARTICLE 8 LIENS

Cross references. - Judgment liens generally, § 9-12-80 et seq.

Security interests in and liens on motor vehicles, § 40-3-50 et seq.

Die, molds, forms, and patterns, Art. 8, Ch. 12, T. 44.

Tax executions, Ch. 3, T. 48.

PART 1 I N GENERAL

JUDICIAL DECISIONS

Lien may be waived by express agreement based upon valuable consideration. Ford Motor Credit Co. v. Parsons, 155 Ga. App. 46 , 270 S.E.2d 230 (1980).

RESEARCH REFERENCES

ALR. - Redemption from mortgage or judicial sale as affecting lien intervening that under which property was sold and that under which it was redeemed, 26 A.L.R. 435 .

Bankruptcy: lessor's right, upon bankruptcy of lessee, to enforce lien or retain security for future rentals, 45 A.L.R. 717 .

Oil, gas, or other mineral rights in land, apart from ownership of soil, as subject as real estate to lien of judgment against the owner of the mineral interest, 53 A.L.R. 135 .

Contract for compensation other than that of attorney on basis of share in or percentage of property or fund as creating an equitable lien, 54 A.L.R. 289 .

Single mechanic's lien upon several parcels, as enforceable against less than all of the parcels (including effect of release of some of them from the lien), 130 A.L.R. 423 .

Acceptance of unsecured note or other personal obligation of vendee as waiver or discharge of vendor's lien, 132 A.L.R. 440 .

Priority of lien of sales or consumers' tax, 136 A.L.R. 1015 .

Constitutionality of statute giving to lien for alteration of property pursuant to public requirement, mechanic's lien, or similar lien, preference over pre-existing mortgage or other lien, 141 A.L.R. 66 .

Rights and remedies under lien statute of one performing work only part of which is of a lienable character, 149 A.L.R. 682 .

Mere assertion of unfounded lien as constituting conversion, 169 A.L.R. 100 .

Right of holder of mortgage or lien to proceeds of property insurance payable to owner not bound to carry insurance for former's benefit, 9 A.L.R.2d 299.

Easement, servitude, or restrictive covenant as affected by enforcement of assessment or improvement liens, 26 A.L.R.2d 873.

Right of vendee under executory land contract to lien for amount paid on purchase, 33 A.L.R.2d 1384; 82 A.L.R.3d 1040.

Conveyance of real property to mortgagee or lienholder as constituting "sale or exchange" rendering owner liable for commissions to broker having exclusive agency or exclusive right to sell, 46 A.L.R.2d 1116.

Abandonment of construction or of contract as affecting time for filing mechanics' liens or time for giving notice to owner, 52 A.L.R.3d 797.

44-14-320. Certain liens established; removal of nonconforming liens.

  1. The following liens are established in this state:
    1. Liens for taxes in favor of the state, the counties, and the municipal corporations;
    2. Liens in favor of creditors by judgment and decree;
    3. Liens in favor of laborers;
    4. Liens in favor of landlords;
    5. Liens in favor of mortgagees;
    6. Liens in favor of landlords furnishing supplies;
    7. Liens in favor of mechanics on real and personal property;
    8. Liens in favor of contractors, materialmen, subcontractors, materialmen furnishing material to subcontractors, and laborers furnishing labor to subcontractors, machinists, and manufacturers of machinery. As used in this paragraph, the term "subcontractor" includes, but is not limited to, subcontractors having privity of contract with the prime contractor;
    9. Liens in favor of certain creditors against steamboats and other watercraft;
    10. Liens in favor of the proprietors of sawmills and the proprietors of planing mills and other similar establishments;
    11. Liens in favor of innkeepers, boardinghouse keepers, carriers, livery stable keepers, pawnbrokers, depositories, bailees, factors, acceptors, and attorneys at law;
    12. Liens in favor of owners of stallions, jacks, bulls, and boars;
    13. Liens in favor of railroad employees, owners of stock killed, and persons furnishing supplies to railroads;
    14. Liens in favor of laundrymen;
    15. Liens in favor of jewelers;
    16. Liens in favor of the state for expenditures from the hazardous waste trust fund pursuant to subsection (e) of Code Section 12-8-96. Such liens shall be superior to all other liens except liens for taxes and other prior perfected recorded liens or claims of record; and
    17. Liens in favor of a nonprofit organization or entity that is exempt from taxation under 26 U.S.C. Section 501(c) which exercises the powers of a fire department as provided for under Chapter 3 of Title 25 that are requested by property owners and that are based upon fees and rates charged that are consistent with the Federal Emergency Management Agency of the United States Department of Homeland Security's Schedule of Equipment Rates as such existed on July 1, 2019.
    1. All liens provided for in this chapter or specifically established by federal or state statute, county, municipal, or consolidated government ordinance or specifically established in a written declaration or covenant which runs with the land shall be exempt from subsection (c) of this Code section. All other liens shall be defined as nonconforming liens and shall not be eligible for filing and recording.
    2. Each nonconforming lien shall be a nullity with no force or effect whatsoever, even if said nonconforming lien is filed, recorded, and indexed in the land records of one or more counties in this state.
    1. Any person, corporation, or other entity against whose property a nonconforming lien is filed or recorded may, without notice to any party, file an ex parte petition for an order to remove a nonconforming lien from the record in the superior court of the county in which said lien is filed or recorded and obtain an order from said superior court directing the clerk of the superior court to record the order and mark the recorded nonconforming lien: "CANCELED OF RECORD PURSUANT TO ORDER DATED ________, RECORDED AT DEED BOOK ____, PAGE ____. THIS ________ DAY OF ________________________, ________." The petition shall set forth that:
      1. The movant is a party against whose property a nonconforming lien is filed;
      2. The lien in question is a nonconforming lien as defined under this Code section; and
      3. A certified copy of the nonconforming lien is attached as an exhibit.

        The petition must be executed by the movant or movant's attorney. The order may be entered as early as the date of filing of the petition and shall set forth that, upon review of the petition and the certified copy of the recorded instrument attached thereto, it is the order of the court that said lien is a nonconforming lien under this Code section and that the clerk of the court is ordered to record the order and mark the nonconforming lien canceled of record.

    2. Any official or employee of the government of this state or any branch thereof, any political subdivision of this state, or the government of the United States or any branch thereof against whose property a nonconforming lien is filed or recorded may, without notice to any party and in lieu of the procedure provided by paragraph (1) of this subsection, file an ex parte affidavit of nonconforming lien in the superior court of the county in which said lien is filed or recorded. The affidavit shall set forth that:
      1. Such person against whose property a nonconforming lien is filed is an official or employee of the government of this state or a branch thereof, a political subdivision of this state, or the government of the United States or a branch thereof;
      2. The lien in question is a nonconforming lien as defined under this Code section and was filed against the government official or employee based upon the performance or nonperformance of his or her official duties; and
      3. A certified copy of the nonconforming lien is attached as an exhibit.

        The affidavit filed for such government official or employee must be executed by the Attorney General or a deputy or assistant attorney general in the case of an official or employee of the government of this state or a branch thereof, the attorney representing a political subdivision of this state in the case of an official or employee of such political subdivision, or a United States attorney or an assistant United States attorney in the case of an official or employee of the government of the United States or a branch thereof. The lien shall be conclusively presumed to be nonconforming upon the filing of such affidavit, and the clerk of the court shall instanter mark the recorded nonconforming lien: "CANCELED OF RECORD PURSUANT TO AFFIDAVIT DATED ________, RECORDED AT DEED BOOK ____, PAGE ____. THIS ________ DAY OF ________________________, ________."

        (Ga. L. 1873, p. 42, § 1; Code 1873, § 1972; Code 1882, § 1972; Civil Code 1895, § 2787; Ga. L. 1909, p. 151, § 1; Civil Code 1910, § 3329; Code 1933, § 67-1701; Ga. L. 1956, p. 562, § 1; Ga. L. 1997, p. 970, § 2; Ga. L. 1997, p. 1050, § 3; Ga. L. 1999, p. 81, § 44; Ga. L. 2000, p. 1487, § 1; Ga. L. 2019, p. 294, § 1/HB 387.)

The 2000 amendment, effective May 1, 2000, in subsection (b), added the paragraph designations, in paragraph (1), in the first sentence, inserted a comma following "municipal", and deleted a comma following "ordinance", and added "and shall not be eligible for filing and recording" in the second sentence, and, in paragraph (2), inserted "a" preceding "nullity", substituted ", even if" for "even though", and deleted "duly" preceding "filed,"; and, in subsection (c), designated the former undesignated language as paragraph (1), redesignated former paragraphs (1) through (3) as present subparagraphs (c)(1)(A) through (c)(1)(C), respectively, and added paragraph (2).

The 2019 amendment, effective July 1, 2019, deleted "and" at the end of paragraph (a)(15), substituted "; and" for the period at the end of paragraph (a)(16), and added paragraph (a)(17).

Cross references. - Liens for attorneys' services, §§ 15-19-14 , 15-19-15 .

Child support liens in favor of Department of Human Resources, § 19-11-18 .

Liens of innkeepers on property of guests, § 43-21-5 et seq.

Holding of liens on one's own property, § 44-6-3 .

Tax liens, § 48-5-28 .

Law reviews. - For article, "The Rights of Attorneys and Their Clients in Fee Disputes," see 16 Ga. St. B.J. 150 (1980).

JUDICIAL DECISIONS

Real property liens strictly construed. - One seeking to make good a lien on real property must be brought clearly within the law relating thereto, and because such liens are creatures of statute and strictly construed, they may not be extended to cover instances not clearly and plainly provided for thereby. Stephens v. Clark, 154 Ga. App. 306 , 268 S.E.2d 361 (1980).

Definition of "liens for taxes." - The words "liens for taxes," as employed in O.C.G.A. § 44-14-320 , are broad and sufficient to include taxes provided by subsequent statute, for support of the state and counties and municipal corporations located in the state that are not ad valorem or based on property. Atlanta Trust Co. v. Atlanta Realty Corp., 177 Ga. 581 , 170 S.E. 791 (1933).

Tax liens are highest priority and apply to bona fide buyers. - Liens for state, county, and municipal taxes are superior to all other liens, and such lien follows the property into the hands of bona fide purchasers. Carroll v. Richards, 50 Ga. App. 272 , 178 S.E. 178 (1934).

Unless lien not recorded when purchaser buys. - Recording the fi. fa. issued by the State Revenue Commissioner on the general execution docket is not a condition precedent to the lien for sales taxes attaching, and the only effect of a failure to record the lien is that as against innocent purchasers the lien will be lost. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954).

Priority of perfected security interest. - Under former O.C.G.A. § 11-9-310 (see now O.C.G.A. § 11-9-333 ), a perfected security interest takes priority over all liens described in O.C.G.A. § 44-14-320 , including mechanic's lien as provided for in O.C.G.A. § 44-14-363 . Newton Ford Tractor Co. v. JI Case Credit Corp., 163 Ga. App. 497 , 294 S.E.2d 723 (1982).

Priority of liens. - Judgment creditor's lien did not have priority over an assignee's security deed because the funds from the assignor's loan were used to pay off a bank's prior security deed and, thus, the assignee was able to step into the shoes of the bank, a senior creditor, as to the priority of the creditor's lien; O.C.G.A. § 44-14-320(a) only listed the liens established in Georgia without listing the liens in order of priority. Hayes v. EMC Mortg. Corp., 296 Ga. App. 709 , 675 S.E.2d 594 (2009).

Interest in tort action. - Although a court had earlier rejected a debtor's reliance on O.C.G.A. § 44-12-24 in seeking a ruling that the assignment of a tort action was invalid because the debtor had assigned the future proceeds of the action, not the right of action, the assignee creditor's default allowed the court to accept the debtor's assertion that the assignment of the proceeds to be received in the future was not a valid, enforceable assignment under Georgia law; in addition, the creditor had no lien or perfected security interest in the proceeds under O.C.G.A. § 44-14-320 ; thus, because there was no valid assignment and because the creditor did not have a valid, perfected security interest under Georgia law, then the creditor was an unsecured creditor with only a claim based on the debtor's breach of her promise to pay. Carson v. Rhodes (In re Carson), Bankr. (Bankr. N.D. Ga. June 12, 2006).

When tax lien attaches. - A lien and its rank is provided for the state for sales and use taxes; and such lien attaches on the day on which the dealer is required to make the return and remittance to the State Revenue Commissioner; and such lien for taxes are declared to be superior to all other liens. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954).

If receiver pays proceeds of sale to deed holder, both become liable for tax on sale. - Where certain tax executions are declared to be valid prior liens upon property or funds arising from the sale of such property, and a receiver appointed by the superior court, notwithstanding the order of that court required payment of taxes, pays out all or part of such funds to the holder of a deed to secure a debt, the holder is thereby rendered liable with holder's surety for the payment of such tax executions, and is subject to action by the holder of the executions. Belser v. Puckett, 179 Ga. 249 , 175 S.E. 565 (1934).

No right to excess funds generated by tax sale. - Redeeming creditor of a tax-sale property does not have a priority lien against excess funds arising from that sale. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

In Wester v. United Capital Financial of Atlanta, LLC, 282 Ga. App. 392 (2006) and again in United Capital Financial of Atlanta v. American Investment Assoc., 302 Ga. App. 400 (2010), the Georgia Court of Appeals held that a creditor who redeems property following a tax sale has first priority to excess funds resulting from that tax sale, but properly overruled those decisions in DLT List, LLC. v. M7VEN Supportive Housing & Dev. Group, 335 Ga. App. 318 (2015) concluding that a redeeming creditor has no such priority. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

Laborer's lien supersedes landlord's. - Although a laborer's general lien arose subsequent to a landlord's lien, the laborer's lien is nevertheless superior in dignity to the landlord's lien. Little v. Walters, 40 Ga. App. 447 , 150 S.E. 201 (1929).

As a general rule, party cannot hold lien on own property. Stephens v. Clark, 154 Ga. App. 306 , 268 S.E.2d 361 (1980).

Partner has no right to materialman or contractor's lien on property. - A coequal partner does not have a right to a common-law materialman's or contractor's lien on the partnership property. Stephens v. Clark, 154 Ga. App. 306 , 268 S.E.2d 361 (1980).

Materialman who supplies subcontractor has no lien on property. - A materialman who furnishes material to a subcontractor for the improvement of real estate is not entitled to a lien upon the property so improved, where the subcontractor has no contractual relation with the owner of the realty. Buffalo Forge Co. v. Southern Ry., 43 Ga. App. 445 , 159 S.E. 301 (1931).

Subrogation agreement overcomes constructive notice of intervening lien. - An agreement for subrogation, made with either the debtor or the creditor, is sufficient to overcome constructive notice of the intervening lien. McCollum v. Lark, 187 Ga. 292 , 200 S.E. 276 (1938).

Lender who pays off realty encumbrance gets priority in repayment. - One who advances money to pay off an encumbrance upon realty at the instance either of the owner of the property or the holder of the encumbrance, either upon the understanding, or where an understanding will be implied that the advance is to be secured by a first lien on the property, is not a mere volunteer. In the event the new security is not a first lien on the property, the holder of the security, if not chargeable with culpable or inexcusable neglect, will be subrogated to the rights of the prior encumbrancer under the security held by the encumbrancer, unless the superior or equal equity of others would be prejudiced (knowledge of an intervening encumbrance not alone preventing the person advancing the money from claiming the right of subrogation, when the exercise of such right will not substantially prejudice the rights of the intervening encumbrancer). Equity will set aside a cancellation of such security and revive the same for the last encumbrancer's benefit. McCollum v. Lark, 187 Ga. 292 , 200 S.E. 276 (1938).

Homeowners association as judgment creditor entitled to file a lien. - Because a judgment debtor's personal property was automatically bound by a judgment as of the date a state court judgment was rendered, O.C.G.A. §§ 9-12-80 and 44-14-320(a)(2), a homeowners' association became a judgment creditor of the homeowners upon the entry of a state court judgment and was entitled to file a lien binding the homeowners' property. Laosebikan v. Lakemont Cmty. Ass'n, 302 Ga. App. 220 , 690 S.E.2d 505 (2010).

Enforcement of lien if no prejudice to rights of intervening lienor. - Where a lender, pursuant to a contract with the debtor, in which the debtor attempts to convey to the lender a first lien upon realty, and agrees that the lender shall be subrogated to the rights of any creditor whose lien the lender discharges, discharges a lien superior to the conveyance from the debtor, with only constructive notice of another lien of record, the lender is subrogated to the creditor whose lien the lender discharges, and may revive the lien and enforce the same against the property when to do so would not prejudice the rights of the intervening lienor who had done nothing to change his position in reliance upon the cancellation of the lien paid. McCollum v. Lark, 187 Ga. 292 , 200 S.E. 276 (1938).

When subrogation arises. - Subrogation will arise only in those cases where the party claiming it advanced the money to pay a debt which, in the event of default by the debtor, he would be bound to pay, or where he has some interest to protect, or where he advanced the money under an agreement, express or implied, made either with the debtor or creditor, that he would be subrogated to the rights and remedies of the creditor. McCollum v. Lark, 187 Ga. 292 , 200 S.E. 276 (1938).

Assignment of liens in writing. - Liens mentioned in O.C.G.A. § 44-14-320 are within O.C.G.A. § 44-14-324 , requiring assignments to be in writing. Planters' Bank v. Prater, 64 Ga. 609 (1880).

Stableman's lien inapplicable to defendant after executing replevy bond. - Where the person to whom levying officer had delivered mules, who had incurred the expenses of their upkeep, foreclosed upon the mules a livery stableman's lien for their upkeep from the time the possession of the mules was tendered to the defendant after that person executed a replevy bond, a verdict for the defendant was as a matter of law demanded. Rogers v. Echols, 50 Ga. App. 711 , 179 S.E. 131 (1935).

Insufficient evidence to determine if there was assignment or lien. - Debtor's motion for default judgment, in an action for a declaration that the assignment of proceeds from a lawsuit to a defendant was invalid, was denied because the debtor did not assign a right of action, so O.C.G.A. § 44-12-24 did not apply, and there was no allegation that the defendant had a lien and if so, whether it was unperfected, so O.C.G.A. § 44-14-320 did not apply. Carson v. Rhodes (In re Carson), Bankr. (Bankr. N.D. Ga. Nov. 9, 2005).

Cited in Jones v. Darby, 174 Ga. 71 , 161 S.E. 835 (1931); Lakewood Lumber & Supply Co. v. Hughes, 176 Ga. 239 , 167 S.E. 518 (1933); State Revenue Comm'n v. Rich, 49 Ga. App. 271 , 175 S.E. 394 (1934); Davison v. F.W. Woolworth Co., 186 Ga. 663 , 198 S.E. 738 (1938); Lankford v. Holton, 187 Ga. 94 , 200 S.E. 243 (1938); McCollum v. Lark, 187 Ga. 292 , 200 S.E. 276 (1938); J.B. Withers Cigar Co. v. Kirkpatrick, 196 Ga. 41 , 26 S.E.2d 255 (1943); Amoco Oil Co. v. G. Sims & Assocs., 162 Ga. App. 307 , 291 S.E.2d 128 (1982); Opportunities Industrialization Ctr. of Atlanta, Inc. v. T & B - Scottdale Contractors, 26 Bankr. 394 (Bankr. N.D. Ga. 1983); Sterling Nat'l Bank & Trust Co. v. Southwire Co., 713 F.2d 684 (11th Cir. 1983).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, §§ 52, 53.

C.J.S. - 53 C.J.S., Liens, § 9.

ALR. - Periodical use of vehicle or horse by owner as defeating lien for storage, repairs, or board, 3 A.L.R. 664 .

Common-law lien on personalty for work performed thereon, upon the owner's premises, 3 A.L.R. 862 .

Priority as between judgment lien and unrecorded mortgage, 4 A.L.R. 434 .

Validity and effect of provision in contract against mechanic's lien, 13 A.L.R. 1065 ; 102 A.L.R. 356 ; 76 A.L.R.2d 1087.

Power of the state to create and enforce liens on ships for a nonmaritime tort, 20 A.L.R. 1095 .

Discharge of mortgage and taking back of new mortgage as affecting lien intervening between the old and new mortgage, 33 A.L.R. 149 ; 98 A.L.R. 843 .

Mechanics' lien for material specially fabricated for and adapted to building, but not used therein, 33 A.L.R. 320 .

Substitution by court of security for attorney's lien, 33 A.L.R. 1296 .

Priority as between judgment entered and deed or mortgage filed on same day, 37 A.L.R. 268 .

Mechanic's lien: owner's right to deduction on account of damages sustained through contractor's delay, 37 A.L.R. 766 .

Independence of contract considered with relation to the scope and construction of statutes, 43 A.L.R. 335 .

Bankruptcy: lessor's right, upon bankruptcy of lessee, to enforce lien or retain security for future rentals, 45 A.L.R. 717 .

Destruction, demolition, removal of, or damage to improvement as affecting mechanic's lien, 74 A.L.R. 428 .

Lien of mortgage securing corporate bonds as affected by exchange of bonds for those of reorganized or new corporations, 81 A.L.R. 139 .

Lien on vendee's or optionee's interest in respect of real property as attaching to title acquired by completion of contract or exercise of option, 85 A.L.R. 927 .

Vendor's or vendee's lien against realty in case of combined sale of realty and personalty, 88 A.L.R. 92 .

State's prerogative right of preference at common law, 90 A.L.R. 184 ; 167 A.L.R. 640 .

Different classes of "vendors' liens," so-called, upon real property, 91 A.L.R. 148 .

Mortgagee's release of mortgagor's personal liability by dealings with purchaser of part of mortgaged property who had assumed mortgage debt as affecting lien of mortgage upon other part which has been conveyed by mortgagor to third person, 101 A.L.R. 618 .

Remedy available to holder of mechanic's lien which has priority over antecedent mortgage or vendor's title or lien as regards improvement, but not as regards land, where it is impossible or impractical to remove the improvement, 107 A.L.R. 1012 .

Means of enforcing or making effective attorney's retaining lien, 111 A.L.R. 487 .

Claim of lessor or privy against receiver of lessee in respect of leasehold which latter elects not to take over, 111 A.L.R. 556 .

Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 111 A.L.R. 1453 ; 142 A.L.R. 362 .

Statute relating to attorney's lien as affecting common-law or equitable lien, 120 A.L.R. 1243 .

Constitutionality of statute impairing or postponing lien for taxes, 136 A.L.R. 328 .

Who is contractor or subcontractor, as distinguished from materialman, for purposes of mechanic's lien, contractor's bond, or other provision for securing compensation under construction contract, 141 A.L.R. 321 .

Terms of attorney's contingent-fee contract as creating an equitable lien in his favor, 143 A.L.R. 204 .

Respective rights and estates of persons claiming real property through sales from different agencies to enforce taxes or assessments, as between which there is parity of lien, 167 A.L.R. 1001 .

Right of attorney to set off claim for unrelated services against client's claim for money collected, 173 A.L.R. 429 .

Attorney's right to lien or equitable assignment in respect of client's share or interest in decedent's estate, or in trust, 175 A.L.R. 1132 .

Lien for storage of motor vehicle, 48 A.L.R.2d 894; 85 A.L.R.3d 199.

Validity of statute making private property owner liable to contractor's laborers, materialmen, or subcontractors where owner fails to exact bond or employ other means of securing their payment, 59 A.L.R.2d 885.

Interest and penalties on federal tax covered in part by prebankruptcy liens as allowable or as surviving discharge in bankruptcy, 77 A.L.R.2d 1125.

Time for filing notice or claim of mechanic's lien where claimant has contracted with general contractor and later contracts directly with owner, 78 A.L.R.2d 1165.

Mechanic's lien for services in connection with subdividing land, 87 A.L.R.2d 1004.

What constitutes "commencement of building or improvement" for purposes of determining accrual of mechanic's lien, 1 A.L.R.3d 822.

Charge for use of machinery, tools, or appliances used in construction as basis for mechanic's lien, 3 A.L.R.3d 573.

Mechanic's lien based on contract with vendor pending executory contract for sale of property as affecting purchaser's interest, 50 A.L.R.3d 944.

Abandonment of construction or of contract as affecting time for filing mechanics' liens or time for giving notice to owner, 52 A.L.R.3d 797.

Assertion of statutory mechanic's or materialman's lien against oil and gas produced or against proceeds attributable to oil and gas sold, 59 A.L.R.3d 278.

Building and construction contracts: right of subcontractor who has dealt only with primary contractor to recover against property owner in quasi contract, 62 A.L.R.3d 288.

Enforceability of mechanic's lien attached to leasehold estate against landlord's fee, 74 A.L.R.3d 330.

Removal or demolition of building or other structure as basis for mechanic's lien, 74 A.L.R.3d 386.

Release or waiver of mechanic's lien by general contractor as affecting rights of subcontractor or materialman, 75 A.L.R.3d 505.

Landlord's remedy by way of distress or lien on defaulting tenant's property on leased premises as including right to collect for all unpaid utility expenses, 99 A.L.R.3d 1100.

Priority between attorney's lien for fees against a judgment and lien of creditor against same judgment, 34 A.L.R.4th 665.

Loss of garageman's lien on repaired vehicle by owner's use of vehicle, 74 A.L.R.4th 90.

Architect's services as within mechanics' lien statute, 31 A.L.R.5th 664.

Discharge of mortgage and taking back of new mortgage as affecting lien intervening between old and new mortgages, 43 A.L.R.5th 519.

44-14-321. Lien of judgment on debt given for purchase money; priority.

The judgment upon any evidence of debt given for the purchase money of land, where titles have not been made but bond for titles has been given, shall be a lien upon the land and the proceeds of the sale thereof and shall be prior to all other judgments, claims, liens, and encumbrances until the judgment shall be fully paid and satisfied.

(Laws 1847, Cobb's 1851 Digest, p. 517; Laws 1850, Cobb's 1851 Digest, p. 518; Code 1863, § 3581; Ga. L. 1868, p. 16, § 1; Code 1868, § 3604; Ga. L. 1873, p. 42, § 19; Code 1873, §§ 1974, 3654; Ga. L. 1877, p. 21, § 1; Ga. L. 1880-81, p. 63, § 5; Code 1883, §§ 1994, 3654; Civil Code 1895, § 2788; Civil Code 1910, § 3330; Code 1933, § 67-1702.)

JUDICIAL DECISIONS

In a distribution, money in court must be applied to oldest lien that has attached to it. Alexander Underwriters, Inc. v. Insurance Agencies of Ga., Inc., 156 Ga. App. 560 , 275 S.E.2d 138 (1980).

Judgment on one of several notes. - Where judgment has been obtained on one of several purchase money notes, the others being not yet mature, the land may be sold, under O.C.G.A. § 44-14-321 , and the vendor will have a right to the proceeds, to the extent of the entire price, prior to the rights of other creditors. The vendor will not, however, be allowed payment until the money is due. Brown v. Farmer, 94 Ga. 178 , 21 S.E. 292 (1894).

Executors of deceased partner, who have title to renewals of purchase money notes, may proceed under O.C.G.A. § 44-14-321 , without any conveyance by the surviving members of the firm or the liens of the deceased. Blalock v. Jackson, 94 Ga. 469 , 20 S.E. 346 (1894).

Necessity for deed conveyance before levying execution. - An execution cannot, under the last sentence of O.C.G.A. § 44-14-321 , be lawfully levied upon the land until the plaintiff has executed and recorded a deed conveying the land to the defendant. Rogers v. Smith, 98 Ga. 788 , 25 S.E. 753 (1896).

Lien need not be alleged in suit to obtain judgment. - It is not necessary in suits upon notes given for land and judgments thereon, to specify or declare a lien thereon on the face of the declaration and judgment, in order to sell the same under execution by filing a deed for the land with the clerk under O.C.G.A. § 44-14-321 . Coleman v. Slade & Etheridge, 75 Ga. 61 (1885).

Where land is sold subject to prior security title, the vendor may claim a lien on surplus of proceeds of sale at the instance of the holder of such title. Hinton v. Burns, 20 Ga. App. 467 , 93 S.E. 120 (1917).

A purchase-money security deed operates as an absolute conveyance of title until the secured indebtedness is fully paid. It generally takes precedence over simultaneous or prior liens against the purchaser, but not prior liens against the property. Connolly v. State, 199 Ga. App. 887 , 406 S.E.2d 222 (1991).

Lien for purchase money is prior to secret equity of vendee's spouse. Connally v. Cruger, 40 Ga. 259 (1869).

A divorce decree did not create a lien superior to the claims of judgment creditors because the decree did not award a lump support payment or create a lien in favor of the children. Dee v. Sweet, 224 Ga. App. 285 , 480 S.E.2d 316 (1997).

Cited in Davidson v. Smith Canadian Peat, Inc., 163 Ga. App. 367 , 294 S.E.2d 582 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 46 Am. Jur. 2d, Judgments, §§ 404, 405.

24A Am. Jur. Pleading and Practice Forms, Vendor and Purchaser, § 3.

C.J.S. - 50 C.J.S., Judgments, § 584 et seq. 53 C.J.S., Liens, § 33 et seq.

ALR. - Priority as between judgments of different dates as regards lien on subsequently acquired property, 67 A.L.R. 1301 .

Different classes of "vendors' lien," so-called, upon real property, 91 A.L.R. 148 .

Remedy for enforcement of judgment lien after death of judgment debtor, 114 A.L.R. 1165 .

Creation of homestead right in real estate as affecting previous mortgage, trust deed, or purchase money or vendor's license, 123 A.L.R. 427 .

Real estate broker's rights and remedies in respect of property or proceeds for payment or security of his compensation, 125 A.L.R. 921 .

Issuance or levy of execution as extending period of judgment lien, 77 A.L.R.2d 1064.

Specific performance of land contract notwithstanding failure of vendee to make required payments on time, 55 A.L.R.3d 10.

44-14-322. Vendor's equitable lien abolished.

The vendor's equitable lien for the purchase money of lands is abolished.

(Orig. Code 1863, § 1988; Code 1868, § 1978; Code 1873, § 1997; Code 1882, § 1997; Civil Code 1895, § 2823; Civil Code 1910, § 3373; Code 1933, § 67-1703.)

JUDICIAL DECISIONS

O.C.G.A. § 44-14-322 is not retroactive. Bass v. Ware, 34 Ga. 386 (1866).

Abolition does not dispense with purchaser's equity. - The abolition of the vendor's equitable lien did not dispense with the natural equity acquired by the purchaser through payment of the purchase money, as the law recognizes that title is held in trust for the purchaser. Horner v. Savannah Valley Enters., Inc., 234 Ga. 371 , 216 S.E.2d 113 (1975).

Vendor has no priority in decedent's estate. - In the distribution of a decedent's estate, a vendor holding promissory notes has no priority of payment out of the land. Jones v. Janes, 56 Ga. 325 (1876).

Cited in Cruger v. Clark, 44 Ga. 224 (1871); Broach v. Smith, 75 Ga. 159 (1885); Rounsaville v. Peek, 108 Ga. 584 , 34 S.E. 141 (1899); Green v. Hall, 151 Ga. 728 , 108 S.E. 42 (1921); Summer v. Strayhorn, 186 Ga. 755 , 199 S.E. 108 (1938); Nix v. Cauthen, 220 Ga. 850 , 142 S.E.2d 230 (1965).

RESEARCH REFERENCES

Am. Jur. 2d. - 77 Am. Jur. 2d, Vendor and Purchaser, § 583.

24A Am. Jur. Pleading and Practice Forms, Vendor and Purchaser, § 3.

C.J.S. - 92A C.J.S., Vendor and Purchaser, § 529.

ALR. - Vendor and purchaser: vendor's lien to secure legacy which one receiving quitclaim from legatee agrees to pay, 2 A.L.R. 810 .

Bankruptcy: priority as between vendor's lien on real estate and rights of trustee in bankruptcy of purchaser, 22 A.L.R. 1338 .

Contract for development and sale of land as creating a power coupled with interest or supporting an equitable lien, 65 A.L.R. 1080 .

Unperformed agreement as to security for, or creation of fund for payment of, purchase price, as waiver of vendor's lien real property, 119 A.L.R. 1180 .

Real estate broker's rights and remedies in respect of property or proceeds for payment or security of his compensation, 125 A.L.R. 921 .

Right of seller or assignor of leasehold to vendor's lien, 67 A.L.R.2d 1094.

44-14-323. Rank of liens according to date.

All liens which are not regulated and fixed as to rank by this title shall rank according to date, the oldest having priority.

(Ga. L. 1873, p. 42, § 20; Code 1873, § 1995; Code 1882, § 1995; Civil Code 1895, § 2821; Civil Code 1910, § 3371; Code 1933, § 67-1704.)

JUDICIAL DECISIONS

Application of legislative intent. - Under O.C.G.A. § 44-14-323 , the legislature specifically provided that all liens, which are not regulated and fixed as to rank shall rank according to date, the oldest having priority; Georgia's appellate courts have embraced the "first in time, first in right" approach in prioritizing judgments, holding that, money in court, on a rule for its distribution, must be applied, as far as it goes, to the oldest lien that has attached to it, if there be nothing to affect the validity of the lien. Vesta Holdings I, LLC v. Tax Comm'r, 259 Ga. App. 717 , 578 S.E.2d 293 (2003).

A purchase money mortgage is accorded special priority over any lien against the property arising through or against the purchaser. Register v. Reese, 37 Bankr. 708 (Bankr. N.D. Ga. 1983).

Subordination clause. - Trial court's finding with respect to the priority of a bank's security deed and the landowners' security deed was erroneous because the subordination clause in the landowners' real estate sales agreement merged into their security deed and was extinguished; thus, the trial court was required to determine the priority of the deeds pursuant to O.C.G.A. § 44-14-323 , and, as such, the landowners' deed was inferior to the bank's deed because the landowners' deed expressly stated as such and was recorded after the bank's deed. Tallahassee State Bank v. Macon, 317 Ga. App. 128 , 730 S.E.2d 646 (2012).

Foreclosed security deed may have priority. - Where there is a clause in the lease making the rights of the lessee "subject to" a subsequent security deed, the foreclosed security deed has priority. Trust Co. Bank v. Atlanta Speedshop Dragway, Inc., 208 Ga. App. 867 , 432 S.E.2d 608 (1993).

Lender paying realty encumbrance receives priority over later creditor. - Where one advances money to pay off an encumbrance on realty either at the instance of the owner of the property or the holder of the encumbrance, either upon the understanding or under an implied understanding that the advance is to be secured by the senior lien on the property, should new security not be a first lien on the property, the holder of the security, if not chargeable with culpable or inexcusable neglect, will be subrogated to the rights of the prior encumbrance under the security, unless the superior or equal equity of others would be prejudiced thereby. Knowledge of the existence of an intervening encumbrance will not alone prevent the person advancing the money to pay off the senior encumbrance from claiming the right of subrogation where the exercise of such right will not substantially prejudice the rights of the intervening encumbrancer. Under the foregoing circumstances, equity will set aside a cancellation of such security and revive the same for the benefit of the party who paid it off. Davis v. Johnson, 241 Ga. 436 , 246 S.E.2d 297 (1978).

A divorce decree did not create a lien superior to the claims of judgment creditors because the decree did not award a lump support payment or create a lien in favor of the children. Dee v. Sweet, 224 Ga. App. 285 , 480 S.E.2d 316 (1997).

Lien found not to "impair" exemption to which bankruptcy debtor entitled. See Orsburn v. Diners Club, Inc., 35 Bankr. 217 (Bankr. N.D. Ga. 1983).

Rights of lessee. - Under the general principle contained in O.C.G.A. § 44-14-323 , the rights of a lessee are superior to those of a subsequent lienholder. Raiford v. DOT, 206 Ga. App. 114 , 424 S.E.2d 789 (1992).

Cited in Postell v. Val-Lite Corp., 78 Ga. App. 199 , 51 S.E.2d 63 (1948); Davidson v. Smith Canadian Peat, Inc., 163 Ga. App. 367 , 294 S.E.2d 582 (1982); Aetna Cas. & Sur. Co. v. Valdosta Fed. Sav. & Loan Ass'n, 175 Ga. App. 614 , 333 S.E.2d 849 (1985); Connolly v. State, 199 Ga. App. 887 , 406 S.E.2d 222 (1991).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, §§ 68-70, 75.

C.J.S. - 53 C.J.S., Liens, § 14.

ALR. - Priority as between liens for public improvements, 5 A.L.R. 1301 ; 99 A.L.R. 1478 .

Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 54 A.L.R. 567 .

Doctrine of inverse order of alienation as affected by release of part of property covered by mortgage or other lien, 110 A.L.R. 65 ; 131 A.L.R.4th 108.

State's prerogative right of preference at common law, 167 A.L.R. 640 .

Priority as between lien for repairs and the like, and right of seller under conditional sales contract, 36 A.L.R.2d 198.

Priority as between artisan's lien and chattel mortgage, 36 A.L.R.2d 229.

Right of vendee under executory land contract to lien for amount paid on purchase price as against subsequent creditors of or purchasers from vendor, 82 A.L.R.3d 1040.

44-14-324. Assignment of liens; rights of assignee.

Except as otherwise provided by law, assignments of all liens shall be in writing. Under an assignment, the assignee shall have all the rights of the assignor as provided by law.

(Ga. L. 1873, p. 42, § 21; Code 1873, § 1996; Code 1882, § 1996; Civil Code 1895, § 2822; Civil Code 1910, § 3372; Code 1933, § 67-1705.)

JUDICIAL DECISIONS

O.C.G.A. § 44-14-324 applies to mortgages. Planter's Bank v. Prater, 64 Ga. 609 (1880); National Bank v. Exchange Bank, 110 Ga. 692 , 36 S.E. 265 (1900).

One not payee must have written assignment to foreclose. - Where a promissory note and mortgage upon personal property are combined together in one instrument, one who is not the payee named in the paper cannot foreclose the mortgage in that person's own name as holder and owner thereof without having a written assignment of the same. Nicholson v. Harris, 90 Ga. 257 , 16 S.E. 84 (1892).

Landlord's lien may be assigned in writing whether the contract between landlord and tenant written or not. I. M. Scott & Co. v. Ward, 21 Ga. App. 535 , 94 S.E. 863 (1918).

Warehouseman's attempted pledge of other's property will not constitute assignment. - An attempt by a warehouseman to pledge property of another in the warehouseman's possession by means of warehouse receipts will not constitute a transfer of liens thereon. National Exch. Bank v. Graniteville Mfg. Co., 79 Ga. 22 , 3 S.E. 411 (1887).

Cited in Taylor v. Blasingame, 73 Ga. 111 (1884); Logue v. Walker, 141 Ga. 644 , 81 S.E. 849 (1914); Postell v. Val-Lite Corp., 78 Ga. App. 199 , 51 S.E.2d 63 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments, § 50.

C.J.S. - 53 C.J.S., Liens, § 15.

ALR. - Subrogation to prior lien of one who advances money to discharge it and takes new mortgage, as against intervening lien, 70 A.L.R. 1396 .

44-14-325. Transfers and assignments of evidences of indebtedness secured by lien - How made.

All transfers and assignments of rent notes, mortgage notes, and other such evidences of indebtedness which are secured either by contract lien or out of which a lien springs by operation of law shall be sufficiently technical and valid where the transfer or assignment plainly seeks to pass the title to any of the papers in writing from one person to another.

(Ga. L. 1899, p. 90, § 1; Civil Code 1910, § 3345; Code 1933, § 67-1706.)

JUDICIAL DECISIONS

Intent. - The purpose of O.C.G.A. § 44-14-325 is not to lessen the power of assignment, but to broaden it, so as to do away with, as much as possible, the formality of transfers of lien notes. Setze v. First Nat'l Bank, 140 Ga. 603 , 79 S.E. 540 (1913).

O.C.G.A. § 44-14-325 applies where transfer is by endorsement of note "without recourse." Berry v. Van Hise, 148 Ga. 27 , 95 S.E. 690 (1918); Jordan Mercantile Co. v. Brooks, 149 Ga. 157 , 99 S.E. 289 (1919). But see West Yellow Pine Co. v. Kendrick, 9 Ga. App. 350 , 71 S.E. 504 (1911).

Assignee of purchase money note may recover personalty where note provides title. - Where one sells personal property, taking a purchase money note in which title to the property is reserved until the note is paid, the transfer or assignment of the note transfers or assigns the right to recover the property in an action of trover upon failure of the maker of the note to pay the same, provides that title is retained through the purchase money note; and this is true whether the transfer makes reference to the property to which title is reserved or not, and or whether some or all of the transfers are made "without recourse" on the transferor. Jordan Mercantile Co. v. Brooks, 149 Ga. 157 , 99 S.E. 289 (1919).

What purchase money notes not contemplated by section. - O.C.G.A. § 44-14-325 does not contemplate purchase money notes in connection with which there is a contract reserving title, or a bond to convey title on payment of the purchase money. Berry v. Van Hise, 148 Ga. 27 , 95 S.E. 690 (1918). But see West Yellow Pine Co. v. Kendrick, 9 Ga. App. 350 , 71 S.E. 504 (1911).

Owner of title through conveyance of security deed has power equal to grantee. - Where one becomes owner of title conveyed by security deed and of indebtedness secured thereby, and power of sale not expressed in deed as limited to grantee, but having been conferred upon grantee or "assigns," that person is entitled to exercise the power to the same extent as the grantee. Universal Chain Theatrical Enters., Inc. v. Oldknow, 176 Ga. 472 , 168 S.E. 239 (1933).

Necessary elements for joint payee request. - Where a joint payee request does not identify the escrow account and does not contain words showing any intent to make an assignment; i.e., does not contain words seeking to pass title in the escrow fund, then that request does not constitute an assignment of a contractor's interest in the escrow account. Washington Loan & Banking Co. v. Guin, 236 Ga. 779 , 225 S.E.2d 318 (1976).

Simple endorsement of mortgage note, payable to order, is sufficient under O.C.G.A. § 44-14-325 . Setze v. First Nat'l Bank, 140 Ga. 603 , 79 S.E. 540 (1913); Beall v. Patterson, 146 Ga. 233 , 91 S.E. 71 (1916); Patillo v. Hallet & Davis Piano Co., 26 Ga. App. 327 , 106 S.E. 206 (1921).

Note transfers must be in writing. Gamble v. Shingler, 22 Ga. App. 608 , 96 S.E. 705 (1918).

For example of O.C.G.A. § 44-14-325 as applied to landlord's lien and rent note, see I.M. Scott & Co. v. Ward, 23 Ga. App. 416 , 98 S.E. 412 (1919), cert. denied, 23 Ga. App. 813 (1919); International Agric. Corp. v. Powell, 31 Ga. App. 348 , 120 S.E. 668 (1923).

For example of O.C.G.A. § 44-14-325 as applied to bill of sale used as security, see Dawson v. English, 8 Ga. App. 585 , 69 S.E. 1133 (1911).

Cited in Edwards v. Decatur Bank & Trust Co., 176 Ga. 194 , 167 S.E. 292 (1932); Redwine v. Frizzell, 184 Ga. 230 , 190 S.E. 789 (1937); Veal v. Jenkins, 58 Ga. App. 4 , 197 S.E. 328 (1938); Alropa Corp. v. Richardson, 58 Ga. App. 656 , 199 S.E. 666 (1938); Miller v. New Amsterdam Cas. Co., 105 Ga. App. 174 , 123 S.E.2d 717 (1961).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments, § 50.

C.J.S. - 53 C.J.S., Liens, § 15.

44-14-326. Transfers and assignments of evidences of indebtedness secured by lien - Effect as transfer of lien.

Upon all such transfers or assignments of any rent note, mortgage note, or other evidence of indebtedness mentioned in Code Section 44-14-325, the transfer or assignment shall carry, together with the title thereof, the lien connected with the same without naming or specifically transferring the lien so that the effect of the transfer or assignment will be to carry the lien completely and fully as a necessary incident of the transfer.

(Ga. L. 1899, p. 90, § 2; Civil Code 1910, § 3346; Code 1933, § 67-1707.)

JUDICIAL DECISIONS

O.C.G.A. § 44-14-326 applies to remote as well as immediate endorsees. Berry v. Van Hise, 148 Ga. 27 , 95 S.E. 690 (1918); Jordan Mercantile Co. v. Brooks, 149 Ga. 157 , 99 S.E. 289 (1919).

Section gives assignee of debt notes title and lien. - O.C.G.A. § 44-14-326 says that all transfers and assignments of rent notes, mortgage notes, and other such evidences of indebtedness, shall carry to such transferee or assignee the title to such instrument and also the lien connected therewith, without specially naming or transferring the lien; so that effect of such transfer or assignment will be to completely and fully carry the lien as a necessary incident thereof. Alley v. First Nat'l Bank, 46 Ga. App. 527 , 168 S.E. 317 (1933).

Assignee may seek to have judgment made special lien on property. - Under O.C.G.A. §§ 10-3-1 and 44-14-326 , transferee of such notes may ask in a court of law, without asking for intervention of equitable principles, that a judgment rendered on such notes be declared to be a special lien on the land or other property which is described in the instrument securing the notes. Alley v. First Nat'l Bank, 46 Ga. App. 527 , 168 S.E. 317 (1933).

Transferee has power equal to grantee. - Where one becomes owner of title conveyed by security deed and of indebtedness secured thereby, and power of sale not expressed in deed as limited to grantee, but having been conferred upon grantee or "assigns," that person is entitled to exercise the power to same extent as grantee. Universal Chain Theatrical Enters., Inc. v. Oldknow, 176 Ga. 492 , 168 S.E. 239 (1933).

Cited in Beall v. Patterson, 146 Ga. 233 , 91 S.E. 71 (1916); Redwine v. Frizzell, 184 Ga. 230 , 190 S.E. 789 (1937); Veal v. Jenkins, 58 Ga. App. 4 , 197 S.E. 328 (1938); Alropa Corp. v. Richardson, 58 Ga. App. 656 , 199 S.E. 666 (1938); Miller v. New Amsterdam Cas. Co., 105 Ga. App. 174 , 123 S.E.2d 717 (1961).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments, § 50.

C.J.S. - 53 C.J.S., Liens, § 15.

PART 2 L ANDLORDS

Cross references. - Landlord and tenant relationship generally, Ch. 7, T. 44.

Law reviews. - For article, "Distress and Dispossessory Warrants in Georgia," see 12 Ga. B.J. 266 (1950).

RESEARCH REFERENCES

ALR. - Subject matter covered by landlord's statutory lien for rent, 9 A.L.R. 300 ; 96 A.L.R. 249 .

Judicial or execution sale of realty as affecting debtor's share in crops grown by tenant or cropper, 13 A.L.R. 1425 ; 41 A.L.R. 2 d 1355.

Landlord's lien or right of distress on property sold to tenant on conditional sale, 45 A.L.R. 949 .

Right as between landlord and conditional seller of property to tenant, 45 A.L.R. 967 ; 98 A.L.R. 628 .

Injunction to prevent tenant in arrears for rent from removing chattels or improvements not constituting fixtures, 53 A.L.R. 294 .

Lien on, or trust in respect of, land, as security for repayment of money loaned to the purchaser and used in paying for the property without express agreement for security thereon, 60 A.L.R. 1240 .

Statutes in relation to chattel mortgages, as applicable to provisions in lease of real property purporting to give lessor lien on lessee's chattel, 64 A.L.R. 627 .

Right of vendee under unrecorded executory land contract as against subsequent deed or mortgage executed by, or judgment rendered against vendor, 87 A.L.R. 1505 .

Different classes of "vendors' liens," so-called, upon real property, 91 A.L.R. 148 .

Unaccepted tender as affecting lien of real estate mortgage, 93 A.L.R. 12 .

Landlord's acceptance of chattel mortgage, or conditional sales contract, as waiver of landlord's lien or reservation of title, 96 A.L.R. 568 .

Discharge of mortgage and taking back of new mortgage as affecting lien intervening between old and new mortgages, 98 A.L.R. 843 ; 43 A.L.R.5th 519.

Return of chattel to seller after delivery to buyer as revical of seller's lien; and its effect upon conditions of enforcing lien, 118 A.L.R. 564 .

Interest subject to a homestead right in others as subject to lien of judgment or to attachment or execution, 122 A.L.R. 1150 .

Attachment, execution, or recovery of personal judgment as waiver of landlord's lien, 151 A.L.R. 679 .

44-14-340. Lien for farming supplies, equipment and other items furnished tenant; operation of law or special contract; enforcement; duty to inform; priorities.

Landlords furnishing supplies, money, horses, mules, asses, oxen, farming utensils, and equipment necessary to make crops shall have the right to secure themselves from the crops raised during the year in which such things are furnished upon such terms as may be agreed upon by the parties but with the following conditions:

  1. The liens provided for in this Code section shall arise by operation of law from the relationship of landlord and tenant as well as by a special contract in writing whenever the landlord shall furnish the articles enumerated in this Code section or any of them to the tenant for the purposes named. The liens may be enforced in the manner provided in Code Section 44-14-550;
  2. Whenever the liens are created by a special contract in writing, they shall be assignable by the landlord and may be enforced by the assignees in the manner provided for the enforcement of such liens by landlords;
  3. The liens shall only exist as liens on the crops raised during the year in which they are made and may be foreclosed before the debt is due if the tenant is removing or seeking to remove his crops from the premises or when other legal process, not in favor of the landlord nor controlled by him nor levied at his instance or procurement, is being enforced against the crops;
  4. Every person giving a lien under this Code section who has previously given a lien or liens under it or any other lien shall, when giving a new lien under this Code section on the same property to another person, inform such person, if asked, as to the facts of the amount of such lien or liens and to whom given; and
  5. The liens created under this Code section are declared to be superior in rank to other liens and shall, as between themselves and other liens not excepted by this paragraph, rank according to date; but they shall be inferior to liens for taxes, the general and special liens of laborers, and the special liens of landlords for rent.

    (Ga. L. 1873, p. 42, §§ 5, 6; Code 1873, § 1978, Ga. L. 1874, p. 18, § 1; Ga. L. 1875, p. 20, §§ 1, 2; Ga. L. 1878-79, p. 47, § 1; Code 1882, § 1978; Ga. L. 1890-91, p. 72, § 1; Ga. L. 1895, p. 26, § 1; Civil Code 1910, § 3348; Code 1933, § 61-202; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Section 44-14-550 procedure must be complied with. - Where lessor did not follow the requisite procedure for assertion of liens in O.C.G.A. § 44-14-550 , no lien arose under O.C.G.A. § 44-14-340 . Jarrell v. Collins, 176 Ga. App. 368 , 336 S.E.2d 305 (1985).

Jury trial. - There was no right to a jury trial in an action under the Georgia Crop Lien Foreclosure Statute; a foreclosure judgment in excess of the value of the crop was void and was vacated. Bitt Int'l Co. v. Fletcher, 259 Ga. App. 406 , 577 S.E.2d 276 (2003).

Cited in McBride v. Sconyers, 46 Ga. App. 235 , 167 S.E. 309 (1933); Flynt v. Barrett, 73 Ga. App. 396 , 36 S.E.2d 868 (1946); Goss v. Toney, 184 F.2d 918 (5th Cir. 1950).

Supplier and Recipient

Relation of landlord must exist. - For one to have a lien as landlord for supplies, without special contract in writing, the relation of landlord must exist and that it did exist must appear in the affidavit of foreclosure. Eve v. Crowder, 59 Ga. 799 (1877).

Tenant need not actually possess realty before advancement. - Where one person rents to another land upon which to make a crop, the contract raises the relation of landlord and tenant between them, within the meaning of O.C.G.A. § 44-14-340 . It is not essential that the tenant should enter into actual possession of the premises before the advancement is made. Johnson v. McDaniel, 138 Ga. 203 , 75 S.E. 101 (1912); Lowe & Pittard v. Warbington, 144 Ga. 181 , 86 S.E. 537 (1915).

Subtenant substitutes for tenant as to liability for lien. - When a landlord accepts a subtenant as the tenant, the subtenant becomes the substitute of the original tenant to such an extent that the lien of the landlord for supplies furnished the tenant to aid in making the crop cannot be defeated as to the particular crop by a contract of subrenting to which the landlord has not consented. Nash v. Orr, 9 Ga. App. 33 , 70 S.E. 194 (1911).

Tenant may be landlord to a subtenant so as to have a lien under O.C.G.A. § 44-14-340 . Strickland v. Stiles, 107 Ga. 308 , 33 S.E. 85 (1899).

Landlord must furnish supplies as landlord. - In order for a landlord to have a lien upon a tenant's crop for supplies, under O.C.G.A. § 44-14-340 the landlord must furnish the articles as landlord. Scott v. Pound, 61 Ga. 579 (1878); Swann v. Morris, 83 Ga. 143 , 9 S.E. 767 (1889).

Landlord has no lien for items given as agent. - Landlord has no lien for articles furnished in capacity as a mere agent for another. Henderson v. Hughes, 4 Ga. App. 52 , 60 S.E. 813 (1908).

Trustee, as landlord, may foreclose a lien in the trustee's own name under O.C.G.A. § 44-14-340 though the land belongs to another person. Fargason v. Ford, 119 Ga. 343 , 46 S.E. 431 (1904).

Landlord has right to lien although agent supplies tenant. - Landlord is entitled to a lien for supplies where, at the request or with the consent of the tenant, the landlord directs the furnishing of supplies to the tenant by an agent and assumes sole liability for the debt thus created. Henderson v. Hughes, 4 Ga. App. 52 , 60 S.E. 813 (1908).

When no lien arises. - Landlord has no lien for supplies furnished to aid in making a crop, if they are furnished by another, or if they are furnished without the tenant's consent, or the debt is assumed by the landlord without the tenant's consent. Henderson v. Hughes, 4 Ga. App. 52 , 60 S.E. 813 (1908).

No lien when landlord merely provides money for supplies already in use. - Landlord has no lien for supplies, where the supplies are furnished to the tenant by a third person on the tenant's credit, and the mere furnishing of the money, three or four weeks thereafter, by the landlord to enable the tenant to pay promptly for the fertilizer already purchased and partly used is not necessary to make the crop. Landers v. Touchstone, 27 Ga. App. 310 , 108 S.E. 125 (1921).

No lien if landlord merely surety. - In order for a landlord to have a lien upon a tenant's crop for supplies, etc., the landlord must furnish the articles, and not merely become the tenant's surety for the price to some other person by whom they are sold to the tenant. Scott v. Pound, 61 Ga. 579 (1878); Swann v. Morris, 83 Ga. 143 , 9 S.E. 767 (1889); Brimberry v. Mansfield, 86 Ga. 792 , 13 S.E. 132 (1891); Rodgers v. Black, 99 Ga. 139 , 25 S.E. 23 (1896).

For example of case with landlord surety see O'Quinn v. Carter, 34 Ga. App. 310 , 129 S.E. 296 (1925).

No lien if only one of two recipients is tenant. - Where supplies are furnished to two parties to make a crop, but only one is a tenant, no lien arises under O.C.G.A. § 44-14-340 . Saterfield v. Moore, 110 Ga. 514 , 35 S.E. 638 (1900).

No lien if landlord without notice substitutes partnership for original tenant. - Landlord who rents to an individual and stipulates to furnish that person board, but afterwards accepts a partnership, of which the first tenant is a member, as tenant in lieu of the original tenancy, has no lien upon the crop made by the partnership for the board of the original tenant, the partnership having made no stipulation as to such board, and the new partner not knowing of any contract relating thereto. Reynolds v. Hindman, 88 Ga. 314 , 14 S.E. 471 (1891).

Cropper is not a tenant and there is therefore no lien under O.C.G.A. § 44-14-340 for supplies furnished to a cropper. Fields v. Argo, 103 Ga. 387 , 30 S.E. 29 (1898).

Supplies

Definition of "supplies." - In foreclosing a lien under O.C.G.A. § 44-14-340 a landlord has the right to include any instrumentality necessary to make a crop, which was furnished by the landlord and used by the tenant, and which was essential to the creation and cultivation of the crop. Boyce v. Day, 3 Ga. App. 275 , 59 S.E. 930 (1907).

The term "supplies" includes money furnished by the landlord and used by the tenant in making and gathering the crops. Strickland v. Stiles, 107 Ga. 308 , 33 S.E. 85 (1899).

Test of whether articles subject to lien. - The means employed by the tenant to obtain such things as are necessary to produce the crop are immaterial. The essential questions to be answered are: whether the articles furnished to the tenant by the landlord personally, whether the articles furnished by the landlord used in making the crop and whether the use of the articles were supplied were essentially necessary to the making of the crop in question. Boyce v. Day, 3 Ga. App. 275 , 59 S.E. 930 (1907).

Lien possible for board. - Board furnished to the tenant under the rent contract whereby the tenant agrees that the landlord shall have a lien on the tenant's crop of board, is within O.C.G.A. § 44-14-340 . Jones v. Eubanks, 86 Ga. 616 , 12 S.E. 1065 (1891). See also, Reynolds v. Hindman, 88 Ga. 314 , 14 S.E. 471 (1891).

Tenant need not use supplies to make crop. - In the foreclosure of a landlord's lien for supplies, it is not necessary to prove that the supplies furnished were actually used in making the crop. To create the lien it is sufficient that the supplies were actually furnished, and that the landlord understood and intended that they should be used to aid in making the crop. Nash v. Orr, 9 Ga. App. 33 , 70 S.E. 194 (1911); Buxton v. Hickman, 18 Ga. App. 260 , 89 S.E. 380 (1916).

Characteristics of Lien

Lien arises by operation of law. - Landlord's lien for supplies arises by virtue of O.C.G.A. § 44-14-340 when the supplies are furnished, but such lien cannot be asserted against the tenant's crop except by foreclosure. W.A. Lathem & Sons v. Stringer, 17 Ga. App. 585 , 87 S.E. 840 (1916); W.A. Lathem & Sons v. Stringer, 145 Ga. 224 , 88 S.E. 941 (1916); Hawkins v. Smith, 24 Ga. App. 464 , 101 S.E. 311 (1919); Moseman v. Comer, 160 Ga. 106 , 127 S.E. 406 (1925); Turner v. Sitton, 160 Ga. 215 , 127 S.E. 847 (1925).

Lien resembles purchase money claim. - Under O.C.G.A. § 44-14-340 , landlords furnishing supplies to their tenants for the purpose of making crops on the rented premises have a lien, by operation of law, on the crops there made in the year for which the supplies were furnished and such a lien is in the nature of a claim for purchase money. Mutual Fertilizer Co. v. Moultrie Banking Co., 36 Ga. App. 322 , 136 S.E. 803 (1927).

Time lien attaches. - Lien of a materialman on real estate, under O.C.G.A. § 44-14-340 , when created and declared as required by O.C.G.A. § 44-14-362 , attaches from the time the materialman commences, under the contract, to deliver material, and takes priority over title acquired with actual notice of the materialman's claim of lien by a subsequent grantee from the owner of real estate to secure debts, although the deed is executed and recorded before the completion of the contract of the materialman to furnish material, before the claim of lien is recorded, and before the commencement of an action to foreclose the lien or recover the amount of the claim. Picklesimer v. Smith, 164 Ga. 600 , 139 S.E. 72 (1927).

Time lien attaches against third party with notice. - When a contractor or materialman has done work or furnished material for the improvement of real estate, the contractor's liens when declared and created, as provided in O.C.G.A. § 44-14-362 , attach from the time the work under the contract is commenced or the material is furnished, as against third persons having actual notice of such liens. Marbut-Williams Lumber Co. v. Dixie Elec. Co., 166 Ga. 42 , 142 S.E. 270 (1928).

Lien unaffected by bankruptcy. - Lien given by O.C.G.A. § 44-14-340 is not obtained by legal proceedings, and is not affected by bankruptcy of the tenant, but is to be recognized and enforced in the bankruptcy proceedings. Henderson v. Mayer, 225 U.S. 631, 32 S. Ct. 699 , 56 L. Ed. 1233 (1912); In re Harper, 294 F. 899 (N.D. Ga. 1924).

For example of lien not affected by bankruptcy. Sitton v. Turner, 34 Ga. App. 12 , 128 S.E. 77 (1925).

Lien does not give landlord right to pick crop. - The fact that a landlord has a lien for supplies does not give the landlord a right to pick a crop without the tenant's consent in order to save the crop. Wadley v. Williams, 75 Ga. 272 (1885).

Lien is assignable and the assignee may enforce it even though it is assigned on the day it is created, no supplies having been furnished. Benson v. Gottheimer, 75 Ga. 642 (1885).

Third party buyer recording before materials delivered is not liable for lien. - Contractor's lien under O.C.G.A. § 44-14-340 cannot attach or exist prior to delivery of any of the material. It follows that a holder of legal title to realty, under a security deed executed by the owner and duly recorded prior to delivery of material furnished to such owner for improvement of the realty, cannot at the time of taking the security be affected with notice of any lien which the materialman may set up for material furnished to improve the property. Marbut-Williams Lumber Co. v. Dixie Elec. Co., 166 Ga. 42 , 142 S.E. 270 (1928).

Lien covers only year when advances made. - Special lien given to landlords upon the crops of their tenants for money and articles furnished to make the crops embrace only the crops of the year in which such advances are made for such purposes. Where the affidavit of foreclosure and the execution issued thereon show on their face that the money and articles furnished are for the preceding year as well as the current year, and also asserts a general lien upon other property (livestock), the affidavit and execution issued thereon are void. Parker v. Bond, 47 Ga. App. 318 , 170 S.E. 331 (1933).

"Year" not solar year. - Where the supplies are furnished in November to be used in making next year's crop, the lien given by O.C.G.A. § 44-14-340 arises. Johnson v. McDaniel, 138 Ga. 203 , 75 S.E. 101 (1912).

No execution against supplies until used. - Supplies furnished but not yet utilized by the tenant for the purpose intended, are not subject to levy and sale under executions against the tenant held by third persons if title did not pass to tenant because landlord told tenant to hold supplies until further orders. Mutual Fertilizer Co. v. Moultrie Banking Co., 36 Ga. App. 322 , 136 S.E. 803 (1927).

Lien attaches to sale under common-law levy. - If crops subject to lien under O.C.G.A. § 44-14-340 are sold under a common-law levy, the lien will attach to the proceeds of such sale. Cochran v. Waits, Johnson & Co., 127 Ga. 93 , 56 S.E. 241 (1906).

Priorities

Landlord's lien is not effective as against a bona fide purchaser. De Laigle v. Shuptrine, 28 Ga. App. 380 , 110 S.E. 920 (1922).

Lien applies to assignee of bankrupt. - The fact that the lien was not foreclosed prior to the assignment by the bankrupt of the homestead set aside to the bankrupt out of the proceeds of the bankrupt's share of the crops will not defeat the landlord's lien. Moseman v. Comer, 160 Ga. 106 , 127 S.E. 406 (1925).

Landlord's lien for supplies is superior to that of a mortgagee, also for supplies. Manley v. Underwood, 27 Ga. App. 822 , 110 S.E. 49 (1921).

Materialman's lien supersedes second security deed to vendee with notice. - Where, after materialmen had furnished material to improve the real estate embraced in the deed above referred to, the owner executes and delivers to the vendee therein a second deed to secure debt, and the vendee takes such second deed with actual notice of the claims of liens by such materialmen, the liens of the materialmen, when created and declared as required by O.C.G.A. § 44-14-362 , would take priority over the title acquired by the vendee in such second security deed. Picklesimer v. Smith, 164 Ga. 600 , 139 S.E. 72 (1927).

Lien of judgment not divested by superior factor's lien. - Although a factor's lien on crops for supplies furnished formerly included in the statute is superior to the lien of a judgment, delivery of the crops to the factor will not vest title in the factor nor divest the judgment lien. Stallings v. Harrold, Johnson & Co., 60 Ga. 478 (1878).

Enforcement

Proper remedy to enforce a lien, under O.C.G.A. § 44-14-340 is that prescribed in O.C.G.A. § 44-14-550 , and a distress warrant. Mackenzie v. Flannery & Co., 90 Ga. 590 , 16 S.E. 710 (1892).

Strict construction as to debts enforced. - As O.C.G.A. § 44-14-340 creates this special lien, with the right of summary enforcement, only under certain circumstances, debts cannot be collected in the mode so provided, unless they fall within the terms of such section. Parties cannot by agreement bring other debts than those which the law itself embraces within its scope. Parks v. Simpson, 124 Ga. 523 , 52 S.E. 616 (1905).

Bankruptcy obviates need for enforcement procedures. - While the method of enforcing liens given by O.C.G.A. § 44-14-340 to a landlord must ordinarily be followed, such procedure is not necessary, where before it is taken the property passes into possession of a court of bankruptcy. In re Harper, 294 F. 899 (N.D. Ga. 1924). But see Moseman v. Comer, 160 Ga. 106 , 127 S.E. 406 (1925).

Foreclosure limited before note due. - Where a note is given for supplies the lien under O.C.G.A. § 44-14-340 cannot be foreclosed until the note is due except as provided in O.C.G.A. § 44-14-340 (3). Harmon v. Earwood, 29 Ga. App. 399 , 115 S.E. 502 (1923).

Payment demand unnecessary if tenant removing crops. - Since a lien under O.C.G.A. § 44-14-340 may be foreclosed before the debt is due, if the tenant is removing or seeking to remove crops from the premises, a demand for payment is not, in such a case, an essential prerequisite to the right to foreclose. Vaughn v. Strickland, 108 Ga. 659 , 34 S.E. 192 (1899).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 793-877, 810-812.

C.J.S. - 52 C.J.S., Landlord and Tenant, § 624.

ALR. - Priority as between landlord's lien on chattels and chattel mortgage, 52 A.L.R. 935 .

Subject-matter covered by landlord's statutory lien for rent, 96 A.L.R. 249 .

Attachment, execution, or recovery of personal judgment as waiver of landlord's lien, 151 A.L.R. 679 .

False statement as to existing encumbrance on chattel in obtaining loan or credit as criminal false pretense, 53 A.L.R.2d 1215.

Secured transactions: priority as between statutory landlord's lien and security interest perfected in accordance with Uniform Commercial Code, 99 A.L.R.3d 1006.

44-14-341. Special lien on tenant's crops; priorities; general lien on tenant's property.

Landlords shall have a special lien for rent on crops grown on land rented from them, which lien shall be superior to all other liens except liens for taxes, and shall also have a general lien on the property of the debtor which is subject to levy and sale, which general lien shall date from the time of the levy of a distress warrant to enforce the general lien.

(Ga. L. 1873, p. 42, § 5; Code 1873, § 1977; Code 1882, § 1977; Ga. L. 1887, p. 34, § 1; Ga. L. 1889, p. 71, § 1; Civil Code 1895, § 2795; Civil Code 1910, § 3340; Code 1933, § 61-203.)

JUDICIAL DECISIONS

O.C.G.A. § 44-14-341 does not vest title, but only a lien, special for the rent of the land that made the crop, good from its maturity, but general in respect to other rent, and good only from levy. Worrill v. Barnes, 57 Ga. 404 (1876).

One-year statute of limitations inapplicable to landlord rent liens. - Limitation of one year in O.C.G.A. § 44-14-550(8) does not apply to the prosecution and enforcement by distress warrant of a special or general claim or demand by a landlord for rent. Only the general statutes of limitation apply as to the enforcement of such demands. Jones v. Blackwelder, 16 Ga. App. 345 , 85 S.E. 356 (1915).

Landlord's crop lien has priority over laborer's lien absent contrary accord. - A landlord's lien has priority on the proceeds of crops grown on rented premises over a laborer's lien on the same unless there be some conflicting agreement such as might operate to interfere with the general rule. Nelson v. Fuqua, 46 Ga. App. 754 , 169 S.E. 206 (1933).

Point when landlord's lien takes precedence. - A lien resulting from a judgment in favor of the plaintiff landlord, relates back to the date of the levy and will take precedence over a common-law judgment rendered subsequently to such levy, but before the final verdict and judgment in the distress warrant proceeding. Corley-Powell Produce Co. v. Allen, 42 Ga. App. 641 , 157 S.E. 251 (1931).

Point when rent distress warrant lien becomes effective. - The lien of the distress warrant for rent becomes effective and binding on a bale of cotton when a distress warrant is levied thereon, provided the claimant bona fide purchaser had not brought the cotton before the levy was made. Atchison v. Taliaferro County, 65 Ga. App. 177 , 15 S.E.2d 534 (1941).

General lien given by O.C.G.A. § 44-14-341 dates from levy of distress warrant to enforce the same. Prior to levy it covers no specific property, and attaches only to what is seized under the distress warrant issued to enforce the lien given by statute. But in this respect it is the full equivalent of a common-law distress. Henderson v. Mayer, 225 U.S. 631, 32 S. Ct. 699 , 56 L. Ed. 1233 (1912); Oglethorpe Sav. & Trust Co. v. Morgan, 149 Ga. 787 , 102 S.E. 528 (1920).

Tenant's discharge in bankruptcy does not affect rent lien. - A landlord's lien for rent, whether the special lien upon the crops grown on the rented premises which is created by O.C.G.A. § 44-14-341 , or the general lien which arises upon the levy of a distress warrant, is not a lien created by judgment or one "obtained through legal proceedings," and is therefore not discharged by the filing of a petition for the tenant's discharge in bankruptcy, although within four months of the creation of the lien. In re Burns, 175 F. 633 (S.D. Ga. 1909), aff'd sub nom. Henderson v. Mayer, 225 U.S. 631, 32 S. Ct. 699 , 56 L. Ed. 1233 (1912); Henderson v. Mayer, 225 U.S. 631, 32 S. Ct. 699 , 56 L. Ed. 1233 (1912); White v. Idelson, 38 Ga. App. 612 , 144 S.E. 802 , cert. denied, 38 Ga. App. 817 (1928).

General lien of a landlord for rent, given by O.C.G.A. § 44-14-341 , is not created by judgment, nor obtained through legal proceedings, although the levy may be made within four months of the filing of the petition in bankruptcy against the tenant. Henderson v. Mayer, 225 U.S. 631, 32 S. Ct. 699 , 56 L. Ed. 1233 (1912).

Statutory landlord lien possible even when landlord has only lien for rent and additional security. - Where a landlord does not have absolute title to the crops, but the tenant does have an interest in the crops which are subject to the landlord's lien for rent, and the landlord takes additional security to secure the payment of rental, this does not prevent their statutory landlord's lien from coming into existence or destroy its integrity. Goss v. Toney, 184 F.2d 918 (5th Cir. 1950).

When general landlord lien supersedes general creditor's judgment. - Where a general landlord lien was in existence at the time a creditors' petition was filed, although it then may have been inchoate, requiring levy of a distress warrant to perfect it, yet where it was afterwards so perfected before the rendition of judgment in favor of general creditors, it would be entitled to priority over such judgment. J.B. Withers Cigar Co. v. Kirkpatrick, 196 Ga. 41 , 26 S.E.2d 255 (1943).

General lien not voided by creditor's action. - The general lien of a landlord exists by virtue of statute as applied to relationship, and is not destroyed or vacated by the institution of a creditors' action under the insolvent traders law. J.B. Withers Cigar Co. v. Kirkpatrick, 196 Ga. 41 , 26 S.E.2d 255 (1943).

General landlord's lien perfected by distress warrant. - While it is declared in O.C.G.A. § 44-14-341 that the general lien of a landlord shall date from the levy of a distress warrant, the lien is not created by any judicial proceeding, but arises by operation of law as applied to relationship, and needs only to be perfected by issuance and levy of a distress warrant. J.B. Withers Cigar Co. v. Kirkpatrick, 196 Ga. 41 , 26 S.E.2d 255 (1943).

Alleged "assignee of rents" was not a landlord at the time crops were sought to be distrained, and had no standing to assert the lien provided by O.C.G.A. § 44-14-341 . South Cent. Farm Credit v. V.T. Properties, Inc., 208 Ga. App. 296 , 430 S.E.2d 645 (1993).

Effect of assignment of rent contract where consideration fails. - An assignment before maturity of a written contract for rent does not operate to raise in favor of the assignee the general lien given to landlords, when it appears that before the levy of a distress warrant in favor of the transferee the consideration of such contract had entirely failed. Garner v. Douglasville Banking Co., 136 Ga. 310 , 71 S.E. 478 (1911).

Levy is not necessary in order to fix landlord's special lien upon a crop for rent. Cochran v. Waits, Johnson & Co., 127 Ga. 93 , 56 S.E. 241 (1906); W.A. Lathem & Sons v. Stringer, 17 Ga. App. 585 , 87 S.E. 840 (1916); I.M. Scott & Co. v. Ward, 21 Ga. App. 535 , 94 S.E. 863 (1918).

Landlord may elect to enforce either lien or both in one distress warrant. McDougal v. Sanders, 75 Ga. 140 (1885).

Landlord's special lien attaches to whole crop. Daniel v. Harris, 84 Ga. 479 , 10 S.E. 1013 (1890); Manley v. Underwood, 27 Ga. App. 822 , 110 S.E. 49 (1921).

Lien attaches to crop of subtenant. - Under O.C.G.A. § 44-14-341 the crops raised on rented land by a subtenant, can be lawfully subjected to the payment of the rent contracted for by the original tenant. Alston v. Wilson, 64 Ga. 482 (1880); Hudson v. Stewart, 110 Ga. 37 , 35 S.E. 178 (1900).

No necessity for demand in special lien. - In order to enforce the special lien of a landlord, the rent must be due, but a demand for the payment thereof is not required. Colclough v. Mathis, 79 Ga. 394 , 4 S.E. 762 (1887).

Purchaser without notice protected against rent liens. - A bona fide purchaser, without notice, of a crop grown on rented premises will be protected against the lien, general or special, of the landlord for rent. Thornton v. Carver, 80 Ga. 397 , 6 S.E. 915 (1888); Collins v. Harrison, 24 Ga. App. 404 , 100 S.E. 794 (1919), later appeal, 26 Ga. App. 709 , 106 S.E. 797 (1921); Chason v. O'Neal, 158 Ga. 725 , 124 S.E. 519 (1924); McCommons-Thompson-Boswell Co. v. White, 33 Ga. App. 20 , 125 S.E. 76 (1924).

Purchaser of the land acquires landlord's interest in crops in cases where the land is rented to a tenant. Evans v. Looney, 86 Ga. App. 79 , 70 S.E.2d 801 (1952).

Cited in Nicholson v. Harrison, 106 Ga. App. 587 , 127 S.E.2d 824 (1962); D. Jack Davis Corp. v. Karp, 175 Ga. App. 482 , 333 S.E.2d 685 (1985); Bartolan, Inc. v. Columbian Peanut Co., 727 F. Supp. 1444 (M.D. Ga. 1989); Bo Phillips Company, Inc. v. R. L. King Properties, LLC, 336 Ga. App. 705 , 783 S.E.2d 445 (2016).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 791, 844.

C.J.S. - 52 C.J.S., Landlord and Tenant, § 631.

ALR. - Priority as between landlord's lien on chattels and chattel mortgage, 52 A.L.R. 935 .

Subject-matter covered by landlord's statutory lien for rent, 96 A.L.R. 249 .

Landlord's lien for rent as including taxes or other expenditures which tenant has agreed to pay or make, 99 A.L.R. 1104 .

Priority of lien of sales or consumers' tax, 136 A.L.R. 1015 .

Construction and application of provision in lease under which landlord is to receive percentage of lessee's profits or receipts, 38 A.L.R.2d 1113; 58 A.L.R.3d 384.

Application of statutory landlord's lien to property of third person used by tenant on rented premises, 95 A.L.R.3d 1205.

Secured transactions: priority as between statutory landlord's lien and security interest perfected in accordance with Uniform Commercial Code, 99 A.L.R.3d 1006.

Landlord's remedy by way of distress or lien on defaulting tenant's property on leased premises as including right to collect for all unpaid utility expenses, 99 A.L.R.3d 1100.

44-14-342. Priority and date of general liens; date of special liens for rent; enforcement of liens.

The general liens of landlords shall be inferior to liens for taxes and to the general and special liens of laborers but shall rank with other liens and with each other according to date, the date being from the time of levying a distress warrant. The special liens of landlords for rent shall date from the maturity of the crops on the lands rented unless otherwise agreed on but shall not be enforced by distress warrant until the rent is due, unless the tenant is removing his property, or when other legal process is being enforced against the crops, in which case the landlord may enforce the general and special liens.

(Code 1868, § 2260; Ga. L. 1873, p. 42, § 5; Code 1873, §§ 1977, 2286; Code 1882, § 1977; Ga. L. 1887, p. 34, § 1; Ga. L. 1889, p. 71, § 1; Civil Code 1895, § 2796; Civil Code 1910, § 3341; Code 1933, § 61-204; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

What constitutes debts due for rent. - The debts due for rent, referred to in O.C.G.A. § 53-7-91, are not debts for rent arising during the year in which the crops upon the rented land are grown, but this provision refers to debts of the decedent arising by contract made by the decedent prior to the time of death. Evans v. Carroll, 167 Ga. 68 , 144 S.E. 912 (1928).

No conflict with O.C.G.A. § 53-7-91. - There is no conflict between the provisions of O.C.G.A. §§ 44-14-342 and 53-7-91. Evans v. Carroll, 167 Ga. 68 , 144 S.E. 912 (1928).

General rent lien superior to tenant's unrecorded bill of sale of personalty to secure debt. - A landlord's general lien for rent, arising upon the issuance and levy of a distress warrant, is superior to a tenant's unrecorded bill of sale of personalty to secure a debt, even if the latter is executed and delivered prior to the date of the levy of the distress warrant upon the property covered by the bill of sale. Butler v. LaGrange Grocery Co., 29 Ga. App. 612 , 116 S.E. 213 (1923).

Landlord's lien is superior to lien of mortgage. Manley v. Underwood, 27 Ga. App. 822 , 110 S.E. 49 (1921).

General lien for rent prior to distress does not prevail over lien to trustee in bankruptcy. - The general lien of the landlord for rent prior to distress is inchoate, and covers no specific property, and gives no priority over the lien given to the trustee in bankruptcy. In re Grovenstein-Bishop Co., 223 F. 878 (N.D. Ga. 1915); In re City Drug Store, 224 F. 132 (S.D. Ga. 1913); Southern Ry. v. Wilder, 231 F. 933 (5th Cir. 1916); Watkins v. Alexander & Garrett, Inc., 283 F. 968 (5th Cir. 1922).

Mortgagee lien executed before levy of distress warrant. - A landlord's general lien for rent under O.C.G.A. § 44-14-342 is inferior to the lien of mortgagee executed before the levying of the distress warrant. Preetorius v. Anderson, 236 F. 723 (5th Cir. 1916).

Later laborer's lien. - Although a laborer's general lien arose subsequently to a landlord's lien, the laborer's lien is nevertheless superior in dignity to the landlord's lien. Little v. Walters, 40 Ga. App. 447 , 150 S.E. 201 (1929).

Conditional bill of sale has priority over subsequent lien under distress warrant for rent. - A conditional bill of sale having been duly executed, attested, and recorded prior to the time of the issuing of the execution on the distress warrant, has priority over the landlord's subsequent lien under a distress warrant for rent. Blackmar Co. v. Wright Co., 62 Ga. App. 861 , 10 S.E.2d 117 (1940).

Special lien on crops attaches without levy, and is not affected by bankruptcy of the tenant before distress. In re Harper, 294 F. 899 (N.D. Ga. 1924).

Special lien for rent is superior to older common-law judgments. If after foreclosure proceedings the crops are sold under common-law executions, the proceeds are subject to the special lien, in preference to the judgment creditors. Cochran v. Waits, Johnson & Co., 127 Ga. 93 , 56 S.E. 241 (1906).

When judgment lien for landlord supersedes common-law judgment. - A lien resulting from a judgment in favor of the landlord, relates back to the date of the levy and will take precedence over a common-law judgment rendered subsequently to such levy, but before the final verdict and judgment in the distress warrant proceeding. Corley-Powell Produce Co. v. Allen, 42 Ga. App. 641 , 157 S.E. 251 (1931).

Crops raised by administrators not immune from special liens. - The fact that the crop upon which the lien is here asserted was raised upon lands upon which administrators were continuing to conduct the business of the decedent does not deprive the landlord of the special lien provided for under O.C.G.A. § 44-14-342 . Evans v. Carroll, 167 Ga. 68 , 144 S.E. 912 (1928).

Special liens of landlords date from maturity of crops on the lands rented, unless otherwise agreed upon. Oglethorpe Sav. & Trust Co. v. Morgan, 149 Ga. 787 , 102 S.E. 528 (1920).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 792, 844 et seq.

C.J.S. - 52 C.J.S., Landlord and Tenant, § 619.

ALR. - Priority as between landlord's lien on chattels and chattel mortgage, 52 A.L.R. 935 .

Landlord's lien for rent as including taxes or other expenditures which tenant has agreed to pay or make, 99 A.L.R. 1104 .

Right or interest subject to, and priority of, statutory lien for labor or material in developing property for oil and gas, 122 A.L.R. 1182 .

Priority of lien of sales or consumers' tax, 136 A.L.R. 1015 .

Secured transactions: priority as between statutory landlord's lien and security interest perfected in accordance with Uniform Commercial Code, 99 A.L.R.3d 1006.

Landlord's remedy by way of distress or lien on defaulting tenant's property on leased premises as including right to collect for all unpaid utility expenses, 99 A.L.R.3d 1100.

44-14-343. Enforcement of special lien for rent by distress warrant.

A landlord's special lien for rent shall be enforced by a distress warrant in the same manner as general liens for rent are enforced; and no further allegations in the affidavit to procure a distress warrant to enforce a special lien for rent shall be necessary than are necessary to enforce the landlord's general lien for rent.

(Ga. L. 1887, p. 34, § 1; Civil Code 1895, § 2797; Civil Code 1910, § 3342; Code 1933, § 61-205.)

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 853.

C.J.S. - 52 C.J.S., Landlord and Tenant, § 676.

ALR. - Subject matter covered by landlord's statutory lien for rent, 9 A.L.R. 300 ; 96 A.L.R. 249 .

Landlord's lien or right of distress on property sold to tenant on conditional sale, 45 A.L.R. 949 .

Right as between landlord and conditional seller of property to tenant, 45 A.L.R. 967 ; 98 A.L.R. 628 .

Priority as between landlord's lien on chattels and chattel mortgage, 52 A.L.R. 935 .

Attachment, execution, or recovery of personal judgment as waiver of landlord's lien, 151 A.L.R. 679 .

Landlord's remedy by way of distress or lien on defaulting tenant's property on leased premises as including right to collect for all unpaid utility expenses, 99 A.L.R.3d 1100.

44-14-344. Special lien for rent in favor of transferee of rent contract - When lien arises.

Whenever any written contract for rent is transferred by the landlord by written assignment before the maturity of the crops on the lands rented, the special lien in favor of the landlord shall, on the maturity of the crops, arise in favor of the transferee of such rent contract in the same manner as it would have done in favor of the landlord had no transfer been made.

(Ga. L. 1882-83, p. 109, § 1; Civil Code 1895, § 2798; Civil Code 1910, § 3343; Code 1933, § 61-206.)

JUDICIAL DECISIONS

No lien if rent contract consideration fails. - If the consideration for the rent contract has failed before assignment, no lien arises in favor of the assignee under O.C.G.A. § 44-14-344 . Camp v. West & Co., 113 Ga. 304 , 38 S.E. 822 (1901); Garner v. Douglasville Banking Co., 136 Ga. 310 , 71 S.E. 478 (1911).

No setoff against lien assignee. - A plea of setoff against the original landlord is not available as against a bona fide assignee claiming a lien under O.C.G.A. § 44-14-344 . Mosley v. Bank of Lincolnton, 143 Ga. 181 , 84 S.E. 438 (1915).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 853.

C.J.S. - 52 C.J.S., Landlord and Tenant, § 676.

ALR. - Rights of lessee who relets for entire term as against sublessee or person claiming under latter, 32 A.L.R. 1429 .

Acceptance of rent from assignee or sublessee as relieving assignor or sublessor, 36 A.L.R. 316 .

Lessee as surety for rent after assignment; and effect of lessor's dealings (other than consent to assignment or mere acceptance of rent from assignee) to release lessee, 99 A.L.R. 1238 .

What amounts to assignment or sublease as distinguished from employment contract, within provision of lease against assignment or sublease without lessor's consent, 163 A.L.R. 532 .

Landlord's remedy by way of distress or lien on defaulting tenant's property on leased premises as including right to collect for all unpaid utility expenses, 99 A.L.R.3d 1100.

44-14-345. Special lien for rent in favor of transferee of rent contract - Foreclosure by transferee.

The special lien provided for in Code Section 44-14-344 may be foreclosed by the transferee in his own name. The affidavit of foreclosure shall contain a recital of the fact of transfer and such other allegations as are necessary in the foreclosure of special liens by landlords.

(Ga. L. 1882-83, p. 109, § 2; Civil Code 1895, § 2799; Civil Code 1910, § 3344; Code 1933, § 61-207.)

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, § 804.

C.J.S. - 52 C.J.S., Landlord and Tenant, § 614.

ALR. - Assignment of lease as breach of covenant against subletting, 7 A.L.R. 249 ; 79 A.L.R. 1379 .

Rights of lessee who relets for entire term as against sublessee or person claiming under latter, 32 A.L.R. 1429 .

Acceptance of rent from assignee or sublessee as relieving assignor or sublessor, 36 A.L.R. 316 .

Lessee as surety for rent after assignment; and effect of lessor's dealings (other than consent to assignment or mere acceptance of rent from assignee) to release lessee, 99 A.L.R. 1238 .

44-14-346. Giving false information as to liens; penalty.

A person who has given a lien under Code Section 44-14-340 or any other lien shall, when giving a new lien under the Code section on the same property to another person, inform such person, if questioned as to the facts, of the amount of such prior lien and to whom it was given. Any person who gives false information as to such facts shall be guilty of a misdemeanor.

(Ga. L. 1873, p. 42, § 6; Code 1873, § 1978; Ga. L. 1875, p. 20, § 1; Ga. L. 1878-79, p. 47, § 1; Ga. L. 1880-81, p. 63, § 1; Code 1882, § 1978; Ga. L. 1890-91, p. 72, § 1; Ga. L. 1895, p. 25, § 1; Penal Code 1895, § 668; Penal Code 1910, § 713; Code 1933, § 61-9901.)

JUDICIAL DECISIONS

O.C.G.A. § 44-14-346 is designed solely for the protection of landlords' liens. Jacobs v. State, 4 Ga. App. 509 , 61 S.E. 924 (1908).

O.C.G.A. § 44-14-346 does not apply to voluntary statements without solicitation or interrogation. Williams v. State, 13 Ga. App. 338 , 79 S.E. 207 (1913).

Obtaining money on recorded mortgage or bill of sale by false statements may violate O.C.G.A. § 44-14-346 . Brown v. State, 6 Ga. App. 329 , 64 S.E. 1001 (1909).

Provider of second security deed should cite prior mortgage in writing to avoid fraud charges. - There is, in this state, a law against cheating and swindling, and a person of reasonable prudence, in giving a second security deed, might wish it stated for that person's protection that a prior security deed or mortgage was in existence, and that the other party so understood. Persons have been convicted in this state for fraudulently misrepresenting the condition of their title. Federal Land Bank v. Bank of Lenox, 192 Ga. 543 , 16 S.E.2d 9 (1941).

For example of case dealing with sufficiency of indictment and accusation, see Jacobs v. State, 4 Ga. App. 509 , 61 S.E. 924 (1908).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, §§ 52, 53 et seq.

44-14-347. Unlawful purchase of corn or cotton from tenant or laborer after notice of disability to sell; penalty.

Any person who buys any corn or any cotton in the seed from tenants or laborers residing on the land of another as such or from the agent of such tenant or laborer when such tenant or laborer had no right to sell such corn or cotton and after notice of such disability to sell has been given in writing by the landlord or employer to such buyer shall be guilty of a misdemeanor.

(Ga. L. 1876, p. 115, § 1; Code 1882, § 4562b; Penal Code 1895, § 542; Penal Code 1910, § 554; Code 1933, § 61-9902.)

JUDICIAL DECISIONS

Security title resembles lien with additional elements. - While a bill of sale to secure debt or a security deed or a conditional sale contract with reservation of title amounts to something in addition to an ordinary mortgage lien, such a security title also embraces within itself the elements and characteristics of a lien. Waldroup v. State, 198 Ga. 144 , 30 S.E.2d 896 , answer conformed to, 71 Ga. App. 550 , 31 S.E.2d 463 (1944).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 808, 820, 821.

C.J.S. - 52 C.J.S., Landlord and Tenant, § 619.

44-14-348. Unlawful sale of farm products on which lien exists; penalty.

Any person who sells or otherwise disposes of crops upon which there is a lien for rent and advances, before the payment of the rent and advances, without the consent of and with intent to defraud the lienor or assignee of the lien, where loss is thereby sustained by the lienor or assignee of the lien, shall be guilty of a misdemeanor.

(Ga. L. 1871-72, p. 71, §§ 1, 2; Code 1873, § 4600; Ga. L. 1875, p. 26, § 1; Ga. L. 1876, p. 114, § 1; Code 1882, § 4600; Penal Code 1895, § 671; Penal Code 1910, § 721; Code 1933, § 61-9903.)

JUDICIAL DECISIONS

Elements necessary for violation. - To make the defendant's sale a violation of the provisions of O.C.G.A. § 44-14-348 , three essential facts must appear: that the sale, made before the rent or advances were paid, was without the consent of the landlord; that it was made with the intent to defraud the landlord; and that loss was thereby sustained by the landlord. Unless all three of these things are shown, the defendant's conviction is unauthorized. Davis v. State, 53 Ga. App. 325 , 185 S.E. 400 (1936).

For list of elements of offense, see Morrison v. State, 111 Ga. 642 , 36 S.E. 902 (1900); Thompson v. State, 12 Ga. App. 201 , 76 S.E. 1072 (1913); White v. State, 24 Ga. App. 74 , 100 S.E. 39 (1919).

O.C.G.A. § 44-14-348 includes loans secured with fraudulent intent. Bugg v. State, 17 Ga. App. 211 , 86 S.E. 405 (1915).

O.C.G.A. § 44-14-348 includes sales of any nature. Bell v. State, 14 Ga. App. 425 , 81 S.E. 253 (1914).

No application to situations where part of crop is pawned. Gilbert v. State, 16 Ga. App. 249 , 85 S.E. 86 (1915).

Mortgage is not lien on crops planted to replace prior crops destroyed by natural causes. Hall v. State, 2 Ga. App. 739 , 59 S.E. 26 (1907).

No lien on crops for supplies furnished for prior year. Robinson v. State, 10 Ga. App. 791 , 74 S.E. 92 (1912).

Venue is fixed by place of sale. Ham v. State, 7 Ga. App. 57 , 66 S.E. 22 (1909).

Indictment including word "removed" sufficient. - Indictment substantially setting forth the offense in the language of O.C.G.A. § 44-14-348 , except that it charged that the defendant "sold, removed, and otherwise disposed of" the crops, the language of the section being "sells or otherwise disposes of," which discrepancy did not in any way prevent the jury from easily understanding the nature of the offense charged, was sufficient. Faircloth v. State, 69 Ga. App. 441 , 26 S.E.2d 118 (1943).

For case where the accusation held insufficient, see Bell v. State, 14 Ga. App. 425 , 81 S.E. 253 (1914).

O.C.G.A. § 44-14-348 requires proof of fraudulent intent. Smith v. State, 27 Ga. App. 554 , 87 S.E. 829 (1916).

Tenancy is not proved merely because the wife of the accused rented the premises. Hackney v. State, 101 Ga. 512 , 28 S.E. 1007 (1897).

Assent to defendant's sale of other crops is no defense. Smith v. State, 17 Ga. App. 554 , 87 S.E. 829 (1916).

Judge may award probation contingent on repayment to landlord. - A sentence on a conviction for a fraudulent disposition of crops subject to a landlord's lien under O.C.G.A. § 44-14-348 which provides for probation in lien of a prison sentence on the condition that the landlord is repaid is a valid and legal sentence and is not violative of Ga. Const. 1976, Art. I, Sec. I, Para. XX (see, now, Ga. Const. 1983, Art. I. Sec. I, Para. XXIII). Davis v. State, 53 Ga. App. 325 , 185 S.E. 400 (1936).

For case where cotenant was properly convicted for disposing of crop, see Smith v. State, 17 Ga. App. 554 , 87 S.E. 829 (1916).

Cited in Sims v. State, 43 Ga. App. 438 , 158 S.E. 913 (1931).

RESEARCH REFERENCES

Am. Jur. 2d. - 49 Am. Jur. 2d, Landlord and Tenant, §§ 808, 820, 821.

C.J.S. - 52 C.J.S., Landlord and Tenant, § 646.

44-14-349. Priority of liens affecting manufactured and mobile homes.

  1. As used in this Code section, the term:
    1. "Lienholder" shall mean the holder of a perfected security interest and its assignees or servicers of the underlying debt obligation. The term shall apply only to the lienholder or an assignee or servicer of the lienholder for unpaid purchase price or first lien who has recorded such lien on the title of the manufactured home or mobile home.
    2. "Manufactured home" has the same meaning as provided in paragraph (4) of Code Section 8-2-131.
    3. "Manufactured home community" means a parcel or tract of land on which three or more manufactured homes or mobile homes are located on a continual, nonrecreational basis and offered to the public.
    4. "Mobile home" has the same meaning as provided in paragraph (6) of Code Section 8-2-131.
  2. As provided by this Code section, any lien or charge against a manufactured home or mobile home for rent upon the real property on which the manufactured home or mobile home is or has been located is subordinate to the rights of the lienholder for unpaid purchase price or first lien, which is recorded on the title of the manufactured home or mobile home, and the assignee of such lienholder if not recorded on the title.
  3. In the event a manufactured home or mobile home has been vacant for more than 30 days and after notice to the lienholder as provided in this Code section, rent charges, as provided in this Code section, may be collected by the owner of the manufactured home community from the lienholder and the assignee of any such lienholder by an action at law as authorized by this Code section.
  4. The owner of the manufactured home community shall be entitled to collect rent charges accruing from 30 days after the lienholder receives written notice of a completed eviction of the owner or occupant of a manufactured home or mobile home by the owner of the manufactured home community or notice that a manufactured home or mobile home has been abandoned or voluntarily surrendered by the homeowner or occupant and that the manufactured home or mobile home is presently vacant and unoccupied.
  5. The notice shall state that an action for eviction has been completed against the homeowner or occupant, that the home is presently vacant and unoccupied, the amount of the daily rent charges calculated pursuant to subsection (i) of this Code section, and the date upon which the homeowner or occupant was required to make regular payments to the owner of the manufactured home community.
  6. The lienholder shall notify the owner of the manufactured home community within 30 days of receipt of the notice pursuant to subsections (d) and (e) of this Code section whether it intends to make payment of the rent charges and, if the lienholder agrees to make payment, to pay the rent charges that are due pursuant to this Code section. Thereafter, the lienholder shall pay rent charges according to the schedule of payments that the homeowner or occupant was responsible for paying through the date that the manufactured home or mobile home is removed from the owner of the manufactured home community's property. If the lienholder fails to notify the owner of the manufactured home community that it does not intend to pay the rent charges, the rent charges shall accrue and be due and owing to the property owner.
  7. In the event that the lienholder files either an action for replevin of the home or forecloses on the lien for unpaid purchase price or first lien, the lienholder shall be responsible for unpaid rent and rent charges that have accrued beginning 30 days after the eviction of the owner or occupant of the manufactured home or mobile home.
  8. In the event that the homeowner or occupant declares bankruptcy, the accruing of any rent or rent charge due by the lienholder to the owner of the manufactured home community shall be stayed by the bankruptcy until 30 days after the final court action discharging the bankruptcy or releasing the collateral, whichever occurs first.
  9. The maximum rent charge available to the owner of a manufactured home community shall be a daily rate equal to one-thirtieth of the then current lot rental amount paid by the homeowner or occupant as defined in the current or most recent lease agreement between the homeowner or occupant and the owner of the manufactured home community. In the event that no written lease agreement is in effect between the owner of the manufactured home community and the owner or occupant of a manufactured home or mobile home, the maximum rent charge available to the owner of the manufactured home community shall be $3.00 per day.
  10. Notice required as set forth in subsections (d) and (e) of this Code section shall be mailed by certified mail, return receipt requested, or statutory overnight delivery to the registered agent of the lienholder or, if the lienholder is not a corporation, to the lienholder's last known address. Notice by certified mail shall be effective on the date of receipt or, if refused, on the date of refusal.
  11. It shall be unlawful for the owner of the manufactured home community to refuse to allow the lienholder to repossess and move the manufactured home or mobile home for failure to pay any charges for which notice was not provided in accordance with the requirements of this Code section. In the event the owner of the manufactured home community refuses to allow the lienholder to repossess and move the manufactured home or mobile home, the owner of the manufactured home community shall be liable to the lienholder for each day that the owner of the manufactured home community unlawfully maintains possession of the home, at a daily rate equal to one-thirtieth of the monthly payment due according to the contract and security agreement entered into between the homeowner or occupant and the lienholder.
  12. If either a lienholder or an owner of a manufactured home community brings an action at law against the other in a court of competent jurisdiction, the prevailing party, as determined by the court, in addition to other relief granted by the court, may be awarded costs of litigation including reasonable attorney's fees.
  13. If, after receipt of a notice pursuant to subsections (d) and (e) of this Code section, a lienholder sells or assigns a manufactured home or mobile home, the lender shall provide the purchaser of such home with a copy of the notice received from the owner of the manufactured home community and the purchaser shall take the home subject to the rights of the owner of the manufactured home community pursuant to this Code section. The owner of the manufactured home community may enforce his or her rights for rent charges against the purchaser without issuing additional notices. (Code 1981, § 44-14-349 , enacted by Ga. L. 2008, p. 946, § 1/HB 579.)

Effective date. - This Code section became effective July 1, 2008.

PART 3 M ECHANICS AND MATERIALMEN

Law reviews. - For article discussing 1976 to 1977 development in mechanic's and materialmen's liens, see 29 Mercer L. Rev. 219 (1977). For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For article, "Owner Defenses Under Georgia's Lien Statute," see 26 Ga. St. B.J. 76 (1989).

JUDICIAL DECISIONS

Compatible with Arbitration Code. - Counterclaim to foreclose claim of lien is not inconsistent with attempt to enforce arbitration under contract, nor does such counterclaim amount to waiver of contractual right to arbitrate. H.R.H. Prince Ltc. Faisal M. Saud v. Batson-Cook Co., 161 Ga. App. 219 , 291 S.E.2d 249 (1982).

Mechanics' and materialmen's liens strictly construed. - As mechanics' and materialmen's liens under O.C.G.A. Ch. 14, T. 44 are in derogation of common law, they are to be strictly construed against the mechanic and materialman and will be extended no further than the chapter's words plainly import. Pacific S. Mtg. Trust v. Melton, 151 Ga. App. 593 , 260 S.E.2d 910 (1979).

Lien laws strictly construed against creditor. - Inasmuch as Georgia lien laws and procedures are in derogation of the common law, they must be construed strictly against the creditor and in favor of the debtor. Brockett Rd. Apts. v. Georgia Pac. Corp., 138 Ga. App. 198 , 225 S.E.2d 771 (1976).

Materialman has the burden of proving the lien and must be brought clearly within the law. Pacific S. Mtg. Trust v. Melton, 151 Ga. App. 593 , 260 S.E.2d 910 (1979).

Substantial compliance with chapter sufficient. - No particular form is required to establish a lien under the provisions of O.C.G.A. Ch. 14, T. 44, a substantial compliance with the statutory provisions being sufficient. Murphy v. Fuller, 96 Ga. App. 403 , 100 S.E.2d 137 (1957).

Minor defects in work do not defeat lien. - Mere trivial defects or omissions in the work done by either the prime contractor or the subcontractor in completing the particular improvement which is the subject of the subcontract will not defeat the right to a lien. McCrary v. Barberi, 100 Ga. App. 167 , 110 S.E.2d 426 (1959).

Machinery rented by the hour which includes operating personnel is a nonlienable item, and if it is the only charge within the 90-day statutory period, the plaintiff's lien is not within the 90-day statutory period and is not enforceable. Pacific S. Mtg. Trust v. Melton, 151 Ga. App. 593 , 260 S.E.2d 910 (1979).

O.C.G.A. Ch. 14, T. 44 operates as sort of an automatic garnishment, which without summons or service impounds the fund due by the owner, and requires it to be held up until the expiration of the time named in the statute. Carter v. Sherwood Plaza, Inc., 118 Ga. App. 612 , 164 S.E.2d 867 (1968).

Lien attaches when materials furnished. - Where a plaintiff brings suit to enforce its lien, the lien attaches not from the time of the rendition of the judgment against the debtor, nor from the date of the filing of the petition to enforce the lien, nor from the date upon which the claim of the lien was filed for record, but from the date when the materials were furnished. Middle Ga. Lumber Co. v. Hunt, 53 Ga. App. 578 , 186 S.E. 714 (1936).

Lien attaches against notified third party when work begins. - Under O.C.G.A. § 44-14-360 et seq. as against a third person with actual notice, the lien of a contractor on real estate improved under a contract with the property, owner if and when properly created and declared, attaches from the time the work under contract is commenced. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527 , 251 S.E.2d 800 (1978).

Foreclosure permitted after statutory requirements met. - By merely furnishing the materials to a defendant, the owner of the improved real estate, a plaintiff has only an inchoate claim of lien or right to acquire a lien, but upon compliance with the statutory requirements its lien is completed and made good, and suit to foreclose can be brought. Middle Ga. Lumber Co. v. Hunt, 53 Ga. App. 578 , 186 S.E. 714 (1936).

Evidence required to make full payment a defense. - Payment of the entire contract price by the owner to the contractor does not provide a defense to the action to foreclose a materialman's lien unless the owner further shows either that the contractor's affidavit confirming payment of the agreed price of reasonable value had been obtained, or that the money had in fact been used for payment of labor and materials. Roberts v. Georgia S. Supply Co., 92 Ga. App. 303 , 88 S.E.2d 554 (1955).

Contractor's supplier must sue contractor as prerequisite to action against landowner. - The lien of one who furnishes labor and material upon the employment of a contractor cannot be foreclosed by a direct action against the owner of the premises without previously or concurrently suing the contractor to whom the labor and material were furnished; the landowner should not be called on to pay a debt the landowner did not contract, and for which the landowner's property is liable only by force of a statute, until the materialman has established by judgment, in a proceeding to which the contractor is a party, that the contractor owes to the landowner the amount for which the landowner is seeking to assert a lien. Cheshire v. Engelhart, 82 Ga. App. 458 , 61 S.E.2d 434 (1950).

Subcontractors limited to claims assertable by prime contractor. - Where part of a construction contract is sublet to a subcontractor by a prime contractor, the owner may not be subjected to a lien for any claim or amount which the main contractor could not assert against the owner. Subcontracts are made subject to prime contracts in this connection. McCrary v. Barberi, 100 Ga. App. 167 , 110 S.E.2d 426 (1959).

Except in part of contract not involving subcontractor's work. - The subcontractor is bound by the terms of the prime contract and performs work subject to notice that the subcontractor's rights to liens against an owner depend on whether the prime contractor could recover a judgment against the owner for the work which is the subject matter of the subcontract. This ruling applies only to work which it is the duty of both the prime contractor and the subcontractor to satisfactorily complete. It does not apply to situations where a prime contractor could not recover from the owner for a part of the work with which the subcontractor was not concerned. McCrary v. Barberi, 100 Ga. App. 167 , 110 S.E.2d 426 (1959).

Recovery where materialman has no contractual relationship with general contractor. - A materialman or subcontractor may not recover against an owner or general contractor with whom it has no contractual relationship, based on the theory of unjust enrichment or implied contract; rather, it is limited to the statutory remedies provided by Georgia's lien statute. P.P.G. Indus., Inc. v. Hayes Constr. Co., 162 Ga. App. 151 , 290 S.E.2d 347 (1982).

Cited in Clause v. Roswell Bank, 109 Ga. App. 647 , 137 S.E.2d 86 (1964); B.F. Goodrich Co. v. Simco, Inc., 406 F. Supp. 200 (M.D. Ga. 1976); Lynn v. Miller Lumber Co., 146 Ga. App. 230 , 246 S.E.2d 137 (1978); Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851 (5th Cir. 1979); Stasco Mechanical Contractors v. Williamson, 157 Ga. App. 545 , 278 S.E.2d 127 (1981).

RESEARCH REFERENCES

ALR. - Right to appointment of receiver in action to enforce mechanics' lien, 1 A.L.R. 1466 .

Common-law lien on personalty for work performed thereon, upon the owner's premises, 3 A.L.R. 862 .

Knowledge of owner of improvements or repairs, intended or in process under orders of lessee or vendee, as "consent," which will subject his interest to mechanics' liens, 4 A.L.R. 685 .

Enforceability of a mechanics' lien against the property of a married woman for work performed or materials furnished under a contract made with her husband, 4 A.L.R. 1025 .

How far is public property subject to mechanics' liens, 26 A.L.R. 326 .

Requisites and sufficiency of notice of mechanics' lien in case of "cost plus" contract, 26 A.L.R. 1328 .

Mechanic's lien for building erected by licensee, 45 A.L.R. 581 .

After-acquired title as supporting mechanics' lien, 52 A.L.R. 693 .

Mechanic's or materialman's lien on homestead, 65 A.L.R. 1192 .

Preexisting indebtedness of contractor to owner as affecting right of subcontractor, materialman, or laborer to mechanic's lien, 68 A.L.R. 1263 .

Destruction, demolition, removal of, or damage to improvement as affecting mechanic's lien, 74 A.L.R. 428 .

Right of one who pays or advances money, or assumes obligation to pay laborer or materialman, to mechanic's lien or priority, 74 A.L.R. 522 .

Lessee as agent of lessor within contemplation of mechanic's lien laws, 79 A.L.R. 962 ; 163 A.L.R. 992 .

Mechanics' lien as affected by agreement to pay with property other than money, 81 A.L.R. 766 .

Termination of lease as affecting mechanic's lien on buildings erected by tenant where lien did not attach to landlord's title, 87 A.L.R. 1290 .

Arbitration proceeding as affecting mechanics' lien or liability of surety on owner's bond for discharge of lien, or on contractor's bond, 93 A.L.R. 1151 .

Failure of foreign corporation to comply or delay in complying with conditions of its right to do business as affecting its right to assert mechanics' lien, 95 A.L.R. 367 .

Effect of bankruptcy of contractor or subcontractor upon mechanics' liens of his subcontractors, laborers, and materialmen, 98 A.L.R. 323 .

Requirement of written contract as condition of mechanic's lien as affected by an oral modification, or a modification partly oral and partly written, of a written contract, or a subsequent modification in writing not registered or filed as required by statute, 108 A.L.R. 434 .

Right of one who contracts with, or furnishes labor or material to, public contractor's surety after latter has taken over work, in respect of part of contract price retained by public agency, 122 A.L.R. 511 .

Time for filing claim for mechanic's lien as affected by removal by, or return to, claimant of part of material furnished, 122 A.L.R. 755 .

Construction and application of statutory provisions making notice by owner of nonresponsibility for work or improvements on his property necessary to prevent attachment of mechanic's lien, 123 A.L.R. 7 ; 85 A.L.R.2d 949.

Value of services or material furnished by subcontractor, laborer, or materialman, or price fixed by the contract by which they were employed, as measure of their recovery on bond of principal contractor, or as against amount earned by contractor but withheld by contractee or paid into court, 123 A.L.R. 416 .

Single mechanic's lien upon several parcels, as enforceable against less than all of the parcels (including effect of release of some of them from the lien), 130 A.L.R. 423 .

Personal judgment as essential to enforcement of mechanic's lien, 147 A.L.R. 1099 .

Amount of owner's obligation under his guaranty of subcontractor's or materialman's account, as deductible from amount otherwise due principal contractor, as against claims of other subcontractors or materialmen, 153 A.L.R. 759 .

Estoppel of mechanic's lien claimant as predicable upon his representations to owner as to payment made to claimant by contractor or subcontractor, 155 A.L.R. 350 .

Lien for storage of motor vehicle, 48 A.L.R.2d 894.

Priority between mechanics' liens and advances made under previously executed mortgage, 80 A.L.R.2d 179.

Sufficiency of notice under statute making notice by owner of nonresponsibility necessary to prevent mechanic's lien, 85 A.L.R.2d 949.

Mechanic's lien for services in connection with subdividing land, 87 A.L.R.2d 1004.

Swimming pool as lienable item within mechanic's lien statute, 95 A.L.R.2d 1371.

Mechanic's lien for work on or material for separate buildings of one owner, 15 A.L.R.3d 73.

Surveyor's work as giving rise to right to mechanic's lien, 35 A.L.R.3d 1391.

Mechanic's lien based on contract with vendor pending executory contract for sale of property as affecting purchaser's interest, 50 A.L.R.3d 944.

Municipal property as subject to mechanic's lien, 51 A.L.R.3d 657.

Abandonment of construction or of contract as affecting time for filing mechanics' liens or time for giving notice to owner, 52 A.L.R.3d 797.

Building and construction contracts: right of subcontractor who has dealt only with primary contractor to recover against property owner in quasi contract, 62 A.L.R.3d 288.

Release or waiver of mechanic's lien by general contractor as affecting rights of subcontractor or materialman, 75 A.L.R.3d 505.

Lien for towing or storage, ordered by public officer, of motor vehicle, 85 A.L.R.3d 199.

Vacation and sick pay and other fringe benefits as within mechanic's lien statute, 20 A.L.R.4th 1268.

Loss of garageman's lien on repaired vehicle by owner's use of vehicle, 74 A.L.R.4th 90.

Architect's services as within mechanics' lien statute, 31 A.L.R.5th 664.

44-14-360. Definitions.

As used in this part, the term:

(.1) "Business day" means any day that is not a Saturday, Sunday, or legal holiday.

  1. "Contractor" means a contractor having privity of contract with the owner of the real estate.
  2. "Land surveyor" means the same as the definition thereof in Code Section 43-15-2.

    (2.1) "Lien action" means a lawsuit, proof of claim in a bankruptcy case, or a binding arbitration.

  3. "Materials," in addition to including those items for which liens are already permitted under this part, means tools, appliances, machinery, or equipment used in making improvements to the real estate, to the extent of the reasonable value or the contracted rental price, whichever is greater, of such tools, appliances, machinery, or equipment.
  4. "Materialmen" means all persons furnishing the materials, tools, appliances, machinery, or equipment included in the definition of materials in paragraph (3) of this Code section.
  5. "Professional engineer" means the same as the definition thereof in Code Section 43-15-2.
  6. "Registered forester" means the same as the definition of such term in Code Section 12-6-41.
  7. "Registered land surveyors" and "registered professional engineers" means land surveyors or professional engineers who are registered as land surveyors or professional engineers under Chapter 15 of Title 43 at the time of performing, rendering, or furnishing services protected under this part.
  8. "Residential property" means single-family and two-family, three-family, and four-family residential real estate.
  9. "Subcontractor" means, but is not limited to, subcontractors having privity of contract with the contractor.

    (Ga. L. 1873, p. 42, §§ 1, 7; Code 1873, §§ 1972, 1979; Code 1882, §§ 1972, 1979; Ga. L. 1893, p. 34, §§ 1, 2; Ga. L. 1895, p. 27, § 1; Civil Code 1895, §§ 2787, 2801; Ga. L. 1897, p. 30, §§ 1, 2; Ga. L. 1899, p. 33, § 1; Civil Code 1910, §§ 3329, 3336, 3352; Code 1933, §§ 67-1701, 67-2001; Ga. L. 1953, Jan.-Feb. Sess., p. 582, §§ 1, 2; Ga. L. 1956, p. 185, §§ 1, 5, 6, 7; Ga. L. 1956, p. 562, §§ 1, 2; Ga. L. 1978, p. 243, § 1; Ga. L. 1983, p. 1450, § 1; Ga. L. 1985, p. 1322, § 1; Ga. L. 1991, p. 915, § 1; Ga. L. 2008, p. 1063, § 1/SB 374.)

The 2008 amendment, effective March 31, 2009, added paragraphs (.1) and (2.1).

Law reviews. - For survey article on construction law, see 44 Mercer L. Rev. 125 (1992). For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998). For survey article on construction law for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 85 (2003). For survey article on construction law, see 60 Mercer L. Rev. 59 (2008). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 166 (1992).

JUDICIAL DECISIONS

Definition of "material." - Within the meaning of O.C.G.A. § 44-14-360 , material is something that goes into and becomes a part of the finished structure, such as lumber, nails, glass, hardware, etc., which is necessary to the completion of the building. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

Scenery and other stage and science outfit of an opera house are "material" for improving real estate, within O.C.G.A. § 44-14-360 . Waycross Opera House Co. v. Sossman, 94 Ga. 100 , 20 S.E. 252 , 47 Am. St. R. 144 (1894).

"Material for the improvement" of real estate means something that goes into and becomes a part of the finished structure, such as lumber, nails, glass, hardware, etc., which is necessary to the completion of the building. Skandia Draperies Mfg. Co. v. Augusta Innkeepers, Ltd., 157 Ga. App. 279 , 277 S.E.2d 282 (1981).

The Georgia courts do not uniformly apply the definitional limitations of the term "materials," as used in O.C.G.A. § 44-14-360 , when that term arises in other contexts. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

Cause of action on statutory payment bond not precluded by lack of right to enforce special lien. - Although the term "materials," as judicially interpreted, may exclude certain items as nonlienable, the word may very well include the same items for purposes of a separate statute, such as the bond statute; clearly, then, the lack of a right of action to enforce a special lien under Georgia lien law, as statutorily provided or judicially discerned, does not, of itself, preclude a beneficiary's right to sue on a statutory payment bond, or, by analogy, on a private payment bond. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

"Subcontractor" means one who, pursuant to a contract with the prime contractor or in a direct chain of contracts leading to the prime contractor, performed services or procured another to perform services in furtherance of the goals of the prime contractor. Tonn & Blank, Inc. v. D.M. Asphalt, Inc., 187 Ga. App. 272 , 370 S.E.2d 30 (1988).

Owner as "contractor." - There was no reason why an owner could not also have been a contractor for purposes of a materialman's lien; because a property owner listed itself as "general contractor" in its notices of commencement, and because a materials supplier was not in privity with the owner, the supplier was required to provide the owner with the O.C.G.A. § 44-14-361(a) notice to contractor; since the supplier failed to give the proper notice, its materialman's liens were invalid. Roofing Supply of Atlanta, Inc. v. Forrest Homes, Inc., 279 Ga. App. 504 , 632 S.E.2d 161 (2006).

Machinery which cannot be basis of lien generally. - The general rule is that machinery not totally depreciated by use on the property, incorporated into the improvement, or in connection with which labor was also supplied cannot be the basis of a valid lien. Air Serv. Co. v. Cosmo Invs., Inc., 115 Ga. App. 596 , 155 S.E.2d 413 (1967).

No machinist's lien on realty unless machines become attached as fixtures. - Machinists and manufacturers of machinery have no lien on real estate for machinery furnished, unless the machinery furnished is attached to and becomes incorporated with the realty for which it was furnished. J.S. Schofield & Son v. Stout, Mills & Temple, 59 Ga. 537 (1877); D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

Furnishing machinery for sawmill comes under section. - The furnishing of machinery for a steam sawmill, to improve or enlarge the mill or to keep it efficient, entitles the machinist to a lien under O.C.G.A. § 44-14-360 and not O.C.G.A. § 44-14-515 . Filer & Stowell Co. v. Empire Lumber Co., 91 Ga. 657 , 18 S.E. 359 (1893).

All charges made by materialman for use of equipment are nonlienable items. Sears Roebuck & Co. v. Superior Rigging & Erecting Co., 120 Ga. App. 412 , 170 S.E.2d 721 (1969).

Equipment or machinery rented or leased to a contractor to perform work are nonlienable. Mableton Erectors, Inc. v. Dunn Properties of Ga., Inc., 135 Ga. App. 504 , 218 S.E.2d 175 (1975).

Lessor of machinery not attached to realty not entitled to lien. - A mere lessor of machinery to a contractor does not come within the class in favor of whom the lien is granted, nor does the machinery itself, not being something in the order of a steam mill or other mechanical device intended to be attached to and used on the realty. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

Lessor of air compressor and drill has no lien on realty imposed. - O.C.G.A. § 44-14-360 does not give a lessor of machinery consisting of an air compressor and drill a lien on real estate for the rental value of the machinery leased to a contractor who uses it in improving the real estate of the owner against whom the lien is sought. Air Serv. Co. v. Cosmo Invs., Inc., 115 Ga. App. 596 , 155 S.E.2d 413 (1967).

Rental on a company's scaffolding is not lienable. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

Materialmen entitled to lien under section generally. - O.C.G.A. § 44-14-360 provides a lien only to materialmen who may have supplied the materials directly to the owner of the realty, or to a contractor or a subcontractor engaged in making the improvement. Georgia-Pacific Corp. v. Dan Austin Properties, Inc., 126 Ga. App. 191 , 190 S.E.2d 131 , aff'd, 229 Ga. 803 , 194 S.E.2d 472 (1972).

Seller of building equipment and tools not entitled to lien. - One who sells shovels, shovel handles, gloves, tape, rope, files, matches, pulley and hook, hammers, brushes, sand screen, lamp chimney, and saw files to a contractor who has a contract for improving realty is not entitled to a lien for those items. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

No lien for one who furnishes equipment and tools, but performs no labor or services. - The owner of horses, equipment, or machinery, who furnishes them to another to aid in construction or improvements, or in any work for which a lien is given, but who performs no manual labor or other services in connection therewith, is not entitled to a lien. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

No lien for supplier of supplier. - The supplier of a supplier of materials to be used in the improvement of realty is not entitled to a claim of lien therefor under O.C.G.A. § 44-14-360 . Georgia-Pacific Corp. v. Dan Austin Properties, Inc., 126 Ga. App. 191 , 190 S.E.2d 131 , aff'd, 229 Ga. 803 , 194 S.E.2d 472 (1972).

Rental value of machinery covered by surety bond. - Under O.C.G.A. § 44-14-360(3) , bond obligees' property would be subject to a special lien for the rental value of machinery leased to subcontractor by materialmen. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982) (decided prior to 1991 amendment).

O.C.G.A. § 44-14-360 does not operate in favor of a contractor paving a sidewalk in a street adjacent to a lot. Seeman v. Schultze, 100 Ga. 603 , 28 S.E. 378 (1897).

Supplier of equipment was supplier of material. - Under O.C.G.A. §§ 44-14-360(3) and 44-14-361.1(a) , a supplier of equipment for a construction project was a supplier of material and thus had to furnish its equipment for the improvement of the project in order for its lien to arise. Cent. Atlanta Tractor Sales, Inc. v. Athena Dev., LLC, 289 Ga. App. 355 , 657 S.E.2d 290 (2008).

Mechanic's lien foreclosure action improperly dismissed. - In a mechanic's lien foreclosure action brought by a construction company against a property owner, the trial court erred by dismissing the action as untimely since the lien, although stating that the debt became due on a date more than three months from the date the lien was filed, also stated that the construction company provided services, labor, and/or materials to the property owner within three months of the filing of the complaint. D.C. Ecker Constr., Inc. v. Ponce Inv., LLC, 294 Ga. App. 833 , 670 S.E.2d 526 (2008), cert. denied, No. S09C0486, 2009 Ga. LEXIS 184 (Ga. 2009).

Cited in Georgia N. Contracting, Inc. v. Haney & Haney Constr. & Mgt. Corp., 204 Ga. App. 366, 419 S.E.2d 348 (1992).

RESEARCH REFERENCES

17B Am. Jur. Pleading and Practice Forms, Mechanics' Liens, § 2.

ALR. - Garnishment of funds payable under building and construction contract, 16 A.L.R.5th 548.

Architect's services as within mechanics' lien statute, 31 A.L.R.5th 664.

44-14-361. Creation of liens; property to which lien attaches; items to be included in lien.

  1. The following persons shall each have a special lien on the real estate, factories, railroads, or other property for which they furnish labor, services, or materials:
    1. All mechanics of every sort who have taken no personal security for work done and material furnished in building, repairing, or improving any real estate of their employers;
    2. All contractors, all subcontractors and all materialmen furnishing material to subcontractors, and all laborers furnishing labor to subcontractors, materialmen, and persons furnishing material for the improvement of real estate;
    3. All registered architects furnishing plans, drawings, designs, or other architectural services on or with respect to any real estate;
    4. All registered foresters performing or furnishing services on or with respect to any real estate;
    5. All registered land surveyors and registered professional engineers performing or furnishing services on or with respect to any real estate;
    6. All contractors, all subcontractors and materialmen furnishing material to subcontractors, and all laborers furnishing labor for subcontractors for building factories, furnishing material for factories, or furnishing machinery for factories;
    7. All machinists and manufacturers of machinery, including corporations engaged in such business, who may furnish or put up any mill or other machinery in any county or who may repair the same;
    8. All contractors to build railroads; and
    9. All suppliers furnishing rental tools, appliances, machinery, or equipment for the improvement of real estate.
  2. Each special lien specified in subsection (a) of this Code section may attach to the real estate of the owner for which the labor, services, or materials are furnished if they are furnished at the instance of the owner, contractor, or some other person acting for the owner or contractor and shall include the value of work done and materials furnished in any easement or public right of way adjoining said real estate if the work done or materials furnished in the easement or public right of way is for the benefit of said real estate and is within the scope of the owner's contract for improvements to said real estate.
  3. Each special lien specified in subsection (a) of this Code section shall include the amount due and owing the lien claimant under the terms of its express or implied contract, subcontract, or purchase order subject to subsection (e) of Code Section 44-14-361.1.
  4. Each special lien specified in subsection (a) of this Code section shall include interest on the principal amount due in accordance with Code Section 7-4-2 or 7-4-16.

    (Ga. L. 1873, p. 42, § 7; Code 1873, § 1979; Code 1882, § 1979; Ga. L. 1893, p. 34, §§ 1, 2; Ga. L. 1895, p. 27, § 1; Civil Code 1895, § 2801; Ga. L. 1897, p. 30, §§ 1, 2; Ga. L. 1899, p. 33, § 1; Civil Code 1910, § 3352; Code 1933, § 67-2001; Ga. L. 1953, Jan.-Feb. Sess., p. 582, §§ 1, 2; Ga. L. 1956, p. 185, § 1; Ga. L. 1956, p. 562, § 2; Ga. L. 1982, p. 1144, § 1; Ga. L. 1983, p. 3, § 33; Ga. L. 1983, p. 1450, § 1; Ga. L. 1985, p. 1322, § 2; Ga. L. 1991, p. 915, § 2; Ga. L. 2006, p. 738, § 1/SB 530; Ga. L. 2013, p. 1102, § 1/HB 434.)

The 2006 amendment, effective July 1, 2006, in subsection (b), near the beginning, inserted "of the owner", and substituted "are" for "were", near the middle of the subsection, inserted "the" following "furnished at", inserted "other", and deleted "or" preceding "contractor", and added "and shall include the value of work done and materials furnished in any easement or public right of way adjoining said real estate if the work done or materials furnished in the easement or public right of way is for the benefit of said real estate and is within the scope of the owner's contract for improvements to said real estate." at the end of the subsection.

The 2013 amendment, effective July 1, 2013, added subsections (c) and (d).

History of section. - This section originated in an Act of the General Assembly passed in 1841. Kwilecki v. Young, 180 Ga. 602 , 180 S.E. 137 (1935).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2006, "owner or contractor" was substituted for "owner contractor" near the middle of subsection (b).

Editor's notes. - Ga. L. 1982, p. 1144, § 1 amended this Code section, to become effective April 1, 1983. However, that 1982 Act was repealed by Ga. L. 1983, p. 1450, § 4, effective March 31, 1983. This Code section, as amended by the 1982 Act, was also amended by Ga. L. 1983, p. 3, § 33, effective January 25, 1983; however, owing to the repeal of the 1982 Act, that amendment may not be given effect.

Law reviews. - For article, "Some Rescission Problems in Truth-In-Lending, as Viewed From Georgia," see 7 Ga. St. B. J. 315 (1971). For article discussing role of attorney in representing subcontractor and available enforcement mechanisms, see 14 Ga. St. B.J. 104 (1978). For article, "Lien Claimants and Real Estate Lenders - The Struggle For Priority," see 16 Ga. St. B.J. 187 (1980). For article surveying real property law, see 34 Mercer L. Rev. 255 (1982). For annual survey of construction law, see 43 Mercer L. Rev. 141 (1991). For annual survey article discussing materialmen's liens, see 46 Mercer L. Rev. 117 (1994). For article, "Recent Developments in Construction Law," see 5 Ga. St. B.J. 24 (1999). For survey article on construction law, see 59 Mercer L. Rev. 55 (2007). For survey article on construction law, see 60 Mercer L. Rev. 59 (2008). For article, "Non-Privity Lien Rights on Private Construction Projects: The Court of Appeals of Georgia Provides Clarity," see 15 (No. 5) Ga. St. B.J. 20 (2010). For annual survey on construction law, see 65 Mercer L. Rev. 67 (2013). For note surveying revisions to Georgia Condominium Act between 1963 and 1975 regarding expansion, disclosure, liens, and incorporation, see 24 Emory L. J. 891 (1975). For note, "A New Concept: Preliminary Notice of Lien Rights," see 19 Ga. St. B.J. 42 (1982). For note on 1991 amendment of this Code section, see 8 Ga. St. U. L. Rev. 166 (1992).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

O.C.G.A. § 44-14-361 constitutional. - The Georgia materialmen's lien sections do not deprive property owners of a significant property interest without notice and hearing; they serve an important public interest and the statutes are not unconstitutional. Tucker Door & Trim Corp. v. Fifteenth St. Co., 235 Ga. 727 , 221 S.E.2d 433 (1975).

No denial of due process. - O.C.G.A. § 44-14-361 is not in violation of the provision of the Constitution which declares that no person shall be deprived of property without due process of law, or the provision which guarantees that protection to property shall be impartial and complete. Prince v. Neal-Millard Co., 124 Ga. 884 , 53 S.E. 761 , 4 Ann. Cas. 615 (1906).

For a discussion of historical changes in O.C.G.A. § 44-14-361 , see Prince v. Neal-Millard Co., 124 Ga. 884 , 53 S.E. 761 , 4 Ann. Cas. 615 (1906).

Amendments to O.C.G.A. § 44-14-361 apply prospectively. - Trial court properly denied a subcontractor summary judgment as to the court's interpretation of O.C.G.A. § 44-14-361 as to materialmen liens because the trial court properly concluded that the amendments to § 44-14-361 did not apply retroactively and the trial court properly applied the version of § 44-14-361 in effect at the time the subcontractor obtained the lien in 2007. Stock Building Supply, Inc. v. Platte River Insurance Company, 336 Ga. App. 113 , 783 S.E.2d 708 (2016).

Supplier of supplier not entitled to lien. - O.C.G.A. § 44-14-361 provides a lien to materialmen who have supplied the materials directly to the owner of realty or to a contractor or subcontractor engaged in making an improvement; the supplier of a supplier is not entitled to claim a lien. Pettigrew v. Southern Aluminum Finishing Co. (In re Amarlite Architectural Prods., Inc.), 178 Bankr. 904 (Bankr. N.D. Ga. 1995).

A subcontractor that contracted with a construction company to supply labor and materials for the "rebranding" of service stations never had valid liens to release, cancel, or refrain from foreclosing upon; there was no evidence that the subcontractor furnished its work at the instance of the station owners or their agents, and the owners' knowledge of and consent to the work was not sufficient, standing alone, to establish the validity of the liens. Lane Supply, Inc. v. W. H. Ferguson & Sons, Inc., 286 Ga. App. 512 , 649 S.E.2d 614 (2007).

O.C.G.A. § 44-14-361 is in derogation of the common law. Opportunities Industrialization Ctr. of Atlanta, Inc. v. T & B - Scottdale Contractors, 26 Bankr. 394 (Bankr. N.D. Ga. 1983).

Purpose of the materialman's lien statutes in every state is, in substance, the same: to give the furnisher of labor and material a claim upon the owner, to compel the owner at the owner's peril to withhold final payment until the owner has received assurance from the contractor that the owner has paid all material and labor claims, which are or which may be perfected into liens. Gignilliat v. West Lumber Co., 80 Ga. App. 652 , 56 S.E.2d 841 (1949); Scott v. Williams, 111 Ga. App. 735 , 143 S.E.2d 16 (1965); Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

The object of O.C.G.A. § 44-14-361 is to secure a lien for that which goes into the structure. Skandia Draperies Mfg. Co. v. Augusta Innkeepers, Ltd., 157 Ga. App. 279 , 277 S.E.2d 282 (1981).

The manifest purpose of O.C.G.A. § 44-14-361 is to make the property of the owner liable for material which entered into the construction of the improvement on the employment of a contractor, within the limits of the contract price, unless the materialman waives the lien or, upon the final payment of the contract price, takes from the contractor a sworn statement that all work done or material furnished has been paid for at the agreed price or reasonable value. Henderson v. Mitchell Eng'g Co., 158 Ga. App. 306 , 279 S.E.2d 750 (1981).

O.C.G.A. § 44-14-361 is given a strict construction. Ingalls Iron Works Co. v. Standard Accident Ins. Co., 107 Ga. App. 454 , 130 S.E.2d 606 (1963).

The lien statutes are in derogation of the common law, are to be strictly construed against the mechanic and materialmen, and will be extended no further than their words plainly import; the materialman has the burden of proving a lien and must be brought clearly within the law. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

The lien statutes are strictly construed, and strict compliance with them is required. Roberts v. Porter, Davis, Saunders & Churchill, 193 Ga. App. 898 , 389 S.E.2d 361 (1989).

Mechanics' and materialmen's liens under O.C.G.A. § 44-14-361 are in derogation of common law and thus are to be strictly construed against the mechanic and materialman. L & W Supply Corp. v. Whaley Constr. Co., 197 Ga. App. 680 , 399 S.E.2d 272 (1990).

The statutory bond requirement, on the other hand, is afforded a liberal interpretation for the protection of persons who supply labor and materials used in the prosecution of the general contract. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

The right to the lien under O.C.G.A. § 44-14-361 proceeds upon the theory that the work and material or machinery for which the lien is sought have increased the value of the realty by becoming a part thereof. Skandia Draperies Mfg. Co. v. Augusta Innkeepers, Ltd., 157 Ga. App. 279 , 277 S.E.2d 282 (1981).

The lien is created and imposed by operation of law, while the bond is a matter of contract, albeit a contract required by the statute to be made in order to give validity to another. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

The lien on the property is the security for the laborer and the materialman, while under the bond statute, where no lien can be secured, the bond is the security. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

Meaning of "contract price." - Where a contractor abandoned the work against the will of the owner, the gross sum fixed as the price for completing the entire work is the true "contract price," and not the sum contemplated to be paid in the event the owner suspended the work at a period before completion. Hunnicutt & Bellingrath Co. v. Van Hoose, 111 Ga. 518 , 36 S.E. 669 (1900).

Definition of "true owner." - The expression "true owner" as used in O.C.G.A. § 44-14-361 , does not mean legal title. Such a lien obtains on whatever interest the one has who has the right and authority to cause the improvements to be made. West Lumber Co. v. Gignilliat, 77 Ga. App. 336 , 48 S.E.2d 688 (1948), later appeal, 80 Ga. App. 652 , 56 S.E.2d 841 (1949).

The term "true owner" as used in O.C.G.A. § 44-14-361 includes one having an estate in realty, and the lien prescribed would attach to such an interest in realty. This interest in realty should be distinguished from the interest of one entitled only to the use and enjoyment of the premises, that is to say, one having only a usufruct. Jones v. E.I. Rooks & Son, 78 Ga. App. 790 , 52 S.E.2d 580 (1949).

The words "true owner," are sufficiently comprehensive to embrace the owner of an equitable title to the real estate, and the liens therein provided for may attach to the equitable owner's interest. Maloy v. Planter's Whse. & Lumber Co., 142 Ga. App. 69 , 234 S.E.2d 807 (1977).

The words "true owner," as used in O.C.G.A. § 44-14-361 , are sufficiently comprehensive to include the owner of a leasehold estate. James G. Wilson Mfg. Co. v. Chamberlin-Johnson-DuBose Co., 140 Ga. 593 , 79 S.E. 465 (1913).

Where a lien claim was filed solely against the owner's reversionary interest and not against the leasehold interest in the premises, the lien document failed to reveal affirmatively the identity of the real person whose interest in the premises was being subjected to the lien, the lien claim was not effective. Meco of Atlanta, Inc. v. Super Valu Stores, Inc., 215 Ga. App. 146 , 449 S.E.2d 687 (1994).

All liens under this section are of same character. - The liens specified in O.C.G.A. § 44-14-361 are of the same character and governed by the same principles of law. Guaranty Inv. & Loan Co. v. Athens Eng'g Co., 152 Ga. 596 , 110 S.E. 873 (1922).

No lien for entire contract if no lien for one part. - Where there is an entire contract and there is no lien for one part there can be no lien for any part. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

Item cannot be made lienable by inclusion in contract for lienable items. - An item which is not lienable cannot be made so by including it in a contract for work or items which are lienable. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

Burden on lienholder plaintiff to show lienable items separable. - If items lienable can be separated from those which are nonlienable on a foreclosure proceeding, the burden of doing so rests upon the lienholder. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

Failure to prove lien amount. - Trial court erred by granting summary judgment to a subcontractor because the subcontractor failed to prove the lien amount, if any, the subcontractor was entitled to and the subcontractor was not entitled to a lien for the attorney fees and interest allegedly owed since there was no agreement for such amounts. Hill v. VNS Corp., 329 Ga. App. 274 , 764 S.E.2d 876 (2014).

Landlord's equitable interest in improvements not subject to lien. - The fact that improvements became the landlord's property upon termination of the tenant's lease did not create a basis for imposing a lien against the landlord. The landlord's equitable interest in improvements is not subject to a lien. F.S. Assocs. v. McMichael's Constr. Co., 197 Ga. App. 705 , 399 S.E.2d 479 (1990).

Public property is not subject to a lien under O.C.G.A. § 44-14-361 . Neal-Millard Co. v. Trustees of Chatham Academy, 121 Ga. 208 , 48 S.E. 978 (1904).

Where a supplier filed a materialman's lien against the Atlanta Housing Authority's property, this lien was of no legal effect, inasmuch as a lien cannot be effective against state property. B & B Elec. Supply Co. v. H.J. Russell Constr. Co., 166 Ga. App. 499 , 304 S.E.2d 544 (1983).

Section applies to contract by incorporators. - O.C.G.A. § 44-14-361 is applicable as against a corporation where the contract performance of which is claimed to give a lien was made with individuals who agreed to incorporate. Chicago Bldg. & Mfg. Co. v. Talbotton Creamery & Mfg. Co., 106 Ga. 84 , 31 S.E. 809 (1898).

Section inapplicable to master-servant and principal-agent relationships. - O.C.G.A. § 44-14-361(b) does not apply to cases where the relationship of master and servant or principal and agent exists. Fitts v. Addis, 83 Ga. App. 696 , 64 S.E.2d 466 (1951).

Where relationship of master and servant exists between an owner and builder, the master becomes liable for the acts of the servant as the master's agent within the scope of the master's employment, and therefore is subject to a personal judgment, and the master's property is subject to liens for the labor and materials which had been furnished to the master through such servant, and of which the master received the benefit. Christian v. Bremer, 199 Ga. 285 , 34 S.E.2d 40 (1945).

Section is inapplicable where the lienor was employed directly by the owner, the debtor. - O.C.G.A. § 44-14-361 is designed to protect a property owner without notice, when the debtor did not contract directly with the lienor and the existence of a lien is not obvious, by providing that the lien in that situation will be effective only after filing for record. Marietta Baptist Tabernacle v. Tomberlin Assocs., 576 F.2d 1237 (5th Cir. 1978).

Section inapplicable to lease option to erect improvements subject to lessor's approval. - O.C.G.A. § 44-14-361 was never intended, and does not purport, to cover a situation where a lessee under the terms of the lease has an option to erect a fence on the real estate, which the lessee may remove if the lessee and the lessor cannot agree on satisfactory terms for it to remain on the realty. Wall v. Mills, 126 Ga. App. 149 , 190 S.E.2d 146 (1972).

Requirements for perfecting liens. - Under O.C.G.A. § 44-14-361 .1, to make good the liens specified in O.C.G.A. § 44-14-361 , not only must there be a substantial compliance by the alleged lienor with the contract, and the recording of the claim of lien within three months, but it is also essential to the creation of a lien that an action for the recovery of the amount of the claim be commenced within 12 months from the time the same became due. Kwilecki v. Young, 180 Ga. 602 , 180 S.E. 137 (1935).

Failure to state date claim became due did not render lien invalid. - Summary judgment for an owner in a supplier's suit to enforce a materialman's lien was improper because O.C.G.A. § 44-14-361.1(a)(2) tempered the principle of strict construction with respect to the form of the claim of lien, and the fact that the lien failed to state the date the supplier's claim became due did not render the lien invalid; the claim of lien complied "in substance" with the required form. Vulcan Constr. Materials, LP v. Franklin Builders Props., Inc., 298 Ga. App. 120 , 679 S.E.2d 356 (2009).

Filing of lien cannot constitute abuse of process. - Under O.C.G.A. § 44-14-360 et seq., a lien attaches when a laborer performs work on real property. However, under O.C.G.A. § 44-14-361.1(a)(2) and (a)(3), it must be perfected within three months after either the completion of the work or the date materials are furnished and an action to recover the amount of the claim must be instituted within 12 months from the time labor or materials were last furnished. Thus, a lien is not civil process and plaintiffs do not state a claim upon which relief can be granted when they contend that the filing of a lien constitutes an abuse of process. Carl E. Jones Dev., Inc. v. Wilson, 149 Ga. App. 679 , 255 S.E.2d 135 (1979).

Equity jurisdiction where statutory remedy unavailable. - Where a statute creates a specific lien, in favor of masons and carpenters on buildings erected by them, and also gives them a specific remedy for the enforcement of such lien, a court of equity has no jurisdiction to enforce it, unless there is some impediment or difficulty charged to exist which would render the remedy given by O.C.G.A. § 44-14-361 unavailable. King v. Rutledge, 208 Ga. 172 , 65 S.E.2d 801 (1951).

Lien when fixed, is not affected by repeal of statute. - Where the lien of a materialman has, under the terms of O.C.G.A. § 44-14-361 , become fixed and secured, such lien is then a vested right. No subsequent repeal or modification of the statute under which it became fixed can destroy or modify such right. Waters v. Dixie Lumber & Mfg. Co., 106 Ga. 592 , 32 S.E. 636 , 71 Am. St. R. 281 (1899).

Section has no extraterritorial effect. - O.C.G.A. §§ 44-14-361 , 44-14-380 , and 44-14-381 , which give to laborers a general lien upon the property of their employers for labor performed, has no extraterritorial effect, and give no lien arising out of a contract for labor, made in another state and executed by labor performed therein. Downs v. Bedford, 39 Ga. App. 155 , 146 S.E. 514 (1929).

Foreign judgment not sufficient until brought as action in this state. Columbian Iron Works v. Crystal Springs Bleachery Co., 145 Ga. 621 , 89 S.E. 751 (1916).

Nonresidents of Georgia have the same remedies under O.C.G.A. § 44-14-361 as citizens. Thurman v. Kyle, 71 Ga. 628 (1883).

When state law applies to foreign contracts. - Although a contract for furnishing materials in Georgia is made in another state, the Georgia law will apply as to the lien of the materialman. Thurman v. Kyle, 71 Ga. 628 (1883).

Basis of laborers' and materialmen's liens. - The liens of laborers and materialmen do not rest upon contract, but upon the law which gives to laborers and materialmen liens for labor performed and material furnished in the improvement of real estate. Williams v. Brewton, 170 Ga. 164 , 152 S.E. 441 (1930).

Bankruptcy. - Chapter 7 Trustee was not entitled to a default judgment on a complaint to avoid a contractor's mechanics' lien under 11 U.S.C. § 547 because the facts alleged in the complaint suggested that the contractor's lien may have fallen outside the purview of 11 U.S.C. § 545; by alleging that the contractor's lien was a mechanics' lien, the trustee established the lien's nonavoidability under 11 U.S.C. § 547(c)(6). Hays v. Wellborn Forest Prods. (In re Spejcher), Bankr. (Bankr. N.D. Ga. Oct. 30, 2006).

No entitlement to full amount of creditor's materialman's liens. - Creditor would not necessarily be entitled to a claim in the full amount of the creditor's materialman's liens under O.C.G.A. § 44-14-361 but rather, would only be entitled to recover the damages the creditor suffered pursuant to O.C.G.A. § 51-1-6 due to the debtor's crime of false swearing, which would be the value of liens lost, which in turn depended on the value of the properties to which the liens attached and the existence of any superior liens on those properties. In the absence of an established underlying claim, summary judgment in the creditor's favor on the creditor's nondischargeability claims was not warranted. Thomas Concrete of Ga., Inc. v. Osbourne (In re Osbourne), Bankr. (Bankr. N.D. Ga. Aug. 24, 2017).

Lien amount claimed for lost profits was invalid. - Although a contractor's claim for lost profits in the contractor's materialman's lien was invalid under O.C.G.A. § 44-14-361(c) and (e), because the lost profits amount was easily determined, the trial court erred by invalidating the entire lien, instead of amending the lien to exclude non-lienable amounts as permitted by O.C.G.A. § 44-14-361.1(a) and (a.1). Duke Builders, Inc. v. Massey, 351 Ga. App. 535 , 831 S.E.2d 172 (2019).

Materialmen's lien cannot include anticipated profits. - Georgia Supreme Court held that the Georgia Court of Appeals was correct to hold that a materialmen's lien may not include anticipated profits, and the Supreme Court affirmed that holding. Massey v. Duke Builders, Inc., 310 Ga. 152 , 849 S.E.2d 186 (2020).

Cited in Loudon v. Coleman, 62 Ga. 146 (1878); Royal v. McPhail, 97 Ga. 457 , 25 S.E. 512 (1895); Logue v. Walker, 141 Ga. 644 , 81 S.E. 849 (1914); Jones v. Traynham, 20 Ga. App. 349 , 93 S.E. 154 (1917); Cox v. Seely, 20 Ga. App. 629 , 93 S.E. 421 (1917); Koppe & Steinichen v. Rylander, 29 Ga. App. 41 , 114 S.E. 81 (1922); Myrick v. Dixon, 37 Ga. App. 536 , 140 S.E. 920 (1927); Davis-Washington Co. v. Vickers, 41 Ga. App. 818 , 155 S.E. 92 (1930); Kreutz v. Dublin Sash & Door Co., 53 Ga. App. 50 , 184 S.E. 908 (1936); Poythress v. Hucks, 56 Ga. App. 657 , 193 S.E. 475 (1937); Davison v. F.W. Woolworth Co., 186 Ga. 663 , 198 S.E. 738 (1938); Cutler-Hammer, Inc. v. Wayne, 101 F.2d 823 (5th Cir. 1939); East Atlanta Bank v. Limbert, 191 Ga. 486 , 12 S.E.2d 865 (1940); Roberts v. Georgia S. Supply Co., 92 Ga. App. 303 , 88 S.E.2d 554 (1955); Gilmore v. Royal Indem. Co., 240 F.2d 101 (5th Cir. 1956); Latham Plumbing & Heating Co. v. Ledbetter Trucks, Inc., 96 Ga. App. 219 , 99 S.E.2d 545 (1957); Hill v. Dealers Supply Co., 103 Ga. App. 846 , 120 S.E.2d 879 (1961); Builders Supply Co. v. Pilgrim, 115 Ga. App. 85 , 153 S.E.2d 657 (1967); Levy v. G.E.C. Corp., 117 Ga. App. 673 , 161 S.E.2d 339 (1968); Jordan Co. v. Bethlehem Steel Corp., 309 F. Supp. 148 (S.D. Ga. 1970); Butler v. Garrison, 123 Ga. App. 645 , 182 S.E.2d 185 (1971); Quinn v. Rainwater, 124 Ga. App. 374 , 183 S.E.2d 629 (1971); Phoenix Air Conditioning Co. v. Al-Carol, Inc., 129 Ga. App. 386 , 199 S.E.2d 556 (1973); Ronfra Dev. Corp. v. Pennington, 131 Ga. App. 195 , 205 S.E.2d 448 (1974); Centennial Equities Corp. v. Hollis, 132 Ga. App. 44 , 207 S.E.2d 573 (1974); Lee v. Stokes, 135 Ga. App. 642 , 218 S.E.2d 654 (1975); Jackson v. State, 137 Ga. App. 192 , 223 S.E.2d 239 (1976); Melton v. Pacific S. Mtg. Trust, 144 Ga. App. 600 , 241 S.E.2d 609 (1978); Lincoln Log Homes Mktg., Inc. v. Holbrook, 163 Ga. App. 592 , 295 S.E.2d 567 (1982); Cheek v. Lowe's of Ga., Inc., 17 Bankr. 875 (Bankr. M.D. Ga. 1982); Palmer v. Forrest, Mackey & Assocs., 251 Ga. 304 , 304 S.E.2d 704 (1983); Chambless Ford Tractor, Inc. v. McGlaun Farms, Inc., 169 Ga. App. 672 , 314 S.E.2d 689 (1984); Cumberland Bridge Assocs. v. Builders Steel Supply, Inc., 169 Ga. App. 945 , 315 S.E.2d 484 (1984); Siplast, Inc. v. Inland Container Corp., 172 Ga. App. 341 , 323 S.E.2d 187 (1984); Tonn & Blank, Inc. v. D.M. Asphalt, Inc., 187 Ga. App. 272 , 370 S.E.2d 30 (1988); Schwan's Sales Enters., Inc. v. Martin Mechanical Contractors, Inc., 202 Ga. App. 510 , 414 S.E.2d 727 (1992); Ragsdale v. Chiu (In re Harbor Club), 185 Bankr. 959 (Bankr. N.D. Ga. 1995); Warren v. State, 232 Ga. App. 488 , 502 S.E.2d 336 (1998); Northside Wood Flooring, Inc. v. Borst, 232 Ga. App. 569 , 502 S.E.2d 508 (1998).

Mechanics

Mechanic's lien strictly construed. - The mechanic's lien, as to realty, is in derogation of common law, and is to be construed strictly and extended no further than its words plainly import. Fox v. Rucker, 30 Ga. 525 (1860); Tuck v. Moss Mfg. Co., 127 Ga. 729 , 56 S.E. 1001 (1907); Oglethorpe Sav. & Trust Co. v. Morgan, 149 Ga. 787 , 102 S.E. 528 (1920); Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330 , 18 S.E.2d 61 (1941).

For a history of legislation on mechanic's liens, see Prince v. Neal-Millard Co., 124 Ga. 884 , 53 S.E. 761 , 4 Ann. Cas. 615 (1906).

Requirements for mechanic's lien. - In the case of a mechanic, it is necessary that the mechanic should be an operative engaged in a business requiring some particular skill in doing the work by virtue of which the law creates in the mechanic's favor a lien. Dantel Corp. v. Whidby, 98 Ga. App. 119 , 105 S.E.2d 242 (1958).

O.C.G.A. § 44-14-361 concerns itself with the taking of personal security for the property by a mechanic; it has been often held that the taking of such an arrangement by a materialman does not constitute a waiver of a valid lien given materialmen under that section. Henderson v. Mitchell Eng'g Co., 158 Ga. App. 306 , 279 S.E.2d 750 (1981).

Working foreman entitled to mechanic's lien. - A working foreman, who, in addition to the foreman's duties as a supervisor, is expected to perform manual type labor personally is not, in the main, a laborer so as to be entitled to a lien under O.C.G.A. § 44-14-380 , but was a mechanic within the meaning of O.C.G.A. § 44-14-361 . Dantel Corp. v. Whidby, 98 Ga. App. 119 , 105 S.E.2d 242 (1958).

Person who is contractor and mechanic may have lien. - One who occupies the position both of a contractor and of a mechanic, in either capacity, or in both, has a right to a lien, under O.C.G.A. § 44-14-361 . Thurman v. Pettitt, 72 Ga. 38 (1883).

Mechanic's lien on building valid even though building owner did not own underlying real property. - Company admitted that the company held property interests in the improvements. Even if the company did not have title to the building on which the lien was claimed and title was in a third party not subject to the suit, this would not bar an action for foreclosing the statutory lien because if the company had any interest in the premises upon which the lien took effect, that interest was bound. Pinnacle Props. V, LLC v. Mainline Supply of Atlanta, LLC, 319 Ga. App. 94 , 735 S.E.2d 166 (2012).

Mechanic cannot have lien on municipal property. - Under O.C.G.A. § 44-14-361 a mechanic is not entitled to a lien for work done on property belonging to a municipal corporation and used for public purposes. City of Albany v. Lynch, 119 Ga. 491 , 46 S.E. 622 (1904).

Mechanics who have taken personal security thereby waive their right to a lien. Rembrant, Inc. v. Phillips Constr. Co., 500 F. Supp. 766 (S.D. Ga. 1980).

Mechanic may obtain general judgment in action for specific property. - A mechanic may institute an action for the enforcement of this lien against the specific property on which the lien attaches, and in the same action obtain a general judgment against the debtor for the same debt. Parish v. Murphy, 51 Ga. 614 (1874).

A mechanic may in a proper case, seek a judgment for the recovery of a debt for labor and materials furnished in improving property, and simultaneously seek the declaration of a special lien on the improved property. Rogers v. Johnson, 116 Ga. App. 295 , 157 S.E.2d 48 (1967).

Avoidance in bankruptcy. - Chapter 7 trustee's right to avoid a mechanic's lien on estate property, which attached post-petition and without the trustee's consent or authorization by the court, was not limited by relevant state law because at no point since assuming the duties as trustee had the trustee consented to any work being done by the transferee on the property, which was required for the lien to attach. Scarver v. Ellis (In re McKeever), 567 Bankr. 652 (Bankr. N.D. Ga. 2017).

Exception to the automatic stay pursuant to 11 U.S.C. § 362(b)(3) did not apply to a post-petition mechanic's lien because the lien was not properly perfected and enforceable as the Chapter 7 trustee did not authorize any of the work listed in the lien. Scarver v. Ellis (In re McKeever), 567 Bankr. 652 (Bankr. N.D. Ga. 2017).

Contractors and Subcontractors

Definition of "contractor." - As used in O.C.G.A. § 44-14-361 , the word "contractor" is not to be construed in its technical sense, which would embrace any person who had any contract of any character, but is to be given its limited, colloquial sense, meaning a person engaged in the business of making contracts for the improvement of real estate. Pittsburgh Plate Glass Co. v. Peters Land Co., 123 Ga. 723 , 51 S.E. 725 (1905); Central of Ga. Ry. v. Shiver, 125 Ga. 218 , 53 S.E. 610 (1906); Murphy v. Fuller, 96 Ga. App. 403 , 100 S.E.2d 137 (1957).

Tenant does not come within the meaning of the phrase "contractor, or some other person," in O.C.G.A. § 44-14-361 . Central of Ga. Ry. v. Shiver, 125 Ga. 218 , 53 S.E. 610 (1906).

Stipulation under section did not salvage contractor's breach of contract claim. - In a breach of contract action associated with a construction project, the trial court properly granted a limited liability company's motion for a directed verdict against a contractor, as the contractor failed to present sufficient evidence linking the limited liability company to the contract sued upon, but all the evidence involved the contractor's negotiations and dealings with a businessperson and that company; further, the appeals court found that a stipulation between the parties referred only to the notice requirement of the lien statute, O.C.G.A. § 44-14-361.1(a) , and instead declined to stretch the wording in the stipulation to mean more than what the parties clearly intended. L. Lowe & Co., Inc. v. Sunset Strip Props., LLC, 283 Ga. App. 357 , 641 S.E.2d 797 (2007).

Contractor need not satisfy materialman's lien rights. - O.C.G.A. § 44-14-361 does not impose a duty or independent obligation on a general contractor to satisfy lien rights held by a materialman. Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

Owner may withhold payment to general contractor so long as materialmen's rights remain unsatisfied. - The existence of such inchoate rights, when coupled with the general contractor's obligations, predicated in part upon potential criminal, if not civil liability, compel the finding that a general contractor may seek to expedite own payment and foreclose any necessity on the part of materialmen to enforce their lien rights by agreeing to discharge those rights by direct payment. Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

Contractor's failure to pay materialman precludes recovery against owner. - A contractor cannot recover a judgment against the owner in the face of undisputed evidence that the contractor has not paid a materialman who has foreclosed a lien on the owner's premises in an amount greater than that remaining due by the owner to the contractor. Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

Subcontractor's lien possible although owner not party to subcontract. - Absence of contractual liability of owners due to their absence as parties to the subcontract does not prevent the establishment of a lien by a subcontractor under O.C.G.A. § 44-14-361 . Sasser & Co. v. Griffin, 133 Ga. App. 83 , 210 S.E.2d 34 (1974).

O.C.G.A. § 44-14-361 does not exclude a subcontractor from claiming a lien; rather, it limits the entities to which the owner of the real property may turn to establish as a defense that the agreed price or reasonable value thereof has been paid. Spicewood, Inc. v. Ferro Pipeline Co., 181 Ga. App. 277 , 351 S.E.2d 711 (1986).

Owner's responsibility to ensure proper disbursement of payments. - It is the owner's responsibility to see to it that the payments which the owner makes on the construction contract price are properly disbursed by the contractor to those having valid claims for labor and materials. Henderson v. Mitchell Eng'g Co., 158 Ga. App. 306 , 279 S.E.2d 750 (1981).

Effect on subcontractors of payments by owner to contractor. - Payments by the owner to the contractor do not affect the liens of subcontractors or materialmen unless made in accordance with O.C.G.A. § 44-14-361 or actually applied to the claims of the materialmen. Prince v. Neal-Millard Co., 124 Ga. 884 , 53 S.E. 761 , 4 Ann. Cas. 615 (1906); Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499 , 83 S.E. 210 (1914), writ dismissed, 241 U.S. 687, 36 S. Ct. 451 , 60 L. Ed. 1237 (1916).

Subcontractor's lien had priority over lender's later-filed security deed. - Subcontractor's lien filed before a lender's security deed was superior to the deed, pursuant to O.C.G.A. § 44-2-2(b) . The general contractor's affidavit that the subcontractors had been or will be paid was insufficient to satisfy the plain language of O.C.G.A. § 44-14-361.2(a) , requiring a statement that payment had been made, and did not extinguish the lien. Ga. Primary Bank v. Atlanta Paving, Inc., 309 Ga. App. 851 , 711 S.E.2d 409 (2011).

Estoppel of subcontractor with notice of payment to contractor. - Where the owner notifies a subcontractor of an intended payment to the contractor and no objection is made, the subcontractor will be estopped to the extent of such payment. Bailie v. Woodward Lumber Co., 141 Ga. 806 , 82 S.E. 232 (1914).

No subcontractor lien if contractor abandons. - A subcontractor has no lien where no sum is due the original contractor because of the subcontractor's wrongful abandonment of the contractor. Rowell v. Harris, 121 Ga. 239 , 48 S.E. 948 (1904).

No lien absent contractual relationship. - Absent proof of a contractual relationship, either directly or through a chain of contracts, between the owner of the property and the person to whom the materials are furnished, a lien created under O.C.G.A. § 44-14-361 will not attach. Benning Constr. Co. v. Dykes Paving & Constr. Co., Inc., 263 Ga. 16 , 426 S.E.2d 564 (1993).

Lien upon railroad is upon the whole railroad to which it applies. There is no provision of law allowing a contractor to set up and enforce a lien upon a part of any railroad, though such part may be all of the road which the contractor constructed or aided to construct. Farmers' Loan & Trust Co. v. Candler, 87 Ga. 241 , 13 S.E. 560 (1891).

Contractor building a railroad has no equitable lien independent of O.C.G.A. § 44-14-361 . Farmers' Loan & Trust Co. v. Candler, 92 Ga. 249 , 18 S.E. 540 (1893).

No lien for subcontractor building railroad. - The lien given by O.C.G.A. § 44-14-361 to "contractors to build railroads" is confined to those contractors employed by the person or company owning the railroad, and the right of lien does not extend to subcontractors. Carter v. Rome & Carrollton Constr. Co., 89 Ga. 158 , 15 S.E. 36 (1892).

Criminal liability for failure of general contractor to disburse funds to lienholders. - The general contractor is an interested witness. If the contractor receives the full contract price for the job the contractor becomes a trustee of the funds for the purpose of disbursing them properly to those who hold valid claims for labor and materials, and the contractor's failure faithfully to do so would render the contractor criminally liable. Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

Notice of commencement defective. - Grant of summary judgment to the property owner on a materialman's lien was reversed because it failed to identify or provide contact information for its construction lender in its Notice of Commencement, rendering it fatally defective under O.C.G.A. § 44-14-361.5(d) and because the Notice of Commencement did not substantially comply with § 44-14-361.5(b) , the material supplier's failure to file its Notice to Contractor within the prescribed time was excused under § 44-14-361.5(d) . Capitol Materials, Inc. v. JLB Buckhead, LLC, 337 Ga. App. 848 , 789 S.E.2d 803 (2016).

Owner as "contractor." - There was no reason why an owner could not also have been a contractor for purposes of a materialman's lien; because a property owner listed itself as "general contractor" in its notices of commencement, and because a materials supplier was not in privity with the owner, the supplier was required to provide the owner with the O.C.G.A. § 44-14-361(a) notice to contractor; since the supplier failed to give the proper notice, its materialman's liens were invalid. Roofing Supply of Atlanta, Inc. v. Forrest Homes, Inc., 279 Ga. App. 504 , 632 S.E.2d 161 (2006).

Materialmen

Lien given to materialmen is purely statutory, and does not depend upon subrogation, except to the extent that the total amount paid out may not exceed the contract price. Roberts v. Georgia S. Supply Co., 92 Ga. App. 303 , 88 S.E.2d 554 (1955).

Materialman's liens must strictly comply with section. - O.C.G.A. §§ 44-14-361 and 44-14-361.1 provide a method of effecting a lien for materials furnished for the purpose of improving real estate, and strict compliance with these sections is required. King v. Rutledge, 208 Ga. 172 , 65 S.E.2d 801 (1951).

Section gives lien for materials furnished to improve real estate. - O.C.G.A. § 44-14-361 gives to one furnishing material for the improvement of real estate upon the employment of a contractor, or some other person than the owner, a lien upon the real estate improved for the material used in the improvement. Stevens Supply Co. v. Stamm, 41 Ga. App. 239 , 152 S.E. 602 (1930).

O.C.G.A. § 44-14-361 provides a lien only to materialmen who may have supplied the materials directly to the owner of the realty, or to a contractor or a subcontractor engaged in making the improvement. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

Materialmen must establish that the materials furnished actually were used in the improvement itself for the benefit of the owner of the realty. Taverrite v. Lowe's of Franklin, Inc., 166 Ga. App. 346 , 304 S.E.2d 78 (1983).

The inclusion of nonlienable items, easily separable from lienable items, does not defeat the entire lien. Taverrite v. Lowe's of Franklin, Inc., 166 Ga. App. 346 , 304 S.E.2d 78 (1983).

Remedies available to materialmen. - The remedies afforded a particular materialman under (1) the lien statute, (2) the bond statute for public contractors, and (3) the contractual rights appurtenant to a private payment bond, are distinct and separate, and, even though certain terminology may overlap, the judicial construction of that terminology is not uniform for all remedies. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

Notice adequate. - In the general contractor's action against the materials provider relating to the provider's request for payment under a payment bond, the general contractor's notice of commencement and the provider's notice to contractor complied with O.C.G.A. § 10-7-31 ; although the notice of commencement stated that it was pursuant to O.C.G.A. § 44-14-361.5 and the notice to contractor stated that it was sent under O.C.G.A. § 44-14-361 , O.C.G.A. § 10-7-31 did not require that either of the notices be expressly labeled as being provided under the statute, the notices contained the pertinent information contemplated by O.C.G.A. § 10-7-31, including that the general contractor had provided a payment bond and that the provider had provided materials for the project through improvements made by the subcontractor, and the notice of commencement was not misfiled under O.C.G.A. § 10-7-31(d) because it was labeled as provided under O.C.G.A. § 44-14-361.5 , as the indexing requirements of both statutes were substantially identical. Sierra Craft, Inc. v. T. D. Farrell Constr., Inc., 282 Ga. App. 377 , 638 S.E.2d 815 (2006), cert. denied, No. S07C0460, 2007 Ga. LEXIS 145 (Ga. 2007).

Because O.C.G.A. § 44-14-361.1(a)(4) provided that where a contractor was adjudicated bankrupt or, if after an action was filed, no final judgment could be obtained against the contractor because of its adjudication in bankruptcy, the materialman was not required to file an action or obtain judgment against the contractor before enforcing a lien against the improved property; moreover, the materialman could enforce the lien directly against the property by filing an action against the owner within 12 months from the time the lien became due. SAKS Assocs., LLC v. Southeast Culvert, Inc., 282 Ga. App. 359 , 638 S.E.2d 799 (2006).

Material must be furnished under contract. - O.C.G.A. § 44-14-361 has been construed to mean that the material so furnished must be under contract with a contractor or with some person occupying a similar relation to the owner as that of contractor. Stevens Supply Co. v. Stamm, 41 Ga. App. 239 , 152 S.E. 602 (1930).

Mere knowledge that improvements are to be made will not subject the title of the true owner to a lien for material. Bryant v. Ellenburg, 106 Ga. App. 510 , 127 S.E.2d 468 (1962).

Who must contract with materialman. - There need not be a contract between the materialman and the true owner, but there must be a contract for material with a person who has contracted with the true owner for the erection of the improvements. Marshall v. Peacock, 205 Ga. 891 , 55 S.E.2d 354 (1949).

Contract necessary to fix liability of owner and establish a privity between the owner and the materialman. Marshall v. Peacock, 205 Ga. 891 , 55 S.E.2d 354 (1949).

Agreement between owner and contractor does not affect materialman's lien. - The lien of a materialman is not affected by any private arrangement between the property owner and the contractor. Tuck v. Moss Mfg. Co., 127 Ga. 729 , 56 S.E. 1001 (1907).

Suppliers' entitled to lien under section generally. - O.C.G.A. § 44-14-361 provides a lien only to materialmen who may have supplied the materials directly to the owner of the realty, or to a contractor or a subcontractor engaged in making the improvement. Georgia-Pacific Corp. v. Dan Austin Properties, Inc., 126 Ga. App. 191 , 190 S.E.2d 131 , aff'd, 229 Ga. 803 , 194 S.E.2d 472 (1972).

O.C.G.A. § 44-14-361 does not, by its terms, permit a materialman's lien for the cost of repairs. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

Seller of building equipment and tools not entitled to lien. - One who sells shovels, shovel handles, gloves, tape, rope, files, matches, pulley and hook, hammers, brushes, sand screen, lamp chimney, and saw files to a contractor who has a contract for improving realty is not entitled to a lien for those items. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

No lien for one who furnishes equipment and tools, but performs no labor or services. - The owner of horses, equipment or machinery, who furnishes them to another to aid in construction or improvements, or in any work for which a lien is given, but who performs no manual labor or other services in connection therewith, is not entitled to a lien. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

No lien for supplier of supplier. - The supplier of a supplier of materials to be used in the improvement of realty is not entitled to a claim of lien therefor under O.C.G.A. § 44-14-361 . Georgia-Pacific Corp. v. Dan Austin Properties, Inc., 126 Ga. App. 191 , 190 S.E.2d 131 , aff'd, 229 Ga. 803 , 194 S.E.2d 472 (1972).

A supplier to a supplier is not entitled to claim a lien under O.C.G.A. § 44-14-361 . Porter Coatings v. Stein Steel & Supply Co., 157 Ga. App. 260 , 277 S.E.2d 272 , aff'd, 247 Ga. 631 , 278 S.E.2d 377 (1981).

No lien for material furnished subcontractor. - A materialman furnishing material for the improvement of real estate to a subcontractor who has no contractual relation with the owners of such realty does not thereby acquire a lien upon the property so improved. General Supply Co. v. Hunn, 126 Ga. 615 , 55 S.E. 957 (1906); George W. Muller Bank Fixture Co. v. Georgia State Sav. Ass'n, 143 Ga. 840 , 85 S.E. 1018 (1915).

Debt incurred whether or not material used. - A finding that the realty ought not be charged with a debt for the reason that the realty as finally improved does not contain the material furnished is not a finding that the debt is not owing and may go unpaid. The debt itself does not depend upon the nicety of whether the material was or was not finally incorporated into the improvement. The debt exists if materials were furnished and not paid for. United Bonding Ins. Co. v. Good-Wynn Elec. Supply Co., 124 Ga. App. 545 , 184 S.E.2d 508 (1971).

Georgia law recognizes the constructive trust fund doctrine with respect to payments owed materialmen by their contractors for improvements made to a third party's realty. Bethlehem Steel Corp. v. Tidwell, 66 Bankr. 932 (M.D. Ga. 1986).

Constructive trust in favor of a materialman does not automatically exist as a result of O.C.G.A. § 44-14-361 with regard to funds transferred by a payor to a construction contractor/debtor. In re Sun Belt Elec. Constructors, Inc., 56 Bankr. 686 (Bankr. N.D. Ga. 1986).

Materialmen having a beneficial interest in a contractor's bond may bring an action on the bond in their own name rather than in the name of the nominal obligee. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

When materialman of subcontractor may bring action on payment bond. - If the general contractor's payment bond defines a claimant under the bond as one supplying material to a subcontractor, then a materialman of a subcontractor may bring an action on the bond for the subcontractor's nonpayment; if the bond expressly limits a right of action on the bond to the named obligees or is conditioned on the general contractor's payment of only those materialmen having a direct relationship with the general contractor, then a materialman of a subcontractor may not bring action on the payment bond; and if the bond is conditioned on the general contractor's payment of all persons furnishing labor and material under or for the contract, then, at a minimum, materialmen of the general contractor may maintain an action on the bond. Sims' Crane Serv., Inc. v. Reliance Ins. Co., 514 F. Supp. 1033 (S.D. Ga. 1981), aff'd, 667 F.2d 30 (11th Cir. 1982).

Materials delivered are presumed to have been used. - A materialman is not required to show that the materials for which the materialman claims a lien were actually used on the job of the owner against whose interest the materialman is asserting the lien. It is the general rule that there is a presumption of the use of materials in a building or improvement arising from the fact of their delivery thereto for that purpose, and the burden is then on the property owner to prove that the material was not so used. Maloy v. Planter's Whse. & Lumber Co., 142 Ga. App. 69 , 234 S.E.2d 807 (1977).

Improvements on separate pieces of property. - Where there is a single contract for improvements on separate pieces of property the lien for materials furnished attaches to each piece of property. Lyon v. Cedartown Lumber Co., 13 Ga. App. 450 , 79 S.E. 236 (1913).

Materialman need not show what material went into each house. - To entitle a materialman to a single lien on several houses, being simultaneously built under one operation, for material furnished generally for them all, and to be used indiscriminately among them as needed, it is not necessary for such materialmen to prove just what material went into any particular house, provided it is shown that the material was delivered under such order. Christian v. Bremer, 199 Ga. 285 , 34 S.E.2d 40 (1945).

All charges made by materialman for use of equipment are nonlienable items. Sears Roebuck & Co. v. Superior Rigging & Erecting Co., 120 Ga. App. 412 , 170 S.E.2d 721 (1969).

When vendor liable for liens on vendee's improvements. - The liens of laborers and materialmen do not rest upon contract but upon the law, and the title of the true owner cannot be subjected to liens for materials or labor done in its improvement unless the owner expressly or impliedly consents to the contract under which the improvements are made. However, when the vendor has in some way consented to the improvements of real estate by the vendee, or has expressly or impliedly authorized it, or has cooperated with the vendee in the plans for the improvements, or has been active and instrumental in having the improvements made, such liens will attach to the property. West Lumber Co. v. Gignilliat, 77 Ga. App. 336 , 48 S.E.2d 688 (1948), later appeal, 80 Ga. App. 652 , 56 S.E.2d 841 (1949).

A vendor of real estate, who induces one who has a contract to purchase land, to expend labor and material in improving the land, cannot defeat the claims for liens by those who contribute their labor and material to enhance the value of the property. In such a case, in the absence of a controlling agreement, the vendor cannot insist that the mechanic's lien shall be subordinated to the vendor's title or interest in the realty. Williams v. Brewton, 170 Ga. 164 , 152 S.E. 441 (1930).

Vendee who approves vendor's improvements after contract liable for materialman's lien. - Where a vendor improves real estate and the vendee, under a contract to purchase, consents to and cooperates in the improving of the property subsequently to the executory contract of sale, the lien of a materialman for materials furnished to the vendor for the improvement of the property, properly prepared and recorded and foreclosed in time, binds the interests of both vendor and vendee in the property even though the vendee receives a deed to the property and records it before the materialman's lien is filed for record and recorded. West Lumber Co. v. Gignilliat, 77 Ga. App. 336 , 48 S.E.2d 688 (1948), later appeal, 80 Ga. App. 652 , 56 S.E.2d 841 (1949).

O.C.G.A. § 44-14-361 does not operate in favor of contractor paving a sidewalk in a street adjacent to a lot. Seeman v. Schultze, 100 Ga. 603 , 28 S.E. 378 (1897).

Contractor's lien attaches from time work is commenced or material is furnished under the contract. Old Stone Mtg. & Realty Trust v. New Ga. Plumbing, Inc., 140 Ga. App. 686 , 231 S.E.2d 785 (1976), aff'd, 239 Ga. 345 , 236 S.E.2d 592 (1977).

When materialman's lien attaches. - The lien of a materialman on real estate, arising under O.C.G.A. §§ 44-14-361 and 44-14-380 , attaches from the time the work under the contract is commenced or the material is furnished. Spirides v. Victory Lumber Co., 76 Ga. App. 78 , 45 S.E.2d 65 (1947).

The lien of a materialman upon property, for the improvement of which the material was furnished, as provided in O.C.G.A. §§ 44-14-361 and 44-14-361.1 , attaches when the material is furnished in accordance with the contract. This is true notwithstanding the lien may become divested in favor of a bona fide purchaser of the property without notice of the lien. Davis v. Stone, 48 Ga. App. 532 , 173 S.E. 454 (1934).

Perfected materialmen's liens relate back to time work begins. - Liens under O.C.G.A. § 44-14-361 relate back to the time the work under the contract commenced, provided that the lien is properly perfected. Marietta Baptist Tabernacle v. Tomberlin Assocs., 576 F.2d 1237 (5th Cir. 1978).

Lien covers all items delivered if last item lienable. - A materialman's lien rights attach following the first delivery of materials to be used on a job and expire 90 days following the date of the last delivery. Assuming the last item delivered is a lienable item, then the subsequently perfected lien relates back to cover all items delivered, including those items delivered more than 90 days prior to filing the lien. Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

Materialman may pursue lien rights prior to payment and despite subcontractor's bankruptcy. - Prior to payment, and notwithstanding the intervening bankruptcy of the subcontractor, a materialman may enforce inchoate lien rights against the owner. Mullins v. Noland Co., 406 F. Supp. 206 (N.D. Ga. 1975).

Materialman's lien was void. - Subcontractor's O.C.G.A. § 44-14-361 special lien was void because the subcontractor failed to comply with the perfection requirements in O.C.G.A. § 44-14-361.5(a) , (c); the fact that the general contractor on a construction project had failed to post a notice of commencement at the construction site did not absolve the subcontractor from complying with the perfection requirements. Rey Coliman Contrs., Inc. v. PCL Constr. Servs., 296 Ga. App. 892 , 676 S.E.2d 298 (2009).

Lost profits not lienable. - Contractor's estimated lost profits were not lienable because lost profits did not relate to work performed, or any value added, to the client's property. Duke Builders, Inc. v. Massey, 351 Ga. App. 535 , 831 S.E.2d 172 (2019).

Jury instructions. - Trial court did not err in refusing to give a jury instruction on privileged communications under O.C.G.A. § 51-5-7(3) , where the materialman's lien claimant's claim of lien was not properly limited in scope; the lien claimant's lien was almost eight times the amount the claimant supplied in labor and materials for improvement of the property. Amador v. Thomas, 259 Ga. App. 835 , 578 S.E.2d 537 (2003).

Machinists and Manufacturers of Machinery

Machinery which cannot be basis of lien. - The general rule is that machinery not totally depreciated by use on the property or incorporated into the improvement, or in connection with which labor was also supplied cannot be the basis of a valid lien. Air Serv. Co. v. Cosmo Invs., Inc., 115 Ga. App. 596 , 155 S.E.2d 413 (1967).

Equipment or machinery rented or leased to contractors to perform their work nonlienable. Mableton Erectors, Inc. v. Dunn Properties of Ga., Inc., 135 Ga. App. 504 , 218 S.E.2d 175 (1975).

No machinist's lien on realty unless machine becomes fixture. - Machinists and manufacturers of machinery have no lien on real estate for machinery furnished, unless the machinery furnished is attached to, and becomes incorporated with, the realty for which it was furnished. J.S. Schofield & Son v. Stout, Mills & Temple, 59 Ga. 537 (1877); D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

Lessor of machinery not attached to realty not entitled to lien. - A mere lessor of machinery to a contractor does not come within the class in favor of whom the lien is granted, nor does the machinery itself, not being something in the order of a steam mill or other mechanical device intended to be attached to and used on the realty. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

Lessor of air compressor and drill to contractor has no lien on realty improved. - O.C.G.A. § 44-14-361 does not give a lessor of machinery consisting of an air compressor and drill a lien on real estate for the rental value of the machinery leased to a contractor who uses it in improving the real estate of the owner against whom the lien is sought. Air Serv. Co. v. Cosmo Invs., Inc., 115 Ga. App. 596 , 155 S.E.2d 413 (1967).

Rental on company's scaffolding not lienable. D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967).

Furnishing machinery for sawmill comes under section. - The furnishing of machinery for a steam sawmill, to improve or enlarge the mill or to keep it efficient, entitles the machinist to a lien under O.C.G.A. § 44-14-361 and not O.C.G.A. § 44-14-515 . Filer & Stowell Co. v. Empire Lumber Co., 91 Ga. 657 , 18 S.E. 359 (1893).

Priority of Liens

To be superior to other liens, lienholder must comply with every condition. - O.C.G.A. § 44-14-361 is in derogation of the common law, and must be construed strictly. Before the lien which it creates in favor of certain persons, under certain circumstances, which overrides all other liens, can be allowed, the party must show compliance with all the conditions, and be personally brought within all the requirements and limitations of the statute. Kwilecki v. Young, 180 Ga. 602 , 180 S.E. 137 (1935).

There is a presumption of no notice to the grantee in a warranty deed, security deed or even a quitclaim deed. Bryant v. Ellenburg, 106 Ga. App. 510 , 127 S.E.2d 468 (1962).

Priority as between security deed and materialman's lien. - The bona fide holder of a security deed executed before the first material was furnished, and therefore necessarily prior to the record of the materialman's claim of lien, will take priority over the materialman's claim of lien, although the security deed was itself not recorded until after the first material was furnished. The rule would be different where the holder of the security deed had actual notice of the furnishing of the material prior to the execution of the deed; and might be different where the holder of the security deed had such actual notice prior to the record of the security deed. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370 , 21 S.E.2d 619 (1942).

An architect's lien attaches from the time the first work is done or the first material provided. Murray v. Chulak, 250 Ga. 765 , 300 S.E.2d 493 (1983).

When grantee of deed loses priority over materialman's lien. - Grantee in a deed may lose priority over a materialman's lien where the grantee: has actual notice of the claim of lien, has constructive notice because the lien has been previously recorded, has consented to the making of the improvement either expressly or impliedly, or has misled the materialman as to the ownership of the property, giving rise to an estoppel. Bryant v. Ellenburg, 106 Ga. App. 510 , 127 S.E.2d 468 (1962).

When contractor's lien takes priority over grantee of deed to secure debt. - The lien of a contractor on real estate improved under a contract with the owner thereof, as provided by law, if and when created and declared as required by law, attaches from the time the work under the contract is commenced, and will take priority over the title acquired after the commencing of work by the contractor and with actual notice of the contractor's claim by a grantee of a deed to secure debt from the owner of the real estate although the deed to secure debt was executed and recorded before the completion of the contract and before the claim of lien was formally filed of record. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527 , 251 S.E.2d 800 (1978).

Purchaser subject to lien if aware of unrecorded claim which is later properly perfected. - A contractor's lien attaches from the time the work under the contract is commenced, although it lacks, certainly until it is recorded, the quality of constructive notice, but one who takes a deed to the property or purchases it while work is in progress, with knowledge of the contract and notice of the contractor's claim of lien, though imperfect or unrecorded at that time, must be held to take the property subject to the lien, provided that the contract is completed and the lien is declared and enforced within the time prescribed by Georgia law. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527 , 251 S.E.2d 800 (1978).

Purchaser at foreclosure sale under security deed who records before improvements not liable for lien. - The title of the true owner of land cannot be subjected to a lien for improvements, unless the owner expressly or impliedly assents to the contract under which the improvements are made. The grantee in a security deed is the true owner of the legal title. Where such deed is duly recorded before improvements are made, the purchaser at a foreclosure sale under the security deed holds title free from any lien for improvements placed upon the land subsequent to the execution and record of the security deed. Rutland Contracting Co. v. Gay Estate, 193 Ga. 468 , 18 S.E.2d 835 (1942).

Where security deed is executed before delivery of any material, and therefore necessarily before the record of the materialmen's claim of lien, no question of notice to the grantee as to the materialmen's claims of lien at the time the security deed was executed would be involved. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370 , 21 S.E.2d 619 (1942).

When materialman's lien prevails over vendor's lien. - A materialman's lien will prevail over that of a vendor, and attaches to the property improved, if the contract of sale provided that the vendor should go on and build upon the premises. Williams v. Brewton, 170 Ga. 164 , 152 S.E. 441 (1930).

Architect's lien dated from time defendant later acquired interest in property. - Where defendant did not own the property at the time the defendant's architect commenced work and defendant was seeking to acquire the property from the property's owner and was not acting as agent for the property's owner, the architect's lien dated only from the time the defendant later acquired an interest in the property. Murray v. Chulak, 250 Ga. 765 , 300 S.E.2d 493 (1983).

A purchase money security deed or mortgage had priority over an architect's liens against the purchaser of the property where the purchaser had simultaneously executed a security deed or mortgage for the purchase money and the provider of the purchase money did not have knowledge of the architect's lien. Murray v. Chulak, 250 Ga. 765 , 300 S.E.2d 493 (1983).

Owner's Liability and Defenses

O.C.G.A. § 44-14-361 does not require filing of notice at time of commencement of action against the owner. D & T Glass, Inc. v. Barrow Enters., Inc., 172 Ga. App. 797 , 325 S.E.2d 170 (1984).

Amendment of materialmen's lien. - Georgia Supreme Court held that the Georgia Court of Appeals properly held that amendment of a materialmen's lien was authorized by O.C.G.A. § 44-14-361.1 (a.1) and that the lien amount may be reduced at any time. Massey v. Duke Builders, Inc., 310 Ga. 152 , 849 S.E.2d 186 (2020).

Owner need not pay more than contract price to materialmen and laborers. - A lien given by O.C.G.A. § 44-14-361 attaches to the real estate improved but the owner is not required to pay more than the contract price of the improvement to materialmen and laborers. Thompson v. Brannen Bldg. Supply, 153 Ga. App. 4 , 264 S.E.2d 498 (1980).

Owner who pays contractor protected against materialmen's claims after contractor pays claims. - Where an owner of real estate, upon which improvements have been erected by a contractor, has paid the full contract price to the contractor, and the contractor has applied the whole amount so received by the contractor to the payment of valid claims for material and labor employed in constructing the improvements, the owner will be protected against claims of lien for material furnished to the contractor, filed subsequently to payment and application of the full contract price as above indicated. Jones Brick Co. v. Seagler Bros., 146 Ga. 19 , 90 S.E. 473 (1916).

Owner protected against claims recorded after payment and disbursement of contract price. - The owner is protected as against claims for liens which may have been filed and recorded subsequent to the full payment and proper disbursement of the contract price. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639 , 171 S.E.2d 782 (1969).

Owner may apply cost of completion to lien when contractor abandons project. - Where a contractor abandons the contract without paying the materialman, who then files lien against owner for materials furnished the contractor and the owner, in order to obtain its completion engages others to furnish material and labor, the cost of completion may be applied by the owner, up to the contract price, as against the lien. Roberts v. Georgia S. Supply Co., 92 Ga. App. 303 , 88 S.E.2d 554 (1955).

Amount owner owes lienholders when completing building abandoned by contractor. - Where a contractor, under a definite contract containing a stipulated price for the entire work, undertakes to erect a building on a lot of land and abandons the construction of the building, the owner may complete the work; and if the owner does so, the necessary cost of so doing may be deducted from the contract price, and the property will be subject to the liens of materialmen and laborers to the extent only of the balance. Young v. Harley-Mitchell Hdwe. Co., 173 Ga. 35 , 159 S.E. 567 (1931); Wooten v. Ford, 46 Ga. App. 50 , 166 S.E. 449 (1932).

Owner not liable for amount in excess of contract price when contractor abandons project. - Under O.C.G.A. § 44-14-361 , the owner is in no event liable for an amount in excess of the contract price, and if the contractor abandons the contract, the owner may have it completed and charge the necessary cost of completion against the contract price, before being liable either to the contractor or to the materialman. Spirides v. Victory Lumber Co., 76 Ga. App. 78 , 45 S.E.2d 65 (1947).

What owner must show when contractor abandons. - Where a contractor abandons the contract, the cost of completing the work is to be deducted from the contract price in order to ascertain the amount up to which the subcontractors may claim liens. If such deductions, together with payments previously made to the contractor, equal or exceed the entire contract price, then the subcontractors, mechanics, and materialmen have no lien, since there is nothing due under the contract. The owner is required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor's statutory affidavit concerning such indebtedness had been obtained. Jones Mercantile Co. v. Lyn-Har, Inc., 245 Ga. 812 , 267 S.E.2d 251 (1980); Thompson v. Brannen Bldg. Supply, 153 Ga. App. 4 , 264 S.E.2d 498 (1980).

Where owner contracts to pay by installments the owner does so at the owner's own risk as to claims of subcontractors. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499 , 83 S.E. 210 (1914), writ dismissed, 241 U.S. 687, 36 S. Ct. 451 , 60 L. Ed. 1237 (1916).

Estoppel against owner's denial that materialman performed contract. - Where the owner receives and uses the materials furnished by a subcontractor and has paid the contractor more than the amount claimed by the materialman, the owner is estopped to deny that the materialman had performed the contract. Koppe & Steinichen v. Rylander, 33 Ga. App. 686 , 128 S.E. 68 (1925), aff'd, 162 Ga. 300 , 133 S.E. 236 (1926).

Estoppel by representations that materials to be used in building. - Where materials are furnished on representation of the owner of real estate that it is to be used in building thereon, the owner is estopped from setting up that some of it was not so used. Howell v. Cordray, 22 Ga. App. 195 , 95 S.E. 762 (1918).

Consent of owner to contract necessary. - The title of the true owner of land cannot be subjected to a lien for material or labor done in its improvement unless the owner expressly or impliedly consents to the contract under which the improvements are made. Reppard, Snedeker & Co. v. Morrison, 120 Ga. 28 , 47 S.E. 554 (1904); Williams v. Brewton, 170 Ga. 164 , 152 S.E. 441 (1930).

Section permits materialman's lien only if owner contracts for or assents to improvements. - The purpose of O.C.G.A. § 44-14-361 is to charge the owner of real estate with a lien for material furnished only when there was a specific contract for the improvements made, either made by the owner or assented to by the owner. Marshall v. Peacock, 205 Ga. 891 , 55 S.E.2d 354 (1949).

Lien applies only where owner authorizes improvements. - O.C.G.A. § 44-14-361 is dependent upon consent of the true owner, and subsection (b) is predicated upon the existence of authority from the owner to the contractor or other person to have the improvement made. This is shown by the provision therein that in no event shall the aggregate of liens exceed the contract price. Where a stranger to title or other person contracts or employs a third person to make improvements, the owner of the land is not bound to disclose to such third person the fact of ownership, and such third person has no lien on the land. Rutland Contracting Co. v. Gay Estate, 193 Ga. 468 , 18 S.E.2d 835 (1942).

No lien against owner where no contract between owner and recipient of materials. - Where there is an absence of a showing of a contractual relationship between the owner and the person to whom the materials were furnished, no enforceable lien is created against the owner's property. Liggett v. Harper, 151 Ga. App. 616 , 260 S.E.2d 735 (1979).

Individuals who may not contract for improvements to bind true owner. - A stranger may not order work done upon real estate and thus charge the true owner. Neither may a tenant, unless there is some relation existing between the tenant and the landlord other than that of lessor and lessee. Marshall v. Peacock, 205 Ga. 891 , 55 S.E.2d 354 (1949).

Lessee cannot bind owner absent agreement. - One who furnishes material for the improvement of real estate, upon the employment of a contractor whose contract for the improvement is with a lessee, and who sustains no contractual relation with the owner of the fee, is not entitled to a lien as against such owner of the premises under the provisions of O.C.G.A. § 44-14-361 . Reppard, Snedeker & Co. v. Morrison, 120 Ga. 28 , 47 S.E. 554 (1904); Pittsburgh Plate Glass Co. v. Peters Land Co., 123 Ga. 723 , 51 S.E. 725 (1905); Stevens Supply Co. v. Stamm, 41 Ga. App. 239 , 152 S.E. 602 (1930).

Lessee cannot bind the owner even where the owner authorized the improvement, nor where the owner reimbursed the lessee, nor where the lessor owns a majority of the stock of the lessee. Central of Ga. Ry. v. Shiver, 125 Ga. 218 , 53 S.E. 610 (1906); Consolidated Lumber Co. v. Ocean S.S. Co., 142 Ga. 186 , 82 S.E. 532 (1914).

Where the lessee is acting on own behalf alone in contracting to have the improvements made, the lessee is not the agent of the lessor in that transaction. If there is no contractual relation between the contractor and the lessor as to the making of the repairs, there is no materialman's lien. Stevens Supply Co. v. Stamm, 41 Ga. App. 239 , 152 S.E. 602 (1930).

A contract for improvements between a lessee and a materialman does not subject the interest of the lessor to a lien unless a contractual relationship exists between the lessor and the materialman as well. Accurate Constr. Co. v. Dobbs Houses, Inc., 154 Ga. App. 605 , 269 S.E.2d 494 (1980).

A tenant cannot order work done upon the demised premises and charge the owner with the cost, unless there is some relation existing between the tenant and the landlord other than that of lessor and lessee, by virtue of which the landlord expressly or impliedly consents to the contract under which the improvements are made. Stevens Supply Co. v. Stamm, 41 Ga. App. 239 , 152 S.E. 602 (1930).

Where a lessee contracted to make improvements to leased property and was obligated by the terms of the lease to be solely responsible for the costs thereof, a subcontractor had no right to impose a lien against the owner's reversionary interest in the property based on unpaid labor and materials because the lessee was not acting as an agent for the owner pursuant to O.C.G.A. § 44-14-361(b) . Worley v. Cowper Constr. Co., 259 Ga. App. 263 , 576 S.E.2d 645 (2003).

Landlord must expressly or impliedly authorize tenant's improvements. - The mere knowledge of the landlord that the improvements are being made by the tenant is insufficient to charge the landlord or the landlord's premises with their cost. The landlord must either expressly or impliedly authorize the tenant to make the improvements for the former's benefit. Stevens Supply Co. v. Stamm, 41 Ga. App. 239 , 152 S.E. 602 (1930).

Mere knowledge by lessor of improvements does not give rise to lien. Accurate Constr. Co. v. Dobbs Houses, Inc., 154 Ga. App. 605 , 269 S.E.2d 494 (1980).

Materialman's lien was enforceable against the landlord if the amount due under the lien was payable by the landlord to the tenant under the tenant improvement allowance in the lease. Corley Communications, Inc. v. Northwinds Ctr., L.P., 250 Ga. App. 775 , 552 S.E.2d 131 (2001).

Owner's consent to improvement required. - Where there was no evidence showing that the owner had expressly or impliedly consented to the improvements made on its property, the superior court did not err in granting summary judgment to the owner. Anatek, Inc. v. CSX Realty Dev., L.L.C., 243 Ga. App. 552 , 532 S.E.2d 115 (2000).

Notice of lien unnecessary where party consents to improvements. - The rule of actual notice of claim of lien does not apply except as to those who do not consent to or cooperate in the making of improvements. The law charges with notice those who consent or cooperate. West Lumber Co. v. Gignilliat, 77 Ga. App. 336 , 48 S.E.2d 688 (1948), later appeal, 80 Ga. App. 652 , 56 S.E.2d 841 (1949).

Landlord not liable for excess costs of improvement. - Where a landlord approved a construction contract only to the extent of the $59,400 allowance for improvements it granted to the tenant, the tenant became the agent of the landlord for up to $59,400 in contract costs. However, although the landlord consented to improvements made in excess of the allowance, it could not be said that the landlord became a party to the contract for any improvements exceeding that amount. Thus, it could not be said that these additional improvements were furnished at the instance of the owner or some person acting for the owner. F.S. Assocs. v. McMichael's Constr. Co., 197 Ga. App. 705 , 399 S.E.2d 479 (1990).

Owner not estopped by silence on improvements made by stranger. - The true owner, though cognizant that a stranger to the title is having improvements made on the premises, is under no legal duty to give to a materialman any information touching the ownership of the property; and the owner will not be estopped from setting up title thereto, as against a materialman, when nothing has been done by anyone to mislead the materialman as to the ownership of the premises improved. Rice v. Warren, 91 Ga. 759 , 17 S.E. 1032 (1893); Reaves v. Meredeth, 123 Ga. 444 , 51 S.E. 391 (1905); Bryant v. Ellenburg, 106 Ga. App. 510 , 127 S.E.2d 468 (1962).

How owner bound by third party's improvements. - In some instances a true owner may be bound where improvements are made on the owner's property if the owner consents to the contract under which the improvements are made; still, before the owner can ratify the acts of the party who procured the improvements to be made, that party must have acted as or attempted to act as agent of and on the behalf of the owner. Morgan v. May Realty Co., 86 Ga. App. 261 , 71 S.E.2d 438 (1952).

O.C.G.A. § 44-14-361 applies only so long as relation of owner and contractor continues. The contractor cannot bind the owner by ordering additional materials after the relation has ceased to exist. Sheehan v. South River Brick Co., 111 Ga. 444 , 36 S.E. 759 (1900).

Mere payment of contract price to contractor is insufficient. - An owner's mere payment of the full contract price to the contractor, standing alone, is not and has never been a complete defense to foreclosure of a materialman's lien. An owner must not only show that full payment was actually made to the contractor, but also that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor's statutory affidavit concerning such indebtedness had been obtained. D & N Elec., Inc. v. Underground Festival, Inc., 202 Ga. App. 435 , 414 S.E.2d 891 (1991).

Owner must ensure lienholders are paid when lien recorded. - If a claim of lien has been filed and recorded, it is incumbent upon the owner of the improved real estate to see that payments to the contractor are, to the full amount of the contract price, appropriated to the materialmen and laborers. Thompson v. Brannen Bldg. Supply, 153 Ga. App. 4 , 264 S.E.2d 498 (1980).

Subcontractors' liens satisfied even after paying contractor. - Under O.C.G.A. § 44-14-361 the owner who pays the contractor must see to it that subcontractors having liens are satisfied, even though the liens have not been filed at the time of the payment. Green v. Farrar Lumber Co., 119 Ga. 30 , 46 S.E. 62 (1903).

Only one affidavit by a contractor is contemplated by O.C.G.A. § 44-14-361 . Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639 , 171 S.E.2d 782 (1969).

What general contractor's affidavit must show. - The affidavit of the general contractor contemplated by O.C.G.A. § 44-14-361 requires the statement by the contractor that the agreed price has been paid; and it must appear that the owner has fulfilled the duty placed upon the owner by law by requiring the full contract price to be appropriated to materialmen and laborers to the extent of their claims. Whatley v. Alto Corp., 211 Ga. 718 , 88 S.E.2d 398 (1955).

"Agreed price or reasonable value thereof" defined. - The "agreed price or reasonable value thereof" refers not to the contract price between the owner and the contractor for completing the improvement, but to the price agreed upon between the contractor and the supplier of labor, services, or materials, or the value of those. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639 , 171 S.E.2d 782 (1969).

Sworn statement is a single statement made after completion of work and before final settlement. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499 , 83 S.E. 210 (1914). See also Waldon v. Maryland Cas. Co., 155 Ga. 76 , 116 S.E. 838 (1923); Bankston v. Smith, 134 Ga. App. 882 , 216 S.E.2d 634 (1975), rev'd on other grounds, 236 Ga. 92 , 222 S.E.2d 375 (1976).

Affidavit applies to realty, not personalty. - The protective affidavit under O.C.G.A. § 44-14-361 relates to the improvement of real estate, and is not for application in respect to a lien on personal property. Gibbs v. Griffin, 123 Ga. App. 385 , 181 S.E.2d 285 (1971).

Affidavit by corporation. - Where the affidavit provided for in O.C.G.A. § 44-14-361(b) is offered in evidence, and it appears that the contractor is a corporation, such affidavit need not contain a sworn averment that the person executing the affidavit is the president of such corporation. It is sufficient if such affidavit was in fact executed by the president as a personal affidavit, and such affidavit should be admitted in evidence. Gignilliat v. West Lumber Co., 80 Ga. App. 652 , 56 S.E.2d 841 (1949) (decided prior to 1983 amendment).

When owner has paid, owner needs only contractor's affidavit of payment to lienholders. - If the owner has paid the full construction contract price the owner should have ample evidence of that and the owner would not need the contractor's affidavit as to it to comply with O.C.G.A. § 44-14-361 ; what the owner does need from the contractor is an affidavit as to the contractor's payment of the price or value of labor, services, and materials, which is something about which the owner may hold no other evidence of payment. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639 , 171 S.E.2d 782 (1969); Certified Elec., Inc. v. Jerome, 161 Ga. App. 456 , 288 S.E.2d 359 (1982).

Owner need not show more than contractor's sworn affidavit. - Where proof of a proper affidavit under O.C.G.A. § 44-14-361(b) is made, it is not incumbent upon defendant to produce, in addition to the contractor's sworn affidavit, evidence that the owner made full payment to the contractor and that the contractor in turn properly disbursed payment to all valid claims of materialman. Lowe's of Ga., Inc. v. Merwin, 156 Ga. App. 876 , 275 S.E.2d 812 (1981) (decided prior to 1983 amendment, which rewrote subsection (b)).

Owner who improves realty cannot relieve another from lien by affidavit. - There is no provision of law for one who improves real estate while the legal title or its equivalent is in that person, to relieve another from a lien on the property by the making of an affidavit as is authorized under O.C.G.A. § 44-14-361 . Old Stone Mtg. & Realty Trust v. New Ga. Plumbing, Inc., 140 Ga. App. 686 , 231 S.E.2d 785 (1976), aff'd, 239 Ga. 345 , 236 S.E.2d 592 (1977) (decided prior to 1983 amendment, which rewrote subsection (b)).

No requirement that owner investigate whether affidavit properly executed, absent evidence of irregularity. - In the absence of any evidence indicating that the owner was aware of the irregularity, or allegations and proof of fraud or collusion, the owner is not required to make an independent investigation to determine that the proper procedures were followed in the execution of the affidavit. Jackson's Atlanta Ready Mix Concrete Co. v. Industrial Tractor Parts Co., 139 Ga. App. 422 , 228 S.E.2d 324 (1976) (decided prior to 1983 amendment, which rewrote subsection (b)).

Materialman's claim cannot be perfected when owner produces contractor's affidavit. - Under O.C.G.A. § 44-14-361(b) , when the owner produces the affidavit of the contractor in compliance with that section, stating that all bills for labor and material have been paid, the materialman's claim against the owner by command of the statute cannot be perfected into a lien upon the property of the owner. Gignilliat v. West Lumber Co., 80 Ga. App. 652 , 56 S.E.2d 841 (1949); Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639 , 171 S.E.2d 782 (1969) (decided prior to 1983 amendment, which rewrote subsection (b)).

Contractor's sworn statement of full payment dissolves liens. - The liens provided for in O.C.G.A. § 44-14-361 are dissolved where the owner produces a sworn statement of the contractor, or other person, at whose instance the work was done or material furnished, or such services furnished or rendered, that the agreed price or reasonable value thereof has been paid. Jackson's Atlanta Ready Mix Concrete Co. v. Industrial Tractor Parts Co., 139 Ga. App. 422 , 228 S.E.2d 324 (1976) (decided prior to 1983 amendment, which rewrote subsection (b)).

When owner can raise certificate from contractor that price was paid. - O.C.G.A. § 44-14-361(b) , which gives an owner a defense against the obtaining of a lien by a laborer or materialman where the owner has obtained a certificate from the contractor or other person at whose instance the work was done that the agreed price or the reasonable value of the material and labor furnished has been paid, contemplates a relationship between the contractor and owner wherein the contractor contracts for material and labor singularly and independently and for which the owner could not and would not be liable in the first instance. Fitts v. Addis, 83 Ga. App. 696 , 64 S.E.2d 466 (1951) (decided prior to 1983 amendment, which rewrote subsection (b)).

How owners may defend against action to foreclose materialman's lien. - In an action by a materialman to foreclose a lien for material furnished a contractor for the improvement of real estate of others, the owners of such real estate may defend by showing that they have paid the full contract price to the contractor and that the money paid has been applied by the contractor to the settlement of debts incurred in the performance of the contract, which would have been liens upon the property improved. Ingram v. Barfield, 80 Ga. App. 276 , 55 S.E.2d 725 (1949).

How owner may defeat liens when independent contractor erects building. - When an independent contractor, in fact as well as in name, erects a building the owner may defeat liens by showing that the owner has paid in good faith the full amount of the contract price in discharge of valid liens against the premises. Robinson v. Reese, 175 Ga. 574 , 165 S.E. 744 (1932).

Owner may defend by showing full payment to contractor. - In a suit by a materialman to foreclose a lien for material furnished a contractor for the improvement of real estate of others, the owners of such real estate may defend by showing that they have paid the full contract price to the contractor and that the money paid has been applied by the contractor to the settlement of debts incurred in the performance of the contract, which would have been liens upon the property improved. Davenport Bros. v. Pepper, 108 Ga. App. 372 , 133 S.E.2d 54 (1963).

Mistake in contract between contractor and lessee not a defense. - Where corporate lessee ratified a contract executed by its president with the unpaid contractor and had used the equipment installed, the lien of the contractor attached to lessor's property even though the president had mistakenly signed the contract as president of a nonexistent entity. Underground Festival, Inc. v. McAfee Eng'r Co., 214 Ga. App. 243 , 447 S.E.2d 683 (1994).

No defense that total of liens exceeds contract price. - It is no defense to the foreclosure of a materialman's lien that other materialmen may claim liens which, if added to the amount claimed in the foreclosure suit and the payments made to the contractor, and properly applied by him, would exceed the contract price. Tuck v. Moss Mfg. Co., 127 Ga. 729 , 56 S.E. 1001 (1907).

Presence of other liens no defense until such other liens are paid. - The fact that, in an action to foreclose on a materialman's lien, there are other such liens outstanding is not a defense unless and until such liens have been paid. Roberts v. Georgia S. Supply Co., 92 Ga. App. 303 , 88 S.E.2d 554 (1955).

Possible additional claims in excess of contract price no defense. - That there may be other claims of lien in an amount in excess of that portion of the contract price not applied to payment of valid claims for labor and materials is no defense to a lien properly asserted. Solomon v. Robert Spector Lumber Co., 109 Ga. App. 801 , 137 S.E.2d 473 (1964).

For case where owner's compliance with O.C.G.A. § 44-14-361 justified summary judgment, see Lowe's of Ga., Inc. v. Merwin, 156 Ga. App. 876 , 275 S.E.2d 812 (1981).

Foreclosure

Requirements for foreclosure of materialman. - A materialman or subcontractor, in order to foreclose a lien must have a judgment against the contractor or join the contractor in the suit to foreclose. Lombard v. Trustees of Young Men's Library Ass'n Fund, 73 Ga. 322 (1884); Royal v. McPhail, 97 Ga. 457 , 25 S.E. 512 (1895); Clayton v. Farrar Lumber Co., 119 Ga. 37 , 45 S.E. 723 (1903); Buck v. Tifton Mfg. Co., 4 Ga. App. 695 , 62 S.E. 107 (1908).

No foreclosure against owner without judgment against contractor. - There can be no valid foreclosure of a materialman's lien for material furnished to a contractor and used in improving the real estate of another person against which the lien is claimed in the absence of a judgment in favor of the materialman against the contractor for the price or value of such material. Smith v. Walker, 194 Ga. 586 , 22 S.E.2d 160 (1942).

Where a lien upon the premises improved by the furnishing of materials by a materialman to a contractor is claimed by the materialman, under O.C.G.A. § 44-14-361 , it is necessary, in order to foreclose such lien, that the materialman have a judgment against the contractor. Gibbs v. Carolina Portland Cement Co., 50 Ga. App. 229 , 177 S.E. 760 (1934).

Except when owner brings action in equity against both. - In general, judgment against the contractor or action against the contractor is a necessary incident to the foreclosure of a materialman's lien. This is not true where the owner has brought an action in equity against both contractor and materialman to enjoin foreclosure. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499 , 83 S.E. 210 (1914), writ dismissed, 241 U.S. 687, 36 S. Ct. 451 , 60 L. Ed. 1237 (1916).

Lack of title in defendant not bar to foreclosure. - Want of title in the defendant to the premises on which the lien is claimed, and alleged title in a third person who is no party to the action will not bar an action for foreclosing and enforcing the lien under O.C.G.A. § 44-14-361 . Ford v. Wilson & Co., 85 Ga. 109 , 11 S.E. 559 (1890).

Time limit for materialman's action. - One of the conditions precedent to the foreclosure of the liens specified in O.C.G.A. § 44-14-361 is that action must be brought by the laborer or materialman against the person with whom the debt was contracted, either the owner or the contractor, as the case may be, within 12 months from the time when the debt became due. Jordan Co. v. Adkins, 105 Ga. App. 157 , 123 S.E.2d 731 (1961); Allied Asphalt Co. v. Cumbie, 134 Ga. App. 960 , 216 S.E.2d 659 (1975).

Lien must be recorded and foreclosed within statutory periods. - In giving to the materialman a lien, O.C.G.A. § 44-14-361 expressly states that in order to make good a lien the materialman must both record and foreclose within the statutory periods. The record of the lien in time is no more essential to its creation than its foreclosure in time, and the lien comes into potential existence only when the statute is satisfied. Kwilecki v. Young, 180 Ga. 602 , 180 S.E. 137 (1935).

Proceedings and averment should reflect one-year time limit. - O.C.G.A. § 44-14-361 requires that the materialman should make demand, and prosecute the collection of the claim, within 12 months after the same shall become due and payable. The materialman should aver that demand was made within the time, and the materialman's proceedings to collect should be, on their face, within the time limited. Kwilecki v. Young, 180 Ga. 602 , 180 S.E. 137 (1935).

Effect on title of failure to pursue action for claim within year. - Where no action predicated upon the claim of lien is instituted in 12 months, no lien is created upon the real estate and building as against the title of the claimant. Kwilecki v. Young, 180 Ga. 602 , 180 S.E. 137 (1935).

Materialman's lien inchoate until perfected by judgment. - The lien provided for in favor of a materialman is not absolute, but must be completed, made good, or perfected in accordance with the provisions of O.C.G.A. § 44-14-362 . It is only inchoate or incipient until a judgment finally perfects it. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 338 , 18 S.E.2d 61 (1941).

Delivery dates under one contract cannot be used to perfect lien under other contract. - Where an owner of real estate makes an express contract with a contractor for heating equipment, and before the work is finished makes a separate and distinct contract for plumbing, the items furnished under each are separate and distinct, and the delivery dates under one contract may not be used for the purpose of perfecting a lien under the other; aliter, if all the material be furnished under one and the same contract. Crane Co. v. Hirsch, 61 Ga. App. 632 , 7 S.E.2d 83 (1940).

Where tenant makes a contract for plumbing, ratification thereof by the owner does not make the plumbing contract a part of earlier heating contract. Therefore, the delivery date of an article under the plumbing contract cannot be used to determine the time when the lien for the heating material should be filed. Crane Co. v. Hirsch, 61 Ga. App. 632 , 7 S.E.2d 83 (1940).

Failure to perfect vitiates lien. - Before the rendition of a judgment in favor of a materialman's lien claimant the claimed lien is only inchoate, and the failure of the claimant to perfect the lien as provided by O.C.G.A. § 44-14-361.1 vitiates it, not only as against third persons, but as against the claimant. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330 , 18 S.E.2d 61 (1941).

Justice of the peace court is without jurisdiction to enforce lien given by O.C.G.A. § 44-14-361 . McAuliffe v. Baum, 142 Ga. 590 , 83 S.E. 239 (1914).

Lien cannot be divided into portions for separate actions in justice of the peace court. - An entire lien claimed by a materialman, and recorded in accordance with O.C.G.A. § 44-14-361 , cannot be enforced by dividing the amount and giving notes of less than $100.00 each and suing them in a court. O.C.G.A. § 44-14-361 contemplates but a single lien as to each transaction and a single action to enforce it. Bell & Bro. v. Rich, 73 Ga. 240 (1884).

Enforcement of property lien when recipient of supplies is not owner. - Where a materialman undertakes to foreclose a lien for material furnished to a contractor or some person other than the owner for the improvement of the owner's real property, it is necessary for the materialman to obtain a money verdict against the contractor or person to whom the materials are supplied in order to enforce the lien against the property improved. Spector v. Model Constr. Co., 95 Ga. App. 14 , 96 S.E.2d 900 (1957).

Foreclosure proceedings differ from those for condominium assessments. - The foreclosure proceedings set forth in O.C.G.A. § 44-3-109 for condominium assessments are simplified, and distinct from the proceedings for the creation and enforcement of other types of liens. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135 , 253 S.E.2d 813 (1979).

Only foreclosure proceedings in lien for assessments must be same as for other improvement liens. - The sole requirements for creation of the lien for assessments are contained in O.C.G.A. § 44-3-109 , and it is only the actual foreclosure proceedings which must be in the same manner as other liens for the improvement of real property. Thus, the judgment and execution of the lien must be entered by the appropriate superior court. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135 , 253 S.E.2d 813 (1979).

Materialman's failure to file notice of action against contractor renders claim unenforceable. - Insofar as O.C.G.A. § 44-14-361 .1 provides that, notwithstanding certain exceptions, it is incumbent upon the party asserting the lien to file an action or obtain judgment against the contractor as a prerequisite to enforcing a lien against the property so improved, following which said party may, subject to the provision of O.C.G.A. § 44-14-361 , enforce lien directly against the property so improved, in an action against the owner thereof, materialman's failure to file notice of an action against the contractor renders its claim of lien unenforceable. Hancor, Inc. v. Fleming Farms, Inc., 155 Ga. App. 579 , 271 S.E.2d 712 (1980).

Proper to join owner and contractor when enforcing lien against owner. - It is proper practice for one seeking to enforce against the owner of real estate a lien for labor and material, arising under O.C.G.A. § 44-14-361 , to join in an action the owner of the realty and the person who contracted with the latter for the erection of the building thereon. Millers Nat'l Ins. Co. v. Hatcher, 194 Ga. 449 , 22 S.E.2d 99 (1942).

What complaint for foreclosure must show. - A complaint seeking to foreclose the lien of a laborer and materialman created under the provisions of O.C.G.A. § 44-14-361 must affirmatively show that all of the conditions precedent set forth in O.C.G.A. § 44-14-361.1 have been complied with or that the case is within one of the exceptions made by the various amendments to O.C.G.A. § 44-14-361.1 (3). Jordan Co. v. Adkins, 105 Ga. App. 157 , 123 S.E.2d 731 (1961).

In order to render real property subject to foreclosure for material supplied, it must appear that the articles alleged to be lienable under O.C.G.A. § 44-14-361 have become fixtures. Accordingly, the furnishing of chattels used as loose, movable articles will not entitle a person to a lien, even though they were furnished under a contract which included materials for the construction of the building in which they are used. Skandia Draperies Mfg. Co. v. Augusta Innkeepers, Ltd., 157 Ga. App. 279 , 277 S.E.2d 282 (1981).

Proof needed to foreclose lien for improvement of realty. - Where materials for improvement of real estate are furnished to the owner, the materialman may foreclose the lien by alleging and proving that the materials were supplied the owner for that purpose. Spector v. Model Constr. Co., 95 Ga. App. 14 , 96 S.E.2d 900 (1957).

What supplier must show to recover on mechanic's lien for material furnished. - In order to recover on a mechanic's lien for material furnished, it is necessary to show that specific material of the value alleged was delivered on the property and that it was consumed in the construction of the improvement. United Bonding Ins. Co. v. Good-Wynn Elec. Supply Co., 124 Ga. App. 545 , 184 S.E.2d 508 (1971).

Complaint for foreclosure insufficient unless contract with owner shown. - Complaint which fails to show that there was a contract with the owner of the property, or that the owner adopted the contract as one made for the owner, so as to bring the owner into contractual relations with the contractor furnishing the materials, does not state a cause of action for the foreclosure of a materialman's lien. Marshall v. Peacock, 205 Ga. 891 , 55 S.E.2d 354 (1949).

Complaint which does not allege contract or amount subject to dismissal. - In the absence of allegations of a contract, and the amount to be paid under the contract for materials, a complaint in an action to establish a materialman's lien fails to state a cause of action for any affirmative relief and a trial judge does not err in sustaining the general demurrers (now motions to dismiss). Lumber Fabricators, Inc. v. Gregory, 213 Ga. 356 , 99 S.E.2d 145 (1957).

Where complaint does not allege any contractual relation between individual and real estate company in connection with improvements alleged to have been made, so as to allege that the individual comes within the meaning of "some person other than the owner," the complaint alleges that the individual was a stranger as to the company. Morgan v. May Realty Co., 86 Ga. App. 261 , 71 S.E.2d 438 (1952).

Failure to allege claim recorded. - A complaint, by a materialman, does not set out a cause of action for a judgment establishing a lien upon the property improved, where it is not alleged that a claim of lien has been filed and recorded as required by O.C.G.A. §§ 44-14-361 and 44-14-361.1 . King v. Rutledge, 208 Ga. 172 , 65 S.E.2d 801 (1951).

Averment of delivery insufficient to show notice that materials were furnished. - A mere averment, that a materialman on a certain date "furnished and delivered material on the premises," without any other fact, will not suffice to support a bare legal conclusion by the pleader that "such delivery constituted actual implied notice" to the security-deed holder that material was being furnished. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370 , 21 S.E.2d 619 (1942).

Materialmen who give wrong premises in claim despite knowledge of error cannot recover in equity. - Materialmen are charged with knowledge of the premises upon which they filed their claim of lien, and they are charged with knowledge of the premises to which they delivered the materials and where they knew that these premises differed, in plenty of time to properly record a claim of lien as required by law, they cannot seek the aid of a court of equity to relieve them from their own negligence. King v. Rutledge, 208 Ga. 172 , 65 S.E.2d 801 (1951).

Owner has burden of showing contractor properly paid claims. - It is the owner's responsibility to see to it that the payments which the owner makes on the construction contract price are properly disbursed by the contractor to those having valid claims for labor and materials, and in establishing the owner's defense to the foreclosure the owner has the burden of showing that this was done. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639 , 171 S.E.2d 782 (1969).

Burden on materialman to show amount claimed falls within total contract price. - In a proceeding to foreclose a materialman's lien, it is incumbent upon the plaintiff-materialman to show that the amount for which the materialman asserts a lien comes, in whole or in part, within the contract price agreed on between the contractor and the owner of the property improved. Young v. Harley-Mitchell Hdwe. Co., 173 Ga. 35 , 159 S.E. 567 (1931).

Subcontractor has burden of showing claim less than total contract amount. - The burden of showing that the amount for which a lien is claimed by a subcontractor, is not more than the contract price of the improvements, lies on the subcontractor. Stevens v. Georgia Land Co., 122 Ga. 317 , 50 S.E. 100 (1905); Georgia Steel Co. v. White, 136 Ga. 492 , 71 S.E. 890 (1911).

Satisfactory evidence of "furnishing." - A showing by the materialmen of actual use of the material in the improvement of the real estate will satisfy the statutory requirement of "furnishing." Bryant v. Ellenburg, 106 Ga. App. 510 , 127 S.E.2d 468 (1962).

Variation of contract makes price jury question. - In suit by materialman to foreclose a lien, where the owner and the contractor had varied the terms of the original contract so as to include additional construction, for which additional work no price was agreed upon, and subsequently defendant owner caused the contractor to cease work and employed other workmen to complete the construction, because of the variation of the written agreement, it was for the jury to say what the contract price for the complete work was. Spirides v. Victory Lumber Co., 76 Ga. App. 78 , 45 S.E.2d 65 (1947).

Form of verdict. - While it is true that the purpose of a foreclosure suit is to establish a special lien against the property involved, and no general verdict and judgment can be obtained therein against the owner, the better practice in such cases is for the verdict to show a distinct finding by the jury that the plaintiff-materialman is entitled to a lien and to a given amount. But where, in such a proceeding, the verdict is for the full amount claimed, it can have no other construction than that the jury intended to find in favor of the lien claimed. Spirides v. Victory Lumber Co., 76 Ga. App. 78 , 45 S.E.2d 65 (1947).

No general verdict against landowner for materials furnished to contractor. - Where a materialman seeks to foreclose a lien against real estate which has been improved with material furnished by the materialman to a contractor for such purpose, the materialman cannot recover a general verdict and judgment against the owner of the land for the value of the material furnished. Gignilliat v. West Lumber Co., 80 Ga. App. 652 , 56 S.E.2d 841 (1949).

A materialman cannot recover a general judgment against the owner of the land for the material furnished, for the simple reason that the owner is no party to the contract for the purchase of the material. Gignilliat v. West Lumber Co., 80 Ga. App. 652 , 56 S.E.2d 841 (1949).

Unless owner shown party to contract to buy material. - A materialman cannot recover a general personal judgment against the owner of the land for the material furnished in placing improvements thereon, unless it is shown that the owner is a party to the contract for the purchase of the material. Gignilliat v. West Lumber Co., 80 Ga. App. 652 , 56 S.E.2d 841 (1949).

Foreclosure of surety bond unavailable for off-site work. - Although sewer work was required by a city for the completion of a subdivision, a subcontractor's off-site work was not an "improvement to the property" pursuant to O.C.G.A. § 44-14-361 ; consequently, the trial court properly granted summary judgment to the surety in the subcontractor's action to foreclose on a bond. Trench Shoring Servs. of Atlanta, Inc. v. Westchester Fire Ins. Co., 274 Ga. App. 850 , 619 S.E.2d 361 (2005).

Judgment in rem against landowner. - While a personal judgment cannot be entered against a defendant landowner who is not a party to a contract for a purchase of material and labor in which a lien has been filed against the landowner's property, it is not necessary that there be a contract between the landowner and the materialman to obtain a judgment in rem. Chambers Lumber Co. v. Hagan, 118 Ga. App. 392 , 163 S.E.2d 847 (1968); Columbus Square Shopping Ctr. v. B & H Steel Co., 150 Ga. App. 774 , 258 S.E.2d 600 (1979).

Waiver of Lien

Lienholders who do not waive lien by taking personal security. - Contractors, materialmen, machinists, and manufacturers of machinery do not by the taking of personal security waive the lien given them under O.C.G.A. § 44-14-361 . J.M. Wells Supply Co. v. Shiels, 103 Ga. App. 822 , 121 S.E.2d 36 (1961); Rembrant, Inc. v. Phillips Constr. Co., 500 F. Supp. 766 (S.D. Ga. 1980).

Mechanics, but not materialmen, waive lien by taking personal security. - While mechanics who have taken personal security thereby waive their right to a lien, materialmen have a lien as well when they take personal security as when they do not. J.M. Wells Supply Co. v. Shiels, 103 Ga. App. 822 , 121 S.E.2d 36 (1961).

Taking of personal security does not constitute waiver of lien given materialmen under O.C.G.A. § 44-14-361 . Southwire Co. v. Metal Equip. Co., 129 Ga. App. 49 , 198 S.E.2d 687 , cert. denied, 414 U.S. 1092, 94 S. Ct. 723 , 38 L. Ed. 2 d 550 (1973).

Materialman waives lien by applying payments to general account. - Where an owner makes payments to a contractor and the latter makes payments to a materialman, the materialman by applying the payments to a general account waives right to a lien. It is the materialman's duty to keep the accounts in such shape as to be able to make out a right to a lien. Williams v. Willingham-Tift Lumber Co., 5 Ga. App. 533 , 63 S.E. 584 (1909).

No implied waiver of a materialman's statutory lien results from accepting other collateral security. - O.C.G.A. § 44-14-361 is silent as to other security, in case of materialmen, not mechanics. Ford v. Wilson & Co., 85 Ga. 109 , 11 S.E. 559 (1890).

Promissory note not waiver of lien. - The taking by the materialman of a promissory note from the person to whom the material was furnished, is not, in the absence of an express agreement, an extinguishment of the materialman's right to a lien for the indebtedness represented by the note. Pippin v. Owens, 29 Ga. App. 789 , 116 S.E. 549 (1923).

Contractor's agreement to indemnify materialman not waiver as to owner without notice. - Contract between materialmen and a contractor that the former will indemnify the latter against liens is not a waiver as between the materialmen and the owner who has no notice of the contract. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499 , 83 S.E. 210 (1914), writ dismissed, 241 U.S. 687, 36 S. Ct. 451 , 60 L. Ed. 1237 (1916).

Materialman's refusal of the contractor's tender of partial payment did not constitute a waiver of a special lien otherwise properly created on property to which materials were supplied. Sanford v. Hodges Bldrs. Supply, Inc., 166 Ga. App. 86 , 303 S.E.2d 280 (1983).

Waiver of lien by subcontractor. - A subcontractor contractually waives its right to file a lien on property by agreeing that a general contractor's contract with the property owner, which contains a lien waiver, be made part of its subcontract with the general contractor. MCC Powers v. Ford Motor Co., 184 Ga. App. 487 , 361 S.E.2d 716 (1987).

Effect of discharge of lien by bond. - When contractor and insurance company posted a bond to discharge supplier's liens, the bond served as a replacement for the lien and supplier's later execution of waiver and release of lien did not affect its contract claims against the bond. Benning Constr. Co. v. All-Phase Elec. Supply Co., 206 Ga. App. 279 , 424 S.E.2d 830 (1992).

OPINIONS OF THE ATTORNEY GENERAL

Nothing in this section indicates an intention to bind the state thereby. O.C.G.A. § 44-14-361 is in derogation of the common law, must be strictly construed, and one claiming thereunder must be brought clearly within the law. 1957 Op. Att'y Gen. p. 179.

O.C.G.A. § 44-14-361 not applicable to public works. - The provisions of O.C.G.A. § 44-14-361.5 pertaining to the filing of a Notice of Commencement of work are not applicable to a state authority with regard to construction projects on public property; however, a contractor performing a public works contract for a state authority is required to file a notice in accordance with former O.C.G.A. § 36-82-104(f). 1995 Op. Att'y Gen. No. 95-43.

Architect's lien cannot be filed against public property, and armories are public property. 1957 Op. Att'y Gen. p. 179.

Lien laws are intended for benefit of materialmen furnishing material to the contractor with the owner of the property whose property is being improved. 1957 Op. Att'y Gen. p. 180.

When materialman's liens on property owner are discharged. - Liens of a materialman are discharged as to the owner of property when the owner receives an affidavit of the constructor that all claims have been paid. 1957 Op. Att'y Gen. p. 180.

RESEARCH REFERENCES

Am. Jur. 2d. - 5 Am. Jur. 2d, Architects, §§ 21, 22. 53 Am. Jur. 2d, Mechanics' Liens, §§ 5, 6, 60 et seq., 111, 93 et seq., 112, 179, 187, 242-244, 253-256.

C.J.S. - 56 C.J.S., Mechanics' Liens, §§ 1 et seq., 37 et seq., 96 et seq., 133, 196 et seq., 211 et seq.

ALR. - Validity and effect of provision in contract against mechanic's lien, 13 A.L.R. 1065 ; 102 A.L.R. 356 ; 76 A.L.R.2d 1087.

Elements bearing directly upon the quality of a contract as affecting the character of one as independent contractor, 20 A.L.R. 684 .

Construction of contract for compensation of architect, 20 A.L.R. 1356 .

Requisites and sufficiency of notice of mechanic's lien in case of "cost plus" contract, 26 A.L.R. 1328 .

Freight charges on material as within mechanic's lien statute giving lien for labor or material, or within contractor's bond securing such claims, 30 A.L.R. 466 .

Mechanic's lien for material specially fabricated for and adapted to building, but not used therein, 33 A.L.R. 320 .

Mechanic's lien: owner's right to deduction on account of damages sustained through contractor's delay, 37 A.L.R. 766 .

Independence of contract considered with relation to the scope and construction of statutes, 43 A.L.R. 335 .

Mechanic's lien for building erected by licensee, 45 A.L.R. 581 .

After-acquired title as supporting mechanic's lien, 52 A.L.R. 693 .

Substitution or replacement of material as affecting time for filing mechanics' lien, 52 A.L.R. 984 .

Interest of vendor under executory contract for sale of realty as subject to mechanics' lien for labor or materials furnished to purchaser, 58 A.L.R. 911 ; 102 A.L.R. 233 .

Mechanics' lien for services of person supervising construction of building, architect, etc., 60 A.L.R. 1257 .

Right to benefit of contractor's bond or mechanic's lien statute for labor or material furnished to contractor or subcontractor, as affected by acceptance from him of written obligation, 66 A.L.R. 342 .

Mechanic's lien for labor or material for improvement of easement, 77 A.L.R. 817 .

Mechanic's lien as affected by agreement to pay with property other than money, 81 A.L.R. 766 .

Priority as between lien of corporation and rights of pledgee or bona fide purchaser of corporate stock, 81 A.L.R. 989 .

Right of one other than contractor, laborer, or materialman to file mechanics' lien, 83 A.L.R. 11 .

Who is a "contractor" within provisions of Mechanics' Lien Law which limit liens for material or labor furnished to contractor to amount earned but unpaid on contract, or give such liens by subrogation, 83 A.L.R. 1152 .

Construction, application, and effect of provision of mechanic's lien statute as to quantity or area of land around improvement which may be subjected to the lien, 84 A.L.R. 123 .

Material or labor employed in construction of concrete forms as basis of mechanics' lien or claim under contractors' bond, 84 A.L.R. 460 .

Lien on vendee's or optionee's interest in respect of real property as attaching to title acquired by completion of contract or exercise of option, 85 A.L.R. 927 .

Church property as subject of mechanic's lien, 85 A.L.R. 953 .

Canals, drains, ditches, and wells as within term of Mechanics' Lien Law descriptive of improvement, 92 A.L.R. 753 .

Right to mechanics' lien against fee for work or material furnished under contract with, or consent of, life tenant, 97 A.L.R. 870 .

Principal contractor as necessary party to suit to enforce mechanic's lien of subcontractor, laborer, or materialman, 100 A.L.R. 128 .

Remedy available to holder of mechanic's lien which has priority over antecedent mortgage or vendor's title or lien as regards improvement, but not as regards land, where it is impossible or impractical to remove the improvement, 107 A.L.R. 1012 .

Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 111 A.L.R. 1453 ; 142 A.L.R. 362 .

Existence and extent of lien or claim for labor and materials furnished to subcontractor, against money due principal contractor for public improvement, 112 A.L.R. 815 .

Right of one who contracts with, or furnishes labor or material to, public contractor's surety after latter has taken overwork, in respect of part of contract price retained by public agency, 122 A.L.R. 511 .

Time for filing claim for mechanic's lien as affected by removal by, or return to, claimant of part of material furnished, 122 A.L.R. 755 .

Time limitation in mechanic's lien statute as a limitation of the right or only of the remedy, 139 A.L.R. 903 .

Who is contractor or subcontractor, as distinguished from materialman, for purposes of mechanic's lien, contractor's bond or other provision for securing compensation under construction contract, 141 A.L.R. 321 .

Existence of more than one contract between owner and contractor as affecting notice or filing of mechanic's lien by materialman or subcontractor, 175 A.L.R. 330 .

Right to mechanic's lien as for "labor" or "work," in case of preparatory or fabricating work done on materials intended for use and used in particular building or structure, 25 A.L.R.2d 1370.

Mechanic's lien for grading, clearing, filling, landscaping, excavating, and the like, 39 A.L.R.2d 866.

Right to mechanic's lien upon leasehold for supplying labor or material in attaching or installing fixtures, 42 A.L.R.2d 685.

Amount for which mechanic's lien may be obtained where contract has been terminated or abandoned by consent of parties or without fault on contractor's part, 51 A.L.R.2d 1009.

Validity of statute making private property owner liable to contractor's laborers, materialmen, or subcontractors where owner fails to exact bond or employ other means of securing their payment, 59 A.L.R.2d 885.

Priority as between mechanic's lien and purchase-money mortgage, 73 A.L.R.2d 1407.

Time for filing notice or claim of mechanic's lien where claimant has contracted with general contractor and later contracts directly with owner, 78 A.L.R.2d 1165.

Sufficiency of notice under statute making notice by owner of nonresponsibility necessary to prevent mechanic's lien, 85 A.L.R.2d 949.

Mechanic's lien for services in connection with subdividing land, 87 A.L.R.2d 1004.

Taking or negotiation of unsecured note of owner of contractor as waiver of mechanic's lien, 91 A.L.R.2d 425.

What constitutes "commencement of building or improvement" for purposes of determining accrual of mechanic's lien, 1 A.L.R.3d 822.

Charge for use of machinery, tools, or appliances used in construction as basis for mechanic's lien, 3 A.L.R.3d 573.

Failure of artisan or construction contractor to comply with statute or regulation requiring a work permit or submission of plans as affecting his right to recover compensation from contractee, 26 A.L.R.3d 1395.

Surveyor's work as giving rise to right to mechanic's lien, 35 A.L.R.3d 1391.

Labor in examination, repair, or servicing of fixtures, machinery, or attachments in building, as supporting a mechanics' lien, or as extending time for filing such a lien, 51 A.L.R.3d 1087.

Building and construction contracts: contractor's equitable lien upon percentage of funds withheld by contractee or lender, 54 A.L.R.3d 848.

Assertion of statutory mechanic's or materialman's lien against oil and gas produced or against proceeds attributable to oil and gas sold, 59 A.L.R.3d 278.

Garageman's lien: modern view as to validity of statute permitting sale of vehicle without hearing, 64 A.L.R.3d 814.

Enforceability of single mechanic's lien upon several parcels against less than the entire property liened, 68 A.L.R.3d 1300.

Effect of bankruptcy of principal contractor upon mechanic's lien of subcontractor, laborer, or materialman as against owner of property, 69 A.L.R.3d 1342.

Enforceability of mechanic's lien attached to leasehold estate against landlord's fee, 74 A.L.R.3d 330.

Removal or demolition of building or other structure as basis for mechanic's lien, 74 A.L.R.3d 386.

Release or waiver of mechanic's lien by general contractor as affecting rights of subcontractor or materialman, 75 A.L.R.3d 505.

Right of vendee under executory land contract to lien for amount paid on purchase price as against subsequent creditors of or purchasers from vendor, 82 A.L.R.3d 1040.

Garageman's lien for towing and storage of motor vehicle towed from private property on which vehicle was parked without permission, 85 A.L.R.3d 240.

Right of subcontractor's subcontractor or materialman, or of materialman's materialman, to mechanic's lien, 24 A.L.R.4th 963.

Delivery of material to building site as sustaining mechanic's lien - modern cases, 32 A.L.R.4th 1130.

Construction and effect of statutes requiring construction fundholder to withhold payments upon "stop notice" from subcontractor, materialman, or other person entitled to funds, 4 A.L.R.5th 772.

Architect's services as within mechanics' lien statute, 31 A.L.R.5th 664.

Landlord's liability to third party for repairs authorized by tenant, 46 A.L.R.5th 1.

Subjection of municipal property, or alleged municipal property, to mechanics' liens, 81 A.L.R.6th 363.

44-14-361.1. How liens declared and created; amendment; record; commencement of action; notice; priorities; parties; limitation on aggregate amount of liens.

  1. To make good the liens specified in paragraphs (1) through (8) of subsection (a) of Code Section 44-14-361, they must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective or enforceable:
    1. A substantial compliance by the party claiming the lien with his or her contract for building, repairing, or improving; for architectural services furnished; for registered forester services furnished or performed; for registered land surveying or registered professional engineering services furnished or performed; or for materials or machinery furnished or set up;
    2. The filing for record of his or her claim of lien within 90 days after the completion of the work, the furnishing of the architectural services, or the furnishing or performing of such surveying or engineering services or within 90 days after the material or machinery is furnished in the office of the clerk of the superior court of the county where the property is located. The lien shall include a statement regarding its expiration pursuant to Code Section 44-14-367 and a notice to the owner of the property on which a claim of lien is filed that such owner has the right to contest the lien; the absence of such statement or notice shall invalidate the lien. The claim shall be in substance as follows:

      "A.B., a mechanic, contractor, subcontractor, materialman, machinist, manufacturer, registered architect, registered forester, registered land surveyor, registered professional engineer, or other person (as the case may be) claims a lien in the amount of (specify the amount claimed) on the house, factory, mill, machinery, or railroad (as the case may be) and the premises or real estate on which it is erected or built, of C.D. (describing the houses, premises, real estate, or railroad), for satisfaction of a claim which became due on (specify the date the claim was due, which is the same as the last date the labor, services, or materials were supplied to the premises) for building, repairing, improving, or furnishing material (or whatever the claim may be)."

      No later than two business days after the date the claim of lien is filed of record, the lien claimant shall send a true and accurate copy of the claim of lien by registered or certified mail or statutory overnight delivery to the owner of the property or, if the owner's address cannot be found, the contractor, as the agent of the owner; provided, however, that if the property owner is an entity on file with the Secretary of State's Corporations Division, sending a copy of the claim of lien to the entity's address or the registered agent's address shall satisfy this requirement. In all cases in which a notice of commencement is filed with the clerk of the superior court pursuant to subsection (b) of Code Section 44-14-361.5, a lien claimant shall also send a copy of the claim of lien by registered or certified mail or statutory overnight delivery to the contractor at the address shown on the notice of commencement;

    3. The commencement of a lien action for the recovery of the amount of the party's claim within 365 days from the date of filing for record of his or her claim of lien. In addition, within 30 days after commencing such lien action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed. The notice shall contain a caption referring to the then owner of the property against which the lien was filed and referring to a deed or other recorded instrument in the chain of title of the affected property. The notice shall be executed, under oath, by the party claiming the lien or by such party's attorney of record, but failure to execute the notice under oath shall be an amendable defect which may be cured by the party claiming the lien or by such party's attorney without leave of court at any time before entry of the pretrial order and thereafter by leave of court. An amendment of notice pursuant to this Code section shall relate back to the date of filing of the notice. The notice shall identify the court or arbitration venue wherein the lien action is brought; the style and number, if any, of the lien action, including the names of all parties thereto; the date of the filing of the lien action; and the book and page number of the records of the county wherein the subject lien is recorded in the same manner in which liens specified in Code Section 44-14-361 are filed. The clerk of the superior court shall enter on the subject lien so referred to the book and page on which the notice is recorded and shall index such notice in the name of the then purported owner as shown by the caption contained in such notice. A separate lis pendens notice need not be filed with the commencement of this action; and
    4. In the event any contractor or subcontractor procuring material, architect's services, registered forester's services, registered land surveyor's services, or registered professional engineer's services, labor, or supplies for the building, repairing, or improving of any real estate, building, or other structure shall abscond or die or leave the state during the required time period for filing a lien action, so that personal jurisdiction cannot be obtained on the contractor or subcontractor in a lien action for the services, material, labor, or supplies, or if the contractor or subcontractor shall be adjudicated a bankrupt, or if, after the filing of a lien action, no final judgment can be obtained against him or her for the value of such material, services, labor, or supplies because of his or her death, adjudication in bankruptcy, or the contract between the party claiming the lien and the contractor or subcontractor includes a provision preventing payment to the claimant until after the contractor or the subcontractor has received payment, then and in any of these events, the person or persons furnishing material, services, labor, and supplies shall be relieved of the necessity of filing a lien action or obtaining judgment against the contractor or subcontractor as a prerequisite to enforcing a lien against the property improved by the contractor or subcontractor. Subject to Code Section 44-14-361, the person or persons furnishing material, services, labor, and supplies may enforce the lien directly against the property so improved in a lien action against the owner thereof, if filed within the required time period for filing a lien action, with the judgment rendered in any such proceeding to be limited to a judgment in rem against the property improved and to impose no personal liability upon the owner of the property; provided, however, that in such lien action for recovery, the owner of the real estate improved, who has paid the agreed price or any part of same, may set up the payment in any lien action brought and prove by competent and relevant evidence that the payments were applied as provided by law, and no judgment shall be rendered against the property improved. Within 30 days after filing such lien action, the party claiming the lien shall file a notice with the clerk of the superior court of the county wherein the subject lien was filed. The notice shall contain a caption referring to the then owner of the property against which the lien was filed and referring to a deed or other recorded instrument in the chain of title of the affected property. The notice shall be executed, under oath, by the party claiming the lien or by his or her attorney of record. The notice shall identify the court or arbitration venue wherein the lien action is brought; the style and number of the lien action, if any, including the names of all parties thereto; the date of the filing of the lien action; and the book and page number of the records of the county wherein the subject lien is recorded in the same manner in which liens specified in Code Section 44-14-361 are filed. The clerk of the superior court shall enter on the subject lien so referred to the book and page on which the notice is recorded and shall index such notice in the name of the then purported owner as shown by the caption contained in such notice. A separate lis pendens notice need not be filed with the commencement of this action.

      "That certain claim of lien filed by A.B. against property of C.D. on (date) and recorded at book (book#), page (page#) in the lien index of (name of county) County is hereby amended by reducing the amount of such claim of lien to (specify reduced amount claimed). The remaining terms of such original claim of lien are hereby incorporated by reference into this amended claim of lien. This amended claim of lien relates back to the date that such original claim of lien was filed for record."

      and shall be sent to the owner of the property in the same manner as required for a claim of lien in paragraph (2) of subsection (a) of this Code section.

    (a.1) A claim of lien may be amended at any time to reduce the amount claimed, and such amended claim of lien shall relate back to the date of filing for record of the original claim of lien. An amended claim of lien filed for record pursuant to this subsection shall be in substance as follows:

  2. As between themselves, the liens provided for in Code Section 44-14-361 shall rank according to the date filed; but all of the liens mentioned in this Code section for repairs, building, or furnishing materials or services, upon the same property, shall, as to each other, be of the same date when declared and filed for record within 90 days after the work is done or before that time.
  3. The liens specified in Code Section 44-14-361 shall be inferior to liens for taxes, to the general and special liens of laborers, to the general lien of landlords of rent when a distress warrant is issued out and levied, to claims for purchase money due persons who have only given bonds for titles, and to other general liens when actual notice of the general lien of landlords and others has been communicated before the work was done or materials or services furnished; but the liens provided for in Code Section 44-14-361 shall be superior to all other liens not excepted by this subsection.
  4. In any proceeding brought by any materialman, by any mechanic, by any laborer, by any subcontractor, or by any mechanic of any sort employed by any subcontractor or by any materialmen furnishing material to any subcontractor, or by any laborer furnishing labor to any subcontractor, to enforce such a lien, the contractor having a direct contractual relationship with the subcontractor shall not be a necessary party; but he or she may be made a party. In any proceedings brought by any mechanic employed by any subcontractor, by any materialmen furnishing material to any subcontractor, or by any laborer furnishing labor to any subcontractor, the subcontractor shall not be a necessary party; but he or she may be made a party. The contractor or subcontractor or both may intervene in the proceedings at any time before judgment for the purpose of resisting the establishment of the lien or of asserting against the lienor any claim of the contractor or subcontractor growing out of or related to the transaction upon which the asserted lien is based.
  5. In no event shall the aggregate amount of liens set up by Code Section 44-14-361 exceed the contract price of the improvements made or services performed.
  6. The filing fees for a claim of materialman's or mechanic's lien and any related document created pursuant to this Code section, including but not limited to a notice of commencement of action, shall be the amount set by Code Section 15-6-77 for liens on real estate and personal property. (Ga. L. 1873, p. 42, § 7; Code 1873, § 1980; Ga. L. 1874, p. 45, § 1; Code 1882, § 1980; Civil Code 1895, § 2804; Civil Code 1910, § 3353; Code 1933, § 67-2002; Ga. L. 1941, p. 345, § 1; Ga. L. 1952, p. 291, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 582, §§ 3-5; Ga. L. 1956, p. 185, §§ 2, 3; Ga. L. 1956, p. 562, § 3; Ga. L. 1960, p. 103, § 1; Ga. L. 1967, p. 456, § 1; Ga. L. 1968, p. 317, § 1; Ga. L. 1977, p. 675, § 1; Ga. L. 1981, p. 846, § 1; Code 1981, § 44-14-362 ; Code 1981, § 44-14-361.1 , enacted by Ga. L. 1983, p. 1450, § 1; Ga. L. 1984, p. 22, § 44; Ga. L. 1985, p. 1322, § 3; Ga. L. 1989, p. 438, § 1; Ga. L. 1991, p. 639, § 1; Ga. L. 1997, p. 829, § 1; Ga. L. 1998, p. 860, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2008, p. 1063, § 2/SB 374; Ga. L. 2010, p. 859, § 1/SB 362; Ga. L. 2019, p. 1056, § 44/SB 52.)

The 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the last undesignated paragraph following paragraph (2)(a).

The 2008 amendment, effective March 31, 2009, rewrote this Code section.

The 2010 amendment, effective July 1, 2010, added subsection (a.1).

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, inserted "that" following "provided, however," near the middle of paragraph (a)(2).

Editor's notes. - Ga. L. 1998, p. 860, § 3, not codified by the General Assembly, provides that this Act is applicable to claims of lien filed on or after July 1, 1998.

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

Law reviews. - For article discussing status of lienor at time of bankruptcy, see 10 Ga. B.J. 181 (1947). For article discussing failure of consideration, see 4 Mercer L. Rev. 327 (1953). For article advocating more protection of subcontractor's interest by modification of lien laws, see 14 Ga. St. B.J. 88 (1977). For article discussing role of attorney in representing subcontractor and available enforcement mechanisms, see 14 Ga. St. B.J. 104 (1978). For article, "Lien Claimants and Real Estate Lenders - The Struggle For Priority," see 16 Ga. St. B.J. 187 (1980). For article on construction law, see 42 Mercer L. Rev. 25 (1990). For annual survey of construction law, see 43 Mercer L. Rev. 141 (1991). For article, "Caveat Venditor: The Material Supplier's Dilemma on a Construction Project," see 28 Ga. St. B.J. 154 (1992). For article, "Recent Developments in Construction Law," see 5 Ga. St. B.J. 24 (1999). For annual survey article discussing developments in construction law, see 51 Mercer L. Rev. 181 (1999). Commercial Law, see 53 Mercer L. Rev. 153 (2001). Construction Law, see 53 Mercer L. Rev. 173 (2001). For annual survey of construction law, see 57 Mercer L. Rev. 79 (2005). For survey article on construction law, see 60 Mercer L. Rev. 59 (2008). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For annual survey on construction law, see 61 Mercer L. Rev. 65 (2009). For annual survey of construction law, see 67 Mercer L. Rev. 23 (2015). For note surveying revisions to Georgia Condominium Act between 1963 and 1975 regarding expansion, disclosure, liens, and incorporation, see 24 Emory L.J. 891 (1975). For comment on Victory Lumber Co. v. Ellison, 95 Ga. App. 105 , 97 S.E.2d 334 (1957), holding "that unless a materialman files suit against a contractor prior to the contractor's discharge in bankruptcy, he cannot enforce his lien against the property upon which the materials were used," see 21 Ga. B.J. 91 (1958).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Editor's notes. - The pre-1984 cases noted below were decided under former Code section 44-14-362. See, also, the annotations under that Code section for decisions applicable to present Code section 44-14-361.1.

Purpose. - The purpose of the recording statutes is to protect both the lienholder and innocent persons acting in good faith but without means of discovering the lien of another. An attorney is given the privilege of protecting a lien by recording the attorney's claim thereto, and the attorney's failure to utilize such privilege brings upon the attorney the same disaster that befalls other lienholders who neglect to record the lien as authorized by law. Anderson v. Burnham, 12 Bankr. 286 (Bankr. N.D. Ga. 1981).

The purpose of the former statutory provision (now O.C.G.A. § 44-14-361.1(c) ), which required that notice of a subcontractor's suit against the contractor to recover the claim on which the lien was based need only be filed within 12 months of the time the claim for materials became due, was primarily to provide potential purchasers of the property with constructive notice to enable them to determine whether or not the claim of lien was still extant. Amafra Enters., Inc. v. All-Steel Bldgs., Inc., 169 Ga. App. 388 , 313 S.E.2d 110 (1984).

The intent of O.C.G.A. § 44-14-361.1 as to timely filing of liens is to establish a time certain beyond which liens cannot be filed, for the protection of the contracting parties and innocent third parties. Womack Indus., Inc. v. B & A Equip. Co., 199 Ga. App. 660 , 405 S.E.2d 880 , cert. denied, 199 Ga. App. 907 , 405 S.E.2d 880 (1991).

O.C.G.A. § 44-14-361.1 is to be strictly construed. Ballard v. Grubbs, 9 Bankr. 499 (M.D. Ga. 1981).

O.C.G.A. § 44-14-361.1 is in derogation of common law and is to be strictly construed against the materialman, and strict compliance is required. Womack Indus., Inc. v. B & A Equip. Co., 199 Ga. App. 660 , 405 S.E.2d 880 , cert. denied, 199 Ga. App. 907 , 405 S.E.2d 880 (1991).

The creation of liens under O.C.G.A. § 44-14-361.1 is in derogation of the common law, and strict compliance with the requirements of the statute is required. Consolidated Sys. v. AMISUB, Inc., 261 Ga. 590 , 408 S.E.2d 109 (1991).

A materialman's lien effectively permits the transfer of liability from the person who actually contracted with the materialman for materials to be used on improving real estate to the owner of the improved property, even though that property owner usually will have no relationship with the materialman, contractual or otherwise. Consequently, the court has long recognized that statutes involving materialman's liens must be strictly construed in favor of the property owner and against the materialman. Palmer v. Duncan Whsle., Inc., 262 Ga. 28 , 413 S.E.2d 437 (1992).

Failure to prove lien amount. - Trial court erred by granting summary judgment to a subcontractor because the subcontractor failed to prove the lien amount, if any, the subcontractor was entitled to and the subcontractor was not entitled to a lien for the attorney fees and interest allegedly owed since there was no agreement for such amounts. Hill v. VNS Corp., 329 Ga. App. 274 , 764 S.E.2d 876 (2014).

No damages available. - O.C.G.A. § 44-14-361.1 does not provide for an action for damages for its violation, as it explicitly states that failure to comply with its provisions will result in the unenforceability of the lien. Hicks v. McLain's Bldg., Materials, Inc., 209 Ga. App. 191 , 433 S.E.2d 114 (1993).

Prejudgment interest. - Owners were not insulated against the payment of prejudgment interest since an award of such interest is distinct and separate from and not to be included in the calculation of the "aggregate amount of liens" within the meaning of O.C.G.A. § 44-14-361.1(e) . Gaster Lumber Co. v. Browning, 219 Ga. App. 435 , 465 S.E.2d 524 (1995), aff'd, 267 Ga. 72 , 475 S.E.2d 576 (1996).

"Properly appropriate" payment construed. - Where liens were filed prior to payment of the full contract price to the general contractor, payment that is thereafter made to any other materialman as a potential lien claimant is not payment which is "properly appropriate" and may not be set up by the owner in defense of the subsequent foreclosure of those previously filed liens. Electrical Distrib., Inc. v. Turner Constr. Co., 196 Ga. App. 359 , 395 S.E.2d 879 (1990).

One seeking to foreclose a contractor's lien for labor and materials must show a substantial compliance with the contract and, if the completion of the contract was prevented by the defendant, this is equivalent to a completion of the contract as a remedial element. Summit-Top Dev., Inc. v. Williamson Constr., Inc., 203 Ga. App. 460 , 416 S.E.2d 889 (1992).

Failure to follow statutory procedure renders lien unenforceable. - Where a party fails to follow the mandatory procedure established in O.C.G.A. § 44-14-361.1 , and where a suit against the contractor is mandatory, the party's lien is unenforceable and the trial court would be correct in granting summary judgment to the opposing party. D & T Glass, Inc. v. Barrow Enters., Inc., 172 Ga. App. 797 , 325 S.E.2d 170 (1984).

Failure to comply with the statutory mandate of filing notice of a lien under oath renders the lien unenforceable. Allied Elec. Contractors v. Kern & Co., 184 Ga. App. 747 , 362 S.E.2d 452 (1987), cert. denied, 184 Ga. App. 909 , 362 S.E.2d 452 (1988).

Failure to file lien notice. - Homeowner was entitled to summary judgment on the contractor's claim for foreclosure of a lien because the contractor failed to file the notice required by O.C.G.A. § 44-14-361.1(a)(3). Wagner v. Robinson, 329 Ga. App. 169 , 764 S.E.2d 189 (2014).

Notice of lien untimely. - Trial court erred in denying the property owners' motion to dismiss a subcontractor's complaint for lien foreclosure because the subcontractor's notice of its lien action was not timely filed, having been filed 110 days after the complaint was filed and, thus, the lien was not effective and enforceable. Cook Sales v. Concrete Enterprises, 356 Ga. App. 899 , 849 S.E.2d 734 (2020).

Effect of discharge of lien by bond. - When contractor and insurance company posted a bond to discharge supplier's liens, the bond served as a replacement for the lien and supplier's later execution of waiver and release of lien did not affect its contract claims against the bond. Benning Constr. Co. v. All-Phase Elec. Supply Co., 206 Ga. App. 279 , 424 S.E.2d 830 (1992).

A lien is not a pleading for purposes of O.C.G.A. § 51-5-8 and statements made within a surveyor's lien are not afforded absolute privilege until the lien becomes attached to a lawsuit and verified notice of the suit is filed under O.C.G.A. § 44-14-361.1 , at which point, the lien becomes an act of legal, or judicial process, and achieves the formality, solemnity, and status of a sworn statement. Simmons v. Futral, 262 Ga. App. 838 , 586 S.E.2d 732 (2003).

Pre-lien payments. - An owner is not entitled to credit under O.C.G.A. § 44-14-361.1(a)(4) where pre-lien payments to the contractor are disbursed post-lien by the contractor in payment of inferior-ranked, inchoate claims of materialmen and laborers. Browning v. Gaster Lumber Co., 267 Ga. 72 , 475 S.E.2d 576 (1996).

What an owner must show to defeat a materialmen's lien. - An owner must not only show that full payment was actually made to the contractor, the owner is also required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor's statutory affidavit concerning such indebtedness had been obtained. Freeman v. Fulton Concrete Co., 204 Ga. App. 465 , 419 S.E.2d 536 (1992).

The defense provided in O.C.G.A. § 44-14-361.1(e) requires that the owner show the sums paid to the contractor were properly appropriated, i.e., paid before the filing of the lien, to materialmen and laborers or that the contractor's affidavit concerning such indebtedness has been obtained. Gaster Lumber Co. v. Browning, 219 Ga. App. 435 , 465 S.E.2d 524 (1995), aff'd, 267 Ga. 72 , 475 S.E.2d 576 (1996).

Owners failed to produce any lien waiver or other documentary proof that paving subcontractor paid paving company for the labor and materials it furnished, and therefore failed to rebut the paving company's prima facie showing that it was entitled to summary judgment on its materialman's lien claim. Little Tallapoosa Dev., Inc. v. Baldwin Paving Co., 251 Ga. App. 238 , 553 S.E.2d 860 (2001).

An abandonment of the work before compliance with the contract upon a mere apprehension that payment will not be received is unauthorized and defeats the contractor's claim of lien. Summit-Top Dev., Inc. v. Williamson Constr., Inc., 203 Ga. App. 460 , 416 S.E.2d 889 (1992).

Contractor unable to complete job. - Where the contractor was prevented from completing the job due to the developer's inability to pay, the contractor's cessation of work was not an abandonment of the contract. Summit-Top Dev., Inc. v. Williamson Constr., Inc., 203 Ga. App. 460 , 416 S.E.2d 889 (1992).

No enforceable lien absent contract between owner and person furnished materials. - In the absence of a showing of a contractual relationship between the property owner and the person to whom the materials were furnished, no enforceable lien is created against the owner's property. Ben Hill Ready Mix Concrete Co. v. Prather, 160 Ga. App. 149 , 286 S.E.2d 481 (1981); Frank Woods Constr. Co. v. Randi, 177 Ga. App. 438 , 339 S.E.2d 406 (1986).

No entitlement to claim in full amount of creditor's materialman's liens. - Creditor would not necessarily be entitled to a claim in the full amount of the creditor's materialman's liens under O.C.G.A. § 44-14-361 but rather, would only be entitled to recover the damages the creditor suffered pursuant to O.C.G.A. § 51-1-6 due to the debtor's crime of false swearing, which would be the value of liens lost, which in turn depended on the value of the properties to which the liens attached and the existence of any superior liens on those properties. In the absence of an established underlying claim, summary judgment in the creditor's favor on the creditor's nondischargeability claims was not warranted. Thomas Concrete of Ga., Inc. v. Osbourne (In re Osbourne), Bankr. (Bankr. N.D. Ga. Aug. 24, 2017).

Invoices for materials create presumption of receipt by contractor. - Invoices showing that materials were shipped by the supplier to the contractor for use at the job site created a rebuttable presumption that the materials were received and used by the contractor for the benefit of the property owner. Williamscraft Dev., Inc. v. Vulcan Materials Co., 196 Ga. App. 703 , 397 S.E.2d 122 (1990).

Materialman relieved from obtaining judgment before enforcing lien where contractor adjudicated bankrupt. - A building contractor who filed a bankruptcy petition was "adjudicated a bankrupt" within the meaning of O.C.G.A. § 44-14-361.1 though the contractor was not discharged in bankruptcy; therefore, a materialman was relieved from obtaining a judgment against the contractor before enforcing a materialman's lien against the improved property. Reid v. Harbin Lumber Co., 172 Ga. App. 615 , 323 S.E.2d 845 (1984).

Where part of a construction contract is sublet to a subcontractor by a prime contractor, the owner may not be subjected to a lien for any claim or amount which the main contractor could not assert against the owner. Troup Enters. v. Mitchell, Carrington & Rayfield, Inc., 199 Ga. App. 173 , 404 S.E.2d 337 (1991).

Subcontractor not eligible for lien. - Because a subcontractor did not actually comply with O.C.G.A. § 43-14-8(f) as the evidence indicated that a Georgia-licensed electrician that the subcontractor affiliated itself with through an alleged joint venture only presented electrical contracting licenses when permits for the work were applied for and took no action to inspect others' electrical work or to verify that the work complied with the applicable codes, the subcontractor could not enforce the subcontract with the contractor, could not recover in quantum meruit under O.C.G.A. § 9-2-7 as the express contract violated public policy, and could not file a subcontractor's lien under O.C.G.A. §§ 44-14-361.1 and 44-14-367 . JR Construction/Electric, LLC v. Ordner Constr. Co., 294 Ga. App. 453 , 669 S.E.2d 224 (2008).

Completion of contract as question of fact. - When the record does not disclose as a matter of law whether the work performed by a contractor should be considered as completion of the original contract, the matter rests with the factfinders. Troup Enters. v. Mitchell, Carrington & Rayfield, Inc., 199 Ga. App. 173 , 404 S.E.2d 337 (1991).

Evidence demanded a conclusion that a subcontractor substantially completed its contract work on the date when the work was approved as substantially complete, or on the date when the subcontractor gave its warranty, or in all events no later than the date when the subcontractor said that its employees were last on the job. Womack Indus., Inc. v. B & A Equip. Co., 199 Ga. App. 660 , 405 S.E.2d 880 , cert. denied, 199 Ga. App. 907 , 405 S.E.2d 880 (1991).

Materialman's lien statute not applicable to attorney's lien. - O.C.G.A. § 44-14-361.1 did not apply to the enforcement of an attorney's lien. Hester v. Chalker, 222 Ga. App. 783 , 476 S.E.2d 79 (1996).

Applicability to supplier of equipment. - Under O.C.G.A. §§ 44-14-360(3) and 44-14-361.1(a) , a supplier of equipment for a construction project was a supplier of material and thus had to furnish its equipment for the improvement of the project in order for its lien to arise. Cent. Atlanta Tractor Sales, Inc. v. Athena Dev., LLC, 289 Ga. App. 355 , 657 S.E.2d 290 (2008).

Cited in AAA Plastering Co. v. TPM Constructors, Inc., 247 Ga. 601 , 277 S.E.2d 910 (1981); Ansley Park Plumbing & Heating Co. v. Mikart, Inc., 9 Bankr. 144 (Bankr. N.D. Ga. 1981); Linco Constr. Co. v. Tri-City Concrete, Inc., 161 Ga. App. 174 , 288 S.E.2d 125 (1982); Dodson v. Earley, 161 Ga. App. 666 , 290 S.E.2d 105 (1982); H.R.H. Prince Ltc. Faisal M. Saud v. Batson-Cook Co., 161 Ga. App. 219 , 291 S.E.2d 249 (1982); Lincoln Log Homes Mktg., Inc. v. Holbrook, 163 Ga. App. 592 , 295 S.E.2d 567 (1982); Cheek v. Lowe's of Ga., Inc., 17 Bankr. 875 (Bankr. M.D. Ga. 1982); Thompson v. Crouch Contracting Co., 164 Ga. App. 532 , 297 S.E.2d 524 (1982); Coley Elec. Supply, Inc. v. Colonial Eggs of Alma, Inc., 165 Ga. App. 108 , 299 S.E.2d 165 (1983); Dunoco Dev. Corp. v. Ed Taylor Constr. Co., 178 Ga. App. 738 , 344 S.E.2d 531 (1986); Spicewood, Inc. v. Ferro Pipeline Co., 181 Ga. App. 277 , 351 S.E.2d 711 (1986); Olympic Constr., Inc. v. Village Ctrs., Inc., 80 Bankr. 574 (Bankr. N.D. Ga. 1987); Stonepecker, Inc. v. Shepherd Constr. Co., 188 Ga. App. 513 , 373 S.E.2d 295 (1988); Hardee v. Spivey, 193 Ga. App. 234 , 387 S.E.2d 430 (1989); Dallas Bldg. Material, Inc. v. Smith, 193 Ga. App. 512 , 388 S.E.2d 359 (1989); Roberts v. Porter, Davis, Saunders & Churchill, 193 Ga. App. 898 , 389 S.E.2d 361 (1989); CC & B Indus., Inc. v. Stroud, 198 Ga. App. 658 , 402 S.E.2d 527 (1991); Abacus, Inc. v. Hebron Baptist Church, Inc., 201 Ga. App. 376 , 411 S.E.2d 113 (1991); Georgia N. Contracting, Inc. v. Haney & Haney Constr. & Mgt. Corp., 204 Ga. App. 366, 419 S.E.2d 348 (1992); Resurgens Plaza S. Assocs. v. Consolidated Elec. Supply, Inc., 215 Ga. App. 818 , 452 S.E.2d 784 (1994); FDIC v. Gray, 225 Ga. App. 415 , 484 S.E.2d 67 (1997); GF/Legacy Dallas, Inc. v. Juneau Constr. Co., LLC, 282 Ga. App. 14 , 637 S.E.2d 511 (2006); Consumer Portfolio Servs. v. Rouse, 282 Ga. App. 314 , 638 S.E.2d 442 (2006); L. Lowe & Co., Inc. v. Sunset Strip Props., LLC, 283 Ga. App. 357 , 641 S.E.2d 797 (2007); LandSouth Constr., LLC v. Lake Shadow Ltd., LLC., 303 Ga. App. 413 , 693 S.E.2d 608 (2010); Sun Nurseries, Inc. v. Lake Erma, LLC, 316 Ga. App. 832 , 730 S.E.2d 556 (2012); Stock Building Supply, Inc. v. Platte River Insurance Company, 336 Ga. App. 113 , 783 S.E.2d 708 (2016).

Compliance

Compliance with section unnecessary as to issue between attorney and client. - O.C.G.A. § 44-14-361.1 is applicable to attorney's liens only when the struggle is between the attorney and an innocent third party; as to an issue between the attorney and client only, it is not necessary to show compliance with that section in order to recover. Griner v. Foskey, 158 Ga. App. 769 , 282 S.E.2d 150 (1981).

Affidavit. - Trial court did not err by granting partial summary judgment to a buyer on its claim that the seller's mechanic's lien was invalid for failure to record an affidavit for the commencement of an action so as to establish the lien as required by O.C.G.A. § 44-14-361.1(a)(3). Krut v. Whitecap Hous. Group, LLC, 268 Ga. App. 436 , 602 S.E.2d 201 (2004).

Description of property. - Where the description of real property in a materialman's lien inaccurately described the property and did not contain an adequate "key" to remedy the deficiency, the lien was unenforceable. Mull v. Mickey's Lumber & Supply Co., 218 Ga. App. 343 , 461 S.E.2d 270 (1995).

Home purchasers and a mortgagee were entitled to summary judgment on a contractor's materialmen's liens because the property descriptions in each of the liens did not accurately describe the purchasers' property as they differed from the description in the warranty and security deeds and, thus, the liens did not comply O.C.G.A. § 44-14-361.1(a) . Bollers v. Noir Enters., 297 Ga. App. 435 , 677 S.E.2d 338 (2009).

Compliance with copy requirement. - Trial court did not err in granting a subcontractor summary judgment in the subcontractor's action against a property owner and surety to recover under a lien discharge bond for monies allegedly owed for materials, services, and labor the subcontractor supplied to a construction project because the subcontractor complied with the copy requirement of O.C.G.A. § 44-14-361.1(a)(2); the subcontractor's claim of lien was not ineffective by reason of the slight variance to be found in the copy supplied to the owner because the copy of the claim of lien the subcontractor sent to the owner clearly served the purpose of the claim of lien provisions found in § 44-14-361.1(a)(2) of ensuring that the owner timely received notice of its lien, even though one word of the owner's name was omitted. Madison Retail Suwanee, LLC v. Orion Enters. Sales & Serv., 309 Ga. App. 712 , 711 S.E.2d 71 (2011).

Effect of unperfecting on claim for money damages. - Filing of imperfect notice rendered a materialman's lien unenforceable, but was not a defense to the materialman's complaint for money damages for the value of materials. Consolidated Sys. v. AMISUB, Inc., 261 Ga. 590 , 408 S.E.2d 109 (1991).

Liens in excess of remaining contract price were invalid. - Subcontractor's liens on property were invalid as excessive under O.C.G.A. § 44-14-361.1(e) because the amount of remaining unpaid principal on the contract was $326,661, and the subcontractor filed $727,919 in liens against one parcel (and $1,819,799 against all parcels in the project). Seaboard Constr. Co. v. Kent Realty Brunswick, LLC, 331 Ga. App. 742 , 771 S.E.2d 429 (2015).

Although a contractor's claim for lost profits in the contractor's materialman's lien was invalid under O.C.G.A. § 44-14-361(c) and (e), because the lost profits amount was easily determined, the trial court erred by invalidating the entire lien, instead of amending the lien to exclude non-lienable amounts as permitted by § 44-14-361.1(a) and (a.1). Duke Builders, Inc. v. Massey, 351 Ga. App. 535 , 831 S.E.2d 172 (2019).

Materialmen's lien cannot include anticipated profits. - Georgia Supreme Court held that the Georgia Court of Appeals was correct to hold that a materialmen's lien may not include anticipated profits, and the Supreme Court affirmed that holding. Massey v. Duke Builders, Inc., 310 Ga. 152 , 849 S.E.2d 186 (2020).

Identity of real person whose interest in premises subject to lien. - Where a lien claim was filed solely against the owner's reversionary interest and not against the leasehold interest in the premises, the lien document failed to reveal affirmatively the identity of the real person whose interest in the premises was being subjected to the lien, the lien claim was not effective. Meco of Atlanta, Inc. v. Super Valu Stores, Inc., 215 Ga. App. 146 , 449 S.E.2d 687 (1994).

The general contractor was not an indispensable party in an action by an insolvent subcontractor's supplier against the contractor's surety where the supplier satisfied the statutory requirements to prevail on the underlying lien. Hendricks v. Blake & Pendleton, Inc., 221 Ga. App. 651 , 472 S.E.2d 482 (1996).

Owner as "contractor." - There was no reason why an owner could not also have been a contractor for purposes of a materialman's lien; because a property owner listed itself as "general contractor" in its notices of commencement, and because a materials supplier was not in privity with the owner, the supplier was required to provide the owner with the O.C.G.A. § 44-14-361(a) notice to contractor; since the supplier failed to give the proper notice, its materialman's liens were invalid. Roofing Supply of Atlanta, Inc. v. Forrest Homes, Inc., 279 Ga. App. 504 , 632 S.E.2d 161 (2006).

Subcontractor satisfied requirements and did not refer to owners as contractors. - Dismissal of the petitions was affirmed because the subcontractor's claims of liens included statements that the liens were against specific properties for materials furnished to the respective property owner or owners, and at no point in the claims of liens did the subcontractor describe the owners as contractors. Robertson v. Ridge Envtl., LLC, 319 Ga. App. 570 , 737 S.E.2d 578 (2013).

Filing of Claims

Failure to meet filing requirement. - Georgia law requires that a contractor suing an owner directly file a notice of the suit brought against the owner with the clerk of the superior court in which the subject property is located. Where this is not done, the requirements of O.C.G.A. § 44-14-361.1 have not been met; the lien has not been "made good"; and there can be no "relation back" concerning either the lien or any judgment arising out of said lien. Opportunities Industrialization Ctr. of Atlanta, Inc. v. T & B - Scottdale Contractors, 26 Bankr. 394 (Bankr. N.D. Ga. 1983).

Failure of materialman to comply with the notice provisions of O.C.G.A. § 44-14-361.1(a)(3) extinguished the materialman's right to a lien against the improved real estate. The contractor's subsequent bankruptcy filing could not breathe new life into the extinguished right to a lien so as to give the materialman another bite at the apple it had missed on its first bob. Palmer v. Duncan Whsle., Inc., 262 Ga. 28 , 413 S.E.2d 437 (1992).

Materialmen's filing of notice against the contractor did not satisfy the requirement for filing a notice of subsequent action against property owners. Northside Wood Flooring, Inc. v. Borst, 232 Ga. App. 569 , 502 S.E.2d 508 (1998).

Before a materialman's lien can be allowed, the lien claimant must show compliance with all conditions of O.C.G.A. § 44-14-361.1 , and filing the notice of commencement of the action is a prerequisite to the enforceability of the lien; at the time the lien holder fails to file the notice, the lien becomes unenforceable. Gwinnett-Club Assocs., L.P. v. Southern Elec. Supply Co., 242 Ga. App. 507 , 529 S.E.2d 636 (2000).

When a Chapter 7 debtor raised two counterclaims to a nondischargeability complaint that both involved state law issues (breach of contract and whether the creditor failed to timely file a notice of action under O.C.G.A. § 44-14-361.1(a)(3) and (4)), a bankruptcy court determined sua sponte that discretionary abstention under 28 U.S.C. § 1334(c)(1) was appropriate. While dischargeability was a bankruptcy matter, the state law liability issues were not so closely related that the dischargeability issue could not be severed, and it was in the best interest of the parties that the debtor's liability under state law be determined in a pending state court lien action. K.A.P., Inc. v. Hardigan (In re Hardigan), Bankr. (Bankr. S.D. Ga. Jan. 18, 2013).

Constructive trust not imposed. - Georgia law does not impose a constructive trust in favor of a subcontractor on funds paid by an owner to a contractor when the subcontractor has not filed a lien, even when the owner has paid the contractor in full during the time the subcontractor could have filed a lien. Wachovia Bank v. American Bldg. Consultants, Inc., 138 Bankr. 1015 (Bankr. N.D. Ga. 1992).

Reliance on verbal promises to pay. - A materialman is not excused from filing a claim of lien in reliance on the contractor's verbal promises to pay. Wachovia Bank v. American Bldg. Consultants, Inc., 138 Bankr. 1015 (Bankr. N.D. Ga. 1992).

The three-month deadline for filing a mechanic's lien cannot be excused, relaxed, or extended by the actions of either the debtor or the creditor. Ballard v. Grubbs, 9 Bankr. 499 (M.D. Ga. 1981).

Strict construction of three-month time limit for filing lien. - The method of time computation in O.C.G.A. § 1-3-1(d)(3), which would allow plaintiff to file its materialman's lien after the three-month period expired because the period expired on a weekend, did not apply to extend the filing requirement of O.C.G.A. § 44-14-361.1(a)(2). United States Filter Distrib. Group, Inc. v. Barnett, 241 Ga. App. 759 , 526 S.E.2d 912 (1999), aff'd, 273 Ga. 254 , 538 S.E.2d 739 (2000).

Subcontractor was not required to file notice of lien under O.C.G.A. § 44-14-361.1(a)(3) in order to recover on a bond obtained by a general contractor which discharges a lien against property. Burgess v. Travelers Indem. Co., 185 Ga. App. 82 , 363 S.E.2d 308 (1987), cert. denied, 185 Ga. App. 909 , 363 S.E.2d 308 (1988).

Commencement of Action

The purpose of former O.C.G.A. § 44-14-362(3) (now O.C.G.A. § 44-14-361.1(a)(3)) is to provide notice that a statutory lien has been perfected by the filing of a suit. Opportunities Industrialization Ctr. of Atlanta, Inc. v. T & B - Scottdale Contractors, 26 Bankr. 394 (Bankr. N.D. Ga. 1983).

The purpose of the notice provision is directed toward providing notice to interested third parties rather than property owners. Ragsdale v. Chiu (In re Harbor Club), 185 Bankr. 959 (Bankr. N.D. Ga. 1995).

Filing of notice prerequisite to enforceability of lien. - The notice required to be filed is the notice of the commencement of action against the contractor and is a prerequisite to the enforceability of the lien. Statham Mach. & Equip. Co. v. Howard Constr. Co., 160 Ga. App. 466 , 287 S.E.2d 249 (1981).

A supplier's failure to file, in county wherein property is located, notice of commencement of action against contractor in another county renders the supplier's claim of lien unenforceable. Bettis v. McClure, 160 Ga. App. 412 , 287 S.E.2d 291 (1981).

Where actions to enforce a materialman's lien against the property owner are commenced beyond the statutory 12-month period by virtue of the bankruptcy exception, failure properly to file a notice of the claim or action with the superior court clerk of the county wherein the subject lien was filed extinguishes said claim of lien and renders it unenforceable. Newton Lumber & Supply, Inc. v. Crumbley, 161 Ga. App. 741 , 290 S.E.2d 114 (1982).

Filing notice is a prerequisite to enforcement of a lien. Frank Woods Constr. Co. v. Randi, 177 Ga. App. 438 , 339 S.E.2d 406 (1986).

Filing notice of commencement of the action is a prerequisite to enforceability of the lien. Eurostyle, Inc. v. Jones, 197 Ga. App. 188 , 397 S.E.2d 620 (1990).

Because a notice under O.C.G.A. § 44-14-361.1(a)(3) was not filed within 14 days of a lien claimant's suit being initiated, the lien was unenforceable, and the trial court did not err in granting a developer's motion for partial summary judgment against the lien claimant; while the appeals court sympathized with the lien claimant's argument that the claimant received a file-stamped copy and as a result believed no fee was due, ultimately it was the responsibility of plaintiff and plaintiff's counsel to see that the appropriate fees were paid in a timely manner. Kendall Supply, Inc. v. Pearson Cmtys., Inc., 285 Ga. App. 863 , 648 S.E.2d 158 (2007).

When a subcontractor filed a proof of claim in a general contractor's bankruptcy action, but did not file a notice of commencement of the action as required by O.C.G.A. § 44-14-361.1(a)(3), the subcontractor's lien claim was extinguished and could not be revived in an action by the subcontractor against the property owner. Action Concrete v. Portrait Homes - Little Suwanee Point, LLC, 285 Ga. App. 650 , 647 S.E.2d 353 (2007).

Materialmen's lien creditor was required to file a notice of commencement within 14 days of filing the creditor's proof of claim under O.C.G.A. § 44-14-361.1(a)(3), and the creditor's failure to do so rendered the creditor's claim unperfected under 11 U.S.C. § 546(b)(2), and unsecured, so that the creditor's lien could be avoided under 11 U.S.C. § 545(2). In re R & B Constr., Bankr. (Bankr. N.D. Ga. Aug. 17, 2010).

Lien rights lost where notice not filed. - Because filing notice is a prerequisite to enforcing a lien, a party's right to enforce a lien based on that action is forever lost as of the fifteenth day after it commences its action without filing notice. The filing of a subsequent action does not revive the party's lien rights. Metromont Materials Corp. v. Cargill, Inc., 221 Ga. App. 853 , 473 S.E.2d 498 (1996); Weber Air Conditioning, Inc. v. Triple-R Pooler, Inc., 245 Ga. App. 590 , 538 S.E.2d 499 (2000).

Notice requirement applies whether claim brought against contractor or owner. - The notice requirement of O.C.G.A. § 44-14-361.1(a)(3) applies whether the recovery of the amount of the materialman's claim be properly brought against the contractor or the owner, whichever one is contractually responsible for the debt. Beall v. F.H.H. Constr., Inc., 193 Ga. App. 544 , 388 S.E.2d 342 (1989).

All recovery suits, including those against a property owner, are subject to the requirements set forth in O.C.G.A. § 44-14-361.1(a)(3) because application of its provisions is dependent upon whether the defendant is the one primarily or contractually liable for the alleged debt, not upon whether the defendant is a contractor. Ragsdale v. Chiu (In re Harbor Club), 185 Bankr. 959 (Bankr. N.D. Ga. 1995).

Facsimile not effective as notice. - Trial court properly granted summary judgment to property owner after the subcontractor sued the property owner so that the subcontractor could perfect its materialman's lien against the property owner's property, as the subcontractor's method of providing notice of the lien to the property owner did not comply with applicable statutory law, O.C.G.A. § 44-14-361.1(a)(2), since that statute expressly allowed the lien notice to be provided to the property owner by registered mail, certified mail, or statutory overnight delivery, and not though the facsimile transmission that the subcontractor used, especially since the facsimile transmission was not the equivalent method of providing notice as those methods set forth in the statute. Phillips, Inc. v. Historic Props. of Am., 260 Ga. App. 886 , 581 S.E.2d 389 (2003).

Notice of commencement defective. - Grant of summary judgment to the property owner on a materialman's lien was reversed because it failed to identify or provide contact information for its construction lender in its Notice of Commencement, rendering it fatally defective under O.C.G.A. § 44-14-361.5(d) and because the Notice of Commencement did not substantially comply with § 44-14-361.5(b) , the material supplier's failure to file its Notice to Contractor within the prescribed time was excused under § 44-14-361.5(d) . Capitol Materials, Inc. v. JLB Buckhead, LLC, 337 Ga. App. 848 , 789 S.E.2d 803 (2016).

Timely action against contractor prerequisite. - Lien claimant had to commence a timely action against a contractor under the statute as a prerequisite to suing the owner on the bond, as such, the property owner did not create a new cause of action for the lien claimant by filing a bond under O.C.G.A. § 44-14-364 ; the bond stood in the place of the real property as security for the lien claimant and because no new action was created, the lien claimant in an action on the bond still had to comply with the statutory requirements for perfecting a lien. Few v. Capitol Materials Inc., 274 Ga. 784 , 559 S.E.2d 429 (2002).

Reasonable time for filing notice. - A period of 16 days between the date of the filing of the foreclosure suit in one county, where the foreign corporate defendant maintained its registered office, and the date of the filing of the notice of suit, with reference to giving notice to the bona fide purchasers of the property subject to the lien, was not so unreasonable so as to render the claim unenforceable, in that the language of O.C.G.A. § 44-14-361.1(a)(3) requires only a reasonable time for the filing of the notice after the suit had been filed. American Hosp. Supply Corp. v. Starline Mfg. Corp., 171 Ga. App. 790 , 320 S.E.2d 857 (1984) (decided prior to 1991 amendment).

Three months meant three calendar months, not 90 days. - The 1991 version of O.C.G.A. § 44-14-361.1 , requiring a contractor to file the contractor's claim of lien three months from the completion of the work, governed and was satisfied by the contractor's filing the claim of lien on September 12 following the completion of work on June 13. The court rejected the owner's argument that "three months" meant 90 days. Fed. Trust Bank v. C. W. Matthews Contr. Co., 312 Ga. App. 200 , 718 S.E.2d 63 (2011).

Recording a judgment on real property records some months after commencing a suit does not satisfy the requirement of former O.C.G.A. § 44-14-362(3) (now O.C.G.A. § 44-14-361.1(a)(3)) that notice be filed "at the time of filing such action," and is fatal to a claim of a statutory lien. Opportunities Industrialization Ctr. of Atlanta, Inc. v. T & B - Scottdale Contractors, 31 Bankr. 119 (Bankr. N.D. Ga. 1983) (decided prior to 1991 amendment).

Section deals with actions against contractors, not owners. - The requirement of O.C.G.A. § 44-14-361.1(a)(3) as to the time within which an action may be commenced relates to the materialman's action against the contractor and not to the action against the owner of the real estate. Opportunities Industrialization Ctr. of Atlanta, Inc. v. T & B - Scottdale Contractors, 26 Bankr. 394 (Bankr. N.D. Ga. 1983).

Application of Bankruptcy Automatic Stay

Exception to the automatic stay pursuant to 11 U.S.C. § 362(b)(3) did not apply to a post-petition mechanic's lien because the lien was not properly perfected and enforceable as the Chapter 7 trustee did not authorize any of the work listed in the lien. Scarver v. Ellis (In re McKeever), 567 Bankr. 652 (Bankr. N.D. Ga. 2017).

Collection action not required where lessee in bankruptcy. - Bankruptcy of the lessee who had contracted for the leasehold improvements with the unpaid contractor relieved the contractor from the requirement that a collection action against the lessee be commenced before a lien enforcement action could be brought against the lessor. Underground Festival, Inc. v. McAfee Eng'r Co., 214 Ga. App. 243 , 447 S.E.2d 683 (1994).

Creditor's time for action tolled under bankruptcy provisions. - Bankruptcy court held that the procedure under O.C.G.A. § 44-14-361.1 to "make good" a mechanic's or materialman's lien involved creating the lien, not mere perfection, and these acts were subject to an automatic stay; accordingly, because the automatic stay prevented the creditor from complying with O.C.G.A. § 44-14-361.1 , the creditor's failure to take further action under that statute was tolled under 11 U.S.C. § 108. In re Durango Ga. Paper Co., 297 Bankr. 316 (Bankr. S.D. Ga. 2003).

Creditor's action not tolled under bankruptcy provisions. - Chapter 11 trustee could avoid a creditor's mechanic's lien pursuant to 11 U.S.C. § 545(2) because the requirements of the Georgia Lien Statute, O.C.G.A. § 44-14-360 et seq., were acts of perfecting rather than creating or enforcing a lien and, therefore, 11 U.S.C. § 108(c)(2) did not toll creditor's obligation to timely comply with the statute; the creditor's failure to comply with the Georgia Lien Statute's requirements within the statute's time limits and receive the protection of relation back perfection under 11 U.S.C. § 546(b) permitted the trustee to avoid the lien under 11 U.S.C. § 545(2). Durango Ga. Paper Co. v. Milton J. Wood Fire Prot., Inc. (In re Durango Ga. Paper Co.), 356 Bankr. 305 (Bankr. S.D. Ga. 2005).

Avoidance of mechanic's lien in bankruptcy. - Chapter 7 trustee's right to avoid mechanic's lien on estate property, which attached post-petition and without the trustee's consent or authorization by the court, was not limited by relevant state law because at no point since assuming duties as trustee had the trustee consented to any work being done by the transferee on the property, which was required for a lien to attach. Scarver v. Ellis (In re McKeever), 567 Bankr. 652 (Bankr. N.D. Ga. 2017).

Where action against contractor timely, action against owner need not be commenced within 12 months. - An action to enforce the lien against the owner need not be instituted within the 12-month statutory period if a claim has been filed by the materialman in the contractor's bankruptcy proceedings during that time, and the filing of the bankruptcy claim satisfies the requirement of former O.C.G.A. § 44-14-362(3) (now O.C.G.A. § 44-14-361.1(a)(3)) of commencing an action within 12 months. Newton Lumber & Supply, Inc. v. Crumbley, 161 Ga. App. 741 , 290 S.E.2d 114 (1982); Galbreath v. Vondenkamp, 197 Ga. App. 284 , 398 S.E.2d 278 (1990).

Determination of when claims become due. - The "due date" for purposes of O.C.G.A. § 44-14-361.1(a)(3) does not include an inspection period, but is determined from the last date the equipment was provided for the improvement of the real estate. In accordance with the mandate that Georgia's materialmen's lien law should be dealt with according to the strictest rules of strict construction, the three month period contemplated by O.C.G.A. § 44-14-361.1(a)(2) commences on the last date materials are furnished; there is no reason to treat the calculation of the 12-month period contemplated by O.C.G.A. § 44-14-361(a)(3) differently. Cent. Atlanta Tractor Sales, Inc. v. Athena Dev., LLC, 289 Ga. App. 355 , 657 S.E.2d 290 (2008).

In a mechanic's lien foreclosure action brought by a construction company against a property owner, the trial court erred by dismissing the action as untimely since the lien, although stating that the debt became due on a date more than three months from the date the lien was filed, also stated that the construction company provided services, labor, and/or materials to the property owner within three months of the filing of the complaint. D.C. Ecker Constr., Inc. v. Ponce Inv., LLC, 294 Ga. App. 833 , 670 S.E.2d 526 (2008), cert. denied, No. S09C0486, 2009 Ga. LEXIS 184 (Ga. 2009).

Failure to state date claim became due did not render lien invalid. - Summary judgment for an owner in a supplier's suit to enforce a materialman's lien was improper because O.C.G.A. § 44-14-361.1(a)(2) tempered the principle of strict construction with respect to the form of the claim of lien, and the fact that the lien failed to state the date the supplier's claim became due did not render the lien invalid; the claim of lien complied "in substance" with the required form. Vulcan Constr. Materials, LP v. Franklin Builders Props., Inc., 298 Ga. App. 120 , 679 S.E.2d 356 (2009).

Amendment of pleadings. - O.C.G.A. § 9-11-15(c) , which permits amendments to relate back to the time of the original pleading, is applicable to an action to enforce a lien under O.C.G.A. § 44-14-361.1 . Coe & Payne Co. v. Foster & Kleiser, Inc., 258 Ga. 161 , 366 S.E.2d 292 (1988).

No amendment of expired claims. - O.C.G.A. § 9-11-15(c) which permits amendments to relate back to the time of the original pleading, is inapplicable to an expired action to enforce a lien under O.C.G.A. § 44-14-361.1(a)(2)'s three-month limitations period. Tri-City Constr. Co. v. Sandy Plains Partnership, 206 Ga. App. 506 , 426 S.E.2d 57 (1992).

Amendment of materialmen's lien authorized. - Georgia Supreme Court held that the Georgia Court of Appeals properly held that amendment of a materialmen's lien was authorized by O.C.G.A. § 44-14-361.1 (a.1) and that the lien amount may be reduced at any time. Massey v. Duke Builders, Inc., 310 Ga. 152 , 849 S.E.2d 186 (2020).

Lis pendens proper where specific performance requested. - Where purchasers requested specific performance of a contract requiring the property involved to be sold to them, the property was "directly involved," lis pendens was proper, the pleadings were privileged, and its filing was simply notice of the suit, not defamation of the title. Panfel v. Boyd, 187 Ga. App. 639 , 371 S.E.2d 222 (1988).

Materialman's allegedly inadequate notice. - Trial court properly granted summary judgment to the materialman on its action to recover on a lien release bond after an electrical subcontractor did not pay for materials supplied to it by the materialman, and despite the claim of the general contractor and the surety that the materialman did not comply with a lien statute notice requirement; the lien statute notice requirement was meant to protect prospective purchasers from unknowingly buying property encumbered by liens and did not apply to the materialman's situation because the materialman, acting as a lien claimant, was attempting to recover on a lien discharge bond that the general contractor and the surety had filed to discharge the lien against the electrical contractor. Washington Intl Ins. Co. v. Hughes Supply, Inc., 271 Ga. App. 50 , 609 S.E.2d 99 (2004).

Action untimely filed. - A supplier of equipment had not brought its claim against a contractor within 12 months of when the claim became due, as required by O.C.G.A. § 44-14-361.1(a)(3); the 12-month period did not include a period for the inspection of the returned equipment, but was determined from the last date the equipment was furnished for the improvement of the real estate. Cent. Atlanta Tractor Sales, Inc. v. Athena Dev., LLC, 289 Ga. App. 355 , 657 S.E.2d 290 (2008).

Concurrent action. - Subcontractor did not fail to comply with the lien statute in filing a concurrent action against a general contractor on the underlying contract and against the property owner and the surety on the discharge bond because the concurrent action filed by the subcontractor against the general contractor, the owner, and the surety was permitted by the decision of the court of appeals in a prior case; in that case, the court of appeals determined that the subcontractor's action against the general contractor and its action against the owner to enforce the lien could be brought concurrently and could be combined in the same petition. Madison Retail Suwanee, LLC v. Orion Enters. Sales & Serv., 309 Ga. App. 712 , 711 S.E.2d 71 (2011).

Insolvency, Absconding, etc., of Contractor or Subcontractor

Notice in action against property owner. - The fact that a materialman timely filed notice of claim to enforce a lien against the bankrupt general contractor pursuant to O.C.G.A. § 44-14-361.1(a)(3) did not mean that it was not required to file a second notice pursuant to O.C.G.A. § 44-14-361.1(a)(4) in connection with an action against the property owner. Calhoun/Johnson Co. v. Houston Family Trust No. 1, 236 Ga. App. 793 , 513 S.E.2d 759 (1999).

Because O.C.G.A. § 44-14-361.1(a)(4) provided that where a contractor was adjudicated bankrupt or, if after an action was filed, no final judgment could be obtained against the contractor because of its adjudication in bankruptcy, the materialman was not required to file an action or obtain judgment against the contractor before enforcing a lien against the improved property; moreover, the materialman could enforce the lien directly against the property by filing an action against the owner within 12 months from the time the lien became due. SAKS Assocs., LLC v. Southeast Culvert, Inc., 282 Ga. App. 359 , 638 S.E.2d 799 (2006).

A property owner is entitled to credit for any payments made to the contractor which are shown by competent and relevant evidence to have been applied to valid claims for material or labor. Taverrite v. Lowe's of Franklin, Inc., 166 Ga. App. 346 , 304 S.E.2d 78 (1983).

Cost of completing work deducted from contract price when contractor abandons contract. - Where a contractor, under a definite contract containing a stipulated price for the entire work, undertakes to erect a building on a lot of land and abandons the construction of the building, the owner may complete the work; and if the owner does so, the necessary cost of so doing may be deducted from the contract price, and the property will be subject to the liens of materialmen and laborers to the extent only of the balance. Adams v. W.P. Stephens Lumber Co., 158 Ga. App. 761 , 282 S.E.2d 217 (1981).

The trial court correctly granted the property owner's motion for summary judgment as the $59,928 applied under the contract plus the $123,974 spent to complete the house, totaled $183,902, which was $1,902 in excess of the contract price. Maverick Materials, Inc. v. Kauffman, 227 Ga. App. 102 , 488 S.E.2d 690 (1997).

Contractor's liability for materials where subcontractor abandons project. - Where, before construction of a building was completed, a materialman filed its claim of lien for unpaid materials supplied to a subcontractor, and the owner continued to make payments to the contractor who continued to pay the subcontractor, the subcontractor's eventual bankruptcy and abandonment of the project were the responsibility of the contractor. That abandonment had no bearing on the materialman's right to foreclose its lien for such materials as were furnished to the subcontractor and actually used in the project. Mayer Elec. Supply Co. v. Federal Ins. Co., 195 Ga. App. 191 , 393 S.E.2d 270 (1990).

Foreclosure Proceedings

In a lien foreclosure materialman must distinguish between an individual and the individual's corporation and must bring an action against the correct account debtor. Ben Hill Ready Mix Concrete Co. v. Prather, 160 Ga. App. 149 , 286 S.E.2d 481 (1981); D & N Elec., Inc. v. Underground Festival, Inc., 202 Ga. App. 435 , 414 S.E.2d 891 (1991).

Materialman or subcontractor not entitled to judgment in rem where entire contract price expended. - Where it is necessary to expend the entire contract price in completing the construction called for by the contract, the materialman or subcontractor is not entitled to a judgment in rem against the property. Adams v. W.P. Stephens Lumber Co., 158 Ga. App. 761 , 282 S.E.2d 217 (1981).

Procedural error made error in lien draft irrelevant. - An attorney was properly granted summary judgment in a legal malpractice suit as to an issue of whether the attorney inadequately drafted a lien as the lien foreclosure action was filed by another attorney, who failed to comply with the notice requirement of O.C.G.A. § 44-14-361.1(a) , which made the adequacy of the legal description in the lien irrelevant due to that procedural error. Bonner Roofing & Sheet Metal Co. v. Karsman, 285 Ga. App. 586 , 646 S.E.2d 763 (2007).

Dormancy of judgment on materialman's lien. - Trial court erred in granting summary judgment to the lumber company in the company's suit against the property owner to foreclose on a materialman's lien to recover the price of materials sold to the contractor and used to construct the owner's home because the dormancy statute barred foreclosure on the lien more than seven years after the lien was perfected because, when the lumber company failed to take action on the default judgment against the contractor, and the judgment became unenforceable at the end of seven years, the lien was no longer valid and there was nothing to foreclose upon. Lang v. Brand-Vaughan Lumber Co., Inc., 339 Ga. App. 710 , 792 S.E.2d 461 (2016).

Required showing. - To establish and foreclose a lien on the owner's property it must be shown that the owner contracted with someone for these supplies to be furnished, that the person to whom the plaintiff furnished them was connected with that contract, and that the value of the material was within the contract price to which the owner agreed. Spicewood, Inc. v. Dykes Paving & Constr. Co., 199 Ga. App. 165 , 404 S.E.2d 305 (1991).

RESEARCH REFERENCES

17B Am. Jur. Pleading and Practice Forms, Mechanics' Liens, § 97.

ALR. - Delivery of material to building site as sustaining mechanic's lien - modern cases, 32 A.L.R.4th 1130.

Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action - construction cases, 104 A.L.R.6th 1.

44-14-361.2. Dissolution of lien.

  1. The special lien specified in subsection (a) of Code Section 44-14-361 shall be dissolved if the owner, purchaser from owner, or lender providing construction or purchase money or any other loan secured by real estate shows that:
    1. The lien has been waived in writing by lien claimant; or
      1. They or any of them have obtained the sworn written statement of the contractor or person other than the owner at whose instance the labor, services, or materials were furnished, or the owner when conveying title in a bona fide sale or loan transaction, that the agreed price or reasonable value of the labor, services, or materials has been paid or waived in writing by the lien claimant; and
      2. When the sworn written statement was obtained or given as a part of a transaction:
        1. Involving a conveyance of title in a bona fide sale;
        2. Involving a loan in which the real estate is to secure repayment of the loan; or
        3. Where final disbursement of the contract price is made by the owner to the contractor

          there was not of record, at the time of the settlement of the transaction a valid preliminary notice or claim of lien which had not been previously canceled, dissolved, or expired.

  2. As used in paragraph (2) of subsection (a) of this Code section, the term:
    1. "Person other than the owner" shall not include a subcontractor.
    2. "Final disbursement" of the contract price means payment of the agreed price between the owner and contractor for the improvements made upon the real estate or the reasonable value of the labor, services, and materials incorporated in the improvements upon the real estate and shall include payment of the balance of the contract price to an escrow agent. (Code 1981, § 44-14-361.2 , enacted by Ga. L. 1983, p. 1450, § 1; Ga. L. 1984, p. 22, § 44.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1999, "has" was substituted for "have" near the end of subparagraph (a)(2)(A).

Law reviews. - For annual survey on law of real property, see 42 Mercer L. Rev. 389 (1990). For annual survey on construction law, see 64 Mercer L. Rev. 71 (2012).

JUDICIAL DECISIONS

O.C.G.A. § 4-14-361.2 contemplates a single affidavit that the agreed price or reasonable value of all the labor, services, or materials employed in the completed project have been paid and not periodic affidavits that the agreed price or reasonable value of some of the labor, services, or materials employed to date in the ongoing project have been paid. CC & B Indus., Inc. v. Stroud, 198 Ga. App. 658 , 402 S.E.2d 527 , cert. denied, 198 Ga. App. 897 , 402 S.E.2d 527 (1991).

After reviewing the affidavit, the court determined that in the absence of any evidence of collusion, fraud, or actual knowledge of any irregularity by the acceptance corporation, the affidavit of debtor's principal was sufficient to dissolve the inchoate materialmans' liens. Under the circumstances, the affidavit signed by debtor's principal was valid and enforceable against two creditors; thus, the acceptance corporation's lien was entitled to first priority status. RWD Real Estate, LLC v. Nissan Motor Acceptance Corp. (In re RWD Real Estate, LLC), Bankr. (Bankr. M.D. Ga. May 24, 2010).

Sufficiency of affidavit. - A contractor's affidavit will dissolve a lien only if the conditions in both O.C.G.A. § 44-14-361.2(a)(2)(A) and (a)(2)(B) are met. Balest v. Simmons, 201 Ga. App. 605 , 411 S.E.2d 576 (1991).

Contractor's affidavit reciting that it was made for the purpose of "inducing" a lender to disburse the final construction proceeds and "inducing" homeowners to make final payment was sufficient to dissolve the lien, where it was undisputed that the lender made such a disbursement, that the homeowners paid the entire proceeds to the contractor, and that upon receiving this payment the contractor had been paid the entire sum contemplated by the construction contract. Balest v. Simmons, 201 Ga. App. 605 , 411 S.E.2d 576 (1991).

Affidavit held sufficient. - A general contractor's affidavit which states that the general contractor "has paid in full or has otherwise satisfied all obligations for all materials and equipment furnished" by the materialman is in substantial if not complete compliance with O.C.G.A. § 44-14-361.2(a)(2)(A), and the materialman's lien should be dissolved. Dixie Concrete Serv., Inc. v. Life Ins. Co., 174 Ga. App. 866 , 331 S.E.2d 889 (1985).

In the absence of evidence that an owner's sale of property to the construction lender was not bona fide, the owner's affidavit served to dissolve the materialman's lien even though it contained false information; it was the written document, rather than the acts or intentions of the affiant in executing it, that operated to extinguish the lien. Shockley Plumbing Co. v. NationsBank, 229 Ga. App. 60 , 493 S.E.2d 227 (1997).

Affidavit not properly sworn to or notarized. - A contractor's affidavit regular on its face, but challenged on the ground it was not properly sworn to or notarized, is as a matter of law sufficient if there is an absence of any evidence indicating that the owner was aware of the irregularity, or allegations and proof of fraud and/or collusion. Walk Softly, Inc. v. Hyzer, 188 Ga. App. 230 , 372 S.E.2d 500 (1988).

Inadequate statement of payment. - Subcontractor's lien filed before a lender's security deed was superior to the deed pursuant to O.C.G.A. § 44-2-2(b) . The general contractor's affidavit that the subcontractors had been or will be paid was insufficient to satisfy the plain language of O.C.G.A. § 44-14-361.2(a) , requiring a statement that payment had been made, and did not extinguish the lien. Ga. Primary Bank v. Atlanta Paving, Inc., 309 Ga. App. 851 , 711 S.E.2d 409 (2011).

Sworn written statement of contractor. - O.C.G.A. § 44-14-361.2(a)(2)(B), which includes the language "as a part of a transaction," tacitly appears to require only that the sworn statement will be obtained or given both in conjunction with the final disbursement and within such a reasonable time thereof so as to constitute "a part of" the final disbursement transaction. Whether a sworn contractor's statement has been timely obtained or given will depend on the circumstances of each case. Star Mfg., Inc. v. Edenfield, 191 Ga. App. 665 , 382 S.E.2d 706 (1989).

An unsworn statement executed by general contractor for the owners of the property was not sufficient to dissolve materialman's lien. Southern Concrete Constr. Co. v. Hall, 205 Ga. App. 516 , 422 S.E.2d 663 (1992).

Waiver of lien by subcontractor. - A subcontractor contractually waives its right to file a lien on property by agreeing that a general contractor's contract with the property owner, which contains a lien waiver, be made part of its subcontract with the general contractor. MCC Powers v. Ford Motor Co., 184 Ga. App. 487 , 361 S.E.2d 716 (1987).

Subcontract lien waiver clause sufficiently expressed intent to waive. - Where the subcontract lien waiver clause provided that "the subcontractor waives his right to file a mechanic's lien and agrees that no mechanic's lien or other claims in the nature of a lien or charge against the lands and premises . . . shall be filed or maintained by the subcontractor," the language of such a clause sufficiently expressed an intention to waive a claim of lien against the improved property that the subcontractor otherwise would have been entitled to establish and to maintain under the mechanic's lien laws. AAS Plastering Co. v. TPM Contractors, Inc., 247 Ga. 601 , 277 S.E.2d 910 (1981) (decided under O.C.G.A. § 44-14-361 prior to 1983 amendment).

Waivers of lien rights must be distinguished from contractor's affidavits which in the usual course of business are sworn statements by the contractor that the contractor has paid the subcontractors the reasonable value or agreed price of work done or material furnished. Anderson v. Golden, 569 F. Supp. 122 (S.D. Ga. 1982) (decided under former O.C.G.A. § 44-14-361 ).

Bankruptcy court denied a motion filed by a paving company and an electric company, pursuant to Fed. R. Bankr. P. 9023 and 9024 and Fed. R. Civ. P. 59 and 60, which asked the court to alter, amend, and reconsider an order which found that a lien an acceptance corporation held on real property a Chapter 11 debtor owned was entitled under O.C.G.A. § 44-14-361.2(a) to first priority status. The paving company and the electric company were not entitled to relief under Fed. R. Civ. P. 60 because the companies had not presented evidence that the acceptance corporation engaged in misconduct, misrepresentation, or fraud, and the court refused to grant relief under Fed. R. Civ. P. 59(e) because the paving company and the electric company failed in the first hearing to recognize the significance of an affidavit executed by the debtor's owner in conjunction with a loan the debtor obtained from the acceptance corporation, which falsely stated that no work had been done on the property within 90 days of closing. RWD Real Estate, LLC v. Nissan Motor Acceptance Corp. (In re RWD Real Estate, LLC), Bankr. (Bankr. M.D. Ga. July 23, 2010).

Cited in Amafra Enters., Inc. v. All-Steel Bldgs., Inc., 169 Ga. App. 388 , 313 S.E.2d 110 (1984); Wachovia Bank v. American Bldg. Consultants, Inc., 138 Bankr. 1015 (Bankr. N.D. Ga. 1992); Freeman v. Fulton Concrete Co., 204 Ga. App. 465 , 419 S.E.2d 536 (1992); DeKalb County v. J & A Pipeline Co., 263 Ga. 645 , 437 S.E.2d 327 (1993).

44-14-361.3. Preliminary notice of lien; form; notice to contractor; filing; necessity of preliminary notice.

  1. Prior to filing a claim of lien, a person having a lien under paragraphs (1) through (8) of subsection (a) of Code Section 44-14-361 may at such person's option file a preliminary notice of lien rights. The preliminary notice of lien rights in order to be effective shall:
    1. Be filed with the clerk of superior court of the county in which the real estate is located within 30 days after the date a party delivered any materials or provided any labor or services for which a lien may be claimed;
    2. State the name, address, and telephone number of the potential lien claimant;
    3. State the name and address of the contractor or other person at whose instance the labor, services, or materials were furnished;
    4. State the name of the owner of the real estate and include a description sufficient to identify the real estate against which the lien is or may be claimed; and
    5. Include a general description of the labor, services, or materials furnished or to be furnished.
  2. A party filing a preliminary notice of lien rights except a contractor shall, within seven days of filing the notice, send by registered or certified mail or statutory overnight delivery a copy of the notice to the contractor on the property named in the notice or to the owner of the property. The lien claimant may rely on the building permit issued on the property for the name of the contractor.
  3. The clerk of each superior court shall maintain within the records of that office a record separate from all other real estate records in which preliminary notices specified in subsection (a) of this Code section and affidavits specified in subsection (c) of Code Section 44-14-361.4 shall be filed. Each such notice and affidavit shall be indexed under the name of the owner as contained in the preliminary notice. The clerk shall collect a filing fee of $5.00 for the filing of each preliminary notice.
  4. A person having a lien under paragraphs (1) through (8) of subsection (a) of Code Section 44-14-361 may enforce the lien without filing a preliminary notice of lien. (Code 1981, § 44-14-361.3 , enacted by Ga. L. 1983, p. 1450, § 1; Ga. L. 1985, p. 1322, § 4; Ga. L. 2000, p. 1589, § 3.)

The 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the first sentence of subsection (b).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Filing a preliminary notice of lien is optional, and it is not a prerequisite for filing a claim of lien in Georgia. Wachovia Bank v. American Bldg. Consultants, Inc., 138 Bankr. 1015 (Bankr. N.D. Ga. 1992).

44-14-361.4. Cancellation or expiration of preliminary notice; demand for filing of claim of lien.

  1. A preliminary notice of lien rights filed pursuant to Code Section 44-14-361.3 shall be dissolved if it is canceled and a preliminary notice also expires and is dissolved under any of the following conditions:
    1. The lien has been waived in writing by the lien claimant;
    2. The time has expired for filing the claim of lien as required in Code Section 44-14-361.1;
    3. On residential property, a demand for filing of a claim of lien has been sent by registered or certified mail or statutory overnight delivery to the potential lien claimant at the address specified in the preliminary notice of lien rights and at least ten days have elapsed since the date of such mailing without the filing of a claim of lien; or
    4. On all property except residential property, a demand for filing of a claim of lien has been sent by registered or certified mail or statutory overnight delivery to the potential lien claimant at the address specified in the preliminary notice of lien rights and at least ten days have elapsed since the date of such mailing without the filing of a claim of lien; provided, however, the demand for filing of a claim of lien shall not be sent until the contractor's contract is substantially complete or until the potential lien claimant's contract has been terminated or the potential lien claimant has abandoned the contract.
  2. A demand for filing of claim of lien shall contain the same information required to be contained in the preliminary notice of lien rights and shall contain the following statement addressed to the potential lien claimant:

    "This demand was mailed to you on ____________ pursuant to Code Section 44-14-361.4. You are notified that unless you file a claim of lien with respect to this claim on or before the tenth day after said date of mailing your right to claim a lien will be dissolved."

  3. If a demand for filing of a claim of lien is mailed as provided in this Code section and no claim of lien is filed within ten days after said date of mailing, the preliminary notice of lien rights may be canceled as provided in this subsection. In order to obtain cancellation, the person who mailed the demand or his attorney shall file with the clerk of superior court a copy of the demand and his or her affidavit that the demand was mailed as provided in paragraph (3) or (4) of subsection (a) of this Code section and that ten days have elapsed since said date of mailing without the filing of a claim of lien by the potential lien claimant. Upon such filing, the clerk of superior court shall cancel of record the preliminary notice of lien rights. (Code 1981, § 44-14-361.4 , enacted by Ga. L. 1983, p. 1450, § 1; Ga. L. 1984, p. 22, § 44; Ga. L. 2000, p. 1589, § 3.)

The 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in paragraphs (a)(3) and (a)(4).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Cited in Mull v. Mickey's Lumber & Supply Co., 218 Ga. App. 343 , 461 S.E.2d 270 (1995).

44-14-361.5. Liens of persons without privity of contract.

  1. To make good the liens specified in paragraphs (1), (2), and (6) through (9) of subsection (a) of Code Section 44-14-361, any person having a right to a lien who does not have privity of contract with the contractor and is providing labor, services, or materials for the improvement of property shall, within 30 days from the filing of the notice of commencement or 30 days following the first delivery of labor, services, or materials to the property, whichever is later, give a written notice to contractor as set out in subsection (c) of this Code section to the owner or the agent of the owner and to the contractor for a project on which there has been filed with the clerk of the superior court a notice of commencement setting forth therein the information required in subsection (b) of this Code section.
  2. Not later than 15 days after the contractor physically commences work on the property, a notice of commencement shall be filed by the owner, the agent of the owner, or by the contractor with the clerk of the superior court in the county in which the project is located. A copy of the notice of commencement shall be posted on the project site. The notice of commencement shall include:
    1. The name, address, and telephone number of the contractor;
    2. The name and location of the project being constructed and the legal description of the property upon which the improvements are being made;
    3. The name and address of the true owner of the property;
    4. The name and address of the person other than the owner at whose instance the improvements are being made, if not the true owner of the property;
    5. The name and the address of the surety for the performance and payment bonds, if any; and
    6. The name and address of the construction lender, if any.

      The contractor shall be required to give a copy of the notice of commencement to any subcontractor, materialman, or person who makes a written request of the contractor. Failure to give a copy of the notice of commencement within ten calendar days of receipt of the written request from the subcontractor, materialman, or person shall render the provision of this Code section inapplicable to the subcontractor, materialman, or person making the request.

  3. A notice to contractor shall be sent by registered or certified mail or statutory overnight delivery to the owner or the agent of the owner and to the contractor at the addresses set forth in the notice of commencement setting forth:
    1. The name, address, and telephone number of the person providing labor, services, or materials;
    2. The name and address of each person at whose instance the labor, services, or materials are being furnished;
    3. The name of the project and location of the project set forth in the notice of commencement; and
    4. A description of the labor, services, or materials being provided and, if known, the contract price or anticipated value of the labor, services, or materials to be provided or the amount claimed to be due, if any.
  4. The failure to file a notice of commencement shall render the provisions of this Code section inapplicable.  The filing of a notice of commencement shall not constitute a cloud, lien, or encumbrance upon or defect to the title of the real property described in the notice of commencement, nor shall it alter the aggregate amounts of liens allowable, nor shall it affect the priority of any loan in which the property is to secure payment of the loan filed before or after the notice of commencement, nor shall it affect the future advances under any such loan.  Nothing contained in this Code section shall affect the provisions of Code Section 44-14-361.2.
  5. The clerk of each superior court shall file the notice of commencement within the records of that office and maintain an index separate from other real estate records or an index with the preliminary notices specified in subsection (a) of Code Section 44-14-361.3 .  Each such notice of commencement shall be indexed under the name of the true owner and the contractor as contained in the notice of commencement. (Code 1981, § 44-14-361.5 , enacted by Ga. L. 1993, p. 1008, § 1; Ga. L. 1995, p. 672, § 1; Ga. L. 2008, p. 1063, § 3/SB 374; Ga. L. 2013, p. 141, § 44/HB 79; Ga. L. 2014, p. 866, § 44/SB 340.)

The 2008 amendment, effective March 31, 2009, in subsection (c), substituted "sent by registered or certified mail or statutory overnight delivery" for "given" in the introductory paragraph, and revised capitalization throughout the subsection.

The 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, revised capitalization throughout this Code section.

The 2014 amendment, effective April 29, 2014, part of an Act to revise, modernize, and correct the Code, revised capitalization in subsection (a).

Law reviews. - For survey article on construction law, see 59 Mercer L. Rev. 55 (2007). For survey article on construction law, see 60 Mercer L. Rev. 59 (2008). For annual survey on construction law, see 61 Mercer L. Rev. 65 (2009). For article, "Non-Privity Lien Rights on Private Construction Projects: The Court of Appeals of Georgia Provides Clarity," see 15 (No. 5) Ga. St. B.J. 20 (2010). For annual survey on construction law, see 64 Mercer L. Rev. 71 (2012). For annual survey on construction law, see 69 Mercer L. Rev. 63 (2017). For note on 1993 enactment of this section, see 10 Ga. St. U. L. Rev. 211 (1993).

JUDICIAL DECISIONS

Notice not required when filing lien. - A Notice of Commencement that failed to identify the true owner of the property upon which improvements were being made and failed to include a legal description of the property was fatally deficient, and therefore, under O.C.G.A § 14-44-361.5(d), a sub-subcontractor that provided labor services to the project was relieved of the obligations regarding Notice to Contractor outlined in § 14-44-361.5(a), (c) when filing a materialman's lien. Harris Ventures, Inc. v. Mallory & Evans, Inc., 291 Ga. App. 843 , 662 S.E.2d 874 (2008), cert. denied, No. S08C1725, 2008 Ga. LEXIS 790 (Ga. 2008).

Time requirement for filing notice of commencement. - O.C.G.A. § 44-14-361.5(a) and (d) do not require the filing of a Notice of Commencement within the 15-day deadline as a general condition to providing a Notice to Contractor. The failure to file a Notice of Commencement as provided in § 44-14-361.5(d) applies when there has been a total failure to file a Notice of Commencement at the time when a materialman must give a written Notice to Contractor to perfect its lien under § 44-14-361.5(a) . Beacon Med. Prods. v. Travelers Cas. & Sur. Co., 292 Ga. App. 617 , 665 S.E.2d 710 (2008).

Filing of notice to contractor. - A supplier was not entitled to recover on a materialman's lien discharge bond because it had not perfected the lien by filing a Notice to Contractor under O.C.G.A. § 44-14-361.5(a) . The fact that the general contractor did not file its Notice of Commencement within 15 days did not relieve the supplier of its duty to file the Notice to Contractor; moreover, because the supplier did have record notice of the Notice of Commencement, which was filed nearly four months before the supplier first provided materials for the project, the purpose of the statute was satisfied. Beacon Med. Prods. v. Travelers Cas. & Sur. Co., 292 Ga. App. 617 , 665 S.E.2d 710 (2008).

Supplier to a subcontractor on a construction project was not entitled to recover on a materialman's lien under O.C.G.A. § 44-14-361.5 because the supplier failed to file a Notice to Contractor as required. The contractor's late filing of the Notice of Commencement did not relieve the supplier of the supplier's duty to provide notice. Southeast Culvert, Inc v. Hardin Bros., LLC, 312 Ga. App. 158 , 718 S.E.2d 28 (2011), cert. denied, No. S12C0377, 2012 Ga. LEXIS 233 (Ga. 2012).

Notice to contractor deficient. - Trial court did not err in granting a general contractor and the contractor's surety summary judgment in a supplier's action to recover under a payment bond and a lien discharge bond for monies a subcontractor owed the contractor for materials it supplied to a construction project because the supplier's notice to the contractor failed to comply with O.C.G.A. §§ 10-7-31(a) and 44-14-361.5(c) because the notice wholly omitted required information; although the supplier's notice to the contractor set forth the subcontractor's name, it failed to provide any address for the subcontractor as required under §§ 10-7-31(a) (2) and 44-14-361.5(c) (2), and although the notice set forth the name of the project, the notice failed to state the location of the construction project pursuant to §§ 10-7-31(a)(3) and 44-14-361.5(c)(3). Consol. Pipe & Supply Co. v. Genoa Constr. Servs., 302 Ga. App. 255 , 690 S.E.2d 894 (2010).

Substantial compliance with notice of commencement. - As a general contractor's notice of commencement under O.C.G.A. § 44-14-361.5(b) substantially complied when the contractor's notice only omitted the contractor's telephone number, a supplier still had a duty to file a notice to the contractor under § 44-14-361.5(a) and (c); accordingly, summary judgment to the supplier was error on the supplier's lien-discharge bond claim as the supplier had failed to file the notice with the contractor. Fid. & Deposit Co. v. Lafarge Bldg. Materials, Inc., 312 Ga. App. 821 , 720 S.E.2d 288 (2011).

Failure to post notice of commencement at job site. - General contractor's failure to post a notice of commencement at a job site as required by O.C.G.A. § 44-14-365.1(b) did not absolve a subcontractor from compliance with the special lien perfection requirements in § 44-14-361.5(a) , (c); while the statute specifically stated that a failure to file a notice of commencement with the clerk of the superior court where a construction project was located would result in a subcontractor not having to comply with § 44-14-361.5(a) , (c), no such language was included in the statute regarding the failure to post a notice of commencement at a job site. Rey Coliman Contrs., Inc. v. PCL Constr. Servs., 296 Ga. App. 892 , 676 S.E.2d 298 (2009).

Judgment on the pleadings reversed. - Construing the pleadings in a light most favorable to showing a question of fact, in an action in which: (1) the pleadings did not disclose with certainty that a supplier would not be entitled to relief in its action against a general contractor and the contractor's surety; and (2) the appeals court did not consider the supplier's averments that its "Notice to Owner/Contractor" complied with O.C.G.A. §§ 10-7-31 and 44-14-361.5 or its admission that it received a copy of the notice of commencement to establish that the general contractor's notice of commencement was otherwise proper and timely filed as required by the statutes, the general contractor and its surety were not entitled to judgment on the pleadings. Consol. Pipe & Supply Co. v. Genoa Constr. Servs., Inc., 279 Ga. App. 894 , 633 S.E.2d 59 (2006).

Owner as "contractor." - There was no reason why an owner could not also have been a contractor for purposes of a materialman's lien; because a property owner listed itself as "general contractor" in its notices of commencement, and because a materials supplier was not in privity with the owner, the supplier was required to provide the owner with the O.C.G.A. § 44-14-361(a) notice to contractor; since the supplier failed to give the proper notice, its materialman's liens were invalid. Roofing Supply of Atlanta, Inc. v. Forrest Homes, Inc., 279 Ga. App. 504 , 632 S.E.2d 161 (2006).

Indexing requirements. - In the general contractor's action against the materials provider relating to the provider's request for payment under a payment bond, the general contractor's notice of commencement and the provider's notice to contractor complied with O.C.G.A. § 10-7-31 ; although the notice of commencement stated that it was pursuant to O.C.G.A. § 44-14-361.5 and the notice to contractor stated that it was sent under O.C.G.A. § 44-14-361 , O.C.G.A. § 10-7-31 did not require that either of the notices be expressly labeled as being provided under the statute, the notices contained the pertinent information contemplated by O.C.G.A. § 10-7-31, including that the general contractor had provided a payment bond and that the provider had provided materials for the project through improvements made by the subcontractor, and the notice of commencement was not misfiled under O.C.G.A. § 10-7-31(d) because it was labeled as provided under O.C.G.A. § 44-14-361.5 , as the indexing requirements of both statutes were substantially identical. Sierra Craft, Inc. v. T. D. Farrell Constr., Inc., 282 Ga. App. 377 , 638 S.E.2d 815 (2006), cert. denied, No. S07C0460, 2007 Ga. LEXIS 145 (Ga. 2007).

Notice of commencement defective. - A contractor's notice of commencement that described the property by street address only, without a legal description, and that did not list the name of the property's true owner, but the name under which the owner did business, was fatally defective under O.C.G.A. § 44-14-361.5 , thus relieving a lien claimant of the duty to file a notice to contractor. GE v. North Point Ministries, Inc., 289 Ga. App. 382 , 657 S.E.2d 297 (2008).

The requirement to furnish a legal description of the property and the name of the true owner are matters of substance, not mere technicalities, and providing merely the property's street address and an "a/k/a" name for the owner amounts to neither actual nor substantial compliance with the provisions of O.C.G.A. § 44-14-361.5 . Either of these defects on the face of a notice of commencement will render the notice insufficient to trigger the provisions of O.C.G.A. § 44-14-361.5 , so that a lien claimant is relieved of the obligation to provide a notice to contractor in order to preserve its lien. GE v. North Point Ministries, Inc., 289 Ga. App. 382 , 657 S.E.2d 297 (2008).

Grant of summary judgment to the property owner on a materialman's lien was reversed because it failed to identify or provide contact information for its construction lender in its Notice of Commencement, rendering it fatally defective under O.C.G.A. § 44-14-361.5(d) and because the Notice of Commencement did not substantially comply with § 44-14-361.5(b) , the material supplier's failure to file its Notice to Contractor within the prescribed time was excused under § 44-14-361.5(d) . Capitol Materials, Inc. v. JLB Buckhead, LLC, 337 Ga. App. 848 , 789 S.E.2d 803 (2016).

OPINIONS OF THE ATTORNEY GENERAL

Section not applicable to public works. - The provisions of O.C.G.A. § 44-14-361.5 pertaining to the filing of a Notice of Commencement of work are not applicable to a state authority with regard to construction projects on public property; however, a contractor performing a public works contract for a state authority is required to file a notice in accordance with former O.C.G.A. § 36-82-104(f). 1995 Op. Att'y Gen. No. 95-43.

44-14-362. Cancellation of preliminary notice upon final payment; form of cancellation.

  1. Upon final payment after all labor, services, or materials have been furnished, a person who has filed a preliminary notice of lien rights shall either deliver a cancellation of the preliminary notice of lien rights at the time of final payment or cause the notice to be canceled of record within ten days after final payment. Any person who fails to so cancel a preliminary notice shall be liable to the owner for all actual damages, costs, and reasonable attorney's fees incurred by the owner in having the preliminary notice canceled.
  2. The cancellation required under this Code section shall be in the following form: (Code 1981, § 44-14-362 , enacted by Ga. L. 1983, p. 1450, § 1; Ga. L. 1999, p. 81, § 44.)

Clerk, Superior Court of _____________ County You are authorized and directed to cancel of record the preliminary notice of lien rights which we filed on the property owned by (state name of owner) on (give date) and recorded by you in Book ______, Page ______, of preliminary notices kept by you. This ______ day of ________________________, ________. ________________ Lien claimant or attorney

Editor's notes. - Ga. L. 1983, p. 1450, § 1, effective July 1, 1983, renumbered former Code Section 44-14-362, relating to creation and declaration of liens, as present Code Section 44-14-361.1.

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Editor's notes. -.

The pre-1984 annotations below were taken from decisions decided under former § 44-14-362 . See editor's note, above.

Constitutionality. - The materialmen's lien statutes do not deprive property owners of a significant property interest without notice and hearing; they serve an important public interest and the statutes are not unconstitutional. Tucker Door & Trim Corp. v. Fifteenth St. Co., 235 Ga. 727 , 221 S.E.2d 433 (1975).

History of section. - This section originated in an Act of the General Assembly passed in 1841. Kwilecki v. Young, 180 Ga. 602 , 180 S.E. 137 (1935).

Historical requirements. - Prior to the passage of the amendments of 1941 and 1952 to former paragraph (3) of this section it was, without exception, a condition precedent to the enforcement of a materialman's lien against the property of the owner, for materials furnished a contractor, that the plaintiff materialman obtain a valid judgment against the contractor for the price of the materials under the decisions if the contractor had been adjudged a bankrupt, so that no judgment in personam could be had against him, the liability of the contractor was annulled and the materialman's lien could not thereafter be foreclosed against the property of the owner. Victory Lumber Co. v. Ellison, 95 Ga. App. 105 , 97 S.E.2d 334 (1957).

Intent. - It was the intention of the General Assembly to deal only with the subject matter of lien and mortgage establishment and foreclosure as affecting subcontractors and persons claiming against or under subcontractors. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515 , 114 S.E.2d 289 (1960).

It was the intention of the General Assembly that when an owner of property entered into a contract with contractors to improve the real estate of the owner, that the owner of the real estate would have the responsibility of contracting with reliable contractors for such improvements and if such owner failed to do so and the contractors would not be served because they were beyond the jurisdiction of the court that it would not be necessary to do the impossible and bring action against such contractors within 12 months before subjecting the property improved to a lien for the amount of such improvements. Cowart v. Reeves, 80 Ga. App. 161 , 55 S.E.2d 911 (1949).

The purpose of the materialman's lien statutes in every state is, in substance, the same: to give the furnisher of labor and material a claim upon the owner, to compel the owner at the owner's peril to withhold final payment until the owner has received assurance from the contractor that the owner has paid all material and labor claims, which are or which may be perfected into liens. Gignilliat v. West Lumber Co., 80 Ga. App. 652 , 56 S.E.2d 841 (1949); Scott v. Williams, 111 Ga. App. 735 , 143 S.E.2d 16 (1965).

Section strictly construed. - If there are degrees of strict construction, certainly an Act of the General Assembly which has for its purpose the giving of a lien upon property of one in favor of the creditor of another should be dealt with according to the strictest rules of strict construction. It is well established that the statute with reference to establishing liens against real estate for improvements made must be strictly construed. Cowart v. Reeves, 80 Ga. App. 161 , 55 S.E.2d 911 (1949).

This section is in derogation of the common law, and must be construed strictly. Before the lien which it creates in favor of certain persons, under certain circumstances, which overrides all other liens, can be allowed, the party must show compliance with all the conditions, and bring himself within all the requirements and limitations of this section. Kwilecki v. Young, 180 Ga. 602 , 180 S.E. 137 (1935).

The liens of laborers and materialmen do not rest upon contract, but upon the law which gives to them liens of labor performed and material furnished in the improvement of real estate. These liens are creatures of statute and must be strictly construed as they relate to classes of persons who may claim a lien and the improvements and kind of property on which it may be obtained. Atlanta Jewish Community Ctr., Inc. v. Tom Barrow Co., 130 Ga. App. 608 , 203 S.E.2d 921 (1974).

Lien statutes, being in derogation of the common law, must be strictly construed. Fowler v. Roxboro Homes, Inc., 98 Ga. App. 829 , 107 S.E.2d 285 (1959).

Strict compliance required. - O.C.G.A. § 44-14-361 and this section provide a method of effecting a lien for materials furnished for the purpose of improving real estate, and strict compliance with these sections is required. King v. Rutledge, 208 Ga. 172 , 65 S.E.2d 801 (1951).

When cancellation required. - Former subsection (a) only requires a cancellation of the preliminary notice of lien by the lien claimant if the lien claimant has received final payment after all labor services and materials have been furnished. Therefore, where subcontractor contended that it did not receive any such final payment, it would not have been required to cancel a preliminary notice of lien if it had filed one. Wachovia Bank v. American Bldg. Consultants, Inc., 138 Bankr. 1015 (Bankr. N.D. Ga. 1992).

Only way that liens against personalty may be created is in accordance with O.C.G.A. § 44-14-362 . Meders v. Wirchball, 83 Ga. App. 408 , 63 S.E.2d 674 (1951).

Difference between liens on money and liens on land. - The money, as it becomes due, is charged with a lien as against the contractor, in favor of the subcontractor, materialmen, and laborers. On the other hand, the land is charged with a lien as against the owner, for the purpose of securing the payment of the contract price, and creating the fund out of which the subcontractors and laborers may be paid. Scott v. Williams, 111 Ga. App. 735 , 143 S.E.2d 16 (1965).

Statutory requirements are mere conditions precedent to asserting lien. - Recording of the lien within three months from the date when the material was furnished, and the institution of an action within one year from that date, merely preserves the lien and the right to establish it against the property. Marietta Baptist Tabernacle v. Tomberlin Assocs., 576 F.2d 1237 (5th Cir. 1978).

Requirements for preservation or perfection of materialman's lien. - To make good or perfect the materialman's lien specified in O.C.G.A. § 44-14-361 , it is essential, under this section, not only that there be (1) a substantial compliance by the alleged lienor with the contract, and (2) the recording of the claim of lien within three months, but, (3) that an action for recovery of the amount of the claim be commenced within 12 months from the time the same became due. Kwilecki v. Young, 180 Ga. 602 , 180 S.E. 137 (1935); Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330 , 18 S.E.2d 61 (1941).

In order to preserve a materialman's lien, it is essential to show that (1) the plaintiff completed the contract, (2) the plaintiff filed for record the claim of lien within three months after completion of the contract, and (3) the plaintiff brought suit to recover the amount of the claim within 12 months after the debt became due. Old Stone Mtg. & Realty Trust v. New Ga. Plumbing, Inc., 140 Ga. App. 686 , 231 S.E.2d 785 (1976), aff'd, 239 Ga. 345 , 236 S.E.2d 592 (1977).

In giving to the materialman a lien, the statute expressly states that in order to make good on the lien the materialman must both record and foreclose within the statutory periods. The record of the lien in time is no more essential to its creation than its foreclosure in time, and the lien comes into potential existence only when the statute is satisfied. Kwilecki v. Young, 180 Ga. 602 , 180 S.E. 137 (1935).

Materialman's lien only inchoate until perfected by judgment. - The lien provided for in favor of a materialman is not absolute, but must be completed, made good, or perfected in accordance with the provisions of O.C.G.A. § 44-14-362 . It is only inchoate or incipient until a judgment finally perfects it. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330 , 18 S.E.2d 61 (1941).

Approval of engineer condition precedent to foreclosure if in contract. - A stipulation in a building contract to the effect that the compensation of a builder shall be due and payable only on the certificate of a named engineer is a condition precedent to the foreclosure of the contractor's lien. Southern Mfg. Co. v. R.L. Moss Mfg. Co., 13 Ga. App. 847 , 81 S.E. 263 (1913).

Uses of property permitted by materialman's lien statutes despite lien. - The materialmen's lien statutes do not deprive property owners of a significant property interest without notice and hearing. Although some use of property may be curtailed, the owner is not legally prevented from selling, encumbering, renting or otherwise dealing with the property as the owner chooses. Fayetteville-85 Assocs. v. Samas, Inc., 241 Ga. 119 , 243 S.E.2d 887 (1978).

Foreclosure proceedings for condominium assessments. - It is clear that the foreclosure proceedings set forth in O.C.G.A. § 44-3-109 are simplified, and distinct from the proceedings for the creation and enforcement of other types of liens. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135 , 253 S.E.2d 813 (1979).

The sole requirements for creation of the lien for assessments are contained in O.C.G.A. § 44-3-109 , and it is only the actual foreclosure proceedings which must be "in the same manner as other liens for the improvement of real property." Thus, the judgment and execution of the lien must be entered by the appropriate superior court. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135 , 253 S.E.2d 813 (1979).

Materials must be used in improvement for materialman's claim to arise. - Where a materialman delivered materials to the job site and the subcontractor to whom the materials were consigned did not keep them, but the materials were returned to the materialman and placed in the materialman's stock, the materialman has no claim of lien for such materials as against the owner of the property being improved, as it is necessary that the materials be used in the improvement itself for the benefit of the owner before such materials are lienable. Downtowner of Atlanta, Inc. v. Dunham-Bush, Inc., 120 Ga. App. 342 , 170 S.E.2d 590 (1969).

Materialman cannot recover against landowner on basis of unjust enrichment instead of remedy under section. - The purpose of this section is to give to materialmen a lien, and the mode for enforcing the lien is also prescribed, and the object of this section would be frustrated and virtually defeated if a materialman who failed to pursue a statutory remedy was allowed to recover against the landowner under a concept of unjust enrichment. Lynn v. Miller Lumber Co., 146 Ga. App. 230 , 246 S.E.2d 137 (1978).

Lien in favor of masons and carpenters not enforceable in equity absent impediment to legal remedy. - Where a statute creates a specific lien, in favor of masons and carpenters, on buildings erected by them, and also gives them a specific remedy for the enforcement of such lien, a court of equity has no jurisdiction to enforce it, unless there is some impediment or difficulty charged to exist, which would render the remedy given by the statute unavailable. King v. Rutledge, 208 Ga. 172 , 65 S.E.2d 801 (1951).

Basis for requirement that plaintiff and defendant be in privity. - Requirement of privity between a plaintiff and a defendant in an action under this section can be drawn from the section only by the negative inference that the enumeration of certain instances in which the contractor need not be sued, gives rise to the necessary implication that the contractor must be sued in all other circumstances. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).

Defendant and plaintiff must be in privity in actions under section. - An action under this section must be brought against a defendant in direct privity with the plaintiff. In the normal case this requires the subcontractor to bring an action against the general contractor, and thus ensures that the subcontractor will seek compensation from the general contractor before the subscontractor will be allowed to foreclose on the owner's real property. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).

Agreement between landowner and lessee sufficient to charge owner with lien. - An agreement between a landowner and a lessee for a rent credit or payment in cash if necessary in exchange for permanent improvements is sufficient to charge the owner with a lien for material used pursuant to that agreement under former paragraph (3) of this section. Bennett Iron Works, Inc. v. Underground Atlanta, Inc., 130 Ga. App. 653 , 204 S.E.2d 331 (1974).

Requirements for subcontracts linking owner and materialmen indirectly through contractors. - There need be no contract between the materialman and the true owner, but there must be a contract for material between the true owner and some person for the erection of the improvements and, if the materialman has not sold directly to such person, then there must also be shown a contract between that person and the person to whom the materialman furnished the materials, and it must further appear that the subject matter of this subcontract is a part of the owner's original contract and within the owner's contractual commitment. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515 , 114 S.E.2d 289 (1960).

Materialman may obtain personal judgment against owner for materials sold to owner. - Where materials are sold to an owner either directly or through another as his agent, the materialman may, upon proper pleadings and evidence, obtain a personal judgment against the owner for the price or value of such materials, but the materialman is not obliged to seek or obtain such a judgment in order to maintain foreclosure proceedings. Robinson v. Reese, 175 Ga. 574 , 165 S.E. 744 (1932).

Wife not liable for improvements made by materialman in contract with her husband. - A wife is not liable for services rendered or materials used in improving her property when such services and materials are furnished under a contract between her husband and the materialmen to which she is not a party. Nix v. Luke, 96 Ga. App. 123 , 99 S.E.2d 446 (1957).

Cited in Broxton Artificial Stone Works v. Jowers, 4 Ga. App. 91 , 60 S.E. 1012 (1908); David v. Marbut-Williams Lumber Co., 32 Ga. App. 157 , 122 S.E. 906 (1924); Poythress v. Hucks, 56 Ga. App. 657 , 193 S.E. 475 (1937); Northwest Atlanta Bank v. Manning, 193 Ga. 186 , 17 S.E.2d 547 (1941); Millers Nat'l Ins. Co. v. Hatcher, 194 Ga. 449 , 22 S.E.2d 99 (1942); Rose v. Crane Heating Co., 198 Ga. 295 , 31 S.E.2d 717 (1944); Langford v. Edmondson, 82 Ga. App. 494 , 61 S.E.2d 558 (1950); Davis v. Akins, 85 Ga. App. 364 , 69 S.E.2d 791 (1952); Chandler v. Pennington, 89 Ga. App. 676 , 80 S.E.2d 843 (1954); United States v. Ridley, 120 F. Supp. 530 (N.D. Ga. 1954); Mullinaux v. Gilreath, 91 Ga. App. 511 , 86 S.E.2d 347 (1955); Saye v. Athens Lumber Co., 94 Ga. App. 118 , 93 S.E.2d 806 (1956); Latham Plumbing & Heating Co. v. Ledbetter Trucks, Inc., 96 Ga. App. 219 , 99 S.E.2d 545 (1957); Grigsby v. Fleming, 96 Ga. App. 664 , 101 S.E.2d 217 (1957); Harris v. Parham, 213 Ga. 725 , 101 S.E.2d 722 (1958); Perkins v. Lawler, 97 Ga. App. 38 , 102 S.E.2d 69 (1958); Hill v. Dealers Supply Co., 103 Ga. App. 846 , 120 S.E.2d 879 (1961); Goss v. Davenport, 105 Ga. App. 386 , 124 S.E.2d 485 (1962); Weathers v. Modern Masonry Materials, Inc., 105 Ga. App. 736 , 125 S.E.2d 532 (1962); Wilson v. Harris, 107 Ga. App. 509 , 130 S.E.2d 612 (1963); Rogers v. Johnson, 116 Ga. App. 295 , 157 S.E.2d 48 (1967); D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967); Levy v. G.E.C. Corp., 117 Ga. App. 673 , 161 S.E.2d 339 (1968); Reynolds v. Magbee Bros. Lumber & Supply Co., 224 Ga. 379 , 162 S.E.2d 327 (1968); Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639 , 171 S.E.2d 782 (1969); Algernon Blair, Inc. v. Atlantic Steel Placing Co., 297 F. Supp. 1340 (N.D. Ga. 1969); Jordan Co. v. Bethlehem Steel Corp., 309 F. Supp. 148 (S.D. Ga. 1970); Hospital Auth. v. AGN Mfg., Inc., 124 Ga. App. 159 , 183 S.E.2d 58 (1971); Wall v. Mills, 126 Ga. App. 149 , 190 S.E.2d 146 (1972); Phoenix Air Conditioning Co. v. Al-Carol, Inc., 129 Ga. App. 386 , 199 S.E.2d 556 (1973); Steenhuis v. Todd's Constr. Co., 231 Ga. 709 , 203 S.E.2d 530 (1974); Vector Co. v. Star Enters., Inc., 131 Ga. App. 569 , 206 S.E.2d 636 (1974); Centennial Equities Corp. v. Hollis, 132 Ga. App. 44 , 207 S.E.2d 573 (1974); Sasser & Co. v. Griffin, 133 Ga. App. 83 , 210 S.E.2d 34 (1974); Schermerhorn v. Greater DeKalb Plumbing & Repair Co., 134 Ga. App. 517 , 215 S.E.2d 282 (1975); G & B Contractors v. Coronet Developers, Inc., 13 4 Ga. App. 91 6, 216 S.E.2d 705 (1975); Benn v. McBride, 140 Ga. App. 698 , 231 S.E.2d 438 (1976); Kalish v. King Cabinet Co., 140 Ga. App. 345 , 232 S.E.2d 86 (1976); Grand Atlanta Corp. v. Chenggis, 142 Ga. App. 375 , 235 S.E.2d 779 (1977); Shirah Contracting Co. v. Waite, 143 Ga. App. 355 , 238 S.E.2d 728 (1977); Blanton v. Major, 144 Ga. App. 762 , 242 S.E.2d 360 (1978); Harrison v. Barrett, 148 Ga. App. 108 , 251 S.E.2d 100 (1978); Cherokee Culvert Co. v. Gurin, 153 Ga. App. 296 , 265 S.E.2d 106 (1980); J.H. Morris Bldg. Supplies v. Brown, 154 Ga. App. 481 , 270 S.E.2d 92 (1980); Cumberland Bridge Assocs. v. Builders Steel Supply, Inc., 169 Ga. App. 945 , 315 S.E.2d 484 (1984); Spicewood, Inc. v. Ferro Pipeline Co., 181 Ga. App. 277 , 351 S.E.2d 711 (1986); Yates Paving & Grading Co. v. Waters, 181 Ga. App. 537 , 352 S.E.2d 791 (1987).

Compliance

Lien does not arise upon failure to complete on time. - Where the contractor agrees that the improvements shall be completed by a certain date, the lien under this section does not arise if there is a failure to perform such agreement. D.A. Tompkins Co. v. Monticello Cotton Oil Co., 137 F. 625 (S.D. Ga. 1905).

Contractor need not show compliance if owner prevents completion. - One seeking to foreclose a contractor's lien for labor and materials must show a substantial compliance with the contract, but if the completion of the contract was prevented by the owner, this is equivalent to a completion of the contract as a remedial element. MacLeod v. Belvedale, Inc., 115 Ga. App. 444 , 154 S.E.2d 756 (1967).

Contractor may be entitled to equitable lien. - Where the contractor is by the act of the owner prevented from compliance, the contractor may be entitled to an equitable lien for the improvements made on a quantum meruit theory. Jones v. Ely, 95 Ga. App. 4 , 96 S.E.2d 536 (1957).

Substantial compliance unnecessary if party with right to require architect's certificate prevents completion. - While one seeking to foreclose a contractor's lien for labor and materials must show substantial compliance with the contract, if the completion of the contract was prevented by the party otherwise having the right to insist on the architect's certificate, this is equivalent to completion of the contract as a remedial element. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527 , 251 S.E.2d 800 (1978).

Abandonment defeats contractor's claim of lien. - An abandonment of work before compliance with the contract, upon a mere apprehension that the contractor will not be paid at the time for payment, is unauthorized and defeats contractor's claim of lien. MacLeod v. Belvedale, Inc., 115 Ga. App. 444 , 154 S.E.2d 756 (1967).

The law does not allow a contractor, mechanic or materialman to violate a contract and claim a lien for work done, because of an apprehension or fear that the contractor will not receive pay. Rome Hotel Co. v. Warlick, 87 Ga. 34 , 13 S.E. 116 (1891).

Where subcontractor has fully performed, nonperformance by contractor will not defeat subcontractor's lien. Massachusetts Bonding & Ins. Co. v. Realty Trust Co., 142 Ga. 499 , 83 S.E. 210 (1914), appeal dismissed, 241 U.S. 687, 36 S. Ct. 451 , 60 L. Ed. 1237 (1916); Holmes v. Venable, 27 Ga. App. 431 , 109 S.E. 175 (1921).

Death of the owner shortly before completion of a house will not prevent the perfection of a contractor's lien, when the house was completed by agreement with the administration. Boynton v. Westbrook, 74 Ga. 68 (1884).

Claim of lien need not show compliance. - It is not required that the claim of lien as recorded should show on its face that the materialman has complied with the contract. Ford v. Wilson & Co., 85 Ga. 109 , 11 S.E. 559 (1890).

Filing of Claims

Filing lien as provided by this section is essential to validity of foreclosure of a materialman's lien against realty. Nix v. Luke, 96 Ga. App. 123 , 99 S.E.2d 446 (1957).

Form of materialman's claim. - The materialman's claim of lien filed for record must be in substance in the language of former paragraph (2) of this section. Fowler v. Roxboro Homes, Inc., 98 Ga. App. 829 , 107 S.E.2d 285 (1959).

Section operates as a sort of automatic garnishment, which, without summons or service impounds the fund due by the owner, and requires it to be held up until the expiration of the time named in the statute. Scott v. Williams, 111 Ga. App. 735 , 143 S.E.2d 16 (1965).

Lien which fails to comply with section is ineffective. - When the claim of lien as filed fails to comply with the provisions of this section, the purported lien is ineffective. J.H. Morris Bldg. Supplies v. Brown, 151 Ga. App. 522 , 260 S.E.2d 358 (1979).

Lien cannot constitute abuse of process. - Under O.C.G.A. § 44-14-361 et seq., a lien attaches when a laborer performs work on real property; however, under former subsections (2) and (3) of this section, it must be perfected within three months after either the completion of the work or the date materials are furnished and an action to recover the amount of the claim must be instituted within 12 months from the time labor or materials were last furnished. Thus, a lien is not civil process and plaintiff materialmen do not state a claim upon which relief can be granted when they contend that the filing of a lien constitutes abuse of process. Carl E. Jones Dev., Inc. v. Wilson, 149 Ga. App. 679 , 255 S.E.2d 135 (1979).

Claim must be recorded. - The mere filing of a claim for record is not sufficient compliance with this section. It must be actually recorded. Jones v. Kern, 101 Ga. 309 , 28 S.E. 850 (1897); Ohio Blower Co. v. Savannah Lighting Co., 21 Ga. App. 464 , 94 S.E. 636 (1917).

Effect of recording lien and instituting action. - The record of the lien, as provided by this section, within three months from the date when the material was furnished, and the institution of an action within one year from that date, merely preserves the lien and the right to establish it against the property. Davis v. Stone, 48 Ga. App. 532 , 173 S.E. 454 (1934).

Recordation within three months must be alleged in complaint for foreclosure. Hinkle v. Reid, 16 Ga. App. 788 , 86 S.E. 411 (1915).

Computation of three-month period. - From May 6, to August 6 in a given year, is more than three months. Jones v. Kern, 101 Ga. 309 , 28 S.E. 850 (1897).

When materialman's lien attaches generally. - The lien of a materialman on real estate, arising under O.C.G.A. § 44-14-361 and this section, attaches from the time the work under the contract is commenced or the material is furnished. Spirides v. Victory Lumber Co., 76 Ga. App. 78 , 45 S.E.2d 65 (1947).

Lien attaches unless owner affirmatively shows waiver or sworn statement of contractor. - This section does not require that the owner shall "take" an affidavit from the contractor in order to prevent the materialman's lien from attaching. It provides that the lien shall attach unless the true owner shows that such lien has been waived in writing or produces the sworn statement of the contractor, etc. Chambers Lumber Co. v. Gilmer, 60 Ga. App. 832 , 5 S.E.2d 84 (1939).

Account becomes due upon the delivery of the last item constituting a part of the account. Dixie Lime & Stone Co. v. Ryder Truck Rental, Inc., 140 Ga. App. 188 , 230 S.E.2d 322 (1976).

Claim of lien becomes due upon the date of delivery of the last item included in the claim. Vulcan Materials Co. v. D.H. Overmyer Whse. Co., 115 Ga. App. 792 , 156 S.E.2d 213 (1967).

Inclusion of nonlienable items with lienable items does not defeat the whole. Sears Roebuck & Co. v. Superior Rigging & Erecting Co., 120 Ga. App. 412 , 170 S.E.2d 721 (1969).

Unless lienable and nonlienable items cannot be separately charged. - Where lienable and nonlienable items are included in one contract for a specific sum, and it cannot be determined what proportion is chargeable to each, the benefit of lien law is lost. Jackson's Mill & Lumber Co. v. Holliday, 108 Ga. App. 663 , 134 S.E.2d 563 (1963).

When running accounts fall due. - Although it may be a custom for running accounts to fall due and become payable on January 1, following, yet for the purpose of foreclosing a lien arising out of such an account, the account will be regarded as falling due upon the delivery of the last item constituting a part of the running account covered by the contract. McCluskey v. Still, 32 Ga. App. 641 , 124 S.E. 548 (1924).

Requirements for perfecting special lien for running account. - A materialman may not perfect a special lien on the owner's property without first showing that it had filed its claim of lien within three months from the date of the last delivery of one or more specific items on the particular job and had obtained a judgment against the contractor based on all of the items shown in the running account or bill of particulars involved in that action. It could not try, in an action to foreclose a lien, the question whether or not it had furnished any item not appearing in the running account presented in the action against the contractor. Chambers Lumber Co. v. Gilmer, 60 Ga. App. 832 , 5 S.E.2d 84 (1939).

The lien for materials furnished under an entire contract is recorded in time if it is recorded within three months after the last item is furnished. New Ebenezer Ass'n v. Gress Lumber Co., 89 Ga. 125 , 14 S.E. 892 (1892).

If the claim of lien is recorded within three months from the date of the last item listed on the running account, charged upon the open account against the purchaser, it is recorded in time, even though such particular item has been paid for. Chambers Lumber Co. v. Gilmer, 60 Ga. App. 832 , 5 S.E.2d 84 (1939).

In cases involving a claim of lien for material furnished by a materialman, if the lien is recorded within three months from the delivery or furnishing of the last item of material which constitutes a part of the open or running account covered by the contract, then the claim is timely filed as the whole. Sears Roebuck & Co. v. Superior Rigging & Erecting Co., 120 Ga. App. 412 , 170 S.E.2d 721 (1969).

A lien recorded within three months after the last item is furnished is recorded in time although the items unpaid for and for which the materialman claims a lien were all furnished more than three months prior to the recording of the lien, and all the other items, including those representing material furnished within three months of the recording of the lien, had been paid for. Stewart Bros. v. Randall Bros., 138 Ga. 796 , 76 S.E. 352 (1912); Pippin v. Owens, 29 Ga. App. 789 , 116 S.E. 549 (1923). But see Downtowner of Atlanta, Inc. v. Dunham-Bush, Inc., 120 Ga. App. 342 , 170 S.E.2d 590 (1969).

Last item must be lienable in running account extending over three months. - While a claim of lien for material furnished for building purposes from time to time under one and the same contract is recorded in time if the record of the claim of lien is made within three months from the delivery of the last item constituting a part of the running account covered by the contract, although many items of the account have been furnished many months before the date in the record, yet, for this rule to apply, the last item constituting the running account covered by the contract must be a lienable item. Downtowner of Atlanta, Inc. v. Dunham-Bush, Inc., 120 Ga. App. 342 , 170 S.E.2d 590 (1969). But see Stewart Bros. v. Randall Bros., 138 Ga. 796 , 76 S.E. 352 (1912); Pippin v. Owens, 29 Ga. App. 789 , 116 S.E. 549 (1923).

Lien not timely recorded where last lienable materials delivered over three months before recording. - Where the recording of the lien is done within three months of the furnishing of the last material, and the said last material furnished is not lienable material, and the last lienable materials were delivered more than three months prior to the recording of the lien, the lien is not timely recorded. Downtowner of Atlanta, Inc. v. Dunham-Bush, Inc., 120 Ga. App. 342 , 170 S.E.2d 590 (1969). But see Stewart Bros. v. Randall Bros., 138 Ga. 796 , 76 S.E. 352 (1912); Pippin v. Owens, 29 Ga. App. 789 , 116 S.E. 549 (1923).

Period when account becomes due begins when last materials furnished, regardless of agreement. - The period when the account becomes due begins on the date that the last materials were furnished regardless of an agreement to the contrary when the materials are purchased between the materialman or laborer, etc., and the contractor. Dixie Lime & Stone Co. v. Ryder Truck Rental, Inc., 140 Ga. App. 188 , 230 S.E.2d 322 (1976).

Supplier to a supplier of materials is not entitled to claim lien under this section. Associated Distribs., Inc. v. De La Torre, 138 Ga. App. 71 , 225 S.E.2d 462 (1976), overruled on other grounds, Adair Mtg. Co. v. Allied Concrete Enters., Inc., 144 Ga. App. 354 , 241 S.E.2d 267 (1977).

What materialman must do when furnishing material for several properties. - When a materialman is furnishing at the same time material to one contractor for the improvement of property belonging to different persons, and has full knowledge of the separate contracts, and money is paid to the materialman by the contractor from time to time on account of the material so furnished, it is incumbent upon the materialman to keep separate accounts and to find out from the contractor on what contract the money is paid, and to what account it should be applied. If the materialman does not do so, but applies the money as a credit on a general account against the contractor, the materialman thereby waives the right to a lien on the owner's property, and must look alone to the contractor. Grigsby v. Fleming, 96 Ga. App. 664 , 101 S.E.2d 217 (1957).

Delivery dates under one contract cannot perfect lien under different contract by same parties. - Where an owner of real estate makes an express contract with a contractor for heating equipment, and before the work is finished makes a separate and distinct contract for plumbing, the items furnished under each are separate and distinct, and the delivery dates under one contract may not be used for the purpose of perfecting a lien under the other; aliter, if all the material be furnished under one and the same contract. Crane Co. v. Hirsch, 61 Ga. App. 632 , 7 S.E.2d 83 (1940).

Furnishing of material to contractor for improvement of contractor's and third party's separate properties. - Where a materialman at the same time furnishes material to one contractor for the improvement of properties belonging to different persons, and money is paid by the contractor from time to time for the material so furnished, the materialman waives the right to a lien on all properties not owned by the contractor by not keeping separate accounts, by not finding out from the contractor on what contract the money is paid, and to what account it should be applied, and by applying the money paid by the contractor on a general account against the contractor. The fact that the materialman has no knowledge as to whether the improved property is owned by the contractor or by third persons is immaterial. Building Material Supply Co. v. North, 116 Ga. App. 348 , 157 S.E.2d 497 (1967).

Filing of claim against individual landowner and against corporation. - Where a materialman files a claim of lien for work done and materials furnished on certain described real estate, alleging that it was the premises of a certain corporation and that the materialman is claiming this lien against the corporation, an action filed thereon to foreclose the lien, and naming as defendants the corporation, alleged to be the entity with which the plaintiff materialman, contracted, and an individual, alleged to be the owner of the premises, the complaint does not, against general demurrer (now motion to dismiss) of the defendant individual, state any cause of action as to defendant. Fowler v. Roxboro Homes, Inc., 98 Ga. App. 829 , 107 S.E.2d 285 (1959).

Placement of property in receivership no excuse for failure to record. - A failure to claim and record is not excused by the fact that the property on which the lien would have attached is put into the hands of a receiver. Filer & Stowell Co. v. Empire Lumber Co., 91 Ga. 657 , 18 S.E. 359 (1893).

A defendant may be estopped to deny recordation by an admission in defendant's plea. Royal v. McPhail, 97 Ga. 457 , 25 S.E. 512 (1895).

Sufficient information in claim of lien generally. - Where it appears that the claim of lien upon which the action is partly based was recorded in the records of the superior court of the proper county, and the claim recites that the lien is claimed on the property of the defendant, naming defendant, and giving the address of the property, the property on which the lien is sought to be attached is sufficiently described to constitute a compliance with the requirements, concerning the description of the premises upon which the lien is sought. Love v. Hockenhull, 91 Ga. App. 877 , 87 S.E.2d 352 (1955).

Materialman must state exact date claim is due. - A claim which states that the lien is filed and recorded within 90 days after said materials and supplies were furnished by the undersigned is not sufficient under the new law since lien laws are strictly construed. The materialman must state the exact date the claim is due. Lowe's of Savannah, Inc. v. Jarrell, 150 Ga. App. 220 , 257 S.E.2d 341 (1979).

Complaint which does not allege claim was properly recorded sets out no cause of action. - A complaint, by a materialman, does not set out a cause of action for a judgment establishing a lien upon the property improved, where it is not alleged that a claim of lien has been filed and recorded as required by O.C.G.A. § 44-14-361 , and this section. King v. Rutledge, 208 Ga. 172 , 65 S.E.2d 801 (1951).

Claim which does not specify amount claimed and date claim was due. - If the claim of lien fails to specify both the amount claimed due and the date the claim was due, someone purchasing or acquiring an interest in the property after the claim of lien was filed would not take subject to the lien absent actual notice of the existence of the lien, but the lien can still be enforced against the owner of the property, if the owner has consented to the contract under which the improvements to real estate were made or if the owner has taken action estopping the owner from denying such consent. J.H. Morris Bldg. Supplies v. Brown, 245 Ga. 178 , 264 S.E.2d 9 (1980).

Allegation of ownership. - It is not required that a claim of lien shall allege ownership of the house and premises more distinctly than that they are the house and premises of the person named. Ford v. Wilson & Co., 85 Ga. 109 , 11 S.E. 559 (1890).

Erroneous allegation as to premises. - Materialmen are charged with knowledge of the premises upon which they filed their claim of lien, and they are charged with knowledge of the premises to which they delivered the materials and where they knew that these premises differed, in plenty of time to properly record a claim of lien as required by law, they cannot seek the aid of a court of equity to relieve them from their own negligence. King v. Rutledge, 208 Ga. 172 , 65 S.E.2d 801 (1951).

Party claiming lien need not sign it nor have it attested. - It is not necessary for a party claiming a lien to sign it, from which it follows that a signature on a lien need not be attested. New London Square, Ltd. v. Diamond Elec. & Supply Corp., 132 Ga. App. 433 , 208 S.E.2d 348 (1974).

While section requires name of claimant to appear, it requires no signature. Southwire Co. v. Metal Equip. Co., 129 Ga. App. 49 , 198 S.E.2d 687 , cert. denied, 414 U.S. 1092, 94 S. Ct. 723 , 38 L. Ed. 2 d 550 (1973).

No affidavit required to file or foreclose lien against real estate. Southwire Co. v. Metal Equip. Co., 129 Ga. App. 49 , 198 S.E.2d 687 , cert. denied, 414 U.S. 1092, 94 S. Ct. 723 , 38 L. Ed. 2 d 550 (1973).

Commencement of Action

Former paragraph (3) not a statute of limitation. - Since O.C.G.A. §§ 44-14-360 through 44-14-367 creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, former paragraph (3) of this section is not a statute of limitation. Lee v. Stokes, 135 Ga. App. 642 , 218 S.E.2d 654 (1975).

Former paragraph (3) of this section is not a statute of limitations as to the foreclosure or assertion of the lien, but a condition precedent to the establishment of the lien. Logan Paving Co. v. Liles Constr. Co., 141 Ga. App. 81 , 232 S.E.2d 575 (1977).

Former paragraph (3) of this section relates to action against person creating debt and not to a subsequent action to foreclose the lien against the property improved. Logan Paving Co. v. Liles Constr. Co., 141 Ga. App. 81 , 232 S.E.2d 575 (1977).

Meaning of "if filed within 12 months from the time the lien shall become due." - The words in this section "if filed within 12 months from the time the lien shall become due" simply allow the plaintiff materialman an equal amount of time to commence plaintiff's in rem proceeding against the property improved as plaintiff would have had to file an action against the contractor if plaintiff had been compelled to file such action in the first instance. Adair Mtg. Co. v. Allied Concrete Enters., Inc., 144 Ga. App. 354 , 241 S.E.2d 267 (1977), aff'd, Adair Mtg. Co. v. Allied Concrete Enterprises, Inc., 241 Ga. 121 , 243 S.E.2d 888 (1978).

Meaning of "notice of a claim of lien." - "Notice of a claim of lien" is not notice of the perfected or recorded lien, although this is sufficient, but rather is notice of the furnishing of material or performance of labor. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527 , 251 S.E.2d 800 (1978).

Notice of claim of lien is not effected only upon demand for payment or filing of claim of lien. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527 , 251 S.E.2d 800 (1978).

Time limit refers to commencement of action, not enforcement of lien. - The requirement of this section that the action for the recovery of the amount of the materialman's claim within 12 months from the time the same shall become due refers to an action against the contractor and has no reference to the time within which the lien must be enforced. Chandler v. Pennington, 89 Ga. App. 676 , 80 S.E.2d 843 (1954); Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527 , 251 S.E.2d 800 (1978).

The 12-month time limit has reference to the time within which an action must be brought against the person primarily liable to the laborer or materialman and has no reference to the time within which the lien must be enforced. Jordan Co. v. Adkins, 105 Ga. App. 157 , 123 S.E.2d 731 (1961).

Time limit as essential as other lien requirements. - Commencement of an action within 12 months is just as essential to the establishment of a lien as any other of the requirements of this section. Cowart v. Reeves, 80 Ga. App. 161 , 55 S.E.2d 911 (1949).

Requirement for action against debtor before enforcement of mechanic's lien generally. - One of the conditions of a mechanic's statutory right to enforce a lien upon real property for the repair or improvement of which the mechanic has supplied labor or materials or both is that the mechanic must bring an action on the claim against the person with whom the debt was contracted, either the owner or the contractor, as the case may be, within 12 months from the time when the debt became due. Bryant v. Jones, 90 Ga. App. 314 , 83 S.E.2d 46 (1954).

Action against debtor within 12 months after debt becomes due is condition precedent. - One of the conditions precedent to the foreclosure of the liens specified in O.C.G.A. § 44-14-361 is that action must be brought by the laborer or materialman against the person with whom the debt was contracted, either the owner or the contractor, as the case may be, within 12 months from the time the debt became due. Allied Asphalt Co. v. Cumbie, 134 Ga. App. 960 , 216 S.E.2d 659 (1975).

Section must be followed in commencing action on lien. - Where the plaintiff materialman does not commence an action on its lien according to the provisions and requirements of this section, one of the conditions precedent to foreclosing a lien under O.C.G.A. § 44-14-530 is absent and the plaintiff materialman cannot prevail. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).

Where no action predicated upon claim of lien instituted in 12 months, no lien created upon the real estate and building as against the title of the claimant. Kwilecki v. Young, 180 Ga. 602 , 180 S.E. 137 (1935).

Plaintiffs failure to file notice of action against contractor renders its claim of lien unenforceable. Hancor, Inc. v. Fleming Farms, Inc., 155 Ga. App. 579 , 271 S.E.2d 712 (1980).

Materialman's failure to file notice of action against contractor in county in which claim of lien was filed when action was brought in another county, in accordance with this section, renders claim of lien unenforceable. Hancor, Inc. v. Fleming Farms, Inc., 155 Ga. App. 579 , 271 S.E.2d 712 (1980).

Failure to perfect lien vitiates lien. - Before the rendition of a judgment in favor of a materialman's lien claimant the claimed lien is only inchoate, and the failure of the claimant to perfect the lien as provided by this section vitiates it, not only as against third persons, but as against the claimant. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330 , 18 S.E.2d 61 (1941).

Section deals with actions against contractors, not owners. - The provisions of this section relate to the action against the contractor rather than an action against the owner to enforce the lien. Montgomery v. Richards Bldg. Materials, Inc., 122 Ga. App. 472 , 177 S.E.2d 507 (1970).

Former paragraph (3) of this section relates only to an action against the contractor, so far as recovery of a personal judgment is concerned. Robinson v. Reese, 175 Ga. 574 , 165 S.E. 744 (1932).

The beginning of former paragraph (3) of this section, which sets forth the time limitations for the commencement of actions, applies only to actions brought against contractors and not to actions against the owner of the real estate. The notice required to be filed in regard to the commencement of such action is notice of the commencement of an action against the contractor, not the landowner. Hancor, Inc. v. Fleming Farms, Inc., 155 Ga. App. 579 , 271 S.E.2d 712 (1980).

The requirement of former paragraph (3) of this section as to the time within which an action may be commenced relates to the materialman's action against the contractor and not to the action against the owner of the real estate. Buck v. Tifton Mfg. Co., 4 Ga. App. 695 , 62 S.E. 107 (1908); Adair Mtg. Co. v. Allied Concrete Enters., Inc., 241 Ga. 121 , 243 S.E.2d 888 (1978).

The requirement of this section as to the time within which the action shall be commenced relates to the action in personam against the contractor and not to the subsequent proceeding against the landowner. Southern Ry. v. Crawford & Slaten Co., 46 Ga. App. 424 , 167 S.E. 756 (1933), aff'd, 178 Ga. 450 , 173 S.E. 91 (1934).

Where action against contractor timely, action against owner need not be commenced within 12 months. - Where material for the improvement of real estate was furnished, not directly to the owner, but to a contractor, and where the materialman, after complying with the contract and recording the lien as prescribed by law, instituted against the contractor an action for the recovery of the claim within 12 months from the time the same became due, and recovered a judgment in such action, it is not essential to the foreclosure of the lien against the real estate that the materialman should also institute an action against the owner for that purpose within 12 months from the maturity of the claim. Southern Ry. v. Crawford & Slaten Co., 178 Ga. 450 , 173 S.E. 91 (1934).

Reason time limitation does not apply to foreclosure against owner. - The requirement of this section as to the time within which the action shall be commenced relates to the action in personam against the contractor, and not to the action against the owner of the real estate. If this were not true, the right of the materialman to foreclose the lien against the real estate might be wholly defeated, without fault on the materialman's part, by such delay in the trial of the action against the contractor as to make it impossible to commence foreclosure proceedings against the owner within 12 months from the time when the claim became due. Southern Ry. v. Crawford & Slaten Co., 178 Ga. 450 , 173 S.E. 91 (1934).

Timely action against one party does not stop running of limit as to other parties. - The 12-month limitation in this section applies against the owner of the land, and not merely other contractors who become indebted with respect to work on the land, so that a timely action against one individual does not stop the 12-month limit running with respect to the remaining parties. Whitley Constr. Co. v. Carlyle Real Estate Ltd. Partnership-72, 137 Ga. App. 113 , 222 S.E.2d 895 (1975).

Where work as well as supplies are provided, timeliness of lien depends on completion date. - Where a company was more than a mere supplier in that it is engaged to do a certain specified job or work, the decisive factor in whether or not it files a timely lien is the point in time it completes its work. Sears Roebuck & Co. v. Superior Rigging & Erecting Co., 120 Ga. App. 412 , 170 S.E.2d 721 (1969).

Agreement cannot extend time for bringing action. - A mere agreement to extend the date by which an action must be brought, once established, will not operate to extend the time for bringing the action for recovery of the amount of the claim. Home Mart Bldg. Ctrs., Inc. v. Jones, 133 Ga. App. 822 , 212 S.E.2d 476 (1975), overruled on other grounds sub nom., Dixie Lime & Stone Co. v. Ryder Truck Rental, Inc., 140 Ga. App. 188 , 230 S.E.2d 322 (1976).

Date by which action on running account must be brought. - A debt for work done and materials furnished by a mechanic becomes "due," within the meaning of the lien laws, when the mechanic has completed performance of the contract, or after the last item of work and materials has been entered on a running account, and, unless actual or constructive notice is given of any contractual provisions for an extension of credit to the owner, or for some other time when the debt shall become due, such provisions are ineffective to extend the time within which action must be brought against the person with whom the debt was contracted, in order to enforce the lien against the property itself in the possession of subsequent purchasers. Bryant v. Jones, 90 Ga. App. 314 , 83 S.E.2d 46 (1954).

Renewal of dismissed action. - If a materialman forecloses within 12 months and dismisses the action, it cannot be renewed within six months thereafter, unless the renewal is also within 12 months of the maturity of the claim. Chamblee Lumber Co. v. Crichton, 136 Ga. 391 , 71 S.E. 673 (1911).

Day on which claim for materials comes due is to be counted in computing the 12 months. David v. Marbut-Williams Lumber Co., 32 Ga. App. 157 , 122 S.E. 906 (1924).

For case where exact date of completion unknown, see Young v. Landers, 31 Ga. App. 59 , 119 S.E. 464 (1923).

When notice of filing of action against contractor not mandatory. - In some instances, notice of the filing of an action against the contractor would not be mandatory, e.g., where the contractor has died, absconded or is otherwise not subject to service of process, or where the contractor has been adjudicated a bankrupt, or where after the filing of the action no final judgment can be obtained by reason of death or adjudication of bankruptcy. Hancor, Inc. v. Fleming Farms, Inc., 155 Ga. App. 579 , 271 S.E.2d 712 (1980).

The remedy of the materialman is complete and it is immaterial whether or not the contractor returns to the jurisdiction of the court within 12 months. In such event, it is not incumbent upon the materialman to serve such returning contractor. Cowart v. Reeves, 80 Ga. App. 161 , 55 S.E.2d 911 (1949).

Insolvency, Absconding, etc., of Contractor or Subcontractor

Purpose of former paragraph (4) of section. - The history of former paragraph (4) of this section evinces a legislative intent to avoid the harsh result of a materialman being deprived of a lien through no fault of the materialman's own by virtue of the bankruptcy, etc., of the contractor. Melton v. Pacific S. Mtg. Trust, 241 Ga. 589 , 247 S.E.2d 76 (1978).

Meaning of amendment adding term "subcontractor." - Former paragraph (4) of this section was amended by adding the word "subcontractor" after "contractor" in each of the instances therein set out, thus indicating the intention to keep the language of the paragraph intact but to extend it both to contractors and subcontractors. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515 , 114 S.E.2d 289 (1960).

"Owner" includes owner of leasehold estate. - The word "owner," as used in former paragraph (4) of this section, is sufficiently comprehensive to include the owner of a leasehold estate. Bennett Iron Works, Inc. v. Underground Atlanta, Inc., 130 Ga. App. 653 , 204 S.E.2d 331 (1974).

Judgment generally prerequisite to foreclosure. - Except as provided in former paragraph (4) of this section, there can be no valid foreclosure of a materialman's lien without a judgment against the contractor. Ayers v. Baker, 216 Ga. 132 , 114 S.E.2d 847 (1960).

Without a judgment against the general contractor, liens cannot be foreclosed on the owner's property. McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510 , 250 S.E.2d 424 (1978).

There can be no valid foreclosure of a materialman's lien for material furnished to a contractor and used in improving the real estate of another person against which the lien is claimed in the absence of a judgment in favor of the materialman against the contractor for the price or value of such material. Smith v. Walker, 194 Ga. 586 , 22 S.E.2d 160 (1942).

In the absence of certain specified exceptions, the plaintiff materialman in an action to foreclose a materialman's lien must bring an action against the contractor to whom the labor and materials were furnished as a condition precedent to establishing a right to foreclosure. Liggett v. Harper, 151 Ga. App. 616 , 260 S.E.2d 735 (1979).

Judgment must be alleged. - Where material has been furnished to a contractor or subcontractor for the improvement of real estate, in an action against the owner to foreclose a materialman's lien on such real estate, the plaintiff materialman must allege, in addition to other essentials, that the materialman has brought an action against the contractor or subcontractor, as the case may be, to whom the material was furnished, and, unless the case is one within the exceptions enumerated under this section, that a judgment against such contractor has been obtained. Chambers Lumber Co. v. Martin, 112 Ga. App. 826 , 146 S.E.2d 529 (1965).

Unless the case falls within one of the exceptions enumerated under this section, in an action to foreclose a materialman's lien on real estate, plaintiff materialman must show that plaintiff has brought an action against the contractor or subcontractor, as the case may be, to whom the material was furnished. Tri-State Culvert Mfg., Inc. v. Crum, 139 Ga. App. 448 , 228 S.E.2d 403 (1976); Rochester v. Dixon's Concrete Prods., Inc., 154 Ga. App. 239 , 267 S.E.2d 819 (1980).

And must be express judgment for price of materials. - An express judgment for the price of materials must be shown in order to comply with the provisions of former paragraph (4) of this section, rather than a judgment on a note which includes the purchase price of the materials. Brooks v. West Lumber Co., 88 Ga. App. 510 , 77 S.E.2d 43 (1953).

Section is unambiguous as to requisites for foreclosing lien directly against owner's property without the necessity of judgment against the contractor and does not provide that before a materialman can proceed directly against the property of the owner, it must also appear that the contractor is either insolvent or does not have assets within the jurisdiction of the court. Levin v. O'Neill Mfg. Co., 96 Ga. App. 43 , 99 S.E.2d 343 (1957).

Effect of former paragraph (7) on former paragraph (4) of section. - Former paragraph (7) of this section, which deals with making contractors or subcontractors parties, and with interventions by these persons when not named as parties, had the effect of repealing the provisions of former paragraph (4) as to the requirement that except in the situations therein set out the owner of property could not be sued without first or concurrently suing the contractor. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515 , 114 S.E.2d 289 (1960).

Section applies to resident and nonresident contractors who abscond. - Former paragraph (4) of this section does not apply only to resident contractors of this state who abscond, but also applies to a nonresident and one who has no permanent residence. Cowart v. Reeves, 80 Ga. App. 161 , 55 S.E.2d 911 (1949).

Contractor to whom materials are furnished can be owner. - Under former paragraph (4) of this section there is no requirement that the contractor to whom the materials are furnished be a person other than the owner. Reynolds v. Magbee Bros. Lumber & Supply Co., 117 Ga. App. 252 , 160 S.E.2d 531 , rev'd on other grounds, 224 Ga. 379 , 162 S.E.2d 327 (1968).

Extent of owner's liability to materialman after contractor abandons contract. - In an action by a materialman, who has furnished materials to a contractor to improve real estate of an owner to foreclose a lien, the maximum liability of such owner to such materialman is fixed by the contract price between such owner and such contractor. The abandonment by the contractor of the contract does not constitute a defense on behalf of the defendant owner as to materials actually used in the improvement of the premises, unless the owner after such abandonment by the contractor has the improvements provided for in the contract completed, thus forming the basis for an additional lien to attach against the owner's property. Tumlin v. Wilson, 108 Ga. App. 273 , 132 S.E.2d 815 (1963).

Where contractor absconds, materialman need not obtain judgment before enforcing lien. - Where the contractor to whom materials are furnished for the improvement of an owner's property absconds from the state within 12 months from the date the materials were furnished, so that personal jurisdiction cannot be obtained of the contractor in an action for the cost of the materials, the materialman is relieved of the necessity of obtaining judgment against the contractor as a prerequisite to enforcing a lien against the property improved. Levin v. O'Neill Mfg. Co., 96 Ga. App. 43 , 99 S.E.2d 343 (1957).

Materialman need not allege that contractor is insolvent. - In a proceeding where it is alleged that the contractor within 12 months of the furnishing of the material has absconded from the limits of the state and was at the time of the filing of the complaint still without the limits of the state so that no personal jurisdiction can be had of the contractor, it is not necessary for the plaintiff materialman to also allege, that the contractor is insolvent or that the contractor does not have property and assets in the jurisdiction of the court sufficient to pay the plaintiff the amount alleged to be due. Levin v. O'Neill Mfg. Co., 96 Ga. App. 43 , 99 S.E.2d 343 (1957).

Marshal's nun est inventus not proof of abscondence. - One of the prerequisites for enforcing a lien directly against the property is a showing that the contractor has absconded, died, left the state or gone bankrupt. A marshal's non est inventus is not proof that contractor has absconded. Q.S. King Co. v. Minter, 124 Ga. App. 517 , 184 S.E.2d 594 (1971).

Cost of completing work deducted from contract price when contractor abandons contract. - Where a contractor abandons a contract, the cost of completing the work is to be deducted from the contract price in order to ascertain the amount up to which the subcontractors may claim liens. If such deductions, together with payments previously made to the contractor, equal or exceed the entire contract price, then the subcontractors and materialmen have no lien, since there is nothing due under the contract. The owner is required to show that the sums paid to the contractor were properly appropriated to materialmen and laborers or that the contractor's statutory affidavit concerning such indebtedness had been obtained. Jones Mercantile Co. v. Lyn-Har, Inc., 245 Ga. 812 , 267 S.E.2d 251 (1980).

Effect of bankruptcy under subsection. - Under former paragraph (4) of this section, bankruptcy relieves the lienholder from the necessity of obtaining a judgment against the contractor prior to proceeding against the "owner of the property." Bennett Iron Works, Inc. v. Underground Atlanta, Inc., 130 Ga. App. 653 , 204 S.E.2d 331 (1974).

Bankruptcy does not discharge valid inchoate liens. - The purpose of lien statutes is to give the furnisher of labor and material a claim upon the owner; to compel the owner at the owner's peril to withhold final payment until the owner has received assurance from the contractor that the owner has paid all material and labor claims, which are or which may be perfected into liens, and bankruptcy does not discharge valid liens any more when, though inchoate and in the process of completion, they are in good standing when bankruptcy comes, than when every required step has already been taken. When bankruptcy supervenes, it does not take from laborers and materialmen funds devoted to their claims, to appropriate them to the general creditors, merely because of some step in the procedure, which there is still time to take, has not been taken. Cutler-Hammer, Inc. v. Wayne, 101 F.2d 823 (5th Cir.), cert. denied, 307 U.S. 635, 59 S. Ct. 1031 , 83 L. Ed. 1517 (1939).

Lienholder need not file prior to bankruptcy. - The portion of this section which states "if such contractor . . . shall be adjudicated a bankrupt" does not require that action be filed by the lienholder against the contractor prior to the contractor's bankruptcy if further action is to be maintained. Taylor v. Mateer & Co., 117 Ga. App. 565 , 161 S.E.2d 394 (1968).

Lien is preserved when materialman timely files claim in bankruptcy court. - Materialman commences an action within the meaning of former paragraph (4) of this section when the materialman files a claim in a bankruptcy proceeding. Where a lien claim is asserted in bankruptcy proceedings under state statutes which provide that the lien is not preserved unless positive action to enforce it has been commenced in the state court within a definite period, it is not necessary for the claimant to file action in the state court if the lien is asserted in the bankruptcy court within the statutory time. The assertion of the claim in the bankruptcy court within the period requisite under the state statute is the equivalent of filing other proceedings for enforcement. Melton v. Pacific S. Mtg. Trust, 241 Ga. 589 , 247 S.E.2d 76 (1978).

Materialman may bring action against bankrupt contractor in lieu of foreclosure. - Where a contractor is adjudicated a bankrupt within the 12-month period following the date that the claim becomes due, the materialman is not relegated to foreclosure against the property in an action against the owner commenced within the 12 months. By allowing the materialman to bypass the requirement of commencing an action against the contractor when such an action is not feasible and to proceed directly to foreclosure of the lien, the General Assembly did not intend to deprive the materialman of the right to proceed under the basic statutory provision to perfect a lien by commencing an action against the contractor within 12 months. Melton v. Pacific S. Mtg. Trust, 241 Ga. 589 , 247 S.E.2d 76 (1978).

Claims not invalid merely because actions were not begun before contractor went bankrupt. - Where materialmen and laborers complied with provisions of section, except for commencement of an action for the recovery of the amount of their claims within 12 months from the time the same became due, at the time of the bankruptcy of the contractor the claims to liens were not invalid because the claimants had not commenced such action, prior to the supervention of bankruptcy. Cutler-Hammer, Inc. v. Wayne, 101 F.2d 823 (5th Cir.), cert. denied, 307 U.S. 635, 59 S. Ct. 1031 , 83 L. Ed. 1517 (1939).

When contractor bankrupt, claim filed within 12 months after amount due satisfies requirements. - The filing by a materialman of a claim in the contractor's bankruptcy proceeding within 12 months from the time the amount becomes due satisfies the requirement of former paragraph (4) of this section for commencement of an action for the recovery of the amount of the claim of lien. Melton v. Pacific S. Mtg. Trust, 241 Ga. 589 , 247 S.E.2d 76 (1978).

Effect of owner's deposit of contract price in bankruptcy court. - The statutory provision for commencing an action for the recovery of amounts claimed for provision of material and labor within 12 months from time claim becomes due is for the benefit and security of the owner, and where, upon bankruptcy of contractors to whom materials and labor provided the owner has deposited the contract price in the bankruptcy court, under an agreement that the owner and the building should be released and the deposit funds should be claimed against in lieu of the building and the owner, the owner has given to the filing of claims against the deposit in the bankruptcy court the effect of an action against the contractor, or at least, by consenting to and arranging for that procedure, the owner has waived the requirement of such action. Cutler-Hammer, Inc. v. Wayne, 101 F.2d 823 (5th Cir.), cert. denied, 307 U.S. 635, 59 S. Ct. 1031 , 83 L. Ed. 1517 (1939).

Twelve-month period for commencing proceedings not tolled by bankruptcy provisions. - The 12-month period for commencing proceedings for enforcement of liens provided by this section is a condition precedent to perfecting a substantive right and hence not affected by the Bankruptcy Act of 1898, 11 U.S.C. § 29(e) (see Bankruptcy Reform Act of 1978, 11 U.S.C. § 108) regarding tolling of statutes of limitations. Lee v. Stokes, 135 Ga. App. 642 , 218 S.E.2d 654 (1975).

Foreclosure Proceedings

Function of a foreclosure action is not to establish for the first time when and what materials were furnished for a particular job. It is not an action in personam, when the contractor is not a party and the purpose is merely to absolutely establish a special lien against the property involved, and no general verdict and judgment can be obtained therein against the owner. Although the initial action against the contractor is in personam, the foreclosure suit against the owner is strictly in rem. Chambers Lumber Co. v. Gilmer, 60 Ga. App. 832 , 5 S.E.2d 84 (1939).

Pleadings and evidence relating to judgment need not be set out in foreclosure proceedings. - Although a judgment is a condition precedent to recovery against the property owner, under the provisions of this section, it is not the cause of action, nor the basis of the relief prayed, in such manner as to make it necessary to set out the pleadings, evidence, or judgment of such former action in the foreclosure proceedings. Brooks v. West Lumber Co., 88 Ga. App. 510 , 77 S.E.2d 43 (1953).

Liability for obligation created in first action against contractor. - It is only in the required first action by a materialman against the contractor that the adjudication is made as to items furnished and the amount due with respect to a particular contract. As to the contractor, the obligation is primary. As to the owner, it is collateral only and conditioned on the recording by the materialman of a claim of lien within the statutory period, unless privity exists between the materialman and the owner which allows the materialman to establish a lien and foreclose in same action. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).

Effect of provisions as to proper, but not necessary, parties. - That part of former paragraph (7) of this section which designates a subcontractor as a proper but not a necessary party, and another clause which designates a contractor as a proper but not a necessary party, does not mean that the materialman may sue the owner directly without joining either the contractor or subcontractor, and without having obtained a prior judgment against either the contractor or subcontractor, and without having shown any of the reasons for the materialman's failure to do so sanctioned by former paragraph (4) of this section. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515 , 114 S.E.2d 289 (1960).

Owner's contention that pleadings omitted other parties defendant. - Where under defendant owner's pleadings, in an action by a materialman seeking payment for material furnished for use in improving real estate, it was admitted that the materialman contracted with defendant contractor and such pleadings were not withdrawn, the contention on appeal that contractor had a partner who was neither sued or shown to be in that class of persons which the plaintiff materialman need not have sued, is without merit. Grigsby v. Fleming, 96 Ga. App. 664 , 101 S.E.2d 217 (1957).

Objection to new parties in foreclosure proceeding waived if not raised until appeal. - While a lien foreclosure proceeding is strictly statutory, and the requirements of this section must be substantially followed, and while in a purely legal proceeding new parties cannot be added over objection unless the statute specifically provides for such procedure, it is also the rule that where a new party has in fact been added without objection, the court, on appeal, will not consider an objection on this ground raised for the first time but will consider it to have been waived. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515 , 114 S.E.2d 289 (1960).

In lien foreclosure materialman must distinguish between an individual and the individual's corporation and must bring an action against the correct account debtor. Tri-State Culvert Mfg., Inc. v. Crum, 139 Ga. App. 448 , 228 S.E.2d 403 (1976).

Elements of contract which materialman must show to obtain lien. - To establish and foreclose a lien on the owner's property it is never enough merely to show that the supplies which the materialman furnished were furnished for the purpose of, and in fact used in improving the owner's property. It must be shown also that the owner contracted with someone for these supplies to be furnished; that the person to whom the plaintiff furnished them was connected with that contract, and that the value of the material was within the contract price to which the owner agreed. Athens Elec. Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515 , 114 S.E.2d 289 (1960).

Amount due lienholder is essential element to be proved to recover on lien. - One of the things most necessary to be proved in order for the lien to be perfected, foreclosed, and the judgment enforced, is the amount, by which is meant not just the amount of money owing by the lienee to the lienholder, but the amount to which the lienholder is entitled as a lien on the property as improved. Jackson's Mill & Lumber Co. v. Holliday, 108 Ga. App. 663 , 134 S.E.2d 563 (1963).

Action on personal note provides no basis for calculating amount due on foreclosure. - Although the action required by this section can take any form which will give a legitimate basis for calculation of a particular sum which the lienor is entitled to foreclose, an action on a personal note does not provide such a basis. Proof of the personal note gives no basis for a determination of what amount, if any, of the note is attributable to the defendant's property. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).

Lienholder must show materials delivered were used in construction. - Where it is shown that the materials were delivered to the premises of the owner, a lienholder may recover only if the lienholder shows the specific material was actually used in the construction of the building. Jackson's Mill & Lumber Co. v. Holliday, 108 Ga. App. 663 , 134 S.E.2d 563 (1963).

Effect of claim which shows material delivered to different person than party named in complaint. - Where a materialman's claim of lien attached to a complaint shows that plaintiff materialman furnished materials to a party different from the party named on the face of the complaint, action against the party named in the claim of lien is a condition precedent to foreclosure against the party named on the face of the complaint. Brockett Rd. Apts. v. Georgia Pac. Corp., 138 Ga. App. 198 , 225 S.E.2d 771 (1976).

Contractor's complaint not dismissed for failure to allege that contractor paid for labor and materials. - In an action by a contractor to foreclose a materialman's lien against the owner of real estate under the provisions of this section, the complaint is not subject to demurrer (now motion to dismiss) because the contractor fails to allege that the contractor has paid for all labor and materials used in the construction of the house which the contractor erected under contract with the owner. Scott v. Williams, 111 Ga. App. 735 , 143 S.E.2d 16 (1965).

Allegations which are not required in foreclosure proceedings. - In a proceeding to foreclose a materialman's lien for material furnished a contractor in the improvement of real estate, it is not necessary to allege that the contractor had completed the contract with the owner of the premises, or that such owner had not paid the contractor for the improvements made, upon the sworn statement that the contractor had paid for the materials used. Arnold v. Farmers' Exch., 123 Ga. 731 , 51 S.E. 754 (1905).

Proper situs for foreclosure and process. - While a laborer can foreclose a statutory lien either in the county of the employer's residence or where the employer's property upon which the lien is to be foreclosed may be, the process should be made returnable to the proper court of the county of the defendant's residence, if the defendant resides in this state, and the issue made by a counteraffidavit of the defendant employer should be returned to and tried in that court. Jackson v. Taylor, 49 Ga. App. 261 , 175 S.E. 259 (1934).

Property owner can force all similar lienholders to interplead. - A property owner may not defend against the lien of a laborer or materialman by showing that there are existing claims or liens of others in like circumstances, but the owner may force all such materialmen to interplead, placing the owner in the position of a stakeholder to the fund. Scott v. Williams, 111 Ga. App. 735 , 143 S.E.2d 16 (1965).

Foreclosure may be joined to action against contractual debtor. - It is permissible in the action against the contractual debtor described in former paragraph (3) of this section to join therein the foreclosure of the lien either originally or by amendment thereto, provided venue is obtainable. Logan Paving Co. v. Liles Constr. Co., 141 Ga. App. 81 , 232 S.E.2d 575 (1977).

Foreclosure action can be brought concurrently with action against contractor. - Before a lien can be foreclosed for materials furnished to a contractor, there must be a valid judgment against the contractor for the price of the material, but the two actions may be brought concurrently. West Lumber Co. v. Aderhold, 90 Ga. App. 255 , 82 S.E.2d 670 (1954).

Owner's defenses. - In an action by a materialman to foreclose a lien for material furnished a contractor for the improvement of real estate of others, the owners of such real estate may defend by showing that they have paid the full contract price to the contractor and that the money paid has been applied by the contractor to the settlement of debts incurred in the performance of the contract, which would have been liens upon the property improved. Ingram v. Barfield, 80 Ga. App. 276 , 55 S.E.2d 725 (1949).

Immediate payment is only defense to proper claim. - This section seems clearly to require that the only defense possible against a lien that is properly filed is actual payment, not a commitment for payment in the future. Melton v. Lowe, 117 Ga. App. 783 , 161 S.E.2d 912 (1968).

Materialman need not negate owner's defenses when enforcing lien. - The materialman derives a lien from the statute, and in its enforcement the materialman is not required to allege anything more than that the claim comes within the provisions of the statute and that the materialman has complied with its terms in asserting the lien. It is not essential that the plaintiff materialman should negate the defenses which the statute permits to be interposed by the owner of the premises improved. Scott v. Williams, 111 Ga. App. 735 , 143 S.E.2d 16 (1965).

Proper method for objection to premature action. - Where an action is prematurely brought, if the defect appears on the fact of the complaint objection may be made by specific demurrer (now motion to dismiss) or by a plea in abatement, and, if it does not so appear, by a proper plea in abatement, or by motion for nonsuit at the proper time. It is not a matter for general demurrer (now motion to dismiss) which merely asserts that the complaint sets out no cause of action. Brandwein v. Greenfield, 104 Ga. App. 608 , 122 S.E.2d 316 (1961).

Where waiver of owner's right to object to lien presumed. - An owner who resists foreclosure upon the ground that the material was not such as provided for by the contract may waive the right to assert this defense, and thereby be estopped to dispute evidence on the part of the materialman to the contrary. Acceptance and use of such material without objection or complaint, and payment therefor to another instead of to the materialman, will authorize the conclusion that the owner waived the right and was estopped. Rylander v. Koppe & Steinichen, 162 Ga. 300 , 133 S.E. 236 (1926).

Estoppel of owner to contend materials not used to improve property. - Where a materialman furnishes and delivers materials to the owner's premises in reliance on the owner's representation that the material is intended to be used for the improvement of the property, the owner is estopped, as between the parties, to contend that it was not in fact so used. Jackson's Mill & Lumber Co. v. Holliday, 108 Ga. App. 663 , 134 S.E.2d 563 (1963).

Lienholder need not allege precise date and time material or labor was provided. - It is not absolutely necessary for the plaintiff supplier, suing to foreclose a materialmen's and laborer's lien, to allege the precise minute or hour or day the labor and materials were furnished and materials installed, but it is sufficient to allege that these things took place within such a definite period as would show that the lien was recorded in time, even though the exact date or hour cannot be alleged. Pickard v. Gregory, 88 Ga. App. 475 , 76 S.E.2d 860 (1953).

Effect of payment of judgment obtained by materialman or subcontractor. - As between the owner and the prime contractor all payments under the contract are credited to the owner, and payment of a judgment obtained by a materialman or subcontractor who has first recovered in an action against the prime contractor and then foreclosed a lien against the premises is the equivalent of payment to the contractor in determining whether the owner has paid the contract price. Scott v. Williams, 111 Ga. App. 735 , 143 S.E.2d 16 (1965).

Facts in written instrument prevail over party's allegations in pleading. - Where a party relies on a written instrument as the basis of an action, and attaches a copy of the instrument as an exhibit, the facts shown in the exhibit will prevail over the allegations of the party in the pleading. Brockett Rd. Apts. v. Georgia Pac. Corp., 138 Ga. App. 198 , 225 S.E.2d 771 (1976).

Effect of invoices showing materials shipped for use on realty in question. - Where the invoices in evidence clearly exhibit that the materials for which a lien foreclosure was sought were shipped to the subcontractor for use in construction on the realty in question, this creates the presumption in absence of evidence to the contrary that the materials were received and used by the subcontractor in accordance with the purpose for which they were supplied. Horne-Wilson, Inc. v. Smith, 109 Ga. App. 676 , 137 S.E.2d 356 (1964).

Judgment perfecting claimed lien may become dormant. - A judgment perfecting a claimed lien of a materialman is within O.C.G.A. § 9-12-60 , providing that a judgment shall become dormant under circumstances therein named. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330 , 18 S.E.2d 61 (1941).

There is no provision for summary judgment where lien is sought against real property. Zappa v. Ewing, 116 Ga. App. 152 , 156 S.E.2d 510 (1967).

No right to attorney's fees for defense by contractor of unnecessary party. - A general contractor cannot recover the costs of attorney's fees in defending property owners against the claims of lien by a company which supplied material to a bankrupt supplier of the contractor, if the bankrupt supplier is not a required defendant in the foreclosure action and is not advantaged in any way by the contractor's defense. Ronfra Dev. Corp. v. Pennington, 131 Ga. App. 195 , 205 S.E.2d 448 (1974).

Priority of Liens

Lien under section when perfected relates back to completion of work. - The lien under this section, if perfected within the time presented, is superior to the claim of a purchaser with notice of the lien, even though the purchase is made before the lien was recorded. The lien relates back to the completion of the work. Oglethorpe Sav. & Trust Co. v. Morgan, 149 Ga. 787 , 102 S.E. 528 (1920). See also Wager v. Carrollton Bank, 156 Ga. 783 , 120 S.E. 116 (1923), later appeal, 169 Ga. 304 , 150 S.E. 146 (1929).

One who subordinates first to third lien makes it inferior to both second and third liens. Thus, where a first mortgagee subordinates interest to a second mortgagee, the prior mortgage is necessarily inferior to an intervening materialman's lien. Old Stone Mtg. & Realty Trust v. New Ga. Plumbing, Inc., 140 Ga. App. 686 , 231 S.E.2d 785 (1976), aff'd, 239 Ga. 345 , 236 S.E.2d 592 (1977).

Where security deed executed before delivery of any material, and therefore necessarily before the record of the materialmen's claim of lien, no question of notice to the grantee as to the materialmen's claims of lien at the time the security deed was executed would be involved. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370 , 21 S.E.2d 619 (1942).

Priority of holder of security deed over lien depends on date of recordation and notice. - The bona fide holder of a security deed executed before the first material was furnished, and therefore necessarily prior to the record of the materialman's claim of lien, will take priority over the materialman's claim of lien, although the security deed was itself not recorded until after the first material was furnished. The rule would be different where the holder of the security deed had actual notice of the furnishing of the material prior to the execution of the deed; and might be different where the holder of the security deed had such actual notice prior to the record of the security deed. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370 , 21 S.E.2d 619 (1942).

Recorded deed to secure debt superior to materialman's lien recorded afterwards. - Where title to real estate is conveyed by duly recorded deed to secure debt, and the grantee takes the deed and advances the money loaned, without notice of a materialman's claim of lien upon the property, and before the record thereof, the title thus acquired is superior to such lien. Harris v. Parham, 213 Ga. 725 , 101 S.E.2d 722 (1958).

Notice required of grantee who records security deed after first material furnished. - Even if the failure of the grantee to record a security deed until between the time the first material was furnished and the record of the materialmen's claims of lien could suffice to make relevant the rule as to actual notice of such a claim, then the "actual notice" required of the grantee in the deed in such a case would be such notice as is positively proved to have been given to the grantee directly and personally, or such as the grantee is presumed to have received personally, because the evidence within the grantee's knowledge was sufficient to put the grantee on inquiry. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370 , 21 S.E.2d 619 (1942).

Unrecorded lien inferior to security deed taken without notice. - An unrecorded claim of a materialman's lien is inferior to a security deed on the property improved, taken without actual notice of the unrecorded claim of lien. Builders Supply Co. v. Pilgrim, 115 Ga. App. 85 , 153 S.E.2d 657 (1967).

Title conveyed by recorded deed to secure debt inferior to lien when lender has notice. - Where title to real property is conveyed to a lender by a duly recorded deed to secure debt, and the lender takes the deed with actual notice of a materialman's claim of lien upon the property, the title acquired by the lender is inferior to the lien, provided that the lien is subsequently perfected within the time prescribed by law. Old Stone Mtg. & Realty Trust v. New Ga. Plumbing, Inc., 140 Ga. App. 686 , 231 S.E.2d 785 (1976), aff'd, 239 Ga. 345 , 236 S.E.2d 592 (1977).

Mere averment that materialman "furnished and delivered material on the premises" insufficient as notice. - A mere averment that a materialman on a certain date "furnished and delivered material on the premises," without any other fact, will not suffice to support a bare legal conclusion by the pleader that "such delivery constituted actual implied notice" to the security-deed holder that material was being furnished. Caldwell v. Northwest Atlanta Bank, 194 Ga. 370 , 21 S.E.2d 619 (1942).

Mortgage is not one of liens expressly made prior to lien given by this section. Tanner v. Bell, 61 Ga. 584 (1878).

When materialman's lien superior to lien of prior mortgage for purchase money. - A materialman's lien is superior to the lien of a prior mortgage for purchase money, where the material has been furnished without actual notice of the mortgage. Baisden & Co. v. Holmes-Hartsfield Co., 4 Ga. App. 122 , 60 S.E. 1031 (1908).

Contractor's lien superior to lien for trust funds. - A contractor's lien on the property of a decedent is superior to the claim of the widow on account of a debt for trust funds. Boynton v. Westbrook, 74 Ga. 68 (1884).

Lien for improvements is not charge upon premises as against incumbrances by prior owner. - The lien of a contractor or mechanic for improvements is not a charge upon the premises or the improvements as against prior liens or incumbrances put upon the property by a previous owner, and duly recorded. National Bank v. Danforth, 80 Ga. 55 , 7 S.E. 546 (1887).

One who derived title from innocent purchaser is protected, although that person may have notice of the lien. Ashmore v. Whatley, 99 Ga. 150 , 24 S.E. 941 (1896).

If purchaser assents to furnishing of materials, lien will attach. Elmore v. Southern Bank & Trust Co., 28 Ga. App. 72 , 110 S.E. 334 (1922).

Lien is not valid against bona fide purchaser until notice of claim of lien is filed. Marietta Baptist Tabernacle v. Tomberlin Assocs., 576 F.2d 1237 (5th Cir. 1978).

Bona fide purchaser's claim of title superior to lien unrecorded at time of purchase. - The claim of a bona fide purchaser of real property is superior to the claim of a materialman whose lien was not recorded at the time of the purchase. The purchaser has title, not a lien. Ashmore v. Whatley, 99 Ga. 150 , 24 S.E. 941 (1896); Bennett Lumber Co. v. Martin, 132 Ga. 491 , 64 S.E. 484 (1909).

Purchaser with notice of unrecorded claim is subject to lien if subsequently perfected. - A contractor's lien attaches from the time the work under the contract is commenced, although it lacks, certainly until it is recorded, the quality of constructive notice, but one who takes a deed to the property or purchases it while work is in progress, with knowledge of the contract and notice of the contractor's claim of lien, though imperfect or unrecorded at that time, must be held to take the property subject to the lien, provided that the contract is completed and the lien is declared and enforced within the time prescribed by Georgia law. Gellis v. B.L.I. Constr. Co., 148 Ga. App. 527 , 251 S.E.2d 800 (1978).

Lien attaches when material furnished notwithstanding divestment in favor of bona fide purchaser without notice. - The lien of a materialman upon property, for the improvement of which the material was furnished, as provided in O.C.G.A. § 44-14-361 and this section, attaches when the material is furnished in accordance with the contract. This is true notwithstanding the lien may become divested in favor of a bona fide purchaser of the property without notice of the lien. Davis v. Stone, 48 Ga. App. 532 , 173 S.E. 454 (1934).

Lien may attach to estate for years. - The liens provided for in this section may attach to the interest of a lessee who has an estate for years in the demised premises, subject to the conditions of the lease. Bennett Iron Works, Inc. v. Underground Atlanta, Inc., 130 Ga. App. 653 , 204 S.E.2d 331 (1974).

RESEARCH REFERENCES

Am. Jur. 2d. - 53 Am. Jur. 2d, Mechanics' Liens, §§ 191, 195 et seq., 217, 265, 266, 346, 348 et seq., 358-360, 384-386, 388, 389, 408-410.

17B Am. Jur. Pleading and Practice Forms, Mechanics' Liens, § 31.

C.J.S. - 56 C.J.S., Mechanics' Liens, §§ 103, 133, 139 et seq., 157 et seq., 220 et seq., 322 et seq., 343.

ALR. - Validity and effect of provision in contract against mechanic's lien, 13 A.L.R. 1065 ; 102 A.L.R. 356 ; 76 A.L.R.2d 1087.

Right of subcontractor or materialman to mechanic's lien for labor or material entering into work rejected as not in compliance with principal contract, 16 A.L.R. 981 .

Elements bearing directly upon the quality of a contract as affecting the character of one as independent contractor, 20 A.L.R. 684 .

Construction of contract for compensation of architect, 20 A.L.R. 1356 .

Freight charges on material as within mechanic's lien statute giving lien for labor or material, or within contractor bond securing such claims, 30 A.L.R. 466 .

Priority as between landlord's lien on chattels and chattel mortgage, 37 A.L.R. 400 ; 52 A.L.R. 935 .

Mechanic's lien: owner's right to deduction on account of damages sustained through contractor's delay, 37 A.L.R. 766 .

Independence of contract considered with relation to the scope and construction of statutes, 43 A.L.R. 335 .

After-acquired title as supporting mechanics' lien, 52 A.L.R. 693 .

Interest of vendor under executory contract for sale of realty as subject to mechanics' lien for labor or materials furnished to purchaser, 58 A.L.R. 911 ; 102 A.L.R. 233 .

Interest of owner of land as subject to lien for material or service engaged by holder of mineral rights, 59 A.L.R. 548 .

Contractor's bond as covering clothing, food, or lodging for laborers, 65 A.L.R. 260 .

What amounts to waiver of right to mechanics' lien, 65 A.L.R. 282 .

Priority as between mechanics' lien and purchase-money mortgage, 72 A.L.R. 1516 ; 73 A.L.R.2d 1407.

What amounts to bringing of suit within limited time required by mechanics' lien statute, 75 A.L.R. 695 .

Mechanic's lien for labor or material for improvement of easement, 77 A.L.R. 817 .

Mechanics' lien as affected by agreement to pay with property other than money, 81 A.L.R. 766 .

Right of one other than contractor, laborer, or materialman to file mechanic's lien, 83 A.L.R. 11 .

Time when contractor commenced work or time when labor or material for which lien is claimed was furnished as date of mechanic's lien, 83 A.L.R. 925 .

Failure to raise by demurrer or answer failure to bring suit to enforce lien within time prescribed by mechanics' lien law a waiver, 93 A.L.R. 1462 .

When contract, transaction, or account deemed a "continuing" one as regards time for filing mechanics' lien, 97 A.L.R. 780 .

Effect of bankruptcy of contractor or subcontractor upon mechanics' liens of his subcontractors, laborers, and materialmen, 98 A.L.R. 323 .

Priority of statutory lien on automobile for storage or repairs as against the rights of purchasers, attaching creditor or trustee in bankruptcy which arose while car was in possession of owner after accrual of storage or completion of repairs, 100 A.L.R. 80 .

Principal contractor as necessary party to suit to enforce mechanic's lien of subcontractor, laborer, or materialman, 100 A.L.R. 128 .

Remedy available to holder of mechanic's lien which has priority over antecedent mortgage or vendor's title or lien as regards improvement, but not as regards land, where it is impossible or impractical to remove the improvement, 107 A.L.R. 1012 .

Constitutionality of statute giving to lien for alteration of property pursuant to public requirement, mechanics' lien or similar lien, preference over preexisting mortgage or other lien, 121 A.L.R. 616 ; 141 A.L.R. 66 .

Right of one who contracts with, or furnishes labor or material to, public contractor's surety after latter has taken work, in respect of part of contract price retained by public agency, 122 A.L.R. 511 .

Time for filing claim for mechanic's lien as affected by removal by, or return to, claimant of part of material furnished, 122 A.L.R. 755 .

Right or interest subject to, and priority of, statutory lien for labor or material in developing property for oil and gas, 122 A.L.R. 1182 .

Priority of lien of sales or consumers' tax, 136 A.L.R. 1015 .

Time limitation in mechanic's lien statute as a limitation of the right or only of the remedy, 139 A.L.R. 903 .

Who is contractor or subcontractor, as distinguished from materialman, for purposes of mechanic's lien, contractor's bond other provision for securing compensation under construction contract, 141 A.L.R. 321 .

Personal judgment as essential to enforcement of mechanic's lien, 147 A.L.R. 1099 .

Estoppel of mechanic's lien claimant as predicable upon his representations to owner as to payment made to claimant by contractor or subcontractor, 155 A.L.R. 350 .

Formal requisites of notice of intention to claim mechanic's lien, 158 A.L.R. 682 .

Existence of more than one contract between owner and contractor as affecting notice or filing of mechanic's lien by materialman or subcontractor, 175 A.L.R. 330 .

Sufficiency of notice, claim, or statement of mechanic's lien with respect to nature of work, 27 A.L.R.2d 1169.

Bankruptcy court's injunction against mortgage or lien enforcement proceedings commenced, before bankruptcy, in another court, 40 A.L.R.2d 663.

Sufficiency of notice, claim, or statement of mechanic's lien with respect to description or location of real property, 52 A.L.R.2d 12.

Sale of real property as affecting time for filing notice of or perfecting mechanic's lien as against purchaser's interest, 76 A.L.R.2d 1163.

Time for filing notice or claim of mechanic's lien where claimant has contracted with general contractor and later contracts directly with owner, 78 A.L.R.2d 1165.

Priority between mechanics' liens and advances made under previously executed mortgage, 80 A.L.R.2d 179.

Amendment of statement of claim of mechanic's lien as to designation of owner of property, 81 A.L.R.2d 681.

Sufficiency of notice under statute making notice by owner of nonresponsibility necessary to prevent mechanic's lien, 85 A.L.R.2d 949.

What constitutes "commencement of building or improvement" for purposes of determining accrual of mechanic's lien, 1 A.L.R.3d 822.

Sufficiency of designation of owner in notice, claim, or statement of mechanic's lien, 48 A.L.R.3d 153.

Abandonment of construction or of contract as affecting time for filing mechanic's liens or time for giving notice to owner, 52 A.L.R.3d 797.

Building and construction contracts: contractor's equitable lien upon percentage of funds withheld by contractee or lender, 54 A.L.R.3d 848.

Assertion of statutory mechanic's or materialman's lien against oil and gas produced or against proceeds attributable to oil and gas sold, 59 A.L.R.3d 278.

Garageman's lien: modern view as to validity of statute permitting sale of vehicle without hearing, 64 A.L.R.3d 814.

Effect of bankruptcy of principal contractor upon mechanic's lien of subcontractor, laborer, or materialman as against owner of property, 69 A.L.R.3d 1342.

Demand for or submission to arbitration as affecting enforcement of mechanic's lien, 73 A.L.R.3d 1042.

Enforceability of mechanic's lien attached to leasehold estate against landlord's fee, 74 A.L.R.3d 330.

Removal or demolition of building or other structure as basis for mechanic's lien, 74 A.L.R.3d 386.

Release or waiver of mechanic's lien by general contractor as affecting rights of subcontractor or materialman, 75 A.L.R.3d 505.

Who is the "owner" within mechanic's lien statute requiring notice of claim, 76 A.L.R.3d 605.

Liability of purchaser of real estate on mechanic's lien based on goods or labor supplied to vendor but filed after title passed, 33 A.L.R.4th 1017.

Architect's services as within mechanics' lien statute, 31 A.L.R.5th 664.

44-14-363. Special liens on personalty; notice; enforcement; priorities; maximum claims for storage; recordation.

  1. All mechanics of every sort shall have a special lien on personal property for work done and material furnished in manufacturing or repairing the personal property and for storage of the personal property after its manufacture or repair, which storage begins accruing after 30 days' written notice to the owner of the fact that storage is accruing and of the daily dollar amount thereof; and said notice shall be mailed to the owner by certified mail or statutory overnight delivery addressed to the owner at his last known address. Such special liens may be asserted by the retention of the personal property or the mechanic may surrender the personal property and give credit when the lien is enforced in accordance with Code Section 44-14-550; and if such special liens are asserted by retention of the personal property, the mechanic shall not be required to surrender the property to the holder of a subordinate security interest or lien. Such liens shall be superior to all liens except liens for taxes and, except as provided in subsection (2) of Code Section 11-9-310, such other liens as the mechanic may have had actual notice of before the work was done or material furnished.
  2. The maximum amount of storage that may be charged shall be $1.00 per day. Nothing contained in this Code section shall allow a fee for storage to be charged on any item with a fair market value in excess of $200.00. Storage charges pursuant to this Code section shall not apply to motor vehicles now or hereafter covered by Chapter 3 of Title 40 nor shall the storage fee be charged if there is a bona fide dispute between the customer and the mechanic as to the manner of repair or the charges for repair.
    1. When possession of the property is surrendered to the debtor, the mechanic shall record his or her claim of lien within 90 days after the work is done and the material is furnished or, in the case of repairs made on or to farm machinery, within 180 days after the work is done and the material is furnished. The claim of lien shall be recorded in the office of the clerk of the superior court of the county where the owner of the property resides. The claim shall be in substance as follows:

      "A.B., mechanic, claims a lien on ________ (here describe the property) of C.B., for work done, material furnished, and storage accruing (as the case may be) in manufacturing, repairing, and storing (as the case may be) the same."

    2. If possession of the personal property subject to a special lien as provided in this Code section is surrendered to the debtor and if such special lien is not preserved by recording the claim of lien as provided in paragraph (1) of this subsection, the mechanic acquires a special lien on other personal property belonging to the debtor which comes into the possession of the mechanic, except that this sentence shall not apply to consumer goods which are being used by a consumer for personal, family, or household purposes or which have been bought by a consumer for use for personal, family, or household purposes. The special lien created by this paragraph shall be subject to the provisions of this Code section as to foreclosure and recording.

      (Ga. L. 1873, p. 42, § 8; Code 1873, § 1981; Code 1882, § 1981; Ga. L. 1884-85, p. 43, § 1; Civil Code 1895, § 2805; Civil Code 1910, § 3354; Code 1933, § 67-2003; Ga. L. 1953, Nov.-Dec. Sess., p. 275, § 1; Ga. L. 1960, p. 912, § 1; Ga. L. 1972, p. 415, § 1; Ga. L. 1979, p. 902, § 1; Ga. L. 1980, p. 831, § 2; Ga. L. 1984, p. 561, § 1; Ga. L. 1985, p. 1107, § 2; Ga. L. 2000, p. 1589, § 3; Ga. L. 2010, p. 776, § 1/HB 1147.)

The 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the first sentence of subsection (a).

The 2010 amendment, effective July 1, 2010, in the first sentence of paragraph (c)(1), inserted "or her" near the beginning, and deleted "aircraft or" preceding "farm machinery" near the end. See Editor's notes for applicability.

Cross references. - Liens for work done or materials furnished with regard to motor vehicles, § 40-3-54 .

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

Ga. L. 2010, p. 776, § 3, not codified by the General Assembly, provides that the amendment of this Code section shall apply to all liens filed on or after July 1, 2010.

Law reviews. - For note discussing the Motor Vehicle Certificate of Title Act (Ch. 3, T. 40) and its impact, see 13 Mercer L. Rev. 258 (1961). For comment on United States v. Crittenden, 563 F.2d 678 (5th Cir. 1977), see 12 Ga. L. Rev. 692 (1977). For comment on United States v. Crittenden, 600 F.2d 478 (5th Cir. 1979), discussing the priority of a mechanic's lien in Georgia, see 14 Ga. L. Rev. 628 (1980).

JUDICIAL DECISIONS

O.C.G.A. § 44-14-363 applies to perfection of mechanic's liens against personal property in general. Gwinnett Sales & Serv. v. Trust Co., 130 Ga. App. 31 , 202 S.E.2d 255 (1973).

What affidavit must show. - The affidavit for the foreclosure of a mechanic's lien under O.C.G.A. § 44-14-363 must allege facts sufficient to show that the work was done in the manufacture or repair of personal property. Cook v. Bowden, 32 Ga. App. 498 , 124 S.E. 60 (1924).

Mechanic may assert general laborer's lien. - A mechanic who performs labor is not limited to a remedy under O.C.G.A. § 44-14-363 but may assert a general laborer's lien under O.C.G.A. § 44-14-380 . Hilley v. Lunsford, 29 Ga. App. 398 , 115 S.E. 667 (1923).

How mechanic may enforce lien. - Whether the mechanic asserts a lien by retention of the property or by surrendering possession and recording the lien, the mechanic may enforce payment by foreclosure proceedings according to the provisions of O.C.G.A. § 44-14-550 . Fitzgerald Trust Co. v. Burkhart, 12 Ga. App. 222 , 77 S.E. 7 (1913).

Mechanic may arrest by claim proceedings to levy property. - While a foreclosure of a lien is necessary before sale under it, yet where another levies on the property, it is proper for the mechanic to arrest the proceeding by claim. Hurley & Smith v. Epps, 69 Ga. 611 (1882).

Foreclosure not grounds for trover. - Where a mechanic has asserted a lien on personal property for repairs thereon and has enforced payment thereof by foreclosure proceedings, the owner cannot bring trover against the mechanic. Fitzgerald Trust Co. v. Burkhart, 12 Ga. App. 222 , 77 S.E. 7 (1913).

Holding car for payment. - Where defendant mechanic holds plaintiff's automobile in assertion of a special lien for repairs, the mechanic's refusal to redeliver the automobile to the plaintiff in trover upon demand, without payment of the repair bill, constitutes no conversion of the property, and plaintiff cannot maintain action in trover for its recovery. Truscott v. Garner, 92 Ga. App. 95 , 88 S.E.2d 197 (1955).

Retention is not conversion. - Where one receives possession of an automobile for the purpose of making repairs and holds the vehicle in assertion of a special lien for making such repairs, the holder's refusal to deliver the automobile upon demand does not constitute a conversion. Boatright v. Padgett Motor Sales, Inc., 117 Ga. App. 578 , 161 S.E.2d 402 (1968).

Where there is agreement to balance accounts from time to time, the right to hold the property is waived and the lien is lost unless a claim of lien is filed. Gearreld v. Woodruff, 13 Ga. App. 450 , 79 S.E. 355 (1913).

Where a mechanic does work on open account repairing several articles the mechanic cannot at the end of a year of such transactions record a claim of lien for all of them. Palin v. Cooke, 125 Ga. 442 , 54 S.E. 90 (1906).

Possession of car irrelevant where vendor title superior to mechanic's lien. - Although the retention of the automobile is the proper method of asserting the mechanic's lien under O.C.G.A. § 44-14-363 , the allegation of possession is irrelevant where a mechanic's lien for repair work and material of the credit of a vendee is inferior to the vendor's contract retaining the title, regardless of who has possession of the automobile at the time of the levy. Dixon v. GMAC, 105 Ga. App. 413 , 124 S.E.2d 660 (1962).

Legal title takes precedence over mechanic's lien. - There is nothing contained or implied in O.C.G.A. § 44-14-363 or the decisions thereunder that would indicate that a mechanic's lien, any more than any other lien, was intended to operate, or by any possible construction could be made to operate, in such a manner as to exert priority over an outstanding and valid legal title. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955).

O.C.G.A. § 44-14-363 has never at any time been construed to extend beyond mere liens, as such, and to effect a priority over a legal title in another. There is a clear distinction between a lien and a legal title. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955).

Unrecorded bill of sale to secure debt uniformly superior to any lien arising by operation of law, as is the case with any mechanic's lien. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955).

Failure to record. - The mechanic's lien of an aircraft repair company which was not recorded with the Federal Aviation Administration (FAA) was not valid, thus the security interest of a bank which was recorded with the FAA after the mechanic initiated lien foreclosure proceedings was superior. Southern Horizons Aviation v. F & M Bank, 231 Ga. App. 55 , 497 S.E.2d 637 (1998).

Perfected security interest under former O.C.G.A. § 11-9-310 superior to mechanic's lien. - Under former O.C.G.A. § 11-9-310 (see now O.C.G.A. § 11-9-333 ), a perfected security interest takes priority over all liens described in O.C.G.A. § 44-14-320 , including mechanic's lien as provided for in O.C.G.A. § 44-14-363 . Newton Ford Tractor Co. v. JI Case Credit Corp., 163 Ga. App. 497 , 294 S.E.2d 723 (1982).

A bank's security interest in the inventory of a carpet manufacturer took priority over a mechanic's lien. Nationsbank v. Hardwick Carpets Int'l, Inc., 233 Ga. App. 894 , 506 S.E.2d 174 (1998).

Perfected security interest under O.C.G.A. § 40-3-54 superior to mechanic's lien. - A security interest on a vehicle which is perfected pursuant to O.C.G.A. § 40-3-54 is superior to a mechanic's lien on a vehicle which is perfected under the provisions of O.C.G.A. § 44-14-363 . Gwinnett Sales & Serv. v. Trust Co., 130 Ga. App. 31 , 202 S.E.2d 255 (1973).

Recorded bill of sale superior to subsequently recorded mechanic's lien. - A bill of sale properly recorded is a superior lien to a mechanic's lien subsequently duly recorded and foreclosed. Norman v. Farmers State Bank, 90 Ga. App. 763 , 84 S.E.2d 207 (1954).

Effect of a failure to record a mortgage or bill of sale to secure debt shall be the same as is the effect of failure to record a deed of bargain and sale. This changes the prior law with reference to those securities so as to render such instruments, even though unrecorded, superior in rank to subsequent liens created by law. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955).

Vendee cannot force liability on vendor who retains title. - Where a vendor retains title to personal property the vendor's claim is superior to the lien of a mechanic who has done work at the instance of the vendee. The vendee cannot force a liability on the vendor. Baughman Auto. Co. v. Emanuel, 137 Ga. 354 , 73 S.E. 511 , 38 L.R.A. (n.s.) 97 (1912).

Bill of sale to secure debt superior to all liens, absent recording act. - A bill of sale to secure debt conveys an outright legal title, as distinguished from a mortgage lien, under law, so as to place such legal title beyond the reach of any lien, statutory or otherwise, in the absence of a recording act treating such as an equitable mortgage. Manchester Motors, Inc. v. F & M Bank, 91 Ga. App. 811 , 87 S.E.2d 342 (1955).

Removal of illegally parked cars by police creates no lien. - Where O.C.G.A. § 40-6-206 permits police officers to remove illegally parked automobiles to a garage or other place of safety, but it does not specify whether a public or private garage, nor does it state that the owner shall be liable for the costs of such removal and storage, and no specific authority is given the officers to impound the vehicle and the law is blank as to its ultimate disposition, the law does not create an agency relation between the police officers and the owner so as to create a contract for storage or towing charges, since the owner does not assent to this disposition of property, and no person authorized by law to act for the owner assents to it. Under these circumstances, no lien arises, and detention of the property by the garage against the demands of the owner amounts to a conversion. Wilkinson v. Townsend, 96 Ga. App. 179 , 99 S.E.2d 539 (1957).

Sawmill proprietors cannot have mechanic's lien. - A lien does not arise under O.C.G.A. § 44-14-363 when the facts show that the claimants are not mechanics, but proprietors of a sawmill. Evans v. Beddingfield, 106 Ga. 755 , 32 S.E. 664 (1899).

No mechanic's lien for workman hired by another. - The lien given by O.C.G.A. § 44-14-363 does not attach in favor of a workman who is hired by another to do the work. In such a case, the possession of the lien is in the master or contractor. Quillian v. Central R.R. & Banking Co., 52 Ga. 374 (1874).

A firm engaged in operating a repair shop where others are employed to do expert mechanical work, and where material is furnished for the repair of carriages and automobiles, is entitled to a lien on the property manufactured or improved. Fox v. Smith, 143 Ga. 547 , 85 S.E. 856 (1915).

Notwithstanding that work done by those hired. - The lien provided for in O.C.G.A. § 44-14-363 is afforded to mechanics, notwithstanding the work employed in manufacturing or repairing the property may have been performed entirely by an employee of the mechanic. Fox v. Smith, 143 Ga. 547 , 85 S.E. 856 (1915).

Since section gives lien to person who controls work. - It was the intent, and it is the plain meaning of O.C.G.A. § 44-14-363 to give the lien to the manufacturer or repairer, the individual who controls the work, has the shop, and not to the workmen. Gibbs v. Griffin, 123 Ga. App. 385 , 181 S.E.2d 285 (1971).

For example of enforcement of lien, see Young v. Alford, 36 Ga. App. 708 , 137 S.E. 914 (1927).

Cited in Mulkey v. Thompson, 3 Ga. App. 522 , 60 S.E. 223 (1908); Richardson v. Mallory, 13 Ga. App. 496 , 79 S.E. 362 (1913); Frost Motor Co. v. Pierce, 72 Ga. App. 447 , 33 S.E.2d 910 (1945); United States v. Ridley, 120 F. Supp. 530 (N.D. Ga. 1954); Carrollton Prod. Credit Ass'n v. Allen, 93 Ga. App. 150 , 91 S.E.2d 93 (1955); Brewer v. Chapman, 94 Ga. App. 92 , 93 S.E.2d 814 (1956); Buice v. Campbell, 99 Ga. App. 334 , 108 S.E.2d 339 (1959); Tow v. Forrester, 122 Ga. App. 718 , 178 S.E.2d 692 (1970); Southwire Co. v. Metal Equip. Co., 139 Ga. App. 49 , 198 S.E.2d 687 (1973); Collins v. Booker, 129 Ga. App. 824 , 201 S.E.2d 676 (1973); Reinertsen v. Porter, 242 Ga. 624 , 250 S.E.2d 475 (1978); WWG Indus., Inc. v. United Textiles, Inc., 772 F.2d 810 (11th Cir. 1985); Demido v. Wilson, 261 Ga. App. 165 , 582 S.E.2d 151 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 190 et seq., 196. 51 Am. Jur. 2d, Liens, § 19.

C.J.S. - 8 C.J.S., Bailments, § 80 et seq. 53 C.J.S., Liens, § 11.

ALR. - Validity and effect of provision in contract against mechanic's lien, 13 A.L.R. 1065 ; 102 A.L.R. 356 ; 76 A.L.R.2d 1087.

Freight charges on material as within mechanic's lien statute giving lien for labor or material, or within contractor's bond securing such claims, 30 A.L.R. 466 .

Mechanics' lien for material specially fabricated for and adapted to building, but not used therein, 33 A.L.R. 320 .

Mechanic's lien: owner's right to deduction on account of damages sustained through contractor's delay, 37 A.L.R. 766 .

Independence of contract considered with relation to the scope and construction of statutes, 43 A.L.R. 335 .

Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 54 A.L.R. 567 .

Material or labor employed in construction of concrete forms as basis of mechanics' lien or claim under contractors' bond, 84 A.L.R. 460 .

Priority of statutory lien on automobile for storage or repairs as against the rights of purchasers, attaching creditors, or trustee in bankruptcy which arose while car was in possession of owner after accrual of storage or completion of repairs, 100 A.L.R. 80 .

Principal contractor as necessary party to suit to enforce mechanic's lien of subcontractor, laborer, or materialman, 100 A.L.R. 128 .

Remedy available to holder of mechanic's lien which has priority over antecedent mortgage or vendor's title or lien as regards improvement, but not as regards land, where it is impossible or impractical to remove the improvement, 107 A.L.R. 1012 .

Priority of lien of sales or consumers' tax, 136 A.L.R. 1015 .

Time for filing notice or claim of mechanic's lien where claimant has contracted with general contractor and later contracts directly with owner, 78 A.L.R.2d 1165.

Priority between mechanics' liens and advances made under previously executed mortgage, 80 A.L.R.2d 179.

What constitutes "commencement of building or improvement" for purposes of determining accrual of mechanic's lien, 1 A.L.R.3d 822.

Sufficiency of designation of owner in notice, claim, or statement of mechanic's lien, 48 A.L.R.3d 153.

Abandonment of construction or of contract as affecting time for filing mechanics' liens or time for giving notice to owner, 52 A.L.R.3d 797.

Assertion of statutory mechanic's or materialman's lien against oil and gas produced or against proceeds attributable to oil and gas sold, 59 A.L.R.3d 278.

Secured transactions: priorities as between previously perfected security interest and repairman's lien on motor vehicle under Uniform Commercial Code, 69 A.L.R.3d 1162.

Who is the "owner" within mechanic's lien statute requiring notice of claim, 76 A.L.R.3d 605.

Lien for towing or storage, ordered by public officer, of motor vehicle, 85 A.L.R.3d 199.

Garageman's lien for towing and storage of motor vehicle towed from private property on which vehicle was parked without permission, 85 A.L.R.3d 240.

Validity, construction, and effect of "Sunday closing" or "blue" laws - modern status, 10 A.L.R.4th 246.

Loss of garageman's lien on repaired vehicle by owner's use of vehicle, 74 A.L.R.4th 90.

Architect's services as within mechanics' lien statute, 31 A.L.R.5th 664.

44-14-364. Release of lien on approval of bond; amount; real property bonds; schedule, affidavit, and recordation; superior court clerk held harmless for good faith discretionary acts in connection with bond approval.

  1. When any person entitled under this part to claim a lien against any real estate located in this state files his or her lien in the office of the clerk of the superior court of the county in which the real estate is located, the owner of the real estate or the contractor employed to improve the property may, before or after foreclosure proceedings are instituted, discharge the lien upon the approval of a bond by the clerk of superior court. The bond shall be conditioned to pay to the holder of the lien the sum that may be found to be due the holder upon the trial of any lien action that may be filed by the lienholder to recover the amount of his or her claim within 365 days from the time the claim of lien is filed. The bond shall be in double the amount claimed under that lien and shall be either a bond with good security approved by the clerk of superior court or a cash bond, except in cases involving a lien against the owner's domicile, in which event the bond shall be in the amount claimed under the lien. An owner or contractor may be required to provide supporting data to the clerk to prove the value of domiciled property when such property serves as a bond to discharge a lien provided for in this Code section. Upon the approval by the clerk of the bond provided for in this Code section, the real estate shall be discharged from the lien. For purposes of this subsection, the term "domicile" means the established, fixed, permanent, or ordinary dwelling place of the owner.
  2. Within seven days of filing the bond required by subsection (a) of this Code section and any attachments, the party filing such bond shall send a notice of filing such bond and a copy of the bond by registered or certified mail or statutory overnight delivery to the lien claimant at the address stated on the lien or, if no such address is shown for the lien claimant, to the person shown as having filed such lien on behalf of the claimant at the indicated address of such person or, if the bond is filed by a contractor, to the owner of the property, provided that whenever the lien claimant or the owner is an entity on file with the Secretary of State's Corporations Division, sending the notice of filing such bond and a copy of the bond to the company's address or the registered agent's address on file with the Secretary of State shall be deemed sufficient; provided, however, that the failure to send the notice of filing the bond and copy of the bond shall not invalidate the bond for purposes of discharge of a claim of lien under this Code section. With respect to property bonds, the clerk shall not accept any real property bond unless the real property is scheduled in an affidavit attached thereto setting forth a description of the property and indicating the record owner thereof, including any liens and encumbrances and amounts thereof, the market value, and the value of the sureties' interest therein, which affidavit shall be executed by the owner or owners of the interest; the bond and affidavit shall be recorded in the same manner and at the same cost as other deeds of real property. So long as the bond exists, it shall constitute a lien against the property described in the attached affidavit.
  3. The clerk of the superior court shall have the right to rely upon the amount specified in the claim of lien in determining the sufficiency of any bond to discharge under this Code section. The failure to specify both the amount claimed due under the lien and the date said claim was due shall result in such lien not constituting notice for any purposes.
  4. The clerk of the superior court shall be held harmless for good faith regarding any discretionary act in connection with approval of any bond provided for in this Code section.

    (Code 1933, § 67-2004, enacted by Ga. L. 1953, Jan.-Feb. Sess., p. 544, § 1; Ga. L. 1972, p. 469, § 1; Ga. L. 1981, p. 916, § 1; Ga. L. 1983, p. 1450, § 2; Ga. L. 2008, p. 1063, § 4/SB 374; Ga. L. 2012, p. 173, § 1-37/HB 665.)

The 2008 amendment, effective March 31, 2009, in subsection (a), inserted "or her" in the first and second sentences, in the second sentence, inserted "lien" preceding "action", substituted "365 days" for "12 months", and substituted "of lien is filed" for "becomes due" at the end, and added the fifth sentence.

The 2012 amendment, effective July 1, 2012, in subsection (a), substituted "upon the approval of a bond by the clerk of superior court" for "by filing a bond in the office of that clerk" in the first sentence, in the third sentence, substituted "clerk of superior court" for "clerk of the court", and substituted "the owner's domicile" for "residential property", added the fourth sentence, substituted "approval by the clerk" for "filing" in the fifth sentence, and added the last sentence; added the subsection (b) designation; near the beginning of the first sentence of subsection (b), substituted "the bond required by subsection (a) of this Code section" for "such bond" and substituted "such bond" for "the bond"; redesignated former subsection (b) as present subsection (c); and added subsection (d).

Law reviews. - For survey article on construction law, see 59 Mercer L. Rev. 55 (2007). For note, "Benning Construction Co. v. Dykes Paving and Construction Co.: Georgia Supreme Court Redefines the Scope of Materialman's Lien Statutes," see 45 Mercer L. Rev. 1401 (1994).

JUDICIAL DECISIONS

Intent. - The intent of the General Assembly was to have the bond serve as a replacement for the lien, and not to establish a new and different procedure limited to the bond. M. Shapiro & Son v. Yates Constr. Co., 140 Ga. App. 675 , 231 S.E.2d 497 (1976).

The intent was to provide a procedure whereby owners could alienate their property while disputes regarding claims of liens are pending. M. Shapiro & Son v. Yates Constr. Co., 140 Ga. App. 675 , 231 S.E.2d 497 (1976).

The General Assembly did not intend to deprive the owner or contractor of those defenses which would have been available to defeat foreclosure of the lien. M. Shapiro & Son v. Yates Constr. Co., 140 Ga. App. 675 , 231 S.E.2d 497 (1976).

The lien-release bond provided for by O.C.G.A. § 44-14-364 serves as a replacement for the lien to which it refers, and does not authorize a new and different procedure limited to the bond or result in additional rights. North v. Waffle House, Inc., 177 Ga. App. 162 , 338 S.E.2d 750 (1985).

The effect of posting a property bond pursuant to O.C.G.A. § 44-14-364 is to serve as a replacement for the lien. After such a bond is filed, it is still incumbent upon the lien claimant who brings suit against the principal and surety on the bond to prove entitlement to the underlying lien. Roberts v. Porter, Davis, Saunders & Churchill, 193 Ga. App. 898 , 389 S.E.2d 361 (1989).

Posting bond discharges lien. - Where the owner with whom the materialman has a contract posts bond, this discharges the lien so far as the owner and the property are concerned. There is no longer anything to be foreclosed on, and the plaintiff's action is from then on strictly in contract and in personam against the contractor with whom it dealt. Linco Constr. Co. v. Tri-City Concrete, Inc., 161 Ga. App. 174 , 288 S.E.2d 125 (1982).

Bond stands in shoes of lien to serve as security after the lien claimant has proved entitlement to the lien. M. Shapiro & Son v. Yates Constr. Co., 140 Ga. App. 675 , 231 S.E.2d 497 (1976).

Lienee can use defenses available against lien foreclosure. - The intention was to have the bond as a security to stand in the place of the lien so that the lienor still had to show compliance with the lien law and the lienee could in an action on the bond use as defenses those which would have been available to a lien foreclosure. M. Shapiro & Son v. Yates Constr. Co., 140 Ga. App. 675 , 231 S.E.2d 497 (1976).

The bonds filed with the superior court stand in place of the recorded liens as security for the claims, and in any subsequent action to collect on the bond, the defendant could present as defenses those which would be available to a foreclosure of the lien for which the bond was substituted. Hoffman Elec. Co. v. Chiyoda Int'l Corp., 203 Ga. App. 731 , 417 S.E.2d 371 , cert. denied, 203 Ga. App. 906 , 417 S.E.2d 371 (1992).

Surety can present defenses available in action on lien. - In an action on a bond under O.C.G.A. § 44-14-364 , a surety is entitled to present any defenses which would have existed on an action on the lien. Apex Supply Co. v. Commercial Union Ins. Co., 143 Ga. App. 131 , 237 S.E.2d 649 (1977).

Whether lienee is owner or contractor. - The principal and surety under the statutory bond is entitled to present any defenses to an action on the bond that would exist if the lien for which the bond served as a substitute were being foreclosed, whether the principal be the owner or the contractor. M. Shapiro & Son v. Yates Constr. Co., 140 Ga. App. 675 , 231 S.E.2d 497 (1976).

Discharge of lien and judgment against contractor not enough to make owners principals. - The discharge of a materialman's lien upon the filing of a bond does not make the owners principals and the surety on the bond liable merely because a judgment was obtained against the general contractor, absent a judgment in favor of the materialman and against the owners establishing the right to a lien. Montgomery v. Richards Bldg. Materials, Inc., 122 Ga. App. 472 , 177 S.E.2d 507 (1970).

Action by materialman against court clerk for negligence. - Where there is no foreclosure of the materialman's lien, no proceeding instituted to recover on the bond given under O.C.G.A. § 44-14-364 and no other action instituted to establish the amount of damages to which the plaintiff might be entitled, a complaint filed by a materialman against the clerk of court for negligence is premature. Atlas Supply Co. v. United States Fid. & Guar. Co., 119 Ga. App. 152 , 166 S.E.2d 624 (1969).

Effect of discharge of lien by bond. - When contractor and insurance company posted a bond to discharge supplier's liens, the bond served as a replacement for the lien and supplier's later execution of waiver and release of lien did not affect its contract claims against the bond. Benning Constr. Co. v. All-Phase Elec. Supply Co., 206 Ga. App. 279 , 424 S.E.2d 830 (1992).

Compliance with statutory requirement. - Trial court properly granted summary judgment to the materialman on its action to recover on a lien release bond after an electrical subcontractor did not pay for materials supplied to it by the materialman, and despite the claim of the general contractor and the surety that the materialman did not comply with a lien statute notice requirement; the lien statute notice requirement was meant to protect prospective purchasers from unknowingly buying property encumbered by liens and did not apply to the materialman's situation because the materialman, acting as a lien claimant, was attempting to recover on a lien discharge bond that the general contractor and the surety had filed to discharge the lien against the electrical contractor. Washington Intl Ins. Co. v. Hughes Supply, Inc., 271 Ga. App. 50 , 609 S.E.2d 99 (2004).

In the general contractor's action against the materials provider relating to the provider's request for payment under a payment bond, the trial court erred by declaring that the payment bond obtained and recorded by the general contractor served as substituted collateral for the construction project and in discharging the materialmen's lien filed by the provider; O.C.G.A. § 10-7-31 was silent on the issue of how or whether the bond affected materialmen's liens, and, under O.C.G.A. § 44-14-364(a) , the bond did not satisfy the essential requirements of a lien release bond since the bond was obtained before the provider filed its lien claim and there was nothing indicating that the bond was issued with good security approved by the clerk. Sierra Craft, Inc. v. T. D. Farrell Constr., Inc., 282 Ga. App. 377 , 638 S.E.2d 815 (2006), cert. denied, No. S07C0460, 2007 Ga. LEXIS 145 (Ga. 2007).

Cited in Stein Steel & Supply Co. v. K. & L. Enters., Inc., 97 Ga. App. 71 , 102 S.E.2d 99 (1958); Pickett v. Chamblee Constr. Co., 124 Ga. App. 769 , 186 S.E.2d 123 (1971); Vector Co. v. Star Enters., Inc., 131 Ga. App. 569 , 206 S.E.2d 636 (1974); Houston Gen. Ins. Co. v. Stein Steel & Supply Co., 134 Ga. App. 624 , 215 S.E.2d 511 (1975); Davis v. Hoover-Morris Dev. Co., 136 Ga. App. 446 , 221 S.E.2d 656 (1975); Daniel & Daniel, Inc. v. Cosmopolitan Co., 137 Ga. App. 383 , 224 S.E.2d 44 (1976); Logan Paving Co. v. Liles Constr. Co., 141 Ga. App. 81 , 232 S.E.2d 575 (1977); Yalanzon v. Sharon Constr. Co., 141 Ga. App. 294 , 233 S.E.2d 220 (1977); Riverside Place, Ltd. v. B & D Asphalt Paving, Inc., 161 Ga. App. 773 , 288 S.E.2d 730 (1982); Stonepecker, Inc. v. Shepherd Constr. Co., 188 Ga. App. 513 , 373 S.E.2d 295 (1988); Turner Constr. Co. v. Electrical Distribs., Inc., 202 Ga. App. 726 , 415 S.E.2d 325 (1992); Kruzel v. Leeds Bldg. Prods., Inc., 266 Ga. 765 , 470 S.E.2d 882 (1996); Few v. Capitol Materials Inc., 274 Ga. 784 , 559 S.E.2d 429 (2002); Cent. Atlanta Tractor Sales, Inc. v. Athena Dev., LLC, 289 Ga. App. 355 , 657 S.E.2d 290 (2008); Massey v. Duke Builders, Inc., 310 Ga. 152 , 849 S.E.2d 186 (2020).

RESEARCH REFERENCES

Am. Jur. 2d. - 53 Am. Jur. 2d, Mechanics' Liens, § 313 et seq.

C.J.S. - 56 C.J.S., Mechanics' Liens, § 263 et seq.

ALR. - Provisions of statutes or bonds to secure payment for work or labor as including use of laborer's own team, automobile, or other equipment, 71 A.L.R. 1136 .

Owner's right to recover from contractor or surety on his bond amount paid or agreed to be paid by former to third person order to avoid mechanics' liens for labor or material furnished contractor, 134 A.L.R. 314 .

Enforceability of mechanic's lien attached to leasehold estate against landlord's fee, 74 A.L.R.3d 330.

Removal or demolition of building or other structure as basis for mechanic's lien, 74 A.L.R.3d 386.

44-14-365. Rights as to liens of partnerships, corporations, and associations made up of or employing registered architects, foresters, land surveyors, or professional engineers.

If services are performed or furnished with respect to any real estate by any registered architect, registered forester, registered land surveyor, or registered professional engineer who is a member of a partnership or who is an agent or employee of a corporation or an association and the contract for the services is made for or on behalf of the owner with the partnership or corporation or association, the partnership, corporation, or association shall be entitled to all the privileges and benefits of Code Sections 44-14-361 and 44-14-362, just as if the partnership, corporation, or association was a registered architect, a registered forester, a registered professional engineer, or a registered land surveyor.

(Ga. L. 1956, p. 185, §§ 5-8; Ga. L. 1959, p. 367, § 1; Ga. L. 1985, p. 1322, § 5.)

RESEARCH REFERENCES

Am. Jur. 2d. - 53 Am. Jur. 2d, Mechanics' Liens, § 61.

ALR. - Right of subcontractor's subcontractor or materialman, or of materialman's materialman, to mechanic's lien, 24 A.L.R.4th 963.

Architect's services as within mechanics' lien statute, 31 A.L.R.5th 664.

44-14-366. Waiver of lien or claim upon bond in advance of furnishing labor, services, or materials void; interim waiver and release upon payment; unconditional waiver and release upon final payment; affidavit of nonpayment.

  1. Waivers and releases provided for under this Code section shall be limited to waivers and releases of lien and labor or material bond rights and shall not be deemed to affect any other rights or remedies of the claimant.
  2. A right to claim a lien or to claim upon a bond may not be waived in advance of furnishing of labor, services, or materials. Any purported waiver or release of lien or bond claim or of this Code section executed or made in advance of furnishing of labor, services, or materials is null, void, and unenforceable.
  3. No oral or written statement by the claimant purporting to waive, release, impair, or otherwise adversely affect a lien or bond claim is enforceable or creates an estoppel or impairment of claim of lien or claim upon a bond unless:
    1. It is pursuant to a waiver and release form duly executed by the claimant prescribed below; and
    2. The claimant has received payment for the claim as set forth in subsection (g) of this Code section.
  4. When a claimant is requested to execute a waiver and release in exchange for or in order to induce payment other than final payment, the waiver and release shall substantially follow the language of the following form, be in at least 12 point font, and need not be in boldface capital letters, and the priority of such claimant's lien rights, except as to retention, shall upon such payment thereafter run from the day after the date specified in such Waiver and Release of Lien and Payment Bond Rights Upon Interim Payment form: (3) A claimant who is paid, in full, the amount set forth in the waiver and release form after filing an affidavit of nonpayment shall upon request execute in recordable form an affidavit swearing that payment in full has been received. Upon recordation thereof in the county in which the Affidavit of Nonpayment was recorded, the affidavit of nonpayment to which it relates shall be deemed void. (4) Nothing in this Code section shall shorten the time within which to file a claim of lien. (5) A waiver and release provided in this Code section shall be suspended upon filing of an affidavit of nonpayment until payment in full has been received. (6) The claimant may rely upon the information contained in the waiver and release form when completing for filing the affidavit of nonpayment. (Code 1981, § 44-14-366 , enacted by Ga. L. 1991, p. 915, § 3; Ga. L. 1999, p. 81, § 44; Ga. L. 2008, p. 1063, § 5/SB 374; Ga. L. 2012, p. 775, § 44/HB 942; Ga. L. 2020, p. 733, § 1/SB 315.)

"WAIVER AND RELEASE OF LIEN

AND PAYMENT BOND RIGHTS

UPON INTERIM PAYMENT

STATE OF GEORGIA COUNTY OF ______________ THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY ____________________________ (NAME OF CONTRACTOR) TO FURNISH ____________________________ (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS ____________________________ (TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF __________________, COUNTY OF __________________, AND IS OWNED BY ____________________________ (NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: __________________________________________________________________________ ___________________________________________________________________________ __________________________________________________________________________ (DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.) UPON THE RECEIPT OF THE SUM OF $____________, THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND THROUGH THE DATE OF ____________ (DATE) AND EXCEPTING THOSE RIGHTS AND LIENS THAT THE MECHANIC AND/OR MATERIALMAN MIGHT HAVE IN ANY RETAINED AMOUNTS, ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID BUILDING OR PREMISES. GIVEN UNDER HAND AND SEAL THIS ________ DAY OF ________________________, ________. __________________________________________________________ (SEAL) __________________________________________________________________ ________________________ (WITNESS) ________________________ (ADDRESS) NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE CONCLUSIVELY DEEMED TO HAVE WAIVED AND RELEASED ANY AND ALL LIENS AND CLAIMS OF LIENS UPON THE FOREGOING DESCRIBED PROPERTY AND ANY RIGHTS REGARDING ANY LABOR OR MATERIAL BOND REGARDING THE SAID PROPERTY TO THE EXTENT (AND ONLY TO THE EXTENT) SET FORTH ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 90 DAYS AFTER THE DATE STATED ABOVE UNLESS YOU FILE AN AFFIDAVIT OF NONPAYMENT PRIOR TO THE EXPIRATION OF SUCH 90 DAY PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A WAIVER AND RELEASE UNDER O.C.G.A. § 44-14-366 ." Provided, however, that the failure to correctly complete any of the blank spaces in the above form shall not invalidate said form so long as the subject matter of said release may reasonably be determined. (e) When a claimant is requested to execute a waiver and release in exchange for or in order to induce making of final payment, the waiver and release shall substantially follow the language of the following form, be in at least 12 point font, and need not be in boldface capital letters:

"WAIVER AND RELEASE OF LIEN

AND PAYMENT BOND RIGHTS UPON FINAL PAYMENT

STATE OF GEORGIA COUNTY OF ______________ THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY ____________________________ (NAME OF CONTRACTOR) TO FURNISH ____________________________ (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS ____________________________ (TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF __________________, COUNTY OF __________________, AND IS OWNED BY ____________________________ (NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ (DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.) UPON THE RECEIPT OF THE SUM OF $ ____________, THE MECHANIC AND/OR MATERIALMAN WAIVES AND RELEASES ANY AND ALL LIENS OR CLAIMS OF LIENS IT HAS UPON THE FOREGOING DESCRIBED PROPERTY OR ANY RIGHTS AGAINST ANY LABOR AND/OR MATERIAL BOND ON ACCOUNT OF LABOR OR MATERIALS, OR BOTH, FURNISHED BY THE UNDERSIGNED TO OR ON ACCOUNT OF SAID CONTRACTOR FOR SAID PROPERTY. GIVEN UNDER HAND AND SEAL THIS ________ DAY OF ________________________, ________. _________________________________________________________ (SEAL) _________________________________________________________________ ________________________ (WITNESS) ________________________ (ADDRESS) NOTICE: WHEN YOU EXECUTE AND SUBMIT THIS DOCUMENT, YOU SHALL BE CONCLUSIVELY DEEMED TO HAVE WAIVED AND RELEASED ANY AND ALL LIENS AND CLAIMS OF LIENS UPON THE FOREGOING DESCRIBED PROPERTY AND ANY RIGHTS REGARDING ANY LABOR OR MATERIAL BOND REGARDING THE SAID PROPERTY TO THE EXTENT (AND ONLY TO THE EXTENT) SET FORTH ABOVE, EVEN IF YOU HAVE NOT ACTUALLY RECEIVED SUCH PAYMENT, 90 DAYS AFTER THE DATE STATED ABOVE UNLESS YOU FILE AN AFFIDAVIT OF NONPAYMENT PRIOR TO THE EXPIRATION OF SUCH 90 DAY PERIOD. THE FAILURE TO INCLUDE THIS NOTICE LANGUAGE ON THE FORM SHALL RENDER THE FORM UNENFORCEABLE AND INVALID AS A WAIVER AND RELEASE UNDER O.C.G.A. § 44-14-366 ." Provided, however, that the failure to correctly complete any of the blank spaces in the above form shall not invalidate said form so long as the subject matter of said release may reasonably be determined. (f) Nothing contained in this Code section shall affect: (1) The enforceability of any subordination of lien rights by a potential lien claimant to the rights of any other party which may have or acquire an interest in all or any part of the real estate, factories, railroads, or other property for which the potential lien claimant has furnished labor, services, or material, even though such subordination is entered into in advance of furnishing labor, services, or material and even though the claimant has not actually received payment in full for its claim; (2) The enforceability of any waiver of lien rights given in connection with the settlement of a bona fide dispute concerning the amount due the lien claimant for labor, services, or material which have already been furnished; (3) The validity of a cancellation or release of a recorded claim of lien or preliminary notice of lien rights; or (4) The provisions of paragraph (2) of subsection (a) of Code Section 44-14-361.2 , paragraphs (3) and (4) of subsection (a) and subsections (b) and (c) of Code Section 44-14-361.4 , or Code Section 44-14-364 . (g) (1) When a waiver and release provided for in this Code section is executed by the claimant, it shall be binding against the claimant for purposes of the waiver of lien and labor or material bond rights to the extent stated in the waiver and release, subject only to the provisions of paragraphs (2) and (3) of this subsection. (2) Such lien and labor or material bond waivers and releases shall conclusively be deemed effective upon the earliest to occur of: (A) Actual receipt of funds in the amount set forth in the waiver and release; (B) Execution by the claimant of a separate written acknowledgment of payment in full; or (C) Ninety days after the date of the execution of the waiver and release, unless prior to the expiration of said 90 day period the claimant files in the county in which the property is located an affidavit of nonpayment, using substantially the language in the following form, where such language shall be in at least 12 point font and need not be in boldface capital letters:

"AFFIDAVIT OF NONPAYMENT UNDER

O.C.G.A. § 44-14-366

STATE OF GEORGIA COUNTY OF ______________ THE UNDERSIGNED MECHANIC AND/OR MATERIALMAN HAS BEEN EMPLOYED BY ____________________________ (NAME OF CONTRACTOR) TO FURNISH ____________________________ (DESCRIBE MATERIALS AND/OR LABOR) FOR THE CONSTRUCTION OF IMPROVEMENTS KNOWN AS ____________________________ (TITLE OF THE PROJECT OR BUILDING) WHICH IS LOCATED IN THE CITY OF __________________, COUNTY OF __________________, AND IS OWNED BY ____________________________ (NAME OF OWNER) AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: ________________________________________________________________________ _________________________________________________________________________ ________________________________________________________________________ (DESCRIBE THE PROPERTY UPON WHICH THE IMPROVEMENTS WERE MADE BY USING EITHER A METES AND BOUNDS DESCRIPTION, THE LAND LOT DISTRICT, BLOCK AND LOT NUMBER, OR STREET ADDRESS OF THE PROJECT.) PURSUANT TO O.C.G.A. § 44-14-366 THE UNDERSIGNED EXECUTED A LIEN WAIVER AND RELEASE WITH RESPECT TO THIS PROPERTY DATED ________________________, ________. THE AMOUNT SET FORTH IN SAID WAIVER AND RELEASE ($____________) HAS NOT BEEN PAID IN FULL AND $____________ OF THE AMOUNT SET FORTH IN SAID WAIVER AND RELEASE REMAINS UNPAID, AND THE UNDERSIGNED HEREBY GIVES NOTICE OF SUCH NONPAYMENT. THE ABOVE FACTS ARE SWORN TRUE AND CORRECT BY THE UNDERSIGNED, THIS ____________ DAY OF ________________________, ________. ________________________________________________________ (SEAL) CLAIMANT'S SIGNATURE SWORN TO AND EXECUTED IN THE PRESENCE OF: ____________________ WITNESS ____________________ NOTARY PUBLIC WITHIN SEVEN DAYS OF FILING THIS AFFIDAVIT OF NONPAYMENT, THE FILING PARTY SHALL SEND A COPY OF THE AFFIDAVIT BY REGISTERED OR CERTIFIED MAIL OR STATUTORY OVERNIGHT DELIVERY TO THE OWNER OF THE PROPERTY. IF THE FILING PARTY IS NOT IN PRIVITY OF CONTRACT WITH THE PROPERTY OWNER AND A NOTICE OF COMMENCEMENT IS FILED FOR THE IMPROVEMENT ON THE PROPERTY FOR WHICH THE FILING PARTY'S LABOR, SERVICES, OR MATERIALS WERE FURNISHED, A COPY OF THE AFFIDAVIT SHALL BE SENT TO THE CONTRACTOR AT THE ADDRESS SHOWN ON THE NOTICE OF COMMENCEMENT. WHENEVER THE OWNER OF THE PROPERTY IS AN ENTITY ON FILE WITH THE SECRETARY OF STATE'S CORPORATIONS DIVISION, SENDING A COPY OF THE LIEN TO THE COMPANY'S ADDRESS OR THE REGISTERED AGENT'S ADDRESS ON FILE WITH THE SECRETARY OF STATE SHALL BE DEEMED SUFFICIENT."

The 2008 amendment, effective March 31, 2009, rewrote this Code section.

The 2012 amendment, effective May 1, 2012, part of an Act to revise, modernize, and correct the Code, revised punctuation in subparagraph (f)(2)(C).

The 2020 amendment, effective January 1, 2021, rewrote this Code section.

Law reviews. - For annual survey of construction law, see 57 Mercer L. Rev. 79 (2005). For survey article on construction law, see 60 Mercer L. Rev. 59 (2008). For note on 1991 enactment of this Code section, see 8 Ga. St. U.L. Rev. 166 (1992).

JUDICIAL DECISIONS

Limitations period. - Because a 30-day limitations period in a contract between a general contractor and a subcontractor for the subcontractor to request arbitration of a dispute between the parties after notice by the contractor of default by the subcontractor did not contravene O.C.G.A. § 44-14-366 , the trial court did not err in enforcing the provision; the subcontractor's conduct, not the terms of the contract, impaired the subcontractor's claim and any lien rights the subcontractor would have had with respect to that claim had the subcontractor timely arbitrated the contractor's decision to a favorable result. Holt & Holt, Inc. v. Choate Constr. Co., 271 Ga. App. 292 , 609 S.E.2d 103 (2004).

Waiver and release binding on claimant for all purposes. - Trial court erred in denying a construction company's motion for summary judgment because the subcontractor failed to file the notice of non-payment within 60 days of the date shown on the waiver, and the plain and unambiguous language of O.C.G.A. § 44-14-366(f)(1) clearly provided that the failure to so file deemed the amount at issue paid in full. ALA Construction Services, LLC v. Controlled Access, Inc., 351 Ga. App. 841 , 833 S.E.2d 570 (2019).

Georgia Court of Appeals held that the materialman must file a notice of non-payment within 60 days of the date shown on the waiver and release or else the amount at issue shall conclusively be deemed paid in full, and the presumption of payment is binding against the claimant for all purposes. ALA Construction Services, LLC v. Controlled Access, Inc., 351 Ga. App. 841 , 833 S.E.2d 570 (2019).

44-14-367. Notice; required statement.

Failure of a lien claimant to commence a lien action to collect the amount of his or her claim within 365 days from the date of filing the lien, or failure of the lien claimant to file the statutory notice of commencement of lien action in the county where the property is located, renders the claim of lien unenforceable. A claim of lien may be disregarded if no notice of commencement of lien action was filed within 395 days from the date the claim of lien was filed. Any lien filed after March 31, 2009, shall include on the face of the lien the following statement in at least 12 point bold font: "This claim of lien expires and is void 395 days from the date of filing of the claim of lien if no notice of commencement of lien action is filed in that time period." Failure to include such language shall invalidate the lien and prevent it from being filed. No release or voiding of such liens shall be required. A lien shall expire sooner and be disregarded once it is determined that no notice of commencement was timely filed in response to a notice of contest pursuant to Code Section 44-14-368.

(Code 1981, § 44-14-367 , enacted by Ga. L. 1998, p. 860, § 2; Ga. L. 2000, p. 1589, § 3; Ga. L. 2008, p. 1063, § 6/SB 374.)

The 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the third and sixth sentences of subsection (a).

The 2008 amendment, effective March 31, 2009, rewrote this Code section.

Editor's notes. - Ga. L. 1998, p. 860, § 3, not codified by the General Assembly, provides that this Act is applicable to liens created on or after July 1, 1998.

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

Law reviews. - For survey article on construction law, see 60 Mercer L. Rev. 59 (2008).

JUDICIAL DECISIONS

Creditor's time for notice tolled under bankruptcy provisions. - Bankruptcy court held that the procedure under O.C.G.A. § 44-14-361.1 to "make good" a mechanic's or materialman's lien involved creating the lien, not mere perfection, and these acts were subject to an automatic stay; accordingly, because the automatic stay prevented the creditor from complying with O.C.G.A. § 44-14-361.1 , the creditor's failure to take further action under that statute was tolled under 11 U.S.C. § 108. In re Durango Ga. Paper Co., 297 Bankr. 316 (Bankr. S.D. Ga. 2003).

Lien not authorized. - If a county housing authority owned property, regardless of its future plans to sell the same to private parties, it remained public property; thus, a private contractor was not authorized to place a lien on the property. Vakilzadeh Enters. v. Hous. Auth. of DeKalb, Ga., 271 Ga. App. 130 , 608 S.E.2d 724 (2004).

Because a subcontractor did not actually comply with O.C.G.A. § 43-14-8(f) as the evidence indicated that a Georgia-licensed electrician that the subcontractor affiliated itself with through an alleged joint venture only presented electrical contracting licenses when permits for the work were applied for and took no action to inspect others' electrical work or to verify that the work complied with the applicable codes, the subcontractor could not enforce the subcontract with the contractor, could not recover in quantum meruit under O.C.G.A. § 9-2-7 as the express contract violated public policy, and could not file a subcontractor's lien under O.C.G.A. §§ 44-14-361.1 and 44-14-367 . JR Construction/Electric, LLC v. Ordner Constr. Co., 294 Ga. App. 453 , 669 S.E.2d 224 (2008).

44-14-368. Notice of contest of lien.

  1. An owner or an owner's agent or attorney, or the contractor or contractor's agent or attorney, may elect to shorten the time prescribed in which to commence a lien action to enforce any claim of lien by recording in the superior court clerk's office a notice in substantially the following form, in boldface capital letters in at least 12 point font, along with proof of delivery upon the lien claimant:      "NOTICE OF CONTEST OF LIEN       TO: [NAME AND ADDRESS OF LIEN CLAIMANT]       YOU ARE NOTIFIED THAT THE UNDERSIGNED CONTESTS THE CLAIM OF LIEN FILED BY YOU ON ______________ 20 ____, AND RECORDED IN ________ BOOK ____________, PAGE ____________ OF THE PUBLIC RECORDS OF ______________ COUNTY, GEORGIA, AGAINST PROPERTY OWNED BY ____________________________, AND THAT THE TIME WITHIN WHICH YOU MAY COMMENCE A LIEN ACTION TO ENFORCE YOUR LIEN IS LIMITED TO 60 DAYS FROM RECEIPT OF THIS NOTICE. THIS ________ DAY OF ______________, 20____.       THIS ABOVE-REFERENCED LIEN WILL EXPIRE AND BE VOID IF YOU DO NOT: (1) COMMENCE A LIEN ACTION FOR RECOVERY OF THE AMOUNT OF THE LIEN CLAIM PURSUANT TO O.C.G.A. SECTION 44-14-361.1 WITHIN 60 DAYS FROM RECEIPT OF THIS NOTICE; AND (2) FILE A NOTICE OF COMMENCEMENT OF LIEN ACTION WITHIN 30 DAYS OF FILING THE ABOVE-REFERENCED LIEN ACTION.       SIGNED: ________________________________________ (OWNER, CONTRACTOR, AGENT OR ATTORNEY)"
  2. The clerk of the superior court shall cross-reference the notice of contest of lien to the lien. The owner or his or her agent or attorney, or the contractor or his or her agent or attorney, shall send a copy of the notice of contest of lien within seven days of filing by registered or certified mail or statutory overnight delivery to the lien claimant at the address noted on the face of the lien. Service shall be deemed complete upon mailing.
  3. The lien shall be extinguished by law 90 days after the filing of the notice of contest of lien if no notice of commencement of lien action is filed in that time period. No release or voiding of such liens shall be required. This subsection shall not be construed to extend the time in which a lien action must begin. (Code 1981, § 44-14-368 , enacted by Ga. L. 2008, p. 1063, § 7/SB 374.)

Effective date. - This Code section became effective March 31, 2009.

Law reviews. - For survey article on construction law, see 60 Mercer L. Rev. 59 (2008).

44-14-369. Computation of certain time periods.

For the purposes of this part, the computation of time shall be determined pursuant to paragraph (3) of subsection (d) of Code Section 1-3-1.

(Code 1981, § 44-14-369 , enacted by Ga. L. 2008, p. 1063, § 7/SB 374.)

Effective date. - This Code section became effective March 31, 2009.

PART 4 L ABORERS

JUDICIAL DECISIONS

Location for process. - A laborer can sue out a process to enforce a lien for labor performed either in the county of the employer's residence, or where the property might be, but the process should be made returnable to the proper court of the county of defendant's residence, if defendant resides in the state. Harris v. Houston, 51 Ga. App. 116 , 179 S.E. 645 (1935).

Counter-affidavit converts proceedings to mesne process. - The filing of a counter-affidavit to the foreclosure of a laborer's lien converts the proceedings into mesne process. Law v. Hodges, 53 Ga. App. 319 , 185 S.E. 584 (1936).

RESEARCH REFERENCES

ALR. - Common-law lien on personalty for work performed thereon, upon the owner's premises, 3 A.L.R. 862 .

Right or interest subject to, and priority of, statutory lien for labor or material in developing property for oil and gas, 122 A.L.R. 1182 .

Abandonment of construction or of contract as affecting time for filing mechanics' liens or time for giving notice to owner, 52 A.L.R.3d 797.

44-14-380. General lien; priorities.

Laborers shall have a general lien upon the property of their employers which is liable to levy and sale for their labor, which lien is superior to all other liens except liens for taxes, the special liens of landlords on yearly crops, and such other liens as are declared by law to be superior to them.

(Ga. L. 1873, p. 42, § 4; Code 1873, § 1974; Code 1882, § 1974; Civil Code 1895, § 2792; Civil Code 1910, § 3334; Code 1933, § 67-1801.)

JUDICIAL DECISIONS

Section strictly construed. - Where parties resort to summary remedies to recover their demands, they must follow the very letter of O.C.G.A. § 44-14-380 . Mabry v. Judkins, 66 Ga. 732 (1881); Ricks v. Redwine, 73 Ga. 273 (1884).

Section has no extraterritorial effect. - O.C.G.A. §§ 44-14-320 , 44-14-380 , and 44-14-382 which give to laborers a general lien upon the property of their employers for labor performed, have no extraterritorial effect, and give no lien arising out of a contract for labor, made in another state and executed by labor performed therein. Downs v. Bedford, 39 Ga. App. 155 , 146 S.E. 514 (1929).

Trust estate is subject to lien under O.C.G.A. § 44-14-380 . Ricks v. Redwine, 73 Ga. 273 (1884).

Laborer may also sue at common law. - Remedy given by O.C.G.A. §§ 44-14-380 , 44-14-530 , and 44-14-550 is not exclusive, and does not deprive a laborer of a common-law right to sue upon a contract, but is merely cumulative of that right. Jennings v. Lanham, 19 Ga. App. 79 , 90 S.E. 1038 (1916).

Foreclosure proceedings on laborer's lien not a bar to action on debt. - Pendency of a foreclosure of a laborer's lien is not a bar to an action on account for the same debt, since, even where the lien is contested and the property replevied, no general judgment can be rendered in the foreclosure proceedings. In such a case, the lien foreclosure is not converted into a proceeding in personam by the filing of a replevy bond. The actions are entirely different and each involves a different kind of judgment. McKellar v. Childs, 95 Ga. App. 237 , 97 S.E.2d 616 (1957).

Definition of laborer. - Laborer under O.C.G.A. § 44-14-380 , is one who performs manual labor. If an employee is paid to perform headwork rather than handwork, that employee is not a laborer within that section. Cole v. McNeill, 99 Ga. 250 , 25 S.E. 402 (1896).

"Laborer," under O.C.G.A. § 44-14-380 , is one who performs manual labor. Aronoff v. Woodard, 47 Ga. App. 725 , 171 S.E. 404 (1933).

Laborers classified by work required under contract, not title. - In determining whether an employee is a laborer within the meaning of the law providing for laborers' lien, that person is to be classified, not according to the arbitrary designation given to the calling, but with reference to the character of the services required of that person under the contract of employment. Bell v. J.B. Withers Cigar Co., 196 Ga. 48 , 26 S.E.2d 260 (1943).

Laborer does not do work requiring business skill. - Under O.C.G.A. § 44-14-380 laborers may file a lien on the property of their employers, but in order for an employee to come within the class entitled to such lien the employee's duties, in the main, must be duties not requiring business capacity, skill and discretion. Dantel Corp. v. Whidby, 98 Ga. App. 119 , 105 S.E.2d 242 (1958).

Clerks, or persons doing general service, are not laborers within O.C.G.A. § 44-14-380 . Richardson v. Langston & Crane, 68 Ga. 658 (1882). See also Hinton v. Goode & Crumbley, 73 Ga. 233 (1884); Ricks v. Redwine, 73 Ga. 273 (1884); Oliver v. Macon Hdwe. Co., 98 Ga. 249 , 25 S.E. 403 (1896); Pruitt v. Pace, 10 Ga. App. 201 , 72 S.E. 1098 (1911).

Mercantile clerk is not laborer. - Clerk in a mercantile establishment is not a "laborer" even though the proper discharge of the clerk's duties may include the performance of some amount of manual labor. Meunier v. Beck & Gregg Hdwe. Co., 52 Ga. App. 30 , 182 S.E. 58 (1935).

Clerical employees not entitled to either general or special laborer's liens. - In a simple action by a clerical employee for an alleged unpaid salary, an employee is entitled to neither a general laborer's lien, nor a special laborer's lien, if it is shown that no manual labor is involved. United Bonded Whse., Inc. v. Jackson, 207 Ga. 627 , 63 S.E.2d 666 (1951).

When employee's regular duties include actual manual labor, the employee may have lien under O.C.G.A. § 44-14-380 even though the employee is a clerk as well as a laborer. Oliver v. Boehm, Bendheim & Co., 63 Ga. 172 (1879); Rountree v. Brown, 22 Ga. App. 79 , 95 S.E. 375 (1918).

When an employee's regular duties include actual manual labor, the employee may have a lien under O.C.G.A. § 44-14-380 although the employee performs other services for the employer which are not manual labor. Aronoff v. Woodard, 47 Ga. App. 725 , 171 S.E. 404 (1933).

Cropper is a laborer, and, as such, may maintain a laborer's lien upon the crop as the property of the employer. Jennings v. Lanham, 19 Ga. App. 79 , 90 S.E. 1038 (1916); Howard v. Franklin, 32 Ga. App. 737 , 124 S.E. 554 (1924).

Waitress in a restaurant, who waits on the customers when they come into the restaurant to eat, takes their orders and serves them with their meals, and after they finish eating, cleans the table and takes the soiled dishes to the kitchen, and who also cooks some, sweeps the floors of the restaurant, changes the table linen, scrubs counters, washes mirrors, dusts, and unpacks canned goods, is a laborer within the meaning of O.C.G.A. § 44-14-380 ; even though the waitress frequently acts as cashier, purchases some of the groceries, and makes entries in the books of the business. Aronoff v. Woodard, 47 Ga. App. 725 , 171 S.E. 404 (1933).

Mechanic may assert mechanic's or laborer's lien. - A mechanic who personally performs manual labor upon property of the employer is not limited to a mechanic's lien under O.C.G.A. § 44-14-363 , but may at the mechanic's option assert a laborer's lien under O.C.G.A. §§ 44-14-380 or 44-14-381 . Adams v. Goodrich, 55 Ga. 233 (1875); Hilley v. Lunsford, 29 Ga. App. 398 , 115 S.E. 667 (1923).

Working foreman limited to mechanic's lien. - A working foreman, who in addition to duties as a supervisor, is expected to perform manual type labor personally may not be in the main, a laborer so as to be entitled to a lien under O.C.G.A. § 44-14-380 but may be a mechanic within the meaning of O.C.G.A. §§ 44-14-360 and 44-14-361 . Dantel Corp. v. Whidby, 98 Ga. App. 119 , 105 S.E.2d 242 (1958).

Laborer only has a lien for work which the laborer has done personally, and not by other persons hired by the laborer to do the work. Mabry v. Judkins, 66 Ga. 732 (1881).

Laborer entitled to earnings of spouse and minor child and may assert lien in the laborer's own name and for the laborer's own use for labor contracted for and performed by the spouse and child. Howard v. Franklin, 32 Ga. App. 737 , 124 S.E. 554 (1924).

General laborer's lien on personalty takes precedence over ordinary mortgages, even those created prior to the contract for labor. Langston & Crane v. Anderson, 69 Ga. 65 (1882); Allred v. Haile, 84 Ga. 570 , 10 S.E. 1095 (1890); Georgia Loan, Sav. & Banking Co. v. Dunlop, 108 Ga. 218 , 33 S.E. 882 (1899); Mathews v. Fields, 12 Ga. App. 225 , 77 S.E. 11 (1913).

Purchase-money mortgages and other liens, except as otherwise provided. - Liens of laborers have priority over mortgages given to secure the payment of purchase money, and all other liens except those specially provided for and expressly declared by law to be superior. Bradley v. Cassels, 117 Ga. 517 , 43 S.E. 857 (1903).

Lien in favor of laborers on the personalty of their employers takes precedence over mortgages, even mortgages given to secure the payment of the purchase money, and even to those created prior to the contract for labor, and all other liens except those specially provided for and specially declared by law to be superior. Aronoff v. Woodard, 47 Ga. App. 725 , 171 S.E. 404 (1933).

Lien does not include fee for using laborer's property. - Lien given to laborers under O.C.G.A. § 44-14-380 arises only for the amount due for the work done, and does not include hire for use of laborer's property. Cox v. Cagle & Sons, 112 Ga. 157 , 37 S.E. 176 (1900).

Special lien of laborers given by O.C.G.A. § 44-14-380 attaches to their employers' property only. Farrar v. Joyce, 60 Ga. App. 675 , 4 S.E.2d 708 (1939).

Amendment of lien which effectively changes party defendant. - Laborer's special lien foreclosed against A, and levied on property alleged to be the property of A, to which property B files a claim, cannot be amended by alleging that B is the owner of the property, that the work for which the lien arose was done for B's benefit, and that B knowingly accepted such benefit, as such an amendment in effect substitutes B, of whom no demand for payment had been made within 12 months from the date the debt became due, for A as a party defendant, and this may not be done unless there is an equitable reason therefor. Farrar v. Joyce, 60 Ga. App. 675 , 4 S.E.2d 708 (1939).

Procedure for enforcing lien. - Laborer may enforce such lien on personal property by filing an affidavit in the proper court in the county of the residence of the employer or in the county where such property of the employer is located, setting forth the essential facts necessary to constitute such lien, whereupon an execution shall issue instantly, the same being final process, unless and until arrested or controverted by a proper counter affidavit. Harris v. Houston, 51 Ga. App. 116 , 179 S.E. 645 (1935).

Employee has burden of showing contract required mostly manual labor. - Burden is on employee to show that the general services by an oral contract of employment are to consist mainly of manual labor, and not merely that the services which the employee did perform consisted mainly of such labor. Bell v. J.B. Withers Cigar Co., 196 Ga. 48 , 26 S.E.2d 260 (1943).

Unless foreclosure collaterally attacked by stranger. - Rule that the burden of proving that one is a laborer lies upon the one asserting a laborer's lien does not apply where a judgment foreclosing a laborer's lien is collaterally attacked by a stranger. Sutton v. Bank of Oglethorpe, 33 Ga. App. 416 , 126 S.E. 556 (1925).

Plaintiff in execution bears burden of showing possession by defendant. - Possession by the lienholder is proper, and if there is no contradiction thereof by the claimant, the plaintiff in execution carries the burden of proof to show either title or possession of defendant in execution. Jones v. Major, 83 Ga. App. 78 , 62 S.E.2d 729 (1950).

Cited in Lakewood Lumber & Supply Co. v. Hughes, 176 Ga. 239 , 167 S.E. 518 (1933); Ford ex rel. S. Stevedoring Co. v. Lone Star Cement Co., 181 Ga. 212 , 181 S.E. 773 (1935); Farmers Fertilizer Co. v. Carter, 83 Ga. App. 274 , 63 S.E.2d 245 (1951); United States v. Ridley, 120 F. Supp. 530 (N.D. Ga. 1954); D.H. Overmyer Whse. Co. v. W.C. Caye & Co., 116 Ga. App. 128 , 157 S.E.2d 68 (1967); Algernon Blair, Inc. v. Atlantic Steel Placing Co., 297 F. Supp. 1340 (N.D. Ga. 1969); Gibbs v. Griffin, 123 Ga. App. 385 , 181 S.E.2d 285 (1971); Almand Constr. Co. v. Guye, 123 Ga. App. 630 , 181 S.E.2d 907 (1971).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, §§ 25-28, 75.

C.J.S. - 56 C.J.S., Mechanics' Liens, § 98.

ALR. - Priority as between landlord's lien on chattels and chattel mortgage, 37 A.L.R. 400 ; 52 A.L.R. 935 .

Chattel mortgage on fruit crops growing or to be grown, 54 A.L.R. 1532 .

Constitutionality of statute giving a lien for, or preferring claims of employees for, wages in case of insolvency of employer, 94 A.L.R. 1287 .

Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 111 A.L.R. 1453 ; 142 A.L.R. 362 .

Sufficiency of description of subject of lien in farm laborer's claim of statutory lien, 116 A.L.R. 1009 .

Right or interest subject to, and priority of, statutory lien for labor or material in developing property for oil and gas, 122 A.L.R. 1182 .

Priority of lien of sales or consumers' tax, 136 A.L.R. 1015 .

State's prerogative right of preference at common law, 167 A.L.R. 640 .

Validity of statute making private property owner liable to contractor's laborers, materialmen, or subcontractors where owner fails to exact bond or employ other means of securing their payment, 59 A.L.R.2d 885.

44-14-381. Special lien; priorities.

Laborers shall also have a special lien on the products of their labor, which lien shall be superior to all other liens except liens for taxes and special liens of landlords on yearly crops.

(Ga. L. 1873, p. 42, § 4; Code 1873, § 1975; Code 1882, § 1975; Civil Code 1895, § 2793; Civil Code 1910, § 335; Code 1933, § 67-1802.)

JUDICIAL DECISIONS

O.C.G.A. § 44-14-381 is strictly construed. Richardson v. Langston & Crane, 68 Ga. 658 (1882).

Trust estate is subject to a lien under O.C.G.A. § 44-14-381 . Ricks v. Redwine, 73 Ga. 273 (1884).

Laborer's lien may be asserted by mechanic. - Mechanic who personally performs manual labor upon property of employer is not limited to a mechanic's lien under O.C.G.A. § 44-14-363 but may at the mechanic's option assert a laborer's lien under O.C.G.A. §§ 44-14-380 or 44-14-381 . Adams v. Goodrich, 55 Ga. 233 (1875); Hilley v. Lunsford, 29 Ga. App. 398 , 115 S.E. 667 (1923).

O.C.G.A. § 44-14-381 does not apply to goods repaired. Lanier v. Bailey, 120 Ga. 878 , 48 S.E. 324 (1904).

Independent contractors, as well as employees, may assert a special laborer's lien. Slappey v. Slappey, 296 Ga. App. 773 , 676 S.E.2d 283 (2009).

Clerical worker not entitled to laborer's lien. - In a simple suit by a clerical employee for an alleged unpaid salary, employee is entitled to neither a general laborer's lien, nor a special laborer's lien, if it is shown that no manual labor was involved. United Bonded Whse., Inc. v. Jackson, 207 Ga. 627 , 63 S.E.2d 666 (1951).

Laborer's lien applies only to employer's property. - Special lien given by O.C.G.A. § 44-14-381 to laborers, on the product of their labor, attaches to the property of their employers only. Jonas v. Central Ga. Lumber Co., 35 Ga. App. 172 , 132 S.E. 236 , cert. denied, 35 Ga. App. 808 (1926).

Amount does not include price for using laborer's property. - Lien given to laborers under O.C.G.A. § 44-14-381 arises only for the amount due for the work done, and does not include hire for use of laborer's property. Cox v. Cagle, 112 Ga. 157 , 37 S.E. 176 (1900).

Laborer not entitled to employer's property where not product of labor. - Special lien of a laborer applies only to the products of labor, and the foreclosure of such lien will not entitle the laborer to participate in the proceeds of other personal property before the court for distribution. Boyce v. Poore, 84 Ga. 574 , 10 S.E. 1094 (1890).

Plaintiff in execution must show defendant has title or possession. - Possession by the lienholder is proper, and if there is no contradiction thereof by the claimant, the plaintiff in execution carries the burden of proof to show either title or possession of defendant in execution. Jones v. Major, 83 Ga. App. 78 , 62 S.E.2d 729 (1950).

Landlord's crop lien superior to laborer's lien, absent contrary agreement. - Landlord's lien has priority on the proceeds of crops grown on rented premises over a laborer's lien on the same unless there be some conflicting agreement such as might operate to interfere with the general rule. Nelson v. Fuqua, 46 Ga. App. 754 , 169 S.E. 206 (1933).

Parent who planted could not assert lien. - As a farmer's parent planted and picked cotton and did not oversee others while others performed these tasks, the parent was a "laborer" for purposes of O.C.G.A. § 44-14-381 . Slappey v. Slappey, 296 Ga. App. 773 , 676 S.E.2d 283 (2009).

Lien against a farmer's crop. - As O.C.G.A. § 44-14-550 contemplated that at the initial probable cause hearing, the trial court would inquire as to whether the plaintiff had put forth facts necessary to constitute a laborer's lien and the amount due, the trial court did not err in reviewing the facts of the case in order to determine whether there was probable cause to believe a laborer could validly assert a special lien against a farmer's crop for the debt under O.C.G.A. § 44-14-381 . Slappey v. Slappey, 296 Ga. App. 773 , 676 S.E.2d 283 (2009).

Cited in Lakewood Lumber & Supply Co. v. Hughes, 176 Ga. 239 , 167 S.E. 518 (1933); Farmers Fertilizer Co. v. Carter, 83 Ga. App. 274 , 63 S.E.2d 245 (1951); United States v. Ridley, 120 F. Supp. 530 (N.D. Ga. 1954).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, §§ 8, 10.

C.J.S. - 53 C.J.S., Liens, § 1.

ALR. - Priority as between landlord's lien on chattels and chattel mortgage, 37 A.L.R. 400 ; 52 A.L.R. 935 .

Priority of lien of sales or consumers' tax, 136 A.L.R. 1015 .

44-14-382. When laborers' liens arise; priority of conflicting liens.

Liens of laborers shall arise upon the completion of the contract of labor but shall not exist against bona fide purchasers without notice until they have been reduced to execution and levied on by an officer. Laborers' liens which conflict with each other shall rank according to date, each dating from the completion of the contract of labor.

(Ga. L. 1873, p. 42, § 4; Code 1873, § 1976; Code 1882, § 1976; Civil Code 1895, § 2794; Civil Code 1910, § 3339; Code 1933, § 67-1803.)

JUDICIAL DECISIONS

Section has no extraterritorial effect. - O.C.G.A. §§ 44-14-320 , 44-14-380 , and 44-14-382 give to laborers a general lien upon the property of their employers for labor performed, have no extraterritorial effect, and give no lien arising out of a contract for labor, made in another state and executed by labor performed therein. Downs v. Bedford, 39 Ga. App. 155 , 146 S.E. 514 (1929).

Bona fide purchaser prevails. - A bona fide purchase of personalty in payment of an antecedent debt, before the property was seized under the levy of a laborer's general lien, will prevail over such lien. F & M Bank v. Redden, 17 Ga. App. 473 , 87 S.E. 701 (1916).

Laborer's lien prevails over prior general rent lien. - O.C.G.A. § 44-14-382 does not, where the laborer's lien is not reduced to execution and levy until after the creation of a landlord's general lien for rent, deny to the laborer's general lien its superior dignity to the landlord's general lien for rent. That section merely denies to a laborer's lien its superiority as against a bona fide purchaser before the lien has been reduced to execution and levy. Little v. Walters, 40 Ga. App. 447 , 150 S.E. 201 (1929).

Completion must be alleged in affidavit. - An affidavit to foreclose a laborer's lien must show affirmatively that the contract of labor has been completed. Brantley v. Rayburn, 61 Ga. 211 (1878); McDonald v. Night, 63 Ga. 161 (1879); Harvey v. Lewis, 19 Ga. App. 655 , 91 S.E. 1052 (1917).

Payment presumed due when contract completed absent contrary agreement or custom. - Where a contract involving goods and services is involved, and no stipulation to the contrary is included therein, and no custom to the contrary proved in evidence, payment will be presumed due when the contract is completed. Luckie v. Max Wright, Inc., 90 Ga. App. 243 , 82 S.E.2d 660 (1954).

No right to enforce lien absent sufficient reason for not completing contract. - One is not entitled to enforce a laborer's lien unless the laborer is for sufficient legal reason prevented from carrying out the contract. Payne v. Norris, 88 Ga. App. 850 , 78 S.E.2d 351 (1953).

Completion prevented by other party. - While, ordinarily, before a laborer's lien can be foreclosed, the laborer must have fully completed the contract, yet, where the laborer is prevented from doing so by the other party to the contract, the actual completion of the contract is not necessary. Cluff v. Merchants' & Mechanics' Bank, 40 Ga. App. 299 , 149 S.E. 300 (1929).

Where before the end of the year for which a farm laborer is employed, but after the maturity of the crops, the landlord turns the crops over to a third person, a creditor, to be gathered by such third person, it is not necessary for the laborer to wait until the end of the year to foreclose the laborer's lien. Cluff v. Merchants' & Mechanics' Bank, 40 Ga. App. 299 , 149 S.E. 300 (1929).

The burden is upon the laborer to show that the labor contract has been completed. Houser v. Cooper, 102 Ga. 823 , 30 S.E. 539 (1898).

For example of case where cropper abandoned cultivation. See Payne v. Trammell, 29 Ga. App. 475 , 115 S.E. 923 (1923).

Cited in Oglethorpe Sav. & Trust Co. v. Morgan, 149 Ga. 787 , 102 S.E. 528 (1920); Malsby & Co. v. Widincamp, 32 Ga. App. 716 , 124 S.E. 730 (1924); Gardner v. Smith, 39 Ga. App. 224 , 146 S.E. 648 (1929); United States v. Ridley, 120 F. Supp. 530 (N.D. Ga. 1954).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, §§ 9, 11, 12, 22, 23, 68-70, 75.

C.J.S. - 53 C.J.S., Liens, §§ 4, 14.

ALR. - Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 54 A.L.R. 567 ; 142 A.L.R. 362 .

Right or interest subject to, and priority of, statutory lien for labor or material in developing property for oil and gas, 122 A.L.R. 1182 .

PART 5 P AWNBROKERS, FACTORS, BAILEES, ACCEPTORS, AND DEPOSITORIES

RESEARCH REFERENCES

ALR. - Right of a factor, commission merchant, or produce broker to sell property to protect advances, 40 A.L.R. 387 .

Other debts or liabilities within contemplation of pledge to secure particular debt and other debts or liabilities to pledgee, 87 A.L.R. 615 .

Warehouseman's or bailee's lien on property stored by officer who had seized it under attachment or execution, 95 A.L.R. 1529 .

44-14-400. Liens of pawnbrokers, factors, bailees, and acceptors; priorities.

Pawnbrokers, factors, bailees, and acceptors shall have such liens as are designated in this part and in Part 5 of Article 3 of Chapter 12 of this title. Such liens shall be inferior to liens for taxes, liens of which such persons had actual notice before becoming creditors, special liens for rent, liens of laborers, liens or mortgages duly recorded, judgment liens, and other general liens reduced to execution and levied on.

(Ga. L. 1873, p. 42, § 14; Code 1873, § 1987; Ga. L. 1880-81, p. 63, § 2; Code 1882, § 1987; Civil Code 1895, § 2812; Civil Code 1910, § 3362; Code 1933, § 12-701.)

JUDICIAL DECISIONS

Where property sold in depositor's lifetime, proceeds not part of estate. - Where a factor, with whom property had been deposited, makes advances thereon to the owner, the factor has the right and power to sell the property for the purpose of paying the indebtedness represented by the advancements, and has a lien upon the funds derived from the sale for the purpose of reimbursing the factor for the advances made. Where the factor, in the lifetime of the owner, sells the property and applies the proceeds to the indebtedness, neither the property, nor the proceeds of the sale thereof, become, upon the death of the owner, a part of the estate, and therefore the surviving spouse and minor children can assert no claim for a year's support in the property or the proceeds thereof. Philpot v. Ramsey & Hogan, 47 Ga. App. 635 , 171 S.E. 204 (1933).

Property is part of depositor's estate if not sold before death. - Where a factor, with whom property had been deposited, who made advancements thereon during the lifetime of the owner, does not sell the property until after the owner's death, the property encumbered with the factor's lien for the advancements becomes a part of the owner's estate, and is therefore subject to the superior lien of the surviving spouse and minor children of the owner for a year's support. Philpot v. Ramsey & Hogan, 47 Ga. App. 635 , 171 S.E. 204 (1933).

Factor's lien junior to that for year's support of depositor's survivors. - Where a factor occupies, as to the landlord, the position of a bona fide acquisitor of a mortgage lien on the property, for value and without notice, and, possesses only a lien upon the property for the advancements made, such lien, where no title passes, has no priority over the lien given by statute on the property of the deceased at the time of death to the surviving spouse and minor children for a year's support. Philpot v. Ramsey & Hogan, 47 Ga. App. 635 , 171 S.E. 204 (1933).

Warehouseman's lien not superior to homestead exemption. - A warehouseman's lien for storage charges on property deposited with the warehouseman is not superior to the exemption rights established by setting it apart as homestead property although it be set apart after the accrual of the storage charges. Morrow Transf. & Storage Co. v. Whitson, 20 Ga. App. 149 , 92 S.E. 761 (1917).

Bailee's lien inferior to recorded security interest. - Bailee's lien was inferior to a cooperative banks' duly recorded security interest in peanuts. Farm Credit of Northwest Fla., ACA v. Easom Peanut Co., 312 Ga. App. 374 , 718 S.E.2d 590 (2011), cert. denied, No. S12C0444, 2012 Ga. LEXIS 315 (Ga. 2012).

Cited in Postell v. Val-Lite Corp., 78 Ga. App. 199 , 51 S.E.2d 63 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 190 et seq.

10A Am. Jur. Pleading and Practice Forms, Factors and Commission Merchants, § 2.

C.J.S. - 8 C.J.S., Bailments, § 80 et seq.

ALR. - Right of a factor, commission merchant, or produce broker to sell property to protect advances, 40 A.L.R. 387 .

Factor's right to setoff against proceeds of consignment, 52 A.L.R. 811 .

Priority of lien of sales or consumers' tax, 136 A.L.R. 1015 .

Lien for storage of motor vehicle, 48 A.L.R.2d 894; 85 A.L.R.3d 199.

Necessity and sufficiency of notice or statement prescribed by factor's lien law, 96 A.L.R.2d 727.

44-14-401. Depositories' liens; loss of liens under this Code section and Code Section 44-14-400; priorities.

Depositories shall have such liens as are prescribed in this part and in Part 5 of Article 3 of Chapter 12 of this title and shall, as to other liens, occupy the same position as mechanics. The liens mentioned in this Code section and in Code Section 44-14-400 shall be lost by a surrender to the debtor of the property on which the lien is claimed, and they shall rank according to date with each other and with other liens not specified in this Code section and in Code Section 44-14-400.

(Ga. L. 1873, p. 42, § 14; Code 1873, § 1988; Code 1882, § 1988; Civil Code 1895, § 2813; Civil Code 1910, § 3363; Code 1933, § 12-702.)

JUDICIAL DECISIONS

Cited in Turner v. Priest, 48 Ga. App. 109 , 171 S.E. 881 (1933); Postell v. Val-Lite Corp., 78 Ga. App. 199 , 51 S.E.2d 63 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 190 et seq.

C.J.S. - 26B C.J.S., Depositaries, § 11 et seq.

44-14-402. Liens of depositories for hire.

Depositories for hire shall have a lien for their hire and may retain possession until it is paid.

(Orig. Code 1863, § 2089; Code 1868, § 2084; Code 1873, § 2110; Code 1882, § 2110; Civil Code 1895, § 2928; Code 1910, § 3501; Code 1933, § 12-703.)

Law reviews. - For comment on Wilkinson v. Townsend, 96 Ga. App. 179 , 99 S.E.2d 539 (1957), wherein the statutory authorization for the police to remove an abandoned automobile to a garage was held not to create an agency relationship between the police and auto owner giving rise to a lien against the auto owner by the garageman, see 9 Mercer L. Rev. 372 (1958).

JUDICIAL DECISIONS

Removal of illegally parked car does not create lien. - Where O.C.G.A. § 40-6-206 permits police officers to remove illegally parked automobiles to a garage or other place of safety, but does not specify whether a public or private garage, and does not state that the owner shall be liable for the costs of such removal and storage, and no specific authority is given the officers to impound the vehicle and the law is blank as to its ultimate disposition, the law does not create an agency relation between the police officers and the owner so as to form a contract for storage or towing charges; since the owner does not assent to this disposition of property, and no person authorized by law to act for the owner assents to it. Under these circumstances, no lien arises, and detention of the property by the garage against the demands of the owner amounts to a conversion. Wilkinson v. Townsend, 96 Ga. App. 179 , 99 S.E.2d 539 (1957).

Cited in Postell v. Val-Lite Corp., 78 Ga. App. 199 , 51 S.E.2d 63 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 190 et seq.

C.J.S. - 26B C.J.S., Depositaries, § 11 et seq.

ALR. - Lien for towing or storage, ordered by public officer, of motor vehicle, 85 A.L.R.3d 199.

44-14-403. Lien of pawnbroker; action for interference; grace period on pawn transactions; extension or continuation of maturity date; redemption of goods after maturity date.

  1. A pawnbroker shall have a lien on the pledged goods pawned for the money advanced, interest, and pawnshop charge owed but not for other debts due to him. He may retain possession of the pledged goods until his lien is satisfied and may have a right of action against anyone interfering therewith.
    1. There shall be a grace period on all pawn transactions.  On pawn transactions involving motor vehicles or motor vehicle certificates of title, the grace period shall be 30 calendar days; on all other pawn transactions the grace period shall be ten calendar days.  In the event that the last day of the grace period falls on a day in which the pawnbroker is not open for business, the grace period shall be extended through the first day following upon which the pawnbroker is open for business.  The pawnbroker shall not sell the pledged goods during the grace period.
    2. By agreement of the parties, the maturity date of the pawn transaction may be extended or continued for 30 day periods, provided that the interest rates and charges as specified in Code Section 44-12-131 are not exceeded.  The grace period shall begin running on the first day following the maturity date of the pawn transaction or on the first day following the expiration of any extension or continuation of the pawn transaction, whichever occurs later.  All extensions or continuations of the pawn transaction shall be evidenced in writing.
    3. Pledged goods may be redeemed by the pledgor or seller within the grace period by the payment of any unpaid accrued fees and charges, the repayment of the principal, and the payment of an additional interest charge not to exceed 12.5 percent of the principal.  Pledged goods not redeemed within the grace period shall be automatically forfeited to the pawnbroker by operation of this Code section, and any ownership interest of the pledgor or seller shall automatically be extinguished as regards the pledged item.
    4. Any attempt to circumvent the interest rates and charges as specified in Code Section 44-12-131 shall be null and void.  A pawn transaction shall be considered to have been extended or continued unless:
      1. All charges, fees, and the principal have actually been paid or repaid on the previous pawn transaction;
      2. The pledged goods in the previous transaction, including but not limited to a motor vehicle certificate of title, have actually been restored to the possession of the pledgor or seller; and
      3. The pledged goods in the previous transaction have been removed from the business premises of the pawnbroker and, in the case of a motor vehicle certificate of title, any lien on the motor vehicle certificate of title has been removed or released.

        (Orig. Code 1863, § 2118; Code 1868, § 2113; Code 1873, § 2141; Code 1882, § 2141; Civil Code 1895, § 2959; Civil Code 1910, § 3531; Code 1933, § 12-704; Ga. L. 1989, p. 819, § 4; Ga. L. 1992, p. 3245, § 5.)

Law reviews. - For annual survey on bankruptcy law, see 69 Mercer L. Rev. 1033 (2018). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 323 (1992).

JUDICIAL DECISIONS

Lien is lost upon surrender of property to debtor. - The policy of the law as to innkeepers, boardinghouse keepers, and all pawnees and depositaries for hire is that they shall have a lien on the personalty deposited or pawned with them until they are paid for their services, but that they lose such lien by a voluntary surrender to the debtor of the property on which the lien is claimed. Turner v. Priest, 48 Ga. App. 109 , 171 S.E. 881 (1933).

Motor vehicle as subject of pawn transaction. - Bankruptcy court found that the creditor was not entitled to summary judgment regarding the debtor's repossessed vehicle action where the pawnshop agreement in issue violated the statutory requirements for automobile title pawns under Georgia law. Johnson v. Speedee Cash of Columbus, Inc. (In re Johnson), 289 Bankr. 251 (Bankr. M.D. Ga. 2002).

Debtors were not entitled to turn over to their estate a motor vehicle that had been pledged pre-petition to a pawn company because the debtors did not exercise their right of redemption within the 30 days allowed for redemption by O.C.G.A. § 44-14-103, the time for redemption had expired before the bankruptcy petition was filed, and the pawn company thus had a valid ownership interest in the car before the petition was filed. Barnette v. Bankers Fin. Servs. (In re Barnette), Bankr. (Bankr. N.D. Ga. Apr. 9, 2008).

LLC that seized a Chapter 13 debtor's car 16 hours before the debtor declared bankruptcy, and sold the car without keeping records, was ordered to pay the debtor $6,579.57 for loss of the car, $300 for lost personal property that was in the car, $2,356.70 in emotional distress damages, and reasonable attorney's fees, pursuant to 11 U.S.C. § 362(k), because the evidence showed that the LLC knew the debtor declared bankruptcy before the LLC sold the car. Although the LLC claimed that the LLC was not liable under § 362 because the debtor forfeited rights in the car pursuant to the Georgia Pawnshop Act (GPA), O.C.G.A. § 44-14-403 , when the debtor failed to repay a debt, the court rejected that argument because the LLC assessed interest rates over the course of the contract that exceeded the rates allowed by the GPA, such that a Motor Vehicle Pawn Contract the debtor signed was void from the contract's inception pursuant to O.C.G.A. § 44-12-131 . Spinner v. Cash In A Hurry, LLC (In re Spinner), 398 Bankr. 84 (Bankr. N.D. Ga. 2008).

Creditor violated 11 U.S.C. § 362 when the creditor failed to turn over a truck a debtor pledged as security, and the court ordered the creditor to turn over the truck and to pay the debtor $1,400 in damages from lost income and $2,152.50 in attorney's fees. Although the parties entered into a possession pawn agreement, the court found that the agreement violated O.C.G.A. § 44-14-403(b)(1) because the agreement did not give the debtor a grace period for payment, and because the agreement violated § 44-14-403(b)(1) the creditor did not obtain title to the truck before the debtor declared bankruptcy. Ballard v. Freedom Auto Plaza (In re Ballard), Bankr. (Bankr. M.D. Ga. Nov. 1, 2010).

In a case in which a Chapter 13 debtor filed a motion to require the turnover of a truck and the creditor argued that ownership of the truck was forfeited to the creditor prior to the filing of the debtor's first bankruptcy case and that, as owner of the truck, the creditor was entitled to take possession of the truck after the dismissal of the first bankruptcy case and was not required to return the truck to the debtor upon the filing of the current case since the debtor had not redeemed the truck prior to the expiration of the grace period under O.C.G.A. § 44-14-403 , the creditor was the owner of the truck at the time the first case was filed. Property of the estate did not include the truck since the debtor had pledged the truck as collateral in a pawn and had not exercised the debtor's right to redeem the property within the time provided in the contract or state law. Crump v. TitleMax (In re Crump), 467 Bankr. 532 (Bankr. M.D. Ga. 2010).

Pawned vehicles were no longer property of the bankruptcy estate at the time of the vehicles' repossession because the debtors had not taken affirmative steps to redeem the vehicles in accordance with Georgia's pawnshop laws. Consequently, the pawnbroker did not violate the prohibition on obtaining possession of property of the estate in 11 U.S.C. § 362(a)(3). Moore v. Complete Cash Holdings, LLC (In re Moore), 448 Bankr. 93 (Bankr. N.D. Ga. 2011).

Debtor was not entitled to turnover of the debtor's vehicle, which was repossessed from the debtor by the respondent, with whom the debtor had entered into a title pawn transaction because the debtor conceded the debtor's inability to redeem the vehicle before expiration of the statutory redemption period, even as extended by the bankruptcy code. Paul v. S. Ga. Title Pawn (In re Paul), 534 Bankr. 430 (Bankr. M.D. Ga. 2015).

When a debtor failed to redeem the certificate of title of the debtor's pawned vehicle by the date as extended by the Bankruptcy Code, ownership of the vehicle transferred by operation of Georgia law to the creditor, any legal or equitable interest that the debtor possessed was extinguished, the vehicle was no longer property of the debtor's estate, and the automatic stay ceased to apply. The automatic stay did not toll the running of the redemption period and, once extinguished, the debtor's rights under the title pawn contract could not be resurrected through the debtor's Chapter 13 plan, and the plan could not be used to extend the redemption period. TitleMax of Ga. Inc. v. Stanfield (In re Stanfield), Bankr. (Bankr. S.D. Ga. Feb. 18, 2016).

The automatic stay did not apply to a pawnbroker as: (1) the debtor filed a 2016 case one day before the redemption period for a title pawn transaction expired, and the redemption period was extended to 60 days from the petition date; (2) the debtor failed to redeem the vehicle when the redemption period expired and on the redemption date, the vehicle belonged to the pawnbroker and the debtor's ownership interest in the vehicle was automatically extinguished; (3) the debtor had no interest in the vehicle when the 2018 bankruptcy case was filed that could become property of the bankruptcy estate; and (4) the 2018 Chapter 13 Plan's treatment of the vehicle as the debtor's property was immaterial as the redemption period had expired pre-petition and the vehicle belonged to the pawnbroker. TitleMax of Georgia, Inc. v. Thorpe (In re Thorpe), 612 Bankr. 463 (Bankr. S.D. Ga. 2019).

Cited in Buena Vista Loan & Sav. Bank v. Grier, 114 Ga. 398 , 40 S.E. 284 (1901); Bell v. Instant Car Title Loans (In re Bell), 279 Bankr. 890 (Bankr. N.D. Ga. 2002); Johnson v. Speedee Cash of Columbus, Inc. (In re Johnson), 289 Bankr. 251 (Bankr. M.D. Ga. 2002).

OPINIONS OF THE ATTORNEY GENERAL

Stolen property acquired by a pawnshop remains the property of the original owner. 1996 Op. Att'y Gen. No. 96-24.

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 190 et seq.

C.J.S. - 70 C.J.S., Pawnbrokers, § 12.

ALR. - Conversion by pledgee of subject of pledge as extinguishing pledgor's entire indebtedness to him, 87 A.L.R. 586 .

44-14-404. Factor's lien; extent; attachment to proceeds.

A factor's lien extends to all balances on general account and attaches to the proceeds of the sale of goods consigned as well as to the goods themselves.

(Orig. Code 1863, § 2090; Code 1868, § 2085; Code 1873, § 2111; Code 1882, § 2111; Civil Code 1895, § 2929; Civil Code 1910, § 3502; Code 1933, § 12-705.)

JUDICIAL DECISIONS

Cited in Layton v. Central of Ga. Ry., 40 Ga. App. 330 , 149 S.E. 431 (1929).

RESEARCH REFERENCES

ALR. - Factor's right to setoff against proceeds of consignment, 52 A.L.R. 811 .

Necessity and sufficiency of notice or statement prescribed by factor's lien law, 96 A.L.R.2d 727.

44-14-405. Satisfaction of factors' and acceptors' liens.

Liens of factors and acceptors shall be satisfied by such sale as the usage of the locality where the factors and acceptors reside has established or may establish.

(Ga. L. 1873, p. 42, § 17; Code 1873, § 1993; Code 1882, § 1993; Civil Code 1895, § 2819; Civil Code 1910, § 3369; Code 1933, § 12-706.)

RESEARCH REFERENCES

ALR. - Factor's right to setoff against proceeds of consignment, 52 A.L.R. 811 .

Necessity and sufficiency of notice or statement prescribed by factor's lien law, 96 A.L.R.2d 727.

44-14-406. Livery stable keepers - Lien by retaining possession; priorities.

Livery stable keepers shall have a lien for their charges on the stock placed in their care for keeping, which lien shall be superior to other liens except liens for taxes, special liens of landlords for rent, liens of laborers, and all general liens of which they had actual notice before the property claimed to be subject to lien came into their control.

(Ga. L. 1873, p. 42, § 13; Code 1873, § 1986; Code 1882, § 1986; Civil Code 1895, § 2810; Civil Code 1910, § 3360; Code 1933, § 12-707.)

JUDICIAL DECISIONS

Whether one is a livery stableman within O.C.G.A. § 44-14-406 is a question of fact. Elliott v. Hodgson & Jackson, 133 Ga. 209 , 65 S.E. 405 , 134 Am. St. R. 206 (1909).

Lien includes care and feeding of horse. - The lien under O.C.G.A. § 44-14-406 includes not only the actual feeding of the horse but also such charges as are directly connected with the livery-stable keeper's keeping and as are naturally in the line of a livery-stable keeper's business. Elliott v. Hodgson & Jackson, 133 Ga. 209 , 65 S.E. 405 , 134 Am. St. R. 206 (1909).

Cited in Turner v. Priest, 48 Ga. App. 109 , 171 S.E. 881 (1933).

RESEARCH REFERENCES

ALR. - Character of legal relationship which will support statutory lien for care or feeding of animals, 107 A.L.R. 1072 .

Priority of lien of sales or consumers' tax, 136 A.L.R. 1015 .

44-14-407. Livery stable keepers - Lien by describing and recording amount due; when and how recorded; enforcement.

  1. In addition to the method provided in Code Section 44-14-406, every livery stable keeper may assert the lien on stock placed in his care for keeping by writing a statement of the amount due him for the care of the stock and a description of the stock on which the lien is claimed, by making affidavit thereto, and by recording the writing and affidavit in the office of the clerk of the superior court of the county where the service was rendered.
  2. When the lien provided for in subsection (a) of this Code section is so recorded, it shall have the same dignity and effect as is given by law to the lien of livery stable keepers where they retain possession of the stock placed in their keeping. The lien shall be recorded while the property is in the possession of the livery stable keeper, as mortgages on personalty are required to be recorded; and such liens may be foreclosed as mortgages on personalty are foreclosed.

    (Ga. L. 1889, p. 117, §§ 1, 2; Civil Code 1895, § 2820; Civil Code 1910, § 3370; Code 1933, § 12-708; Ga. L. 1982, p. 3, § 44.)

RESEARCH REFERENCES

ALR. - Character of legal relationship which will support statutory lien for care or feeding of animals, 107 A.L.R. 1072 .

44-14-408. Satisfaction of liens of pawnbrokers and livery stable keepers.

Liens of pawnbrokers and livery stable keepers shall be satisfied according to Code Sections 44-14-403 and 44-14-550, respectively.

(Ga. L. 1873, p. 42, § 17; Code 1873, § 1992; Ga. L. 1880-81, p. 63, § 4; Code 1882, § 1992; Civil Code 1895, § 2818; Civil Code 1910, § 3368; Code 1933, § 12-709; Ga. L. 1989, p. 819, § 5.)

RESEARCH REFERENCES

ALR. - Character of legal relationship which will support statutory lien for care or feeding of animals, 107 A.L.R. 1072 .

44-14-409. Special lien of bailee for hire of labor and service; effect of delivery of a part.

The bailee for hire of labor and service shall have a special lien for his labor and services upon the thing bailed until he parts with possession; and, if he delivers up a part of the thing bailed, the lien shall attach to the remainder in his possession for the entire claim under the same contract.

(Orig. Code 1863, § 2079; Code 1868, § 2074; Code 1873, § 2100; Code 1882, § 2100; Civil Code 1895, § 2918; Civil Code 1910, § 3491; Code 1933, § 12-710.)

JUDICIAL DECISIONS

Mechanic who fixes car has exclusive lien against owner. - Where bailor delivers a car to bailee for repairs, when the mechanic begins the repairs and bestows labor thereon, the bailee has a lien on the car such that its possession of is exclusive even against the owner. Tyner & Blackmon v. Fryer Truck & Tractor Co., 83 Ga. App. 393 , 63 S.E.2d 695 (1951).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 175, 189, 190 et seq.

C.J.S. - 8 C.J.S., Bailments, § 80 et seq.

ALR. - Necessity of notice to consignor to render him liable for demurrage, 32 A.L.R. 642 .

Bailee's lien for work on goods as extending to other goods of the bailor in his possession, 25 A.L.R.2d 1037.

44-14-410. Depositories of involuntary, gratuitous, or naked deposits - Lien; authorization to open containers; notice to owner.

Except as provided in Code Section 44-14-411.1, involuntary, gratuitous, or naked depositories shall have a lien on the property in their possession for any expense incurred in caring for the property and any expenses incurred in the effort to locate the owner thereof. Where the property consists of closed trunks, suitcases, bags, boxes, bundles, packages, or other containers which do not on the outside contain marks from which the owner can be ascertained, such depositories are authorized, but are not required, to open such containers for the purpose of ascertaining, if possible, the name and address of the owner. Where the owner and his address are known, the depository is authorized, but is not required, to address a notice by registered or certified mail or statutory overnight delivery to the owner notifying him that the depository holds the property and that the property will be delivered to the owner upon reasonable identification and payment of any charges that have accrued in caring for the property and in giving such notice.

(Ga. L. 1947, p. 1165, § 1; Ga. L. 1982, p. 915, §§ 1, 4; Ga. L. 2000, p. 1589, § 3.)

The 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the last sentence.

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Lien does not extend to profit and overhead. - Naked depository is entitled to a lien only for amounts paid out or labor expended by reason of the deposit, and such lien does not extend to profit or a pro rata portion of general overhead expenses. CHEP USA v. Mock Pallet Co., F.3d (11th Cir. 2005)(Unpublished).

Cited in Postell v. Val-Lite Corp., 78 Ga. App. 199 , 51 S.E.2d 63 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 117.

C.J.S. - 8 C.J.S., Bailments, § 5.

ALR. - Duty and liability of one in possession of real property in respect to personal property which he finds thereon belonging to another, 131 A.L.R. 165 .

44-14-411. Depositories of involuntary, gratuitous, or naked deposits - Sale of property at public auction; notice.

Except as provided in Code Section 44-14-411.1, any property in the possession of an involuntary, gratuitous, or naked depository, which property remains unclaimed or unidentified or the reasonable expense incurred in connection with which remains unpaid for the period of two months from the time the property came into the possession of the depository, may be sold at public auction to the highest bidder at such time and place as may be designated by the depository; provided, however, that the depositories shall publish a notice containing a general description of the property and the time and place of sale once a week for two successive weeks prior to the date of the sale in a newspaper of general circulation in the place of the sale or the nearest place thereto.

(Ga. L. 1947, p. 1165, § 2; Ga. L. 1982, p. 3, § 44; Ga. L. 1982, p. 915, §§ 2, 5; Ga. L. 1982, p. 920, §§ 1, 2.)

RESEARCH REFERENCES

ALR. - Withdrawal of property from auction sale, 37 A.L.R.2d 1049.

44-14-411.1. Depositories of involuntary, gratuitous, or naked deposits - Repossessor of motor vehicle as involuntary, gratuitous, or naked depository of personal property found therein; disposition of personal property.

  1. Any person who lawfully repossesses a motor vehicle shall be an involuntary, gratuitous, or naked depository of any personal property found in such motor vehicle and shall have a lien on such property for any reasonable expenses incurred in storing such property or in giving notice to such owner.
  2. Within ten days of the date of repossession, the person repossessing such motor vehicle shall notify the owner of the motor vehicle of the intent to dispose of the personal property. Such notice must be actual notice, but may be by personal service or by service by certified mail or statutory overnight delivery.
  3. If the personal property is not redeemed within 30 days from the date of the first notice, a second notice shall be sent in the same manner as provided in subsection (b) of this Code section.
  4. If the personal property is not redeemed within 30 days from the date of the second notice, the personal property may be disposed of in the manner most expeditious to the depository without further liability and the proceeds shall be disbursed as provided in Code Section 44-14-412 . (Ga. L. 1982, p. 915, § 3; Code 1981, § 44-14-411.1 , enacted by Ga. L. 1982, p. 915, § 6; Ga. L. 1984, p. 22, § 44; Ga. L. 2000, p. 1589, § 3.)

The 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" at the end of subsection (b).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

44-14-412. Depositories of involuntary, gratuitous, or naked deposits - Disposition of proceeds of sale; one-year limitation for claims of owner.

The proceeds of any sale made under Code Sections 44-14-410, 44-14-411, and 44-14-411.1 shall be applied to the payment of any expense incurred in caring for the property sold, any expense incurred in endeavoring to locate and make delivery of the property to the owner, any expense of advertising the sale, and any other necessary expenses. Should there be a balance, the balance shall be payable to the owner of the property; provided, however, that any claim of an owner shall be barred unless made within one year from the date of the sale.

(Ga. L. 1947, p. 1165, § 3; Ga. L. 1982, p. 915, § 7.)

PART 6 J EWELERS

RESEARCH REFERENCES

ALR. - Periodical use of vehicle or horse by owner as defeating lien for storage, repairs, or board, 3 A.L.R. 664 .

Lien for storage of motor vehicle, 48 A.L.R.2d 894.

Loss of garageman's lien on repaired vehicle by owner's use of vehicle, 74 A.L.R.4th 90.

44-14-430. Lien for repairs; sale after one year.

In order to enforce his lien for materials furnished and work done, any jeweler or any other person, firm, or corporation engaged in the business of repairing watches, clocks, jewelry, and other articles of similar character may sell those articles upon which charges for repairs, including work done and materials furnished, have not been paid and which have remained in the possession of the jeweler, person, firm, or corporation for a period of one year following the completion of the repairs.

(Ga. L. 1927, p. 218, § 1; Code 1933, § 67-2101.)

Cross references. - Regulation of dealers in used watches, Ch. 49, T. 43.

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 190 et seq., 199.

C.J.S. - 8 C.J.S., Bailments, § 80 et seq.

ALR. - Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 111 A.L.R. 1453 ; 142 A.L.R. 362 .

44-14-431. Publication and mailing of notice.

Before any sale is made as provided in Code Section 44-14-430, the person, firm, or corporation making the sale shall give 30 days' notice thereof by posting a notice of the sale before the courthouse door of the county in which the repairs were made. Such notice shall give the name of the owner of the article or articles so repaired, if known, and, if not known, the name of the person from whom the article or articles were received; a description of the article or articles to be sold; and the name of the person, firm, or corporation making the repairs and proposing to make such sale. The person, firm, or corporation shall also give written notice thereof by sending a registered or certified letter to the last known address of the owner of the article or articles or the person who left the article or articles for repairs advising such persons of the time and place of the sale, the description of the article or articles to be sold, and the amount claimed by the person, firm, or corporation for such repairs, including work done and materials furnished; and the amount so claimed for the repairs shall also be stated in the notice posted before the courthouse door.

(Ga. L. 1927, p. 218, § 2; Code 1933, § 67-2102.)

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 199.

C.J.S. - 8 C.J.S., Bailments, § 80 et seq.

44-14-432. Sale at public auction before courthouse.

All sales made under this part shall be made at public auction before the courthouse door of the county where the person, firm, or corporation making the sale had its place of business at the time of receiving the article or articles to be sold and during the hours provided by law for holding sheriffs' sales.

(Ga. L. 1927, p. 218, § 3; Code 1933, § 67-2103.)

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 199.

C.J.S. - 8 C.J.S., Bailments, § 80 et seq.

44-14-433. Disposition of proceeds of sale; one-year limitation for claims of owner; disposition of residue.

The proceeds of any sale made under this part shall be applied first to the payment of the lien for services rendered by the person, firm, or corporation making the sale for work done and materials furnished in repairing the article or articles sold, including the cost of the registered notice provided for in Code Section 44-14-431. Any residue shall be paid to the judge of the probate court of the county where the sale took place, who shall hold the sum for a period of one year, during which time the owner or owners of the article or articles so sold may claim the residue; but, at the end of the period of one year, if the residue has not been claimed by the owner or owners of the article or articles sold, the residue shall be placed by the judge in the educational fund of the county where the sale was made.

(Ga. L. 1927, p. 218, § 4; Code 1933, § 67-2104.)

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 199.

C.J.S. - 8 C.J.S., Bailments, § 80 et seq.

44-14-434. Display of sign as to intention to sell.

Any jeweler or other person, firm, or corporation desiring to avail himself of the provisions of this part shall display a sign in his place of business notifying the public that all articles left for repairs will be sold for charges at the expiration of one year from completion of such repairs.

(Ga. L. 1927, p. 218, § 5; Code 1933, § 67-2105.)

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 199.

C.J.S. - 8 C.J.S., Bailments, § 80 et seq.

PART 7 L AUNDRIES, CLEANERS, AND TAILORS

JUDICIAL DECISIONS

Cited in Walter E. Heller & Co. v. Aetna Bus. Credit, Inc., 151 Ga. App. 898 , 262 S.E.2d 151 (1979).

RESEARCH REFERENCES

ALR. - Lien for storage of motor vehicle, 48 A.L.R.2d 894.

Lien for towing or storage, ordered by public officer, of motor vehicle, 85 A.L.R.3d 199.

Loss of garageman's lien on repaired vehicle by owner's use of vehicle, 74 A.L.R.4th 90.

44-14-450. Creation of lien.

All persons, firms, or corporations engaged in the business of laundering, cleaning, tailoring, altering, repairing, or dyeing clothing, goods, wearing apparel, shoes, carpets, rugs, or other such articles shall, for the agreed price or the reasonable value of their services in laundering, cleaning, tailoring, altering, repairing, or dyeing any goods, clothing, wearing apparel, shoes, carpets, rugs, or other similar articles, have a lien upon the articles laundered, cleaned, tailored, altered, repaired, or dyed, whether the work of laundering, cleaning, tailoring, altering, repairing, or dyeing the articles is performed by themselves or by their employees.

(Ga. L. 1909, p. 151, § 1; Civil Code 1910, § 3336; Code 1933, § 67-1901; Ga. L. 1987, p. 382, § 1.)

JUDICIAL DECISIONS

Applicability. - In a suit by a carpet manufacturer against a mill for breach of contract, the trial court properly granted the manufacturer's motion in limine to prevent the mill from complaining that it had a laundryman's lien on unused yarn and backing under O.C.G.A. § 44-14-450 . The trial court was authorized to find that tufting the yarn was an initial manufacturing stage and that in tufting the yarn, the mill was not making alterations to carpet. Beaulieu Group, LLC v. S&S Mills, Inc., 292 Ga. App. 455 , 664 S.E.2d 816 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, §§ 9, 11, 12, 52, 53.

C.J.S. - 53 C.J.S., Liens, § 4.

ALR. - Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 111 A.L.R. 1453 ; 142 A.L.R. 362 .

44-14-451. Enforcement of lien; retention of possession; attachment to articles acquired after delivery made.

Any persons, firms, or corporations shall have the right to retain possession of the articles laundered, cleaned, tailored, altered, repaired, or dyed by them until their charges have been paid; but, if any articles are delivered to the person for whom the service was performed without collecting the agreed price or reasonable value of laundering, cleaning, tailoring, altering, repairing, or dyeing the articles, the lien shall be lost upon the articles so delivered but shall attach to any other goods, clothing, wearing apparel, shoes, or other articles belonging to the person for whom the work was done, which articles may later come into the possession of such person, firm, or corporation for the purpose of being laundered, cleaned, tailored, altered, repaired, or dyed.

(Ga. L. 1909, p. 151, § 2; Civil Code 1910, § 3337; Code 1933, § 67-1902; Ga. L. 1987, p. 382, § 1.)

JUDICIAL DECISIONS

Cited in Cox v. Seely, 20 Ga. App. 629 , 93 S.E. 421 (1917).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, § 79 et seq.

C.J.S. - 53 C.J.S., Liens, § 29 et seq.

44-14-452. Priority; method of foreclosure.

A lien under this part shall have the same rank as the special lien of laborers on the products of their labor and may be foreclosed in the same manner.

(Ga. L. 1909, p. 151, § 3; Civil Code 1910, § 3338; Code 1933, § 67-1903; Ga. L. 1987, p. 382 § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, §§ 8, 10.

C.J.S. - 53 C.J.S., Liens, § 1.

ALR. - Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 54 A.L.R. 567 .

44-14-453. Sale of goods after 90 days; sale of goods within 120 days where notice provided.

  1. In order to satisfy the lien of the person, firm, or corporation performing the service, whenever any clothing, goods, wearing apparel, shoes, carpets, rugs, or other such articles remain in the possession of any person, firm, or corporation engaged in the business of laundering, cleaning, tailoring, altering, repairing, or dyeing such articles for a period of 90 days after the person, firm, or corporation has performed any services thereon without the agreed price or the reasonable value of the service being paid, the goods or articles may be sold by the person, firm, or corporation having performed the service in the manner and subject to the requirements of Code Sections 44-14-454 and 44-14-455.
  2. As an alternative to the satisfaction of the lien as provided in subsection (a) of this Code section, an establishment accepting property to provide the services described in this part may at the time of accepting the property give to the person delivering the property to the establishment notice, which may be in the form of a sign clearly visible to a person delivering property to the establishment, that, if the property is not claimed and the agreed upon price or reasonable value for the service is not paid within 120 days after the service was performed, the establishment may otherwise dispose of the property without further notice to the owner of the property or to the person who delivered the property to the establishment.  A person delivering property to an establishment for the performance of services described in this part who receives notice provided for in this subsection and who does not object to the content of such notice shall be deemed to have contractually waived any additional rights that may otherwise attach to disposition of the property, and if the person delivering the property to the establishment is not its owner, the contractual waiver of rights shall extend to the owner of the property if the person who delivered the property to the establishment was in lawful possession of the property at the time it was delivered. Property subject to the provisions of this subsection may be otherwise disposed of in such manner as the establishment possessing the property shall determine.

    (Ga. L. 1925, p. 217, § 1; Code 1933, § 67-1904; Ga. L. 1987, p. 382, § 1; Ga. L. 1991, p. 1137, § 1.)

JUDICIAL DECISIONS

Cited in Beaulieu Group, LLC v. S&S Mills, Inc., 292 Ga. App. 455 , 664 S.E.2d 816 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, § 94.

C.J.S. - 53 C.J.S., Liens, § 33 et seq.

44-14-454. Notice of sale.

Before any sale shall be made as provided in subsection (a) of Code Section 44-14-453, the person, firm, or corporation making the sale shall give ten days' notice thereof by mail to the last known address of the owner if known, or otherwise to the last known address of the person from whom the goods were received. Such notice shall give the name of the owner of the goods, if known, and, if not known, the name of the person from whom the goods were received; a description of the goods to be sold; the time and place of the sale; the amount of the charges for which the goods or articles will be sold; and the name of the person, firm, or corporation having possession of the goods or articles and proposing to make the sale.

(Ga. L. 1925, p. 217, § 2; Code 1933, § 67-1905; Ga. L. 1982, p. 3, § 44; Ga. L. 1987, p. 382, § 1; Ga. L. 1991, p. 1137, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, § 94.

C.J.S. - 53 C.J.S., Liens, § 33 et seq.

44-14-455. Disposition of proceeds of sale.

The proceeds of any sale made under subsection (a) of Code Section 44-14-453 shall be applied first to the payment of the lien for services rendered by the person, firm, or corporation making the sale for its services in laundering, cleaning, tailoring, altering, repairing, or dyeing the articles sold; and the residue, if any, shall be paid on demand to the owner of the goods sold.

(Ga. L. 1925, p. 217, § 4; Code 1933, § 67-1907; Ga. L. 1987, p. 382, § 1; Ga. L. 1991, p. 1137, § 1.)

JUDICIAL DECISIONS

Cited in Beaulieu Group, LLC v. S&S Mills, Inc., 292 Ga. App. 455 , 664 S.E.2d 816 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, § 94.

C.J.S. - 53 C.J.S., Liens, § 33 et seq.

ALR. - Redemption by creditor from execution or foreclosure sale of debtor's property worth more than the redemption cost as satisfaction in whole or part of debt to redeeming creditor, 138 A.L.R. 949 .

44-14-456. Cumulative remedies for satisfaction.

The method of satisfaction of the liens referred to in this part shall be cumulative of any other remedies provided by law for the foreclosure or satisfaction of such liens.

(Ga. L. 1925, p. 217, § 5; Code 1933, § 67-1908; Ga. L. 1987, p. 382 § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 53 Am Jur. 2d, Mechanics' Liens, §§ 338-340.

PART 7A R EPAIR OF EQUIPMENT

RESEARCH REFERENCES

Am. Jur. 2d. - 53 Am. Jur. 2d, Mechanics' Liens, § 340.

C.J.S. - 56 C.J.S., Mechanics' Liens, § 309.

44-14-460. Creation of lien.

All persons, firms, or corporations engaged in the business of servicing or repairing bicycles, motor scooters, mopeds, motorcycles, lawn mowers, garden equipment, or other such related equipment shall, for the agreed price or the reasonable value of their services in servicing or repairing such equipment, have a lien upon the equipment serviced or repaired, whether the work of servicing or repairing the equipment is performed by themselves or by their employees.

(Code 1981, § 44-14-460 , enacted by Ga. L. 1989, p. 1489, § 1.)

44-14-461. Right to retain possession; forfeiture of lien.

Any persons, firms, or corporations shall have the right to retain possession of the equipment repaired by them until their charges have been paid; but, if any equipment is delivered to the person for whom the service or repair was performed without collecting the agreed price or reasonable value of servicing or repairing the equipment, the lien shall be lost upon the equipment so delivered.

(Code 1981, § 44-14-461 , enacted by Ga. L. 1989, p. 1489, § 1.)

44-14-462. Priority; foreclosure.

A lien under this part shall have the same rank as the special lien of laborers on the products of their labor and may be foreclosed in the same manner.

(Code 1981, § 44-14-462 , enacted by Ga. L. 1989, p. 1489, § 1.)

44-14-463. Sale of goods after 60 days.

In order to satisfy the lien of the person, firm, or corporation performing the service or repair, whenever any bicycles, motor scooters, mopeds, motorcycles, lawn mowers, garden equipment, or such other related equipment remains in the possession of any person, firm, or corporation engaged in the business of servicing or repairing such equipment for a period of 60 days after the person, firm, or corporation has performed any services or repairs thereon without the agreed price or the reasonable value of the service or repair being paid, the equipment may be sold by the person, firm, or corporation having performed the service or repair, provided that the requirements of Code Section 44-14-464 are satisfied.

(Code 1981, § 44-14-463 , enacted by Ga. L. 1989, p. 1489, § 1.)

44-14-464. Notice of sale.

Before any sale shall be made as provided in Code Section 44-14-463, the person, firm, or corporation making the sale shall give ten days' notice thereof by certified mail or statutory overnight delivery evidenced by return receipt to the last known address of the owner if known, or otherwise to the last known address of the person from whom the equipment was received. Such notice shall give the name of the owner of the equipment, if known, and, if not known, the name of the person from whom the equipment was received; a description of the equipment to be sold; the time and place of the sale; the amount of the charges for which the equipment will be sold; and the name of the person, firm, or corporation having possession of the equipment and proposing to make the sale. If such equipment is not claimed during the ten days following the date that notice was mailed, the equipment may be sold.

(Code 1981, § 44-14-464 , enacted by Ga. L. 1989, p. 1489, § 1; Ga. L. 2000, p. 1589, § 3.)

The 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the first sentence.

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

44-14-465. Disposition of proceeds of sale.

The proceeds of any sale made under this part shall be applied first to the payment of the lien for services or repairs rendered by the person, firm, or corporation making the sale for its services in repairing or servicing the equipment sold; and the residue, if any, shall be paid on demand to the owner of the equipment sold.

(Code 1981, § 44-14-465 , enacted by Ga. L. 1989, p. 1489, § 1.)

44-14-466. Cumulative remedies for satisfaction.

The method of satisfaction of the liens referred to in this part shall be cumulative of any other remedies provided by law for the foreclosure or satisfaction of such liens.

(Code 1981, § 44-14-466 , enacted by Ga. L. 1989, p. 1489, § 1.)

PART 8 H OSPITALS AND NURSING HOMES

Law reviews. - For annual survey on trial practice and procedure, see 66 Mercer L. Rev. 211 (2014).

44-14-470. Lien on causes of action accruing to injured person for costs of care and treatment of injuries arising out of such causes of action.

  1. Except where the context otherwise requires in subsection (b) of this Code section, as used in this part, the term:
    1. "Hospital" means any hospital or nursing home subject to regulation and licensure by the Department of Community Health.
    2. "Hospital care, treatment, or services" means care, treatment, or services furnished by a hospital or nursing home.
    3. "Nursing home" means any intermediate care home, skilled nursing home, or intermingled home.
    4. "Physician practice" means any medical practice that includes one or more physicians licensed to practice medicine in this state.
    5. "Traumatic burn care medical practice" means care, treatment, or services rendered by a medical practice with respect to a patient whose burn care, treatment, or services resulted in charges in excess of $50,000.00, arising out of a single accident or occurrence.
  2. Any person, firm, hospital authority, or corporation operating a hospital, nursing home, or physician practice or providing traumatic burn care medical practice in this state shall have a lien for the reasonable charges for hospital, nursing home, physician practice, or traumatic burn care medical practice care and treatment of an injured person, which lien shall be upon any and all causes of action accruing to the person to whom the care was furnished or to the legal representative of such person on account of injuries giving rise to the causes of action and which necessitated the hospital, nursing home, physician practice, or provider of traumatic burn care medical practice care, subject, however, to any attorney's lien. The lien provided for in this subsection is only a lien against such causes of action and shall not be a lien against such injured person, such legal representative, or any other property or assets of such persons and shall not be evidence of such person's failure to pay a debt. This subsection shall not be construed to interfere with the exemption from this part provided by Code Section 44-14-474.

    (Ga. L. 1953, Nov.-Dec. Sess., p. 105, § 1; Ga. L. 1983, p. 548, § 1; Ga. L. 1986, p. 222, § 1; Ga. L. 2002, p. 1141, § 1; Ga. L. 2002, p. 1429, § 1; Ga. L. 2004, p. 394, § 1; Ga. L. 2008, p. 12, § 2-36/SB 433.)

The 2002 amendments. The first 2002 amendment, effective July 1, 2002, added paragraph (a)(4); and, in the first sentence of subsection (b), inserted "or providing traumatic burn care medical practice", substituted "hospital, nursing home, or traumatic burn care medical practice" for "hospital or nursing home" and substituted "hospital, nursing home, or provider of traumatic burn care medical practice" for "hospital or nursing home" near the end. The second 2002 amendment, effective July 1, 2002, added the second sentence in subsection (b).

The 2004 amendment, effective July 1, 2004, added present paragraph (a)(4); redesignated former paragraph (a)(4) as present paragraph (a)(5); and, in subsection (b), substituted "hospital, nursing home, or physician practice" for "hospital or nursing home" and inserted "physician practice," twice.

The 2008 amendment, effective July 1, 2009, substituted "Department of Community Health" for "Department of Human Resources" in paragraph (a)(1).

Cross references. - Lien of Department of Community Health for payment of charges for medical assistance, § 49-4-149 .

Editor's notes. - Ga. L. 1986, p. 222, § 2, not codified by the General Assembly, provided that that Act would apply to charges for care and treatment rendered on or after the effective date of the Act (March 20, 1986).

Law reviews. - For article, "An Insurer's Duty to Settle: The Law in Georgia," see 22 Ga. St. Bar J. 19 (Aug. 2016).

JUDICIAL DECISIONS

Construction. - Georgia's law providing for a hospital lien against a patient for services rendered, O.C.G.A. § 44-14-470 et seq., must be strictly construed. MCG Health, Inc. v. Owners Ins. Co., 302 Ga. App. 812 , 692 S.E.2d 72 (2010).

Complaint sufficiently set forth fraud allegations. - Trial court erred by dismissing the plaintiff's complaint for failure to state a claim because the plaintiff pled viable claims for fraud, negligent misrepresentation, and civil racketeering based on the defendant filing a medical lien seeking full chargemaster rate or sticker price of the defendant's medical procedures, which did not represent a reasonable charge for the treatment received with the intent to collect more than a reasonable charge for the services rendered to the plaintiff. Clouthier v. Medical Center of Central Georgia, Inc., 351 Ga. App. 883 , 833 S.E.2d 584 (2019).

Liable party, not patient, subject to hospital lien. - Hospital's petition fails to allege a cause arising under the hospital lien law against the defendant patient, for the reason that O.C.G.A. § 44-14-470 gives no right of action against the patient to whom hospitalization is furnished, but only against those liable to pay the patient's damages; the right created is analogous to the remedy provided by the garnishment laws. Hospital Auth. v. Boyd, 96 Ga. App. 705 , 101 S.E.2d 207 (1957).

Whether debt obligation of patient or other person or entity. - Court of appeals erred in holding that a debt had to be owed by a patient in order for a hospital to foreclose on a lien because it was not authorized to impose a requirement to O.C.G.A. § 44-14-470 that was not expressly stated therein; the hospital lien statute is silent as to whether the debt must be the obligation of the patient or the obligation of some other person or entity. MCG Health, Inc. v. Owners Ins. Co., 288 Ga. 782 , 707 S.E.2d 349 (2011).

Hospital can recover from patient merely by showing tort-feasor paid patient. - This action is purely statutory and it is only necessary to look to the terms of O.C.G.A. § 44-14-470 itself to ascertain whether the petition sets forth a cause of action. Therefore, petition need not allege more than the specific elements set forth in O.C.G.A. § 44-14-470 , and where the petition shows the treatment by the hospital of an injured person, the accrual of charges pursuant thereto, the filing of the lien by the hospital, the filing of a suit by the injured party and its subsequent dismissal on the payment of a sum of money by or on behalf of the party alleged to have been liable, and the execution of a release to such party by the injured person, all the elements of the cause of action on behalf of the hospital and against alleged to have been liable are stated, and it is unnecessary for the hospital to allege in its petition facts showing negligence or liability to the injured party, independently of the settlement and release. Dawson v. Hospital Auth., 98 Ga. App. 792 , 106 S.E.2d 807 (1958).

Hospital could assert lien for full amount of charges, even if most were written off pursuant to managed healthcare contract. - Because a patient could have sought recovery of $24,794 from a tortfeasor of a hospital's billed charges incurred for his injuries, the hospital was entitled to assert a lien under O.C.G.A. § 44-14-471(b) for the unpaid portion of those billed charges, even though the patient's managed care insurer was not responsible to pay these charges in full. The court held that Constantine v. MCG Health, Inc., 275 Ga. App. 128 , 619 S.E.2d 718 (2005), had been implicitly overruled in part. MCG Health, Inc. v. Kight, 325 Ga. App. 349 , 750 S.E.2d 813 (2013), aff'd, 296 Ga. 687 , 769 S.E.2d 923 (2015).

Use of chargemaster rates does not result in viable claims for fraud, negligent representation and RICO claims. - Supreme court overrules Clouthier v. Med. Center of Central Ga., Inc., 351 Ga. App. 883 (2019), and Aguila v. Kennestone Hosp., 353 Ga. App. 17 (2019), to the extent that those cases hold that viable claims for fraud, negligent representation, and violations of the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., can be maintained against hospitals that properly file liens based on standard chargemaster rates that reflect true market considerations such as hospital costs. Bowden v. Medical Ctr., Inc., 309 Ga. 188 , 845 S.E.2d 555 (2020).

Use of standard chargemaster rates by hospital. - Summary judgment was improperly denied to the medical center on the plaintiffs' fraud and negligent misrepresentation claims because the center's filing of a lien at the center's chargemaster rate in compliance with Georgia's lien statutes did not amount to making a false representation; and there was nothing fraudulent about the center's using its standard chargemaster rates as the amount claimed to be due for the hospital to perfect the hopsital's lien as the plaintiff could contest the reasonableness of the amount. Bowden v. Medical Ctr., Inc., 309 Ga. 188 , 845 S.E.2d 555 (2020).

Priority of attorney's lien. - Where a hospital was an existing creditor at the time a settlement was obtained in an action brought by the hospital for payment of patient's medical bills, and, in a separate suit for damages against a third party arising out of an automobile collision, the lien of the patient's attorney on the settlement proceeds had priority over the hospital's claims. Ramsey v. Sumner, 211 Ga. App. 202 , 438 S.E.2d 676 (1993).

The liens established by O.C.G.A. §§ 44-14-470 and 49-4-149 are subject to any attorney's lien. Holland v. State Farm Mut. Auto. Ins. Co., 236 Ga. App. 832 , 513 S.E.2d 48 (1999).

Uninsured motorist insurance. - A hospital could enforce its lien against money paid by a patient's uninsured motorist carrier. Thomas v. McClure, 236 Ga. App. 622 , 513 S.E.2d 43 (1999).

Under O.C.G.A. § 33-7-11(b)(1)(D)(ii), a uninsured motorist (UM) carrier was entitled to set off a payment that the tortfeasor's liability carrier made directly to a hospital that had a hospital lien. The insured's election to divert part of the liability payment to satisfy the insured's hospital bill did not reduce the available liability coverage or increase the insured's UM coverage; the cases relied upon by the insured were not controlling, as payment under the hospital lien statute, O.C.G.A. § 44-14-470 , was not mandatory. Adams v. State Farm Mut. Auto. Ins. Co., Ga. App. , S.E.2d (Feb. 17, 2009).

Under O.C.G.A. §§ 33-7-11(b)(1)(D)(ii) (underinsured motorist coverage) and 44-14-470(b) (hospital liens), a tortfeasor's insurer's payment of a hospital lien represented partial satisfaction of an injured insured's claim; the injured insured's UIM carrier was entitled to a credit for the payment of the lien against the insured's coverage. State Farm Mut. Auto. Ins. Co. v. Adams, 288 Ga. 315 , 702 S.E.2d 898 (2010).

TRICARE coverage impacting recovery by hospital. - Trial court did not err in dismissing for failure to state a claim upon which relief could be granted a healthcare provider's action against an insurer to collect on a hospital lien for services provided to a patient after the patient was injured in an automobile accident caused by an insured because the statutory and regulatory scheme that governed the United States Department of Defense TRICARE health insurance program did not provide any basis for allowing a contracting civilian healthcare provider to collect the provider's treatment costs from a third-party tortfeasor/payer, and any state law that interfered with the financing of healthcare claims for TRICARE beneficiaries was preempted as a matter of federal statutory and regulatory law, 10 U.S.C. § 1103 and 32 C.F.R. § 199.17(a)(7); even if the healthcare provider was not obligated to adhere to the TRICARE statutory and regulatory scheme, by attempting to collect the provider's lien from the patient's settlement funds, the healthcare provider was violating the provider's contract with a corporation, which prohibited the provider from obtaining any recourse from the TRICARE beneficiary. MCG Health, Inc. v. Owners Ins. Co., 288 Ga. 782 , 707 S.E.2d 349 (2011).

Hospital may put lien on damage claim of married woman not legally liable for payment. - There is nothing in O.C.G.A. § 44-14-470 which limits the right of the hospital to the enforcement of a lien against the claim of one who would be legally liable to pay the hospital for the charges made, and the fact that the person treated in this case may have been a married woman and therefore not herself legally liable to pay for the necessary expenses of her treatment did not affect the hospital's right to enforce its lien on her claim for damages. Dawson v. Hospital Auth., 98 Ga. App. 792 , 106 S.E.2d 807 (1958).

A hospital had a valid lien, etc. on all causes of action held by an injured party against those who allegedly caused an injury which attached at the moment the injured party received treatment. Macon-Bibb County Hosp. Auth. v. National Union Fire Ins. Co., 793 F. Supp. 321 (M.D. Ga. 1992).

Trial court erred by granting partial summary judgment to a patient because the hospital was not precluded from filing a hospital lien in order to collect charges associated with the patient's treatment since the hospital's contract with the patient's insurer explicitly reserved the hospital's right to collect deductibles and co-pays directly from the patient, irrespective of the agreement to hold the patient responsible only for a discounted price of treatment. Kight v. MCG Health, Inc., 296 Ga. 687 , 769 S.E.2d 923 (2015).

Hospital's lien was invalid. - Trial court erred in denying the plaintiffs' motion to strike a hospital's lien under O.C.G.A. § 44-14-470(b) for the full amount of a hospital bill; the hospital did not dispute that a patient's operation was covered by an agreement between the hospital and an insurer; thus, the hospital would be held to the terms of the bargain it struck. Constantine v. MCG Health, Inc., 275 Ga. App. 128 , 619 S.E.2d 718 (2005).

Although contract provisions between the U.S. Department of Defense TRICARE health insurance program and a hospital allowed the filing of a hospital lien against a tortfeasor's insurer under O.C.G.A. § 44-14-470(b) , the lien was invalid because other provisions of the contract negated any debt that could support it. MCG Health, Inc. v. Owners Ins. Co., 302 Ga. App. 812 , 692 S.E.2d 72 (2010).

Children's wrongful death claims have priority over hospital's claim of lien. - Since the decedent's children filed a wrongful death complaint in relation to their mother's death in a car wreck, the available insurance proceeds were then deposited into a court registry without the mother's estate ever making a claim for medical payments, and since the available insurance proceeds were insufficient to cover both the children's wrongful death claims and the O.C.G.A. § 44-14-470(b) medical services lien of a hospital which provided medical services to the mother after the car wreck, the trial court erred in satisfying the hospital's lien from the limited funds instead of satisfying the children's claims. Nash v. Allstate Ins. Co., 256 Ga. App. 143 , 567 S.E.2d 748 (2002).

Late filing of lien. - Even though a hospital was late in filing its lien 33 days after the discharge of a patient, the lien was not rendered unenforceable, particularly in light of the fact that the liable parties had actual notice of the lien and were not prejudiced by the late filing. Thomas v. McClure, 236 Ga. App. 622 , 513 S.E.2d 43 (1999).

Inclusion of lien language did not invalidate settlement agreement. - Trial court properly awarded summary judgment to plaintiffs to enforce a settlement agreement because inclusion of the statutory healthcare-provider lien affidavit release information did not constitute a counteroffer and did not alter the fact that a meeting of the minds has occurred with regard to the terms of the settlement. Sherman v. Dickey, 322 Ga. App. 228 , 744 S.E.2d 408 (2013).

Insurer's obligation to timely pay settlement demand did not impermissibly conflict with duty to satisfy hospital's lien. - An injured party's time-limited demand on an insurer to settle the injured party's claim for policy limits, and a hospital's assertion of a lien for the injured party's care, did not place the insurer in the position of being required to make payments in excess of policy limits because the insurer could create a "safe harbor" from liability for a bad faith refusal to settle when (1) the hospital promptly settled a case involving clear liability and special damages exceeding policy limits, and (2) the sole reason for an inability to settle was an injured party's unreasonable refusal to assure satisfaction of outstanding hospital liens. Southern Gen. Ins. Co. v. Wellstar Health Sys., 315 Ga. App. 26 , 726 S.E.2d 488 (2012).

Cited in Spengler v. Employers Com. Union Ins. Co., 131 Ga. App. 443 , 206 S.E.2d 693 (1974); Integon Indem. Corp. v. Henry Medical Ctr., Inc., 235 Ga. App. 97 , 508 S.E.2d 476 (1998); Watts v. Promina Gwinnett Health Sys., Inc., 242 Ga. App. 377 , 530 S.E.2d 14 (2000).

RESEARCH REFERENCES

Am. Jur. 2d. - 40 Am. Jur. 2d, Hospitals and Asylums, § 5.

C.J.S. - 41 C.J.S., Hospitals, §§ 13, 15.

ALR. - Liability of private noncharitable hospital or sanitarium for improper care or treatment of patient, 39 A.L.R. 1431 ; 124 A.L.R. 186 .

Construction, operation, and effect of statute giving hospital lien against recovery from tortfeasor causing patient's injuries, 16 A.L.R.5th 262.

Physicians' and surgeons' liens, 39 A.L.R.5th 787.

Propriety and use of balance billing in health care context, 69 A.L.R.6th 317.

44-14-471. Filing of verified statement; contents; notice.

  1. In order to perfect the lien provided for in Code Section 44-14-470, the operator of the hospital, nursing home, physician practice, or provider of traumatic burn care medical practice:
    1. Shall, not less than 15 days prior to the date of filing the statement required under paragraph (2) of this subsection, provide written notice to the patient and, to the best of the claimant's knowledge, the persons, firms, corporations, and their insurers claimed by the injured person or the legal representative of the injured person to be liable for damages arising from the injuries and shall include in such notice a statement that the lien is not a lien against the patient or any other property or assets of the patient and is not evidence of the patient's failure to pay a debt. Such notice shall be sent to all such persons and entities by first-class and certified mail or statutory overnight delivery, return receipt requested; and
    2. Shall file in the office of the clerk of the superior court of the county in which the hospital, nursing home, physician practice, or provider of traumatic burn care medical practice is located and in the county wherein the patient resides, if a resident of this state, a verified statement setting forth the name and address of the patient as it appears on the records of the hospital, nursing home, physician practice, or provider of traumatic burn care medical practice; the name and location of the hospital, nursing home, physician practice, or provider of traumatic burn care medical practice and the name and address of the operator thereof; the dates of admission and discharge of the patient therefrom or with respect to a physician practice, the dates of treatment; and the amount claimed to be due for the hospital, nursing home, physician practice, or provider of traumatic burn care medical practice care, which statement must be filed within the following time period:
      1. If the statement is filed by a hospital, nursing home, or provider of traumatic burn care medical practice, then the statement shall be filed within 75 days after the person has been discharged from the facility; or
      2. If the statement is filed by a physician practice, then the statement shall be filed within 90 days after the person first sought treatment from the physician practice for the injury.
  2. The filing of the claim or lien shall be notice thereof to all persons, firms, or corporations liable for the damages, whether or not they received the written notice provided for in this Code section. The failure to perfect such lien by timely complying with the notice and filing provisions of paragraphs (1) and (2) of subsection (a) of this Code section shall invalidate such lien, except as to any person, firm, or corporation liable for the damages, which receives prior to the date of any release, covenant not to bring an action, or settlement, actual notice of a notice and filed statement made under subsection (a) of this Code section, via hand delivery, certified mail, return receipt requested, or statutory overnight delivery with confirmation of receipt.

    (Ga. L. 1953, Nov.-Dec. Sess., p. 105, § 2; Ga. L. 1978, p. 1371, § 1; Ga. L. 2002, p. 1141, § 2; Ga. L. 2002, p. 1429, § 2; Ga. L. 2003, p. 140, § 44; Ga. L. 2004, p. 394, § 2; Ga. L. 2006, p. 334, § 2/SB 306.)

The 2002 amendments. The first 2002 amendment, effective July 1, 2002, in the first sentence, inserted ", nursing home, or provider of traumatic burn care medical practice" throughout and substituted "records of the" for "records of such" near the middle. The second 2002 amendment, effective July 1, 2002, rewrote this Code section.

The 2003 amendment, effective May 14, 2003, part of an Act to revise, modernize, and correct the Code, in paragraph (a)(1), deleted "hospital" preceding "claimant's knowledge" in the first sentence and revised punctuation in the second sentence.

The 2004 amendment, effective July 1, 2004, inserted "physician practice," throughout subsection (a); substituted "Shall, not less than 30 days prior to the date of filing the statement required under paragraph (2) of this subsection," for "Within 30 days after the person has been discharged therefrom, shall" in the first sentence of paragraph (a)(1); and, in paragraph (a)(2), substituted "30 days" for "15 days" near the beginning and inserted "or with respect to a physician practice, the dates of treatment" near the end.

The 2006 amendment, effective July 1, 2006, substituted "15 days" for "30 days" in the first sentence of paragraph (a)(1); in paragraph (a)(2), deleted ", no sooner than 30 days after the date of the written notice provided for in this Code section," following "Shall file" near the beginning, added ", which statement must be filed within the following time period:" at the end, and added subparagraphs (a)(1)(A) and (a)(1)(B); and substituted the present provisions of subsection (b) for the former provisions which read "The filing of the claim or lien shall be notice thereof to all persons, firms, or corporations liable for the damages, whether or not they received the written notice provided for in this Code section. The failure to perfect such lien in accordance with this Code section shall invalidate such lien."

Law reviews. - For annual survey of trial practice and procedure, see 56 Mercer L. Rev. 433 (2004).

JUDICIAL DECISIONS

"Best of the claimant's knowledge" standard. - As for the "best of the claimant's knowledge" standard of O.C.G.A. § 44-14-471(a)(1), the Georgia Court of Appeals, Fifth Division has held that the phrase describes the lienholder's knowledge and imposes upon the lienholder the requirement to exercise at least some degree of diligence in acquiring the information necessary to send the notice. Allstate Fire & Casualty Insurance Company v. Kennestone Hospital, Inc., 348 Ga. App. 335 , 822 S.E.2d 832 (2019).

Complaint sufficiently set forth fraud allegations. - Trial court erred by dismissing the plaintiff's complaint for failure to state a claim because the plaintiff pled viable claims for fraud, negligent misrepresentation, and civil racketeering based on the defendant filing a medical lien seeking full chargemaster rate or sticker price of the defendant's medical procedures, which did not represent a reasonable charge for the treatment received with the intent to collect more than a reasonable charge for the services rendered to the plaintiff. Clouthier v. Medical Center of Central Georgia, Inc., 351 Ga. App. 883 , 833 S.E.2d 584 (2019).

Hospital lien resembles garnishment. - Hospital's petition failed to allege a cause arising under the hospital lien law against the defendant patient, for the reason that O.C.G.A. § 44-14-471 gives no right of action against the patient to whom hospitalization is furnished, but only against those liable to pay the patient damages; the right created is analogous to the remedy provided by the garnishment laws. Hospital Auth. v. Boyd, 96 Ga. App. 705 , 101 S.E.2d 207 (1957).

Late filing still valid where actual notice. - A hospital lien not filed within the 30-day statutory time period was enforced against defendants who had actual notice of the lien. Macon-Bibb County Hosp. Auth. v. National Union Fire Ins. Co., 793 F. Supp. 321 (M.D. Ga. 1992).

Hospital could assert lien for full amount of charges, even if most were written off pursuant to managed healthcare contract. - Because a patient could have sought recovery of $24,794 from a tortfeasor of a hospital's billed charges incurred for his injuries, the hospital was entitled to assert a lien under O.C.G.A. § 44-14-471(b) for the unpaid portion of those billed charges, even though the patient's managed care insurer was not responsible to pay these charges in full. The court held that Constantine v. MCG Health, Inc., 275 Ga. App. 128 , 619 S.E.2d 718 (2005), had been implicitly overruled in part. MCG Health, Inc. v. Kight, 325 Ga. App. 349 , 750 S.E.2d 813 (2013), aff'd, 296 Ga. 687 , 769 S.E.2d 923 (2015).

Use of chargemaster rates does not result in viable claims for fraud, negligent representation and RICO claims. - Supreme court overrules Clouthier v. Med. Center of Central Ga., Inc., 351 Ga. App. 883 (2019), and Aguila v. Kennestone Hosp., 353 Ga. App. 17 (2019), to the extent that those cases hold that viable claims for fraud, negligent representation, and violations of the Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., can be maintained against hospitals that properly file liens based on standard chargemaster rates that reflect true market considerations such as hospital costs. Bowden v. Medical Ctr., Inc., 309 Ga. 188 , 845 S.E.2d 555 (2020).

No false representation regarding charges. - Summary judgment was improperly denied to the medical center on the plaintiffs' fraud and negligent misrepresentation claims because the center's filing of a lien at the center's chargemaster rate in compliance with Georgia's lien statutes did not amount to making a false representation; and there was nothing fraudulent about the center's using its standard chargemaster rates as the amount claimed to be due for the hospital to perfect the hopsital's lien as the plaintiff could contest the reasonableness of the amount. Bowden v. Medical Ctr., Inc., 309 Ga. 188 , 845 S.E.2d 555 (2020).

Lien filed by hospital after treating patient. - In the patient's action against the hospital for fraud, negligent misrepresentation, and violations of the RICO Act, O.C.G.A. § 16-14-1 et seq., arising from a hospital lien that the hospital filed following the hospital's treatment of the patient, the court held that the case was controlled adversely to the hospital by its recent decision in Clouthier v. The Medical Center of Central Ga., 351 Ga. App. 883 (2019) and, therefore, the trial court erred by granting the hospital's motion to dismiss because it did not appear to a legal certainty that the patient would be entitled to no relief under any state of facts that could be proved in support of the patient's claims. The patient alleged that the lien was for the full "chargemaster" rate or "sticker price" which did not represent a reasonable charge for the treatment received. Aguila v. Kennestone Hosp., 353 Ga. App. 17 , 836 S.E.2d 179 (2019).

Hospital exercised due diligence. - The grant of summary judgment to a hospital in the hospital's action to perfect a medical services lien under O.C.G.A. § 44-14-471 against an insurance company was affirmed because in spite of the hospital's undisputed exercise of due diligence, the hospital did not know the identity of the tortfeasor or the insurer until after the hospital had filed the lien, so the hospital was not required to send notice to the insurer to perfect the insurer's lien. Allstate Fire & Casualty Insurance Company v. Kennestone Hospital, Inc., 348 Ga. App. 335 , 822 S.E.2d 832 (2019).

RESEARCH REFERENCES

ALR. - Construction, operation, and effect of statute giving hospital lien against recovery from tortfeasor causing patient's injuries, 16 A.L.R.5th 262.

44-14-472. Duties of clerk; lien book; fee.

The clerk of the superior court shall endorse the date and hour of filing on the statement filed pursuant to Code Section 44-14-471; and, at the expense of the county, the clerk shall provide a lien book with a proper index in which the clerk shall enter the date and hour of the filing; the names and addresses of the hospital, nursing home, physician practice, or provider of traumatic burn care medical practice, the operators thereof, and the patient; and the amount claimed. The information shall be recorded in the name of the patient. The clerk shall receive a fee as required by subparagraph (f)(1)(A) of Code Section 15-6-77 as his or her fee for such filing.

(Ga. L. 1953, Nov.-Dec. Sess., p. 105, § 3; Ga. L. 1981, p. 1396, § 18; Ga. L. 1992, p. 6, § 44; Ga. L. 2002, p. 1141, § 3; Ga. L. 2002, p. 1429, § 3; Ga. L. 2003, p. 140, § 44; Ga. L. 2004, p. 394, § 3; Ga. L. 2006, p. 334, § 3/SB 306.)

The 2002 amendments. The first 2002 amendment, effective July 1, 2002, in the first sentence, inserted "or she" twice and inserted ", nursing home, or provider of traumatic burn care medical practice" near the middle. The second 2002 amendment, effective July 1, 2002, in the first sentence, substituted "the clerk" for "he" twice, inserted "and", and deleted "; and the names and addresses of those claimed to be liable for damage" following "amount claimed"; added the second sentence; and inserted "or her" in the last sentence. See the Code Commission note regarding the effect of these amendments.

The 2003 amendment, effective May 14, 2003, part of an Act to revise, modernize, and correct the Code, deleted "hospital" preceding "lien book" and revised punctuation throughout this Code section.

The 2004 amendment, effective July 1, 2004, inserted "physician practice," near the middle of the first sentence.

The 2006 amendment, effective July 1, 2006, deleted the former second sentence of this Code section which read "Notwithstanding the provisions in Code Section 44-2-2, a lien provided for in Code Section 44-14-470 shall be filed in a separate docket from and shall not be commingled with judgment liens, materialmen's liens, mechanics' liens, tax liens, lis pendens notices, or any other liens that attach to the person or property of an individual."

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2002, "or she" was deleted preceding "shall" twice in the first sentence.

OPINIONS OF THE ATTORNEY GENERAL

The general provision of O.C.G.A. § 15-6-77 should not be construed to include the recording of hospital liens, which is explicitly provided for by O.C.G.A. § 44-14-472 . 1980 Op. Att'y Gen. No. U80-40.

RESEARCH REFERENCES

ALR. - Construction, operation, and effect of statute giving hospital lien against recovery from tortfeasor causing patient's injuries, 16 A.L.R.5th 262.

44-14-473. Effect of covenant not to bring an action; action to enforce lien; limitation; affidavit of payment.

  1. No release of the cause or causes of action or of any judgment thereon or any covenant not to bring an action thereon shall be valid or effectual against the lien created by Code Section 44-14-470 unless the holder thereof shall join therein or execute a release of the lien; and the claimant or assignee of the lien may enforce the lien by an action against the person, firm, or corporation liable for the damages or such person, firm, or corporation's insurer. If the claimant prevails in the action, the court may allow reasonable attorney's fees. The action shall be commenced against the person liable for the damages or such person's insurer within one year after the date the liability is finally determined by a settlement, by a release, by a covenant not to bring an action, or by the judgment of a court of competent jurisdiction.
  2. No release or covenant not to bring an action which is made before or after the patient was discharged from the hospital, nursing home, or provider of traumatic burn care medical practice or, with respect to a physician practice, which is made after the patient first sought treatment from the physician practice for the injuries shall be effective against the lien perfected in accordance with Code Section 44-4-471, if such lien is perfected prior to the date of the release, covenant not to bring an action, or settlement unless consented to by the lien claimant; provided, however, that any person, firm, or corporation which consummates a settlement, release, or covenant not to bring an action with the person to whom hospital, nursing home, physician practice, or traumatic burn care medical practice care, treatment, or services were furnished and which first procures from the injured party an affidavit as prescribed in subsection (c) of this Code section shall not be bound or otherwise affected by the lien except as provided in subsection (c) of this Code section, regardless of when the settlement, release, or covenant not to bring an action was consummated.
  3. The affidavit shall affirm:
    1. That all hospital, nursing home, physician practice, or provider of traumatic burn care medical practice bills incurred for treatment for the injuries for which a settlement is made have been fully paid; and
    2. The county of residence of such affiant, if a resident of this state;

      provided, however, that the person taking the affidavit shall not be protected thereby where the affidavit alleges the county of the affiant's residence and the lien of the claimant is at such time on file in the office of the clerk of the superior court of the county and is recorded in the name of the patient as it appears in the affidavit.

      (Ga. L. 1953, Nov.-Dec. Sess., p. 105, § 4; Ga. L. 1982, p. 3, § 44; Ga. L. 2002, p. 1141, § 4; Ga. L. 2002, p. 1429, § 4; Ga. L. 2004, p. 394, § 4; Ga. L. 2006, p. 334, § 4/SB 306.)

The 2002 amendments. The first 2002 amendment, effective July 1, 2002, inserted ", nursing home, or provider of traumatic burn care medical practice" in subsection (b) and paragraph (c)(1) and substituted ", nursing home, or traumatic burn care medical practice care, treatment, or services were" for "service or treatment was" near the middle of subsection (b). The second 2002 amendment, effective July 1, 2002, in subsection (a), added "or such person, firm, or corporation's insurer" at the end of the first sentence and inserted "or such person's insurer" in the last sentence; and substituted "before or" for "within then days" near the beginning of subsection (b).

The 2004 amendment, effective July 1, 2004, inserted "physician practice," throughout this Code section.

The 2006 amendment, effective July 1, 2006, in subsection (b), deleted "physician practice," following "nursing home," near the beginning, inserted "or, with respect to a physician practice, which is made after the patient first sought treatment from the physician practice for the injuries", substituted "in accordance with Code Section 44-4-471, if such lien is perfected prior to the date of the release, covenant not to bring an action, or settlement unless consented to by the lien claimant" for "in due time as provided in subsection (a) of this Code section, regardless of whether the release, covenant not to bring an action, or settlement was made prior to the time of the filing of the lien as specified in Code Sections 44-14-470 and 44-14-471" near the middle, and substituted "procures from the injured party" for "procures therefrom" near the end.

Law reviews. - For annual survey on insurance law, see 66 Mercer L. Rev. 93 (2014). For annual survey on trial practice and procedure, see 66 Mercer L. Rev. 211 (2014).

JUDICIAL DECISIONS

Action filed before limitations period ran. - Hospitals' action to recover on liens related to medical treatment was not barred by the limitations period in O.C.G.A. § 44-14-473(a) as the statute of limitations began to run on the date that the release was executed, as that was the date liability was finally determined, and the action was filed less than one year after that date. Hosp. Auth. of Clarke County v. Geico Gen. Ins. Co., 294 Ga. 477 , 754 S.E.2d 358 (2014).

Section allows hospital lien on tort-feasor, not patient. - Hospital's petition failed to allege a cause arising under the hospital lien law against the defendant patient, for the reason that O.C.G.A. § 44-14-473 gives no right of action against the patient to whom hospitalization is furnished, but only against those liable to pay the patient damages; the right created is analogous to the remedy provided by the garnishment laws. Hospital Auth. v. Boyd, 96 Ga. App. 705 , 101 S.E.2d 207 (1957).

Lien not enforceable against tortfeasor's insurer. - Hospital could not enforce its medical lien against the tortfeasor's insurer on the ground that insurer settled the injured driver's claims without the hospital's knowledge and consent, since insurer was not one against whom an action could be brought under O.C.G.A. § 44-14-473 , and it was not liable for the driver's damages under the policy, by any other statute, or by agreement. Integon Indem. Corp. v. Henry Medical Ctr., Inc., 235 Ga. App. 97 , 508 S.E.2d 476 (1998).

Insurer's obligation to timely pay settlement demand did not impermissibly conflict with duty to satisfy hospital's lien. - An injured party's time-limited demand on an insurer to settle the injured party's claim for policy limits, and a hospital's assertion of a lien for the injured party's care, did not place the insurer in the position of being required to make payments in excess of policy limits because the insurer could create a "safe harbor" from liability for a bad faith refusal to settle when (1) the hospital promptly settled a case involving clear liability and special damages exceeding policy limits, and (2) the sole reason for an inability to settle was an injured party's unreasonable refusal to assure satisfaction of outstanding hospital liens. Southern Gen. Ins. Co. v. Wellstar Health Sys., 315 Ga. App. 26 , 726 S.E.2d 488 (2012).

Inclusion of lien language did not invalidate settlement agreement. - Trial court properly awarded summary judgment to plaintiffs to enforce a settlement agreement because inclusion of the statutory healthcare-provider lien affidavit release information did not constitute a counteroffer and did not alter the fact that a meeting of the minds has occurred with regard to the terms of the settlement. Sherman v. Dickey, 322 Ga. App. 228 , 744 S.E.2d 408 (2013).

Parol evidence may negate words in release indicating payment on security instrument. - Words in a release placed upon a recorded security instrument importing payment of the secured indebtedness are not a contract but constitute only prima facie evidence of payment and may be denied or explained by parol evidence. Ford Motor Credit Co. v. Parsons, 155 Ga. App. 46 , 270 S.E.2d 230 (1980).

Hospital's lien was invalid. - Although contract provisions between the U.S. Department of Defense TRICARE health insurance program and a hospital allowed the filing of a hospital lien against a tortfeasor's insurer under O.C.G.A. § 44-14-470(b) , the lien was invalid because other provisions of the contract negated any debt that could support it. MCG Health, Inc. v. Owners Ins. Co., 302 Ga. App. 812 , 692 S.E.2d 72 (2010).

Cited in Dawson v. Hospital Auth., 98 Ga. App. 792 , 106 S.E.2d 807 (1958); Valentine v. Allstate Ins. Co., 140 Ga. App. 411 , 231 S.E.2d 799 (1976).

RESEARCH REFERENCES

ALR. - Liability of private noncharitable hospital or sanitarium for improper care or treatment of patient, 39 A.L.R. 1431 ; 124 A.L.R. 186 .

Construction, operation, and effect of statute giving hospital lien against recovery from tortfeasor causing patient's injuries, 16 A.L.R.5th 262.

44-14-474. Exemptions from part.

This part shall not apply to any moneys becoming due under Chapter 9 of Title 34.

(Ga. L. 1953, Nov.-Dec. Sess., p. 105, § 6; Ga. L. 1977, p. 277, § 1; Ga. L. 1991, p. 1608, § 2.3.)

Law reviews. - For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 99 (1992).

RESEARCH REFERENCES

ALR. - Construction, operation, and effect of statute giving hospital lien against recovery from tortfeasor causing patient's injuries, 16 A.L.R.5th 262.

44-14-475. Effect of part on settlement before entry into hospital, nursing home, or traumatic burn care medical facility.

No settlement or release entered into or executed prior to the entry of the injured party into the hospital, nursing home, or facility which provides traumatic burn care medical practice or prior to the time the patient first sought treatment from the physician practice for the injuries shall be affected by or subject to the terms of this part.

(Ga. L. 1953, Nov.-Dec. Sess., p. 105, § 7; Ga. L. 2002, p. 1141, § 5; Ga. L. 2004, p. 394, § 5; Ga. L. 2006, p. 334, § 5/SB 306.)

The 2002 amendment, effective July 1, 2002, inserted ", nursing home, or facility which provides traumatic burn care medical practice" in the middle of this Code section.

The 2004 amendment, effective July 1, 2004, inserted "physician practice," near the middle of this Code section.

The 2006 amendment, effective July 1, 2006, deleted "physician practice," following "nursing home," near the middle, and inserted "or prior to the time the patient first sought treatment from the physician practice for the injuries" near the end.

RESEARCH REFERENCES

ALR. - Construction, operation, and effect of statute giving hospital lien against recovery from tortfeasor causing patient's injuries, 16 A.L.R.5th 262.

44-14-476. No independent right of action.

This part shall not be construed to give any hospital, nursing home, physician practice, or provider of traumatic burn care medical practice referred to in this part an independent right of action to determine liability for injuries sustained by a person or firm.

(Ga. L. 1953, Nov.-Dec. Sess., p. 105, § 8; Ga. L. 2002, p. 1141, § 6; Ga. L. 2004, p. 394, § 6.)

The 2002 amendment, effective July 1, 2002, substituted ", nursing home, or provider of traumatic burn care medical practice" for "or agency" in the middle of this Code section.

The 2004 amendment, effective July 1, 2004, inserted "physician practice," near the middle of this Code section.

JUDICIAL DECISIONS

Cited in Dawson v. Hospital Auth., 98 Ga. App. 792 , 106 S.E.2d 807 (1958); Valentine v. Allstate Ins. Co., 140 Ga. App. 411 , 231 S.E.2d 799 (1976).

RESEARCH REFERENCES

ALR. - Construction, operation, and effect of statute giving hospital lien against recovery from tortfeasor causing patient's injuries, 16 A.L.R.5th 262.

44-14-477. False swearing in affidavits under Code Section 44-14-473.

Any person who gives any false affidavit as provided by Code Section 44-14-473 commits the offense of false swearing.

(Ga. L. 1953, Nov.-Dec. Sess., p. 105, § 5.)

Cross references. - Penalty for false swearing, § 16-10-71 .

RESEARCH REFERENCES

Am. Jur. 2d. - 60 Am. Jur. 2d, Perjury, §§ 41, 45, 48.

C.J.S. - 70 C.J.S., Perjury, § 22.

PART 9 V ETERINARIANS AND BOARDERS OF ANIMALS

44-14-490. Lien for treatment, board, or care of animal; right to retain possession.

  1. Every licensed veterinarian shall have a lien on each animal or pet treated, boarded, or cared for by him or her while in his or her custody and under contract with the owner of the animal or pet for the payment of charges for the treatment, board, or care of the animal or pet; and the veterinarian shall have the right to retain the animal or pet until the charges are paid.
    1. As used in this subsection, the term:
      1. "Charges" means:
        1. Any charges, fees, expenses, and reimbursements which have been contracted for, agreed to, or otherwise mutually acknowledged by written agreement, course of conduct, or understanding, including but not limited to:
          1. Board, care, services, and treatment of the animal or pet, whether provided by the operator or by a third party and incurred by the operator;
          2. Farrier and veterinary fees and expenses incurred by the operator for or on behalf of the boarded animal or pet; and
          3. Fees and expenses for transportation of the animal or pet; and
        2. Late payment fees, returned check fees, and all costs of collection, including but not limited to reasonable attorney's fees and expenses of litigation and costs of sale.

          Charges shall not include fees, expenses, or commissions of any kind relating to purchase, sale, or lease of such animal or pet, other than a sale pursuant to Code Section 44-14-491.

      2. "Facility for boarding animals or pets" shall include, but not be limited to, veterinary hospitals, boarding kennels, stables, livestock sales barns, and humane societies.
    2. Every operator of a facility for boarding animals or pets which facility is licensed by the Department of Agriculture, other than a licensed veterinarian, shall have a lien on each animal or pet in his or her care for the payment of all charges of such operator; and the operator of such a facility shall have the right to retain the animal or pet until the charges are paid in full.
  3. Any person granted a lien by this Code section may waive such lien in writing.

    (Ga. L. 1974, p. 330, § 1; Ga. L. 2005, p. 58, § 1/HB 201.)

The 2005 amendment, effective July 1, 2005, rewrote this Code section, which read: "Every licensed veterinarian and every operator of a facility for boarding animals or pets shall have a lien on each animal or pet treated, boarded, or cared for by them while in their custody and under contract with the owner of the animal or pet for the payment of charges for the treatment, board, or care of the animal or pet; and the veterinarian or operator of a facility shall have the right to retain the animal or pet until the charges are paid. Facilities for boarding animals or pets shall include, but not be limited to, veterinary hospitals, boarding kennels, stables, livestock sales barns, and humane societies."

Cross references. - Regulation of veterinary practice generally, Ch. 50, T. 43.

JUDICIAL DECISIONS

Retaining animals until charges paid. - Trial court did not err in granting summary judgment in favor of the veterinarian because the owner of the dog agreed to have the veterinarian treat the dog for the parvo virus in exchange for payment of at least the estimated costs; the owner did not cite any evidence creating a genuine issue of material fact as to the accuracy or validity of any of the charges on the itemized bill; and the veterinarian acted properly in relying on the veterinary lien statute to retain the dog when the owner failed to pay the bills. Gomez v. Innocent, 330 Ga. App. 260 , 765 S.E.2d 405 (2014).

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, §§ 190 et seq., 194 et seq.

C.J.S. - 8 C.J.S., Bailments, § 80 et seq.

44-14-491. Notice to owner; sale or disposal of animal; liability.

    1. If the charges due for any services enumerated in Code Section 44-14-490 are not paid within ten days after the demand therefor on the owner of the animal or pet or if the animal or pet is not picked up within ten days after the demand therefor on the owner of the animal or pet, which demand shall be made in person or by registered or certified mail or statutory overnight delivery with return receipt requested and addressed to the owner at the address given when the animal or pet was delivered, the animal or pet shall be deemed to be abandoned and the licensed veterinarian or operator of a facility is authorized to dispose of the animal or pet in such manner as such veterinarian or operator shall determine. Such ten-day period will begin to run on the date the demand is postmarked or the date the verbal command is communicated in person and shall be noted on the veterinarian's or operator's file on the animal or pet.  For purposes of this subsection, the term "dispose of " means selling the animal or pet at public or private sale, giving the animal or pet away, or turning the animal or pet over to any humane society or animal shelter or other such facility. Where no such shelter facility exists within a 50 mile radius of the veterinarian or operator of a facility's place of business and the veterinarian or operator has been unable to sell or give the animal away, then the veterinarian or operator is authorized to euthanize the animal in a humane manner.
    2. On the day of the disposal of the animal or pet, the veterinarian or operator of a facility shall notify the owner in person, by telephone, or by registered or certified mail or statutory overnight delivery with return receipt requested at the address given when the animal or pet was delivered, of the date of the disposal and the manner in which the animal was disposed.
    3. The disposal of an animal or pet as provided in this Code section shall not relieve the owner or owner's agent of any financial obligations incurred for treatment, boarding, or care by a veterinarian or operator of a facility for boarding animals or pets.
  2. The giving of notice to the owner as provided for in subsection (a) of this Code section shall relieve the licensed veterinarian, the operator of a facility for boarding animals or pets, or any custodian who disposes of such animal or pet of any further liability for such disposal.
  3. Failure of the owner of any such animal or pet to receive the demand by registered or certified mail or statutory overnight delivery provided for in paragraph (1) of subsection (a) of this Code section shall not render the licensed veterinarian or operator of a facility liable to the owner of such animal or pet for the disposal thereof in any manner provided in this Code section.

    (Ga. L. 1974, p. 330, § 2; Ga. L. 1984, p. 572, § 1; Ga. L. 1993, p. 1044, § 1; Ga. L. 2000, p. 1589, § 3.)

The 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in paragraphs (a)(1) and (a)(2) and in subsection (c).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 199.

C.J.S. - 8 C.J.S., Bailments, § 80 et seq.

44-14-492. Disposition of sale proceeds.

When any animal or pet is sold as authorized in this part to satisfy a lien for any of the services enumerated in Code Section 44-14-490, any surplus realized from the sale after payment of the charges and any expenses incurred in making the demand for payment thereof in connection with the sale shall be paid to the owner of the animal or pet.

(Ga. L. 1974, p. 330, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 199.

C.J.S. - 8 C.J.S., Bailments, § 80 et seq.

44-14-493. Necessity of other legal proceedings.

Other than compliance with the requirements of this part, no legal proceedings shall be necessary for the enforcement of the lien created by this part.

(Ga. L. 1974, p. 330, § 4.)

RESEARCH REFERENCES

Am. Jur. 2d. - 8 Am. Jur. 2d, Bailments, § 199.

C.J.S. - 8 C.J.S., Bailments, § 80 et seq.

44-14-494. Criminal liability under Code Section 44-14-491.

It shall not constitute a violation of Code Section 16-12-4 if a licensed veterinarian or an operator of a facility for boarding animals or pets disposes of an animal or pet as provided in Code Section 44-14-491.

(Code 1981, § 44-14-494 , enacted by Ga. L. 1984, p. 572, § 2; Ga. L. 1985, p. 149, § 44.)

PART 10 M ISCELLANEOUS LIENS

RESEARCH REFERENCES

ALR. - Common-law lien on personalty for work performed thereon, upon the owner's premises, 3 A.L.R. 862 .

Dredge, pumper, or the like as subject of maritime lien, 59 A.L.R. 1343 .

Character of service contemplated by statutes giving a lien or preference, in event of insolvency, to servants, employees, laborers, etc., 111 A.L.R. 1453 ; 142 A.L.R. 362 .

Sale of standing timber as affecting judgment or other lien upon the land, 122 A.L.R. 517 .

Lien for storage of motor vehicle, 48 A.L.R.2d 894.

Lien for towing or storage, ordered by public officer, of motor vehicle, 85 A.L.R.3d 199.

Loss of garageman's lien on repaired vehicle by owner's use of vehicle, 74 A.L.R.4th 90.

44-14-510. Lien of officers and employees on watercraft; priorities.

Every officer and employee or guardian of any employee on any watercraft engaged in the navigation of any river within the borders or forming the boundary of this state shall have a lien upon the boat or craft for any debts, dues, wages, or demands that they may have against the owner or lessee of the boat or craft, for personal services in connection with the boat, or for wood or provisions furnished the boat, which lien shall be superior to all liens except liens for taxes and such other liens as the claimant had actual notice of before the debt was created.

(Orig. Code 1863, § 1979; Code 1868, § 1968; Ga. L. 1873, p. 42, § 9; Code 1873, § 1982; Code 1882, § 1982; Civil Code 1895, § 2806; Civil Code 1910, § 3355; Code 1933, § 67-2201.)

RESEARCH REFERENCES

Am. Jur. 2d. - 70 Am. Jur. 2d, Shipping, §§ 292, 321, 550 et seq., 561, 562, 568, 572-575, 579, 580, 596, 598, 607-611.

44-14-511. Liens on offspring of stallions, jacks, bulls or boars; necessity of recordation; recording fee; priorities.

The owner or keeper of any stallion, jack, or blooded or imported bull or boar shall have a lien upon the offspring thereof for the service of the stallion, jack, or blooded or imported bull or boar for the period of one year from the birth of the offspring, which lien shall be superior to all other liens except the lien for taxes, provided that the owners shall keep their animals enclosed in their own pastures or otherwise. The lien provided for in this Code section shall not become operative unless it is recorded in the office of the clerk of the superior court of the county where the owner of the mother resides within six months after the performance of the service. The clerk shall keep a book in which all such liens are to be recorded and shall receive a fee as required by subparagraph (f)(1)(A) of Code Section 15-6-77 for recording such liens.

(Ga. L. 1882-83, p. 131, § 1; Ga. L. 1884-85, p. 147, § 1; Civil Code 1895, § 2811; Civil Code 1910, § 3361; Code 1933, § 67-2202; Ga. L. 1981, p. 1396, § 5; Ga. L. 1992, p. 6, § 44.)

JUDICIAL DECISIONS

Foreclosure of lien on mare. - Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56 to colt possessors in a tortious interference with a contract claim by a horse trainer, wherein the trainer alleged that the trainer had a contract to keep the recently born colt in exchange for continued services to the mare's owner; the court found that there was no showing that the possessors were aware of a contract regarding the ownership of the colt, the possessors had followed the necessary procedures for filing a financing statement under O.C.G.A. § 11-9-501 et seq., they had allegedly foreclosed on their lien on the mare by the time that they became aware of the trainer's claim, pursuant to O.C.G.A. § 44-14-490 , and the trainer did not record a lien against the colt pursuant to O.C.G.A. § 44-14-511 . Medlin v. Morganstern, 268 Ga. App. 116 , 601 S.E.2d 359 (2004).

Owner has lien, not title. - The owner of a stallion or jack does not obtain title to the get thereof, for the service of the animal, but has merely a lien thereon. Strickland v. Smith, 17 Ga. App. 505 , 87 S.E. 718 (1916).

RESEARCH REFERENCES

Am. Jur. 2d. - 4 Am. Jur. 2d, Animals, § 89.

C.J.S. - 3A C.J.S., Animals, § 35.

ALR. - Priority of lien of sales or consumers' tax, 136 A.L.R. 1015 .

44-14-512. Lien for hauling lumber, stocks, or logs.

Any person hauling stocks, logs, or lumber for another person shall have a lien against the personalty so hauled by him to the extent of the amount of the indebtedness, if by contract, and to the extent of the value of the services so rendered, if the price to be paid for the hauling is not agreed upon.

(Ga. L. 1901, p. 80, § 1; Civil Code 1910, § 3359; Code 1933, § 67-2203.)

JUDICIAL DECISIONS

Lien under O.C.G.A. § 44-14-512 does not arise unless the employer owns the logs. Williams v. Herrington, 12 Ga. App. 76 , 76 S.E. 757 (1912).

Lien stands against beneficiary with notice. - The lien under O.C.G.A. § 44-14-512 cannot be defeated by one who has knowledge of the performance of the labor and who accepts the benefit thereof, otherwise than by proof that the lien was waived or has been discharged by payment. Sattes & Wimer Lumber Co. v. Hales, 11 Ga. App. 569 , 75 S.E. 898 (1912).

Lien against bona fide purchaser without notice. - The lien of a laborer upon logs hauled by the laborer for another does not exist against a bona fide purchaser without notice of the lien, until it is reduced to execution and levy. Williams v. Herrington, 12 Ga. App. 76 , 76 S.E. 757 (1912).

RESEARCH REFERENCES

Am. Jur. 2d. - 52 Am. Jur. 2d, Logs and Timber, § 87 et seq.

17 Am. Jur. Pleading and Practice Forms, Logs and Timber, § 43.

C.J.S. - 54 C.J.S., Logs and Logging, § 31 et seq.

ALR. - Sale of standing timber as affecting judgment or other lien upon the land, 122 A.L.R. 517 .

44-14-513. Liens in favor of planing mills and similiar establishments.

Proprietors of planing mills and other similar establishments shall have the same lien as provided in Code Section 44-14-363 for work done on material furnished by others; and, when they furnish material, they shall have the same liens provided for in Code Section 44-14-361 for materialmen. Proprietors of sawmills, when furnishing material for the improvement of real estate to purchasers from them for that purpose, shall be entitled to the lien provided for in Code Section 44-14-361, said lien to be governed by the rules laid down in Code Section 44-14-361 when the same are applicable.

(Ga. L. 1873, p. 42, § 10; Code 1873, § 1983; Code 1882, § 1983; Civil Code 1895, § 2807; Civil Code 1910, § 3356; Code 1933, § 67-2204.)

JUDICIAL DECISIONS

Sawmill is within meaning of words "other similar establishments." Newman v. Cash, 47 Ga. App. 39 , 169 S.E. 520 (1933).

What constitutes retention. - Assertion of a lien by retention of the property, under O.C.G.A. § 44-14-513 , is not shown where lumber is hauled from the plaintiff's sawmill and placed on the right of way of the railroad for the defendant. Daniel v. Blackwell, 30 Ga. 786 , 119 S.E. 447 (1923).

Sawmill has lien on product. - The proprietor of a sawmill as well as a planing mill has a lien under O.C.G.A. § 44-14-513 on the product of the mill for work done on material furnished by others. Murphey v. McGough, 105 Ga. 816 , 31 S.E. 757 (1898).

Completion of contract necessary for lien. - The proprietor of a sawmill who makes a contract to saw the lumber of another, and substantially complies with the contract, is entitled to a lien, but not otherwise. Hawkins v. Chambliss, 116 Ga. 813 , 43 S.E. 55 (1902).

Lien procedures owner must follow. - In order for the proprietor of a sawmill to acquire a lien upon the lumber sawed under a contract with the owner of the lumber, after the lumber sawed has been surrendered to the owner thereof, it is necessary for the proprietor to file and record a lien within ten days from the time of the completion of the work. Richardson v. Mallory, 13 Ga. App. 496 , 79 S.E. 362 (1913); Jones v. Newsome, 27 Ga. App. 386 , 108 S.E. 558 (1921).

Jurisdiction of city court to foreclose lien. - A city court has jurisdiction to foreclose a lien in favor of the proprietor of a sawmill on the product of the mill, for work done on material furnished by another, at least where the principal of the amount claimed does not exceed the jurisdiction of the county court. Chambliss v. Hawkins, 123 Ga. 361 , 51 S.E. 337 (1905).

Cited in Young v. Alford, 36 Ga. App. 708 , 137 S.E. 914 (1927).

44-14-514. Liens of laborers at mills and similar establishments.

Laborers in mills and other establishments mentioned in Code Section 44-14-513 shall have the same lien as is provided for laborers in Code Sections 44-14-380 and 44-14-381.

(Ga. L. 1873, p. 42, § 11; Code 1873, § 1984; Code 1882, § 1984; Civil Code 1895, § 2808; Civil Code 1910, § 3357; Code 1933, § 67-2205.)

JUDICIAL DECISIONS

Sawmills treated as personalty. - All sawmills, whether they be in fact fixtures or not, are treated as personalty under O.C.G.A. § 44-14-514 . Empire Lumber Co. v. Kiser & Co., 91 Ga. 643 , 17 S.E. 972 (1893).

Plaintiff in execution has burden of proof. - Possession by the lienholder is proper, and this being true, and if there is no contradiction thereof by the claimant, the plaintiff in execution carries the burden of proof to show either title or possession of defendant in execution. Jones v. Major, 83 Ga. App. 78 , 62 S.E.2d 729 (1950).

Enforcement by laborer at sawmill. - A laborer employed about a sawmill with the knowledge of the owner of lumber may enforce a lien under O.C.G.A. § 44-14-514 against the lumber although the laborer is employed by the proprietor of the sawmill. McCook v. Brown, 28 Ga. App. 525 , 112 S.E. 151 (1922).

No lien where owner rents facilities and labor to another. - The proprietor of a sawmill who contracts to saw timber and to furnish for that purpose a mill and a fireman at a stipulated price per day, such price to cover the rent of the mill as well as the proprietor's own labor and the labor of the fireman, does not acquire, a lien under O.C.G.A. § 44-14-514 . Jones v. Newsome, 27 Ga. App. 386 , 108 S.E. 558 (1921).

44-14-515. Liens for articles furnished to sawmills; priorities.

All persons furnishing sawmills with timber, logs, provisions, or any other thing necessary to carry on the work of sawmills shall have liens on the mills and their products, which liens shall, as between themselves, rank according to date, and the date of each shall be from the time when the debt was created. The liens shall be superior to all liens except liens for taxes; liens for labor as provided for in Code Sections 44-14-380, 44-14-381, and 44-14-514; and all general liens of which they have actual notice before their debts were created.

(Ga. L. 1873, p. 42, § 12; Code 1873, § 1985; Code 1882, § 1985; Civil Code 1895, § 2809; Civil Code 1910, § 3358; Code 1933, § 67-2206.)

JUDICIAL DECISIONS

O.C.G.A. § 44-14-515 is in derogation of the common law, and therefore is to be strictly construed. Joseph Hull & Co. v. Anderson Lumber Co., 17 Ga. App. 40 , 86 S.E. 257 (1915).

Lien unaffected by employment of laborers to do work. - O.C.G.A. § 44-14-515 creates a lien against property of the kind specified in it, although the person claiming the lien may have employed laborers to do the actual physical work incident to the hauling. Bruton & Wade v. Beasley, 135 Ga. 412 , 69 S.E. 561 (1910).

Sawmill as personalty. - All sawmills, whether they be in fact fixtures or not, are treated as personalty under O.C.G.A. § 44-14-515 . Empire Lumber Co. v. Kiser & Co., 91 Ga. 643 , 17 S.E. 972 (1893).

Sash and door factory is not a sawmill within O.C.G.A. § 44-14-515 . In re Gosch, 121 F. 604 (S.D. Ga. 1903).

Parts of mill included in definition. - The word "mill," comprehends all engines, boilers, machinery of every kind, and all hardware, implements, tools, etc., connected with and used, or proper for use, in the mill establishment. Empire Lumber Co. v. Kiser & Co., 91 Ga. 643 , 17 S.E. 972 (1893).

"Mill" does not include detached personalty. - O.C.G.A. § 44-14-515 does not provide for a lien on any property except sawmills and their products. The word sawmill "does not include any detached personalty such as vehicles, draft animals, etc." Empire Lumber Co. v. Kiser & Co., 91 Ga. 643 , 17 S.E. 972 (1893); Joseph Hull & Co. v. Anderson Lumber Co., 17 Ga. App. 40 , 86 S.E. 257 (1915).

Provider of feed for mill mules entitled to lien. - One who furnishes a sawmill with corn, oats, hay, bran, etc., with which to feed the mules of the owner of the mill used in carrying on the work thereof, has a lien under O.C.G.A. § 44-14-515 . Empire Lumber Co. v. Kiser & Co., 91 Ga. 643 , 17 S.E. 972 (1893).

And provider of oil, but not of tools. - One who furnishes tools, etc., not ejusdem generis with timber, logs, and provisions is not entitled to a lien under O.C.G.A. § 44-14-515 , but oil is included in the word provisions. Balkcom v. Empire Lumber Co., 91 Ga. 651 , 17 S.E. 1020 , 44 Am. St. R. 58 (1893); Filer & Stowell Co. v. Empire Lumber Co., 91 Ga. 657 , 18 S.E. 359 (1893).

Possessor of land under bond for title who furnishes sawmill with logs cut from the land may foreclose the lien; and the fact that the owner of the sawmill has paid the purchase price of the logs to the holder of the legal title to the land, affords no defense to the foreclosure of the lien. Guin v. Hilton & Dodge Lumber Co., 6 Ga. App. 484 , 65 S.E. 330 (1909).

Seller of uncut trees not entitled to lien. - Lien given under O.C.G.A. § 44-14-515 to persons who furnish sawmills with "timber and logs" applies to such timber and logs as have been severed from the soil by human agency. It is not intended by O.C.G.A. § 44-14-515 to give a lien to the vendor of standing trees, though sold to be severed from the realty by the purchaser and converted into timber or logs for the mill. Walraven v. DeFoor, 89 Ga. App. 479 , 79 S.E.2d 585 (1954).

It is not intended by O.C.G.A. § 44-14-515 to give a lien to the vendor of standing trees, though sold to be severed from the realty by the purchaser and converted into timber or logs for the mill. Giles v. Gano, 102 Ga. 593 , 27 S.E. 730 (1897); Balkcom v. Empire Lumber Co., 91 Ga. 651 , 17 S.E. 1020 , 44 Am. St. R. 58 (1898); Loud & Beugnot v. Pritchett & Co., 104 Ga. 648 , 30 S.E. 870 (1898); Ray v. Schmidt & Co., 7 Ga. App. 380 , 66 S.E. 1035 (1910).

Lien provided for by O.C.G.A. § 44-14-515 applies to timber or logs that have been severed from the soil, and does not apply to standing trees, although sold to the purchaser to be severed from the soil and converted into lumber for the sawmill. Davis v. Cox, 13 Ga. App. 509 , 79 S.E. 383 (1913).

No lien for cutter and hauler of miller's logs. - There is no lien under O.C.G.A. § 44-14-515 for cutting timber belonging to the mill owner and for hauling and delivering the logs at the mill, this work not being embraced in the terms "furnishing sawmills with timber, logs," etc. Balkcom v. Empire Lumber Co., 91 Ga. 651 , 17 S.E. 1020 , 44 Am. St. R. 58 (1893).

One who merely cuts and hauls logs to a sawmill, and claims no title to such timber, cannot enforce a lien for furnishing supplies to a sawmill. Trapp v. Watters, 6 Ga. App. 480 , 65 S.E. 306 (1909); Cook v. Bowden, 32 Ga. App. 500 , 124 S.E. 61 (1924).

No lien for furnisher of family supplies. - No lien arises against a sawmill from furnishing to the owner of the mill family supplies. Slappey v. Charles, 7 Ga. App. 796 , 68 S.E. 308 (1910).

No lien for money lender. - Creditors furnishing money to sawmills have no lien thereon under O.C.G.A. § 44-14-515 . Dart v. Mayhew & Co., 60 Ga. 104 (1878); Slappey v. Charles, 7 Ga. App. 796 , 68 S.E. 308 (1910).

Lien does not attach against third party to supply contract. - Lien under O.C.G.A. § 44-14-515 will not attach as against the title of a third person who is an entire stranger to the contract under which the supplies are furnished. McCrimmon v. National Bank, 25 Ga. App. 825 , 105 S.E. 44 (1920); Tallent v. Hunter, 32 Ga. App. 656 , 124 S.E. 361 (1924).

Supply lien does not defeat recorded contract of sale. - Claim based on a duly executed and recorded contract of sale reserving title in the claimant cannot be defeated by a lien for necessary supplies furnished a sawmill under O.C.G.A. § 44-14-515 . Tift & Peed v. Moultrie Lumber Co., 1 Ga. App. 608 , 57 S.E. 1053 (1907).

Absent notice, purchase-money mortgage not superior to lien for supplies. - The lien of a mortgage given to secure the purchase-money of a sawmill is not one of the liens enumerated in O.C.G.A. § 44-14-515 as superior to the lien for articles furnished sawmills, unless the holder of the latter lien has actual notice of the existence of the same before the holder's debt is created. Bradley v. Cassels, 117 Ga. 517 , 43 S.E. 857 (1903).

Agency not created by payments from timber owner to keep mill from closing. - Direct periodic payments by the owner of the timber of wages to the laborers at the sawmill made to prevent a shutting down of the mill and advances in money made to the person operating the mill are not such acts as would authorize any one dealing with the person operating the mill to infer that the latter was acting as agent for the owner of the lumber. Tallent v. Hunter, 32 Ga. App. 656 , 124 S.E. 361 (1924).

Owner estopped by representations that supplies are for mill. - When the owner in giving orders for articles represents to the seller that they are wanted as supplies for the owner's sawmill the owner will be estopped by the representation, and cannot set up in resistance to the lien claimed that some of the provisions were not in fact so applied. Empire Lumber Co. v. Kiser & Co., 91 Ga. 643 , 17 S.E. 972 (1893).

Sufficiency of allegations in affidavit to foreclose lien. - An affidavit to foreclose a lien, under O.C.G.A. § 44-14-515 which alleged that provisions, etc., were furnished "to the sawmill of" B. instead of to B., is sufficient. Bennett & Co. v. Gray, 82 Ga. 592 , 9 S.E. 469 (1889).

Plaintiff in execution must show defendant in execution has title or possession. - Possession by the lienholder is proper, and there is no contradiction thereof by the claimant, the plaintiff in execution carries the burden of proof to show either title or possession of defendant in execution. Jones v. Major, 83 Ga. App. 78 , 62 S.E.2d 729 (1950).

RESEARCH REFERENCES

ALR. - Priority of lien of sales or consumers' tax, 136 A.L.R. 1015 .

44-14-516. Liens on merchandise because of bad checks or stop payment orders.

  1. For the purposes of this Code section, the term "bad check" means a check drawn for payment of money on any bank or other depository in exchange for merchandise or for services rendered on merchandise when:
    1. The drawer had no account with the drawee at the time the check was drawn;
    2. Payment was refused by the drawee for lack of funds in the account of the drawer upon presentation within 30 days after delivery and the drawer or someone for him shall not have paid the payee the amount due thereon within ten days after receiving written notice mailed by certified or registered mail or statutory overnight delivery that payment was refused upon such instrument; or
    3. Notice mailed by certified or registered mail or statutory overnight delivery as provided in paragraph (2) of this subsection is returned undelivered to the sender when such notice was mailed within a reasonable time of dishonor to the address printed on the check or given by the drawer at the time of issuance of the check.
  2. The payee of any bad check written in full or partial payment for merchandise or for services rendered on merchandise, delivered at the time of the acceptance of the check, shall have a lien for the face amount of the check on the merchandise so delivered. Such liens shall occupy the same position as mechanics' liens and shall be perfected in the same manner as mechanics' liens.
  3. The payee of any check written in full or partial payment for merchandise or for services rendered on merchandise, delivered at the time of the acceptance of the check and on which the payer subsequently issues a stop payment order, shall have a lien for the face amount of the check on the merchandise so delivered if the stop payment order was issued within five days after the delivery of the merchandise. Such liens shall occupy the same position as mechanics' liens and shall be perfected in the same manner as mechanics' liens.

    (Ga. L. 1972, p. 342, § 1; Ga. L. 1982, p. 3, § 44; Ga. L. 1983, p. 3, § 33; Ga. L. 1989, p. 805, § 1; Ga. L. 2000, p. 1589, § 4.)

The 2000 amendment, effective July 1, 2000, substituted "registered mail or statutory overnight delivery" for "registered mail" in paragraphs (a)(2) and (a)(3).

Cross references. - Liability of parties on negotiable instruments generally, § 11-3-401 et seq.

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

44-14-517. Filing liens imposed under federal Superfund Amendments and Reauthorization Act of 1986.

Pursuant to the authority granted to states by Section 107 of Title I of the federal Superfund Amendments and Reauthorization Act of 1986, P.L. 99-499, 100 STAT. 1613, 1630, all liens imposed pursuant to such federal act shall be filed in the office of the clerk of the superior court of the county in this state in which the real property subject to the lien is located and shall be filed in the same manner as deeds are recorded.

(Code 1981, § 44-14-517 , enacted by Ga. L. 1987, p. 1023, § 7; Ga. L. 1988, p. 13, § 44.)

44-14-518. Liens on aircraft or aircraft engines for labor and materials and for contracts of indemnity.

  1. Any person engaged in repair, storage, servicing, or furnishing supplies or accessories for aircraft or aircraft engines or providing contracts of indemnity for aircraft shall have a lien on such aircraft or aircraft engines for any reasonable charges therefor, including charges for labor, for the use of tools, machinery, and equipment, and for all parts, accessories, materials, oils, lubricants, storage fees, earned premiums, and other supplies furnished in connection therewith. Such lien shall be superior to all liens except liens for taxes, subject to compliance with subsection (b) of this Code section.
  2. Such lien may be asserted by the retention of the aircraft or aircraft engines, and if such lien is asserted by retention of the aircraft or aircraft engines, the lienor shall not be required to surrender the aircraft or the aircraft engine to the holder of a subordinate security interest or lien. When possession of the aircraft or aircraft engine is surrendered by the person claiming the lien, the person claiming the lien shall, within 90 days after such repair, storage, service, supplies, accessories, or contracts of indemnity are furnished:
    1. Provide written notice, subscribed and sworn to by such person or by some person in his or her behalf, giving a just and true account of the demands claimed to be due, with all just credits and the name of the person to whom the repair, storage, service, supplies, accessories, or contracts of indemnity were furnished, the name of the owner of the aircraft or aircraft engines, if known, and a description of the aircraft sufficient for identification, by personal delivery, certified mail, or statutory overnight delivery, return receipt requested, to the following:
      1. The registered owner and others holding recorded interests in the aircraft or aircraft engines at the addresses listed in the Federal Aviation Administration's Aircraft Registry; or
      2. If not a United States registered aircraft or if the aircraft engine is not subject to recordation by the Federal Aviation Administration, to the owner, if known, at his or her last known address, or, if not known, to the person to whom the repair, storage, service, supplies, accessories, or contracts of indemnity were furnished; and
    2. File such written notice for recording in the Federal Aviation Administration's Aircraft Registry in the manner prescribed by federal law under 49 U.S.C. Section 44107 for the filing of such liens for recordation, or, if not a United States registered aircraft or if the aircraft engine is not subject to recordation by the Federal Aviation Administration, with the Georgia Superior Court Clerks' Cooperative Authority or the appropriate recording authority, established by applicable state law, international treaty, or foreign law, in the manner prescribed for the filing of such liens for recordation. (Code 1981, § 44-14-518 , enacted by Ga. L. 1994, p. 798, § 1; Ga. L. 2010, p. 776, § 2/HB 1147.)

The 2010 amendment, effective July 1, 2010, rewrote this Code section. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2010, p. 776, § 3, not codified by the General Assembly, provides that the amendment of this Code section shall apply to all liens filed on or after July 1, 2010.

PART 11 F ORECLOSURE OF LIENS ON REALTY

RESEARCH REFERENCES

ALR. - Oil, gas, or other mineral rights in land, apart from ownership of soil, as subject as real estate to lien of judgment against the owner of the mineral interest, 52 A.L.R. 135 .

Unaccepted tender as affecting lien of real estate mortgage, 93 A.L.R. 12 .

Enforceability of single mechanic's lien upon several parcels against less than the entire property liened, 68 A.L.R.3d 1300.

44-14-530. Manner of foreclosure; attachment of lien; proceeds of judicial sale; trial of claim; damages; effect of delivery of possessions.

  1. Liens on real property which are provided for in this chapter, other than mortgages, shall be foreclosed, when not otherwise provided for, by a compliance with his contract by the person claiming the lien and recording his claim and the commencement of an action therefor according to the provisions and requirements of Code Section 44-14-361.1. In declaring for such debt or claim, the claimant of the lien shall set forth his lien and the premise on which he claims it; and, if the lien is allowed, the verdict of the jury, if tried by a jury, or a decision of the court, if the parties consent to trial by the court without a jury, shall set it forth and the judgment and execution shall be awarded accordingly. All such executions shall, however, be subject to all prior encumbrances.
  2. If any real property on which there is a lien is sold by any process from the courts, the purchaser shall obtain the full title; and the lien shall attach to the proceeds of the sale upon a notice by the party claiming the lien to the officer to hold the money for that purpose until the next session of the superior court. If the claim of lien is disputed by either the plaintiff or the defendant in the process or decree on which the money was raised, an issue shall be ordered and tried as in other cases; and, if it is determined against the claimant, he shall pay such damages, not exceeding 20 percent, as the jury may assess, with interest from the date of the notice to retain, and costs.
  3. The delivery of possession by the person claiming the lien shall not affect his lien.

    (Ga. L. 1873, p. 42, § 17; Code 1873, § 1990; Code 1882, § 1990; Civil Code 1895, § 2815; Civil Code 1910, § 3365; Code 1933, § 67-2301; Ga. L. 1982, p. 1144, § 2; Ga. L. 1983, p. 1450, § 3.)

Editor's notes. - Ga. L. 1982, p. 1144, § 2, which was to have taken effect April 1, 1983, was repealed by Ga. L. 1983, p. 1450, § 4, effective March 31, 1983. However, the 1983 amendment incorporated the revisions contained in the 1982 Act.

JUDICIAL DECISIONS

For a discussion of the need for legislative action to enforce liens, see Lombard v. Trustees of Young Men's Library Ass'n Fund, 73 Ga. 322 (1884).

Lien laws are in derogation of the common law and must be strictly construed. Montford v. Cordell Lumber Co., 147 Ga. App. 720 , 250 S.E.2d 173 (1978).

Laborer also has common-law right to sue upon contract. - The remedy given by O.C.G.A. §§ 44-14-380 , 44-14-530 , and 44-14-550 is not exclusive, and does not deprive a laborer of common-law right to sue upon a contract, but is merely cumulative of that right. Jennings v. Lanham, 19 Ga. App. 79 , 90 S.E. 1038 (1916).

Function of foreclosure action. - The function of a foreclosure action is not to establish for the first time when and what materials were furnished for a particular job. It is not an action in personam, when the contractor is not a party. The purpose is merely to absolutely establish a special lien against the property involved, and no general verdict and judgment can be obtained therein against the owner. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).

Nature of actions by materialmen against contractors and owners. - The initial action by a materialman against the contractor is in personam, the foreclosure action against the owner is strictly in rem. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).

O.C.G.A. § 44-14-362 must be followed in commencing action on lien. - Where the plaintiff does not commence an action on its lien according to the provisions and requirements of O.C.G.A. § 44-14-361.1 , one of the conditions precedent to foreclosing a lien under O.C.G.A. § 44-14-530 is absent and the plaintiff cannot prevail. Ben O'Callaghan Co. v. Schmincke, 376 F. Supp. 1361 (N.D. Ga. 1974).

Mechanic's lien void if O.C.G.A. § 44-14-530 not strictly followed. - The procedure for asserting a lien on real estate for labor and materials by a mechanic is a statutory right and must be followed strictly to be made available, and when done otherwise, it wants legal sanction and is without legal effect. Peters v. Thompson, 114 Ga. App. 228 , 150 S.E.2d 842 (1966).

Denial of a builder's motion for partial summary judgment on a lien foreclosure claim was proper as a contract was a condition precedent to foreclosing a lien under O.C.G.A. § 44-14-530(a) and a fact issue remained as to whether there was a contract or that the parties assented to the contract. Dan J. Sheehan Co. v. Fairlawn on Jones Homeowners Ass'n, 312 Ga. App. 787 , 720 S.E.2d 259 (2011).

Section inapplicable unless property sold and lien transferred to proceeds. - O.C.G.A. § 44-14-530 has no application to the original foreclosure of the lien against the owner but only to cases where the property has been sold, the lien transferred to the proceeds, and the lien claimant files to claim to the proceeds. Bankston v. Smith, 134 Ga. App. 882 , 216 S.E.2d 634 (1975), rev'd on other grounds, 236 Ga. 92 , 222 S.E.2d 375 (1976).

Absent rule nisi, mortgage foreclosure action fails. - Where there is a total absence of a rule nisi in a mortgage foreclosure, the action fails, and the mere filing of the petition will not suffice to authorize the action to be treated as commenced and pending. York v. Edwards, 52 Ga. App. 388 , 183 S.E. 339 (1936).

Laborer need not describe property specifically. - That a laborer desires to claim a general lien on all the property of the employer and is unable to describe such property specifically, does not prevent the laborer from asserting a lien and enforcing it as such. The laborer need not do an impossible thing. Love v. Cox, 68 Ga. 269 (1881).

Laborer may enforce a lien on employer's personalty and realty in separate actions. Love v. Cox, 68 Ga. 269 (1881).

Where sale proceeds stand in lieu of property sold lienholders must assert lien against proceeds. - Where liens are being asserted against real estate, and the property is ordered sold by the trial judge, with the proviso that the funds shall stand in lieu of the real estate, neither of the lienholders may thereafter assert a lien against the real estate, but must proceed against the funds derived from such sale. Parker v. Cherokee Bldg. Supply Co., 207 Ga. 710 , 64 S.E.2d 51 (1951).

No affidavit is required to file or foreclose a lien against real estate. Southwire Co. v. Metal Equip. Co., 129 Ga. App. 49 , 198 S.E.2d 687 , cert. denied, 414 U.S. 1092, 94 S. Ct. 723 , 38 L. Ed. 2 d 550 (1973).

Laborer's lien must be under section not affidavit. - A laborer's lien upon realty can only be foreclosed by action under O.C.G.A. § 44-14-530 , not by affidavit. Allred v. Haile, 84 Ga. 570 , 10 S.E. 1095 (1890).

Foreclosure proceedings for condominium assessments distinct from other lien proceedings. - It is clear that the foreclosure proceedings set forth in O.C.G.A. § 44-3-109 are simplified, and distinct from the proceedings for the creation and enforcement of other types of liens. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135 , 253 S.E.2d 813 (1979).

Condominium foreclosure need not meet standards for mechanics' liens. - O.C.G.A. § 44-3-109 does not require procedural compliance with O.C.G.A. § 44-14-530 which provides for the enforcement of mechanics' liens. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135 , 253 S.E.2d 813 (1979).

Assessment foreclosure proceedings resemble other real property lien proceedings in superior court. - The sole requirements for creation of the lien for assessments are contained in O.C.G.A. § 44-3-109 , and it is only the actual foreclosure proceedings which must be in the same manner as other liens for the improvement of real property. Thus, the judgment and execution of the lien must be entered by the appropriate superior court. Propes v. Stonington Homeowners Ass'n, 149 Ga. App. 135 , 253 S.E.2d 813 (1979).

Proceeding to foreclose attorney's lien upon real property. - A proceeding to foreclose an attorney's lien upon real property is to be brought as is a proceeding to foreclose a mortgage upon land. The process is a rule nisi issued by the court, and not a process issued by the clerk as in ordinary cases. York v. Edwards, 52 Ga. App. 388 , 183 S.E. 339 (1936).

County court has jurisdiction to render a judgment foreclosing a mechanics' lien on realty where the amount is within its jurisdiction. Wheatley v. Blalock, 82 Ga. 406 , 9 S.E. 168 (1889).

Action enjoining foreclosure must be brought where defendant resides. - An action to enjoin a foreclosure under a power of sale must be brought in the county where the defendant resides. Nylen v. Barbaris, 232 Ga. 79 , 205 S.E.2d 303 (1974).

Any writing importing assertion of lien is sufficient notice. - Any writing importing an assertion of a lien, which comes to the hands of an officer at or before the sale, is a sufficient notice to hold up the money, if the purpose of a more regular and direct notice is accomplished. Loudon v. Coleman, 59 Ga. 653 (1877).

Correction of mere irregularities in process or service. - Where valid process has been issued with a suit setting out a cause of action, and there has been no sufficient service through no fault or laches of the plaintiff or plaintiff's attorney, the judge may by order provide for the correction of any mere irregularity in the process or service; and after the perfection of service, even though subsequent to the return term, such service will relate to the date of the filing of the petition, which will be treated as the time of commencement of the suit. York v. Edwards, 52 Ga. App. 388 , 183 S.E. 339 (1936).

Service of uncertified copy of rule nisi not void. - In the service of a rule nisi issued by the judge in proceedings to foreclose an attorney's lien on land, analogous to a rule nisi in mortgage foreclosure proceedings, the service of an ordinary copy instead of a certified copy of the rule nisi, especially when in effect so provided in the rule nisi, does not render the service and proceedings void. York v. Edwards, 52 Ga. App. 388 , 183 S.E. 339 (1936).

Service may be corrected. - Although service of a certified copy of the rule nisi is the better practice, the service of an uncertified copy is at most an irregularity, and if properly corrected when objected to, under an amendatory order taken during the return term of the original rule nisi requiring service of certified copies of the original rule nisi and the amendatory order, the amended proceedings are not subject to the motion to dismiss. The subsequent service relates back to the original petition when filed within the period of the statute of limitations, and the proceedings are not barred by the statute. York v. Edwards, 52 Ga. App. 388 , 183 S.E. 339 (1936).

Judgment where no jury must follow same requirements. - When in a proceeding under O.C.G.A. § 44-14-530 , the judge awards judgment without a jury, the judgment so awarded should contain all that the verdict, of which it is a substitute, should show. J.S. Schofield & Son v. Stout, Mills & Temple, 59 Ga. 537 (1877).

When judgment conclusive as to defendant's right to assert lien against property. - Where the court had jurisdiction of the parties and of the subject matter, and the issue was before the court as to whether or not the property should be sold, and the judgment directing the sale of proceed, with the funds to stand in lieu of the property, has not been reversed, vacated, or set aside, that judgment is conclusive on the right of the defendant to thereafter undertake to assert a lien against the property. Parker v. Cherokee Bldg. Supply Co., 207 Ga. 710 , 64 S.E.2d 51 (1951).

Materialman's lien inchoate until judgment perfects it. - The lien provided for in favor of a materialman is not absolute, but must be completed, made good, or perfected in accordance with the provisions of O.C.G.A. § 44-14-361.1 . It is only inchoate or incipient until a judgment finally perfects it. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330 , 18 S.E.2d 61 (1941).

Failure to perfect voids lien. - Before the rendition of a judgment in favor of a materialman's lien claimant the claimed lien is only inchoate, and the failure of the claimant to perfect the lien as provided by O.C.G.A. § 44-14-361.1 vitiates it, not only as against third persons, but as against the claimant. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330 , 18 S.E.2d 61 (1941).

Verdict creating lien is prerequisite to judgment and execution thereon. - O.C.G.A. § 44-14-530 requires that the jury specifically render a verdict creating a lien before judgment and execution may be awarded thereon. Montford v. Cordell Lumber Co., 147 Ga. App. 720 , 250 S.E.2d 173 (1978).

Judgment void if no jury verdict. - Where there appears in the record no jury verdict setting forth the claim of lien, there is nothing upon which judgment and execution may be awarded accordingly. Therefore, the judgment of a trial court in which a lien is created is void. Montford v. Cordell Lumber Co., 147 Ga. App. 720 , 250 S.E.2d 173 (1978).

Setting aside void judgment is not error. - Where no proof was offered in support of the lien and no verdict of the jury was had thereon, there is nothing upon which the judgment and execution could be "awarded accordingly." Subsequent judgment and execution are, respectively, illegally entered and issued, and the trial court does not err in setting aside the judgment and directing the clerk to mark the execution issued thereon canceled of record. Peters v. Thompson, 114 Ga. App. 228 , 150 S.E.2d 842 (1966).

Verdict cannot designate amount if not specified in petition. - Where a petition contains only a prayer that a lien be set up and established, a verdict finding a designated amount in the plaintiff's favor is unauthorized. Ryals v. Smith, 102 Ga. 768 , 29 S.E. 968 (1898). But see Spirides v. Victory Lumber Co., 76 Ga. App. 78 , 45 S.E.2d 65 (1947).

Where verdict gives full amount claimed, jury presumably finds for lien. - While it is true that the purpose of a foreclosure suit is to establish a special lien against the property involved, and no general verdict and judgment can be obtained therein against the owner, the better practice in such cases is for the verdict to show a distinct finding by the jury that the plaintiff is entitled to a lien and to a given amount. But where, in such a proceeding, the verdict was for the full amount claimed, it could have no other construction than that the jury intended to find in favor of the lien claimed. Spirides v. Victory Lumber Co., 76 Ga. App. 78 , 45 S.E.2d 65 (1947). But see Ryals v. Smith, 102 Ga. 768 , 29 S.E. 968 (1898).

Judge may order sale to proceed although judgment vacated. - Although property is advertised for sale under a judgment which is later vacated and set aside, the trial judge has authority to order that the sale proceed as advertised and that the funds be held in lieu of the property. Parker v. Cherokee Bldg. Supply Co., 207 Ga. 710 , 64 S.E.2d 51 (1951).

Purchaser at such sale obtains full title. Parker v. Cherokee Bldg. Supply Co., 207 Ga. 710 , 64 S.E.2d 51 (1951).

Dormancy of judgment on materialman's lien. - A judgment perfecting a claimed lien of a materialman is within O.C.G.A. § 9-12-60 , providing that a judgment shall become dormant under circumstances therein named. Carter-Moss Lumber Co. v. Short, 66 Ga. App. 330 , 18 S.E.2d 61 (1941).

Trial court erred in granting summary judgment to the lumber company in the company's suit against the property owner to foreclose on a materialman's lien to recover the price of materials sold to the contractor and used to construct the owner's home because the dormancy statute barred foreclosure on the lien more than seven years after the lien was perfected because, when the lumber company failed to take action on the default judgment against the contractor, and the judgment became unenforceable at the end of seven years, the lien was no longer valid and there was nothing to foreclose upon. Lang v. Brand-Vaughan Lumber Co., Inc., 339 Ga. App. 710 , 792 S.E.2d 461 (2016).

Cited in Farmers' Loan & Trust Co. v. Candler, 87 Ga. 241 , 13 S.E. 560 (1891); East Atlanta Bank v. Limbert, 191 Ga. 486 , 12 S.E.2d 865 (1940); Davis v. Akins, 85 Ga. App. 364 , 69 S.E.2d 791 (1952); Rogers v. Johnson, 116 Ga. App. 295 , 157 S.E.2d 48 (1967); Adair Mtg. Co. v. Allied Concrete Enters., Inc., 241 Ga. 121 , 243 S.E.2d 888 (1978); Country Greens Village One Owner's Ass'n v. Meyers, 158 Ga. App. 609 , 281 S.E.2d 346 (1981); Murray v. Chulak, 250 Ga. 765 , 300 S.E.2d 493 (1983); Caldwell v. Loeb, 742 F. Supp. 650 (N.D. Ga. 1990).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, § 79 et seq.

C.J.S. - 53 C.J.S., Liens, § 29 et seq.

ALR. - Right of purchaser at foreclosure sale to have taxes paid out of proceeds, 43 A.L.R. 100 .

Vendor's remedy by foreclosure of contract for sale of real property, 77 A.L.R. 270 .

Interest subject to a homestead right in others as subject to lien of judgment or to attachment or execution, 122 A.L.R. 1150 .

Constitutional validity of statute providing for in rem or summary foreclosure of delinquent tax liens on real property, 160 A.L.R. 1026 .

Demand for or submission to arbitration as affecting enforcement of mechanic's lien, 73 A.L.R.3d 1042.

Judgment lien or levy of execution on one joint tenant's share or interest as severing joint tenancy, 51 A.L.R.4th 906.

44-14-531. Right of transferee to foreclose.

Upon the simple transfer or assignment of any rent note, mortgage note, or other such evidence of debt as mentioned in Code Sections 44-14-325 and 44-14-326, the person to whom the same may be transferred or assigned shall, without more, have full power and authority to foreclose or enforce the evidences of debt in his own name.

(Ga. L. 1899, p. 90, § 3; Civil Code 1910, § 3347; Code 1933, § 67-2302.)

JUDICIAL DECISIONS

Rights of assignee of security deed. - Where one becomes owner of title conveyed by security deed and of indebtedness secured thereby, and power of sale not expressed in said deed as limited to grantee, but having been conferred upon grantee or "assigns," the owner is entitled to exercise the power to same extent as grantee. Universal Chain Theatrical Enters., Inc. v. Oldknow, 176 Ga. 492 , 168 S.E. 239 (1933).

A transferee of rent note may foreclose landlord's lien by distress. Beall v. Patterson, 146 Ga. 233 , 91 S.E. 71 (1916); International Agric. Corp. v. Powell, 31 Ga. App. 348 , 120 S.E. 668 (1923).

How holder of mortgage note may foreclose. - The simple endorsement of the name of the payee in a mortgage note payable to order, on the back thereof, gives the holder for value the right to foreclose in own name. Setze v. First Nat'l Bank, 140 Ga. 603 , 79 S.E. 540 (1913).

No need to charge section. - It is not error for the trial court to fail to charge the substance of O.C.G.A. § 44-14-531 in the absence of a request. First Nat'l Bank v. Vinson, 102 Ga. App. 828 , 118 S.E.2d 225 (1960).

Cited in Redwine v. Frizzell, 184 Ga. 230 , 190 S.E. 789 (1937).

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Assignments, § 50.

C.J.S. - 6A C.J.S., Assignments, § 76.

ALR. - Interest subject to a homestead right in others as subject to lien of judgment or to attachment or execution, 122 A.L.R. 1150 .

PART 12 F ORECLOSURE OF LIENS ON PERSONALTY

44-14-550. Manner of foreclosure; demand; forfeiture of lien; affidavit; notice; petition for and conduct of probable cause hearing; possession; bond; petition for full hearing; authorization of foreclosure; damages; limitation.

Liens on personal property, other than mortgages, when not otherwise provided for, shall be foreclosed in accordance with the following provisions:

  1. There shall be a demand on the owner, agent, or lessee of the property for payment and a refusal to pay; and such demand and refusal shall be averred. If, however, no such demand can be made on account of the absence from the county of his residence of the party creating the lien on personal property, by reason of his moving or absconding from the county of his residence, or other acts which show an intention to be absent from the county so as to defeat the demand, the party holding the lien shall not be obliged to make a demand but may foreclose without such demand; provided, however, that, if possession is retained or the lien recorded, the owner-debtor may contest the validity of the amount claimed to be due by making written demand upon the lienholder. If, upon receipt of the demand, the lienholder fails to institute foreclosure proceedings within ten days, where possession has been retained, or within 30 days, where possession has been surrendered, the lien is forfeited;
  2. A person asserting the lien, either for himself or as a guardian, administrator, executor, or trustee, may move to foreclose the lien by making an affidavit to a court of competent jurisdiction showing all the facts necessary to constitute a lien and the amount claimed to be due. The plaintiff shall verify the statement by oath or affirmation and shall affix his signature thereto;
  3. Upon the affidavit being filed, the clerk or a judge of the court shall serve notice upon the owner, the recorded lienholders, and the lessee of the property of a right to a hearing to determine if reasonable cause exists to believe that a valid debt exists. The hearing must be petitioned for within five days after the receipt of the notice; and, if no petition for the hearing is filed within the time allowed, the lien will conclusively be deemed a valid one and foreclosure thereof allowed;
  4. If a petition for a hearing is filed within the time allowed, the court shall set the hearing within ten days of the filing of the petition. If at the probable cause hearing the court determines that reasonable cause exists to believe that a valid debt exists, the person asserting the lien shall be given possession of the property or the court shall obtain possession of the property as ordered by the court. The defendant may retain possession of the property by giving bond and security for the amount determined to be due and for costs of the action;
  5. Within five days of the probable cause hearing, the defendant must petition the court for a full hearing on the validity of the debt if a further determination of the validity of the debt is desired. If no such petition is filed, the lien on the amount determined reasonably due shall conclusively be deemed a valid one and foreclosure thereof allowed. If such a petition is filed, the court shall set a full hearing thereon within 30 days of the filing of the petition. Upon the filing of the petition by the defendant, neither the prosecuting lienholder nor the court may sell the property, although possession of the property may be retained;
  6. If after a full hearing the court finds that a valid debt exists, the court shall authorize the foreclosure upon and the sale of the property subject to the lien to satisfy the debt if the debt is not otherwise immediately paid;
  7. If the court finds the actions of the person asserting the lien in retaining or seeking possession of the property were not taken in good faith, the court in its discretion may award damages to the owner, agent, or lessee due to the deprivation of the use of the property; and
  8. Any proceeding to foreclose a lien on personal property must be instituted within one year from the time the lien is recorded or is asserted by retention.

    (Ga. L. 1980, p. 822, § 1.)

Law reviews. - For note discussing the Motor Vehicle Certificate of Title Act (Ch. 40-8) and its impact, see 13 Mercer L. Rev. 258 (1961).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Editor's notes. - In light of the similarity of the provisions, decisions under former Code 1873, § 1991; former Code 1882, § 1991; former Civil Code 1895, § 2816; former Civil Code 1910, § 3366; former Code 1933, § 67-2401, are included in the annotations for this Code section.

1. General Applicability

Parties cannot agree to forego foreclosure at expense of other creditors. - The law does not enable the parties to dispense with foreclosure, and settle up in their own way to the prejudice of other lienors. Stallings v. Harrold, Johnson & Co., 60 Ga. 478 (1878) (decided under former Code 1873, § 1991).

General liens for supplies Code 1910, § 3348 (see O.C.G.A. § 44-14-340 ) are foreclosed under this section, and when so foreclosed, are equivalent to common-law distress. Turner v. Sitton, 160 Ga. 215 , 127 S.E. 847 (1925) (decided under former Code 1910, § 3366).

Liens for rent are enforced by distress and not under this section. Colclough & Co. v. Mathis, 79 Ga. 394 , 4 S.E. 762 (1887) (decided under former Code 1882, § 1991).

Set-offs unrelated to transaction not allowable. - In a proceeding under this section, matters in the nature of a set-off, not arising out of the transaction on which the lien is based should be excluded. White v. Steed, 25 Ga. App. 353 , 103 S.E. 172 , cert. denied, 25 Ga. App. 841 (1920) (decided under former Code 1910, § 3366).

Garnishment proceedings cannot be predicated upon the foreclosure of a lien under this section. Weston v. Beverly & McCollum, 10 Ga. App. 261 , 73 S.E. 404 (1912); Lane v. Brinson, 12 Ga. App. 760 , 78 S.E. 725 (1913) (decided under former Code 1910, § 3366).

Railway sale of stored property must conform to section. - Where a railway company has a claim for storage charges only, it is a bailee for hire, and any sale by the railway company of the property stored, for the purpose of obtaining pay for its storage charges, must be in conformity with the provisions of this section. Seaboard A.L. Ry. v. Roberds, 43 Ga. App. 558 , 159 S.E. 742 (1931) (decided under former Code 1910, § 3366).

When corporation cannot execute replevy bond in laborer's lien foreclosure. - A corporation has no legal authority to execute a replevy bond in a laborer's lien foreclosure under this section brought against the principal on the bond, where such a contract of suretyship is not authorized by the corporate charter and the foreclosure does not concern the rights or business of the corporation. Hill v. Daniel, 52 Ga. App. 427 , 183 S.E. 662 (1936) (decided under former Code 1933, § 67-2401).

Landlord's lien for supplies supercedes unforeclosed laborer's lien. - In contest between unforeclosed laborer's lien and a duly foreclosed landlord's lien for supplies, the latter is entitled to payment in full, without regard to rank of the respective liens. In re Empire Granite Co., 42 F. Supp. 450 (M.D. Ga. 1942) (decided under former Code 1933, § 67-2401).

Laborer may also sue on contract at common law. - The remedy given by this section and Code 1910, §§ 3334 and 3365 (see O.C.G.A. §§ 44-14-380 , 44-14-530 ) is not exclusive, and does not deprive a laborer of his common-law right to sue upon a contract, but is merely cumulative of that right. Jennings v. Lanham, 19 Ga. App. 79 , 90 S.E. 1038 (1916) (decided under former Code 1910, § 3366).

All sawmills, whether they are in fact fixtures or not, are treated as personalty under this section. Empire Lumber Co. v. Kiser & Co., 91 Ga. 643 , 17 S.E. 972 (1893) (decided under former Code 1882, § 1991).

Contractor for planting and picking cotton could assert lien. - Based on evidence that an independent contractor was hired to plant and pick cotton - not to oversee others while they completed the contract - the contractor met the burden under O.C.G.A. § 44-14-550 of showing reasonable cause that a valid debt existed to support the contractor's special lien. Slappey v. Slappey, 296 Ga. App. 773 , 676 S.E.2d 283 (2009).

2. Demand

Demand for payment made on the day when payment is due is sufficient, as being made after the debt becomes due. Favors v. Johnson, 79 Ga. 553 , 4 S.E. 925 (1887) (decided under former Code 1882, § 1991).

Affidavit must show demand made when payment due. - It is necessary that the affidavit of foreclosure should show affirmatively that demand for payment was made after the debt became due. Anderson v. Beard, 54 Ga. 137 (1875); Central R.R. & Banking Co. v. Sawyer, 78 Ga. 784 , 3 S.E. 629 (1887) (decided under former Code 1873, § 1991; Code 1882, § 1991).

Depositary for hire must allege demand when payment due. - In order for a depositary for hire (Civil Code 1910 §§ 3494, 3501) (see O.C.G.A. §§ 44-12-90 , 44-12-92 , 44-14-402 ) to foreclose his lien under this section, it is incumbent upon him to allege in the affidavit made for that purpose, among other things, that he made demand upon the depositor for payment after the amount claimed became due. Where an attempted foreclosure was made in which the affidavit omitted such averment, a sheriff's sale made thereunder was without authority of law and void. Vandalsem v. Caldwell, 33 Ga. App. 88 , 125 S.E. 716 (1924), later appeal, 36 Ga. App. 683 , 137 S.E. 906 (1927) (decided under former Code 1910, § 3366).

It is sufficient for affidavit to allege payment demanded from a company general superintendent. Hobbs v. Georgia Lumber Co., 74 Ga. 371 (1884) (decided under former Code 1882, § 1991).

Laborer must prove demand and refusal. - In an action to foreclose a laborer's lien the plaintiff laborer must allege and prove a demand upon the defendant employer for the amount claimed and a refusal by the defendant employer to pay. Brown v. Phillips, 90 Ga. App. 661 , 83 S.E.2d 846 (1954) (decided under former Code 1933, § 67-2401).

Demand must be averred, proved or excused. - This section requires that the requisite demand must be both averred in the foreclosure affidavit and proved, or excused as provided therein. Cummings v. Adams, 63 Ga. App. 74 , 10 S.E.2d 106 (1940) (decided under former Code 1933, § 3366).

Sharecropper cannot win without proof of demand when counter affidavit denies demand. - Where a sharecropper seeks to foreclose his laborer's lien and the foreclosure affidavit avers that a timely demand was made on the landlord by the sharecropper for the money alleged to be due the latter, and the counteraffidavit denies that such demand was made, and a demand is not proved, excused, or waived, the sharecropper fails to make out his case and the direction of a verdict for the landlord is not error. Cummings v. Adams, 63 Ga. App. 74 , 10 S.E.2d 106 (1940) (decided under former Code 1933, § 67-2401).

No demand is necessary where the tenant is out of the state. Hopkins v. Pedrick, 75 Ga. 706 (1885) (decided under former Code 1882, § 1991).

Tenant removing crops. - Since a landlord's special lien on crops for supplies furnished may be foreclosed before the debt is due, if the tenant is removing or seeking to remove crops from the premises, a demand for payment is not, in such a case, an essential prerequisite to the right to foreclose. Vaughn v. Strickland, 108 Ga. 659 , 34 S.E. 192 (1899) (decided under former Code 1895, § 2816).

Effect of affidavit omitting demand and refusal when member of foreclosing firm buys item. - When the affidavit upon which a mechanic's lien on personalty is foreclosed, fails to state that demand for payment of the debt is made on the owner of the property, and payment refused, and the member of the firm of mechanics who makes such affidavit becomes the purchaser, that person obtains no title. Erskine v. Wiggins, 58 Ga. 186 (1877) (decided under former Code 1873, § 1991).

Where no evidence of demand, judgment cannot be for lien. - Where an attempt is made to foreclose a laborer's lien, a demand must be alleged, and where, on the trial of a counteraffidavit to such foreclosure, the evidence shows that no such demand was made, the judgment of the trial court finding in favor of the lien is error. Newman v. Cash, 47 Ga. App. 39 , 169 S.E. 520 (1933) (decided under former Code 1910, § 3366).

3. Affidavit

Procedure for enforcing laborer's lien. - The laborer may enforce such lien on personal property by filing an affidavit in the proper court in the county of the residence of the employer or in the county where such property of the employer is located, setting forth the essential facts necessary to constitute such lien, whereupon an execution shall issue instanter, the same being final process, unless and until arrested or controverted by a proper counter affidavit. Harris v. Houston, 51 Ga. App. 116 , 179 S.E. 645 (1935) (decided under Code 1933, § 67-2401).

Sale void if affidavit void. - If the affidavit is void, as where no oath was in fact taken, a sale made in pursuance thereof is void. Bryan v. Madison Supply Co., 135 Ga. 171 , 68 S.E. 1106 (1910); Bertha Mineral Co. v. Buie, 27 Ga. App. 660 , 109 S.E. 539 (1921), later appeal, 30 Ga. App. 369 , 118 S.E. 75 (1923) (decided under former Code 1895, § 2816; Code 1910, § 3366).

For sufficiency of affidavit, see Moody v. Travis, 76 Ga. 832 (1886) (decided under former Code 1882, § 1991).

Agent may make affidavit for client contesting the amount or justice of lienholder's claim in foreclosure on personalty. Jackson v. Fincher, 128 Ga. App. 148 , 195 S.E.2d 762 (1973) (decided under former Code 1933, § 67-2401).

Execution issued in favor of lienholder, although agent files affidavit. - Although the affidavit in proceedings under this section is made by the agent of the lienholder, the execution should issue in favor of the lienholder. Mullins v. Dowling, 20 Ga. App. 138 , 92 S.E. 763 (1917) (decided under former Code 1910, § 3366).

Affidavits handed to clerk are properly filed. - Where affidavits to foreclose laborer's liens are made and handed to the clerk for the clerk to issue executions thereon, they are in fact filed in the clerk's office. Floyd v. Chess-Carley Co., 76 Ga. 752 (1886) (decided under former Code 1882, § 1991).

City court may foreclose sawmill lien where amount not exceed county jurisdiction. - A city court has jurisdiction to foreclose a lien in favor of the proprietor of a sawmill on the product of the mill, for work done on material furnished by another, at least where the principal of the amount claimed does not exceed the jurisdiction of the county court. Chambliss v. Hawkins, 123 Ga. 361 , 51 S.E. 337 (1905) (decided under Code 1895, § 2816).

County court may issue execution. - The statutory provisions that the judges of the county courts shall have jurisdiction to foreclose mortgages on personal property and liens includes power of the judge to take the statutory affidavit and issue execution as provided in this section. Gunn v. J.M. Johnson & Co., 154 Ga. 568 , 114 S.E. 709 (1922) (decided under former Code 1910, § 3366).

For case involving jurisdiction of justice of the peace. - See Gray v. Joiner, 127 Ga. 544 , 56 S.E. 752 (1907) (decided under former Code 1895, § 2816).

Affidavit invalid where filed before justice of peace without oath. - Where, in an effort to foreclose, the person asserting the lien procures a justice of the peace to "write out the lien and the affidavit," and then "signed," and the justice of the peace "attests" the signature without the administration of any oath, the paper so executed does not constitute a valid affidavit. Bryan v. Madison Supply Co., 135 Ga. 171 , 68 S.E. 1106 (1910) (decided under former Code 1895, § 2816).

Completion of contract need not be alleged or proved where lienee has waived or prevented completion. Haralson v. Speer, 1 Ga. App. 573 , 58 S.E. 142 (1907) (decided under former Code 1895, § 2816).

Laborer need not describe employer's property perfectly in general lien. - That a laborer desires to claim a general lien on all the property of the employer and is unable to describe such property specifically, does not prevent the laborer from asserting a lien and enforcing it as such. The laborer need not do an impossible thing. Love v. Cox, 68 Ga. 269 (1881) (decided under former Code 1873, § 1991).

The affidavit, under this section, to foreclose a general laborer's lien, need not specify any particular items or articles of property. Allred v. Haile, 84 Ga. 570 , 10 S.E. 1095 (1890) (decided under former Code 1882, § 1991).

Laborer with execution need not prove debt or amount in trial of claim. - An execution issued upon the foreclosure of a laborer's lien is, as to a claimant of property levied on thereunder, final process, and upon the trial of a claim case arising upon the levy of such an execution, it is not necessary for the laborer to prove either the amount of the debt, or the existence of the laborer's lien. Allen v. Middleton, 99 Ga. 758 , 27 S.E. 752 (1896) (decided under former Code 1882, § 1991).

An affidavit commanding the officer to levy on immature crops is not void, nor does a return thereon showing an attempt to levy on such crops render a levy on other property at the same time void. Faircloth v. Webb, 125 Ga. 230 , 53 S.E. 592 (1906) (decided under former Code 1895, § 2816).

Property claimed in landlord's supply lien is implicitly crops grown during year supplies given. - It is not necessary, in an affidavit to foreclose a landlord's lien for supplies furnished, to set out the property on which the lien is claimed. Execution is to be issued against the property subject to the lien; and the law specifies that the property so subject is the crops raised during the year when the supplies were furnished. Ware v. Blalock, 72 Ga. 804 (1884) (decided under former Code 1882, § 1991).

When claimant cannot be made defendant in fi. fa. by amendment. - Although the proceeding before the filing of a counter-affidavit and the giving of a replevy bond may, in effect, be a proceeding in rem, it is not such a proceeding as may be amended by making a claimant to the property levied on, a defendant is fi. fa. unless some equitable reason be shown therefor. Farrar v. Joyce, 60 Ga. App. 675 , 4 S.E.2d 708 (1939) (decided under former Code 1933, § 67-2401).

Special lien cannot substitute landowner for contractor as defendant, by amendment. - Laborer's special lien foreclosed against A, and levied on property alleged to be the property of A, to which property B files a claim, cannot be amended by alleging that B is the owner of the property, that the work for which the lien arose was done for B's benefit, and that B knowingly accepted such benefit, as such an amendment in effect substitutes B (of whom no demand for payment had been made within 12 months from the date the debt became due) for A as a party defendant, and this may not be done unless there is an equitable reason therefor. Farrar v. Joyce, 60 Ga. App. 675 , 4 S.E.2d 708 (1939) (decided under former Code 1933, § 67-2401).

4. Counteraffidavit

Filing a counteraffidavit is not a waiver of a failure to allege demand. Central R.R. & Banking Co. v. Sawyer, 78 Ga. 784 , 3 S.E. 629 (1887) (decided under former Code 1882, § 1991).

The counteraffidavit cannot serve as a demurrer (now motion to dismiss). Boyce v. Day, 3 Ga. App. 275 , 59 S.E. 930 (1907) (decided under former Code 1895, § 2816).

Counteraffidavit may be interposed anytime before sale. - A counteraffidavit to the foreclosure of a laborer's lien may be interposed at any time before the sale of the defendant-owner's there being no law requiring its interposition at the first or any other term after the foreclosure. Harris v. Houston, 51 Ga. App. 116 , 179 S.E. 645 (1935) (decided under former Code 1910, § 3366).

A counteraffidavit to the foreclosure of a laborer's lien may be interposed at any time before the sale of the defendant's property. Bowman v. Quick, 106 Ga. App. 213 , 126 S.E.2d 536 (1962) (decided under former Code 1933, § 67-2401).

Oath in counteraffidavit that affiant is lienee's agent unnecessary. - Only defensive matter to a foreclosure of a lien on personalty being required in a counteraffidavit filed by the lienee under this section, such an affidavit, when made by the lienee's agent, as provided in O.C.G.A. § 10-6-80 , need not contain a sworn averment that the affiant is agent for the lienee. It is sufficient if such affidavit is in fact made by the lienee's duly authorized agent, and where the affidavit purports on its face to be executed by such agent, the agency is presumed and the affidavit is prima facie valid. Georgia Lumber Co. v. Thompson, 34 Ga. App. 281 , 129 S.E. 303 (1925) (decided under former Code 1910, § 3366).

Counteraffidavit must be filed with levying officer to permit trial. - This section contemplates that the counteraffidavit to the foreclosure of a laborer's lien should be filed with the levying officer as a condition precedent to returning the case to court for trial. Harvey v. Johnson, 28 Ga. App. 287 , 111 S.E. 576 (1922) (decided under former Code 1910, § 3366).

Filing counteraffidavit with court and notification of levying officer is sufficient. - The filing of the counteraffidavit with the court which issued the execution, and immediate notification of the levying officer is substantial compliance with any requirement, if any, that it be filed with the levying officer. Bellington v. Bryant, 45 Ga. App. 771 , 165 S.E. 890 (1932) (decided under former Code 1910, § 3366).

Superintendent of Banks (now Commissioner of Banking and Finance) as receiver of creditor may contest foreclosure of a lien under this section. Bennett v. Green, 156 Ga. 572 , 119 S.E. 620 (1923) (decided under former Code 1910, § 3366).

Requirements for second counteraffidavit. - A second counteraffidavit to an execution based on the foreclosure of a factor's lien cannot be filed without an allegation that the facts therein set forth were unknown to the defendant at the time the first was filed. Story v. Flournoy, McGehee & Co., 55 Ga. 56 (1875) (decided under former Code 1873, § 1991).

No amendment of issue in second counteraffidavit after return to court. - A counteraffidavit, which was the foundation of a legal proceeding, cannot be amended after it has been returned into court, either by the filing of a new affidavit or otherwise, so as to change the issue thereby presented. Jackson, Judge, dissenting. Story v. Flournoy, McGehee & Co., 55 Ga. 56 (1875) (decided under former Code 1873, § 1991).

5. Effects of Bond and Counteraffidavit

No forthcoming bond is necessary under this section. Peppers v. Coil, 113 Ga. 234 , 38 S.E. 823 (1901) (decided under former Code 1895, § 2816).

Necessity for replevy bond in landlord's supply lien. - In a proceeding under this section to foreclose a landlord's lien for supplies, a general judgment in the landlord's favor cannot be rendered unless a replevy bond is filed. Argo v. Fields, 112 Ga. 677 , 37 S.E. 995 (1901) (decided under former Code 1895, § 2816).

Replevy bond without counteraffidavit insufficient to convert proceeding into mesne process. - The giving of a replevy bond will not convert foreclosure proceedings under this section into mesne process. There must be a counteraffidavit to do this. Frost Motor Co. v. Pierce, 72 Ga. App. 447 , 33 S.E.2d 910 (1945) (decided under former Code 1933, § 67-2401).

Counteraffidavit to laborer's lien converts proceeding into mesne process. - Upon the interposition of an affidavit by an employer, denying that the laborer is due the amount claimed or denying the laborer's right to the lien claimed, the proceeding is converted into mesne process, and the issue thus formed shall be returned to the proper court for disposition as other causes. Harris v. Houston, 51 Ga. App. 116 , 179 S.E. 645 (1935) (decided under Code 1933, § 67-2401).

The filing of a counteraffidavit to the foreclosure of a laborer's lien converts the proceedings into mesne process. Law v. Hodges, 53 Ga. App. 319 , 185 S.E. 584 (1936) (decided under former Code 1933, § 67-2401).

Effects of omission of counteraffidavit. - Where a laborer's lien has been foreclosed, the execution issued thereon operates as final process. The purpose of the counteraffidavit is to convert this final process into mesne process and raise an issue which must then be passed upon by the proper tribunal. But until there is such an affidavit there is no case, nothing to be returned to a court, no pleading to be amended, and no issue to be tried. Kennedy v. Miller, 179 Ga. 234 , 175 S.E. 588 , answer conformed to, 49 Ga. App. 505 , 176 S.E. 102 (1934) (decided under former Code 1910, § 3366).

Foreclosure of landlord's lien is final unless an issuable counterclaim is filed, which must either deny the existence of the lien or show that the amount claimed is too large. Boyce v. Day, 3 Ga. App. 275 , 59 S.E. 930 (1907) (decided under former Code 1895, § 2816).

Execution final unless arrested by counteraffidavit. - An execution issued on the foreclosure of a mechanic's lien, under this section, is final process until and unless arrested by a valid counteraffidavit. Frost Motor Co. v. Pierce, 72 Ga. App. 447 , 33 S.E.2d 910 (1945) (decided under former Code 1933, § 67-2401).

Execution issued on affidavit of foreclosure against defendant in fi. fa. becomes a final process unless and until defendant files a counteraffidavit; a general judgment in such a case cannot be rendered unless a replevy bond is given. Farrar v. Joyce, 60 Ga. App. 675 , 4 S.E.2d 708 (1939) (decided under former Code 1933, § 67-2401).

If no counteraffidavit, plaintiff may enter judgment on replevy bond. - Foreclosure proceedings under this section are final process and can only be converted into mesne process by the filing of the counteraffidavit. To replevy the property levied on is not sufficient, and in the absence of the counteraffidavit the plaintiff may enter judgment on the replevy bond. Giddens v. Gaskins, 7 Ga. App. 221 , 66 S.E. 560 (1909); Wilson v. Griffin, 22 Ga. App. 451 , 96 S.E. 395 (1918); Harvey v. Johnson, 28 Ga. App. 287 , 111 S.E. 576 (1922) (decided under former Code 1895, § 2816; Code 1910, § 3366).

Effect of dismissal of counteraffidavit. - When a counteraffidavit to the foreclosure of a lien has been dismissed on motion of the lienor, the case passes out of the jurisdiction of the court, and the process is remanded to the levying officer by operation of law. Murphey v. McGough, 105 Ga. 816 , 31 S.E. 757 (1898) (decided under former Code 1895, § 2816).

Unforeclosed laborer's lien cannot participate in money found brought under other process. - A laborer's lien which has not been foreclosed cannot participate in a fund brought into court under other process which is subject of controversy in a money-rule case. In re Empire Granite Co., 42 F. Supp. 450 (M.D. Ga. 1942) (decided under former Code 1933, § 67-2401).

Limitations on levying officer after counteraffidavit filed. - There is no law which authorizes the levying officer to advertise property for sale after a counteraffidavit has been filed, nor is the officer authorized to decide the validity or invalidity of the counteraffidavit; nor is there any law authorizing an ex parte order for the sale of property, without notice to property owner. Jackson v. Fincher, 128 Ga. App. 148 , 195 S.E.2d 762 (1973) (decided under former Code 1933, § 67-2401).

Counteraffidavit which neither denies or admits debt subject to dismissal. - A counteraffidavit interposed to the foreclosure of a lien, which in terms neither admits nor denies the indebtedness set forth in the affidavit of foreclosure, does not make an issue which can be tried, and should be dismissed on motion. Murphey v. McGough, 105 Ga. 816 , 31 S.E. 757 (1898) (decided under former Code 1895, § 2816).

Counteraffidavit which admits, but does not tender, lesser amount due is nullity. - A counteraffidavit to the foreclosure of a laborer's lien which admits that an amount less than the amount claimed in the foreclosure is due and which fails to tender into court the amount admitted due is subject to dismissal and is, therefore, a nullity and no proper counteraffidavit. Bowman v. Quick, 106 Ga. App. 213 , 126 S.E.2d 536 (1962) (decided under former Code 1933, § 67-2401).

A counteraffidavit which does not deny the plaintiff's right to the lien, but simply denies that defendant is indebted in the sum sued for, is insufficient. Boyce v. Day, 3 Ga. App. 275 , 59 S.E. 930 (1907); Misenheimer v. Gainey, 11 Ga. App. 509 , 75 S.E. 844 (1912) (decided under former Code 1895, § 2816; Code 1910, § 3366).

No motion to dismiss where counteraffidavit not filed. - Where no counteraffidavit has been filed as provided by law, there is no case in court to be tried, and a demurrer (now motion to dismiss) to the affidavit to foreclose a laborer's lien is properly overruled. Harvey v. Johnson, 28 Ga. App. 287 , 111 S.E. 576 (1922) (decided under former Code 1910, § 3366).

Owner who makes no counteraffidavit cannot bring trover after sale. - Where a mechanic has asserted a lien on personal property for repairs, and has enforced payment thereof by foreclosure proceedings under this section, and the property has been seized and sold by the sheriff under the foreclosure proceedings, and the owner has failed to contest the right to the lien by making counteraffidavit as provided by paragraph (3), the owner cannot bring trover against the mechanic for the recovery of the property on the ground that the sale under the foreclosure proceedings, the mechanic still retaining possession of the property, amounted to a conversion thereof. Tow v. Forrester, 122 Ga. App. 718 , 178 S.E.2d 692 (1970) (decided under former Code 1933, § 67-2401).

6. Trial and Time Limits

When issue triable. - The issue raised by the filing of an affidavit of a contesting creditor under this section is triable at the term of court succeeding the filing of the contesting affidavit. Martin v. Nichols, 121 Ga. 506 , 49 S.E. 613 (1904) (decided under former Code 1895, § 2816).

Pendency of foreclosure of laborer's lien is not bar to action on account for the same debt, since, even where the lien is contested and the property replevied, no general judgment can be rendered in the foreclosure proceedings. In such a case, the lien foreclosure is not converted into a proceeding in personam by the filing of a replevy bond; the actions are entirely different and each involves a different kind of judgment. McKellar v. Childs, 95 Ga. App. 237 , 97 S.E.2d 616 (1957) (decided under former Code 1933, § 67-2401).

Equitable plea prevents jury trial. - Where a defendant lienee in a proceeding under this section files an equitable plea praying a general accounting the proceeding becomes an equitable one and the defendant lienee is not entitled to a jury trial. Mackenzie v. Flannery & Co., 90 Ga. 590 , 16 S.E. 710 (1892) (decided under former Code 1882, § 1991).

Lienholder may present case to jury despite debtor's absence. - A counteraffidavit under this section is not in the nature of an affidavit of illegality, and when debtor does not appear at the trial, it is not proper for the trial judge to dismiss the affidavit, but lienholder should be allowed to make out his case before the jury. Law v. Hodges, 53 Ga. App. 319 , 185 S.E. 584 (1936) (decided under former Code 1933, § 67-2401).

Sawmill owner must prove substantial compliance with contract to recover for services. - The proprietor of a sawmill who institutes a proceeding to foreclose a lien on material furnished by another cannot, upon a failure to prove a substantial compliance with the contract, recover a verdict in that proceeding for the value of the proprietor's services. Hawkins v. Chambliss, 116 Ga. 813 , 43 S.E. 55 (1902) (decided under former Code 1895, § 2816).

No general judgment where property seized is not replevied. - Where, upon the foreclosure of a laborer's general lien as provided in this section, the property seized is not replevied, no general judgment thereon can be rendered, even though a counteraffidavit disputing the correctness of the lienor's claim is filed by the lienee. Only a judgment establishing the lien upon the property seized can be legally rendered. Downs v. Bedford, 39 Ga. App. 155 , 146 S.E. 514 (1929) (decided under former Code 1910, § 3366).

When dismissal of affidavit of illegality justified. - Upon the trial of an issue formed by the filing of an affidavit of illegality to the foreclosure of a retention-of-title, or conditional-sale contract, where it appears from the evidence that the lienee did not tender to the sheriff the amount appearing to be due without contest and not denied in the affidavit, it is not error for the court to dismiss the affidavit of illegality upon motion of the foreclosing party. Carter v. Commercial Credit Co., 58 Ga. App. 470 , 198 S.E. 792 (1938) (decided under former Code 1933, § 67-2401).

When issue resolved for creditor, only special judgment permitted. - When an issue made by the debtor in resistance to a summary execution sued out to enforce a lien upon personal property, is found in favor of the creditor, the latter is not entitled to a general judgment, but only to a special judgment declaring the existence and amount of the lien, and providing for its enforcement against the specific property; and this is so, whether the property has been replevied or not. Triest v. J.G. Watts & Bro., 58 Ga. 73 (1877); Argo v. Fields, 112 Ga. 677 , 37 S.E. 995 (1901) (decided under former Code 1895, § 2816).

Hearing

Court should state necessity of full hearing. - In light of the difficulty in ascertaining the line between the "probable cause hearing" contemplated in O.C.G.A. § 44-14-550(3) and (4) and the "full hearing" provided in O.C.G.A. § 44-14-550(5) , the trial court should make a formal statement regarding the necessity of holding a full hearing. Chambless Ford Tractor, Inc. v. McGlaun Farms, Inc., 169 Ga. App. 672 , 314 S.E.2d 689 (1984).

Validity of lien to be determined at probable cause hearing. - As O.C.G.A. § 44-14-550 contemplated that at the initial probable cause hearing, the trial court would inquire as to whether the plaintiff had put forth facts necessary to constitute a laborer's lien and amount due, the trial court did not err in reviewing the facts of the case in order to determine whether there was probable cause to believe a laborer could validly assert a lien against a farmer's crop for the debt under O.C.G.A. § 44-14-381 . Slappey v. Slappey, 296 Ga. App. 773 , 676 S.E.2d 283 (2009).

Time Limit

Ten-day limit on foreclosure. - Because the client failed to establish that the attorney had constructive possession of funds at the time of the client's demand that the attorney withdraw the lien, the trial court erred in holding the attorney to the ten-day limit on foreclosure under O.C.G.A. § 44-14-550(1) . Autrey v. Baker, 228 Ga. App. 396 , 492 S.E.2d 261 (1997).

Nature of 12-month requirement. - Requirement of action within 12 months is not a limitation, but a statutory condition of the existence of the lien which must be complied with. Birmingham Trust & Sav. Co. v. Atlanta, B. & Atl. Ry., 287 F. 561 (N.D. Ga. 1923) (decided under former Code 1910, § 3366).

Failure to show demand within 12 months renders process voidable. - On a proceeding to foreclose a lien on personalty, a failure to show a demand within 12 months after the claim falls due does not make the process a nullity, but renders it voidable. Gladden v. Cobb, 73 Ga. 235 , 6 S.E. 161 (1884) (decided under former Code 1882, § 1991).

One-year limitation not applicable to claim for rent. - The limitation of one year in this section does not apply to the prosecution and enforcement by distress warrant of a special or general claim or demand by a landlord for rent. Jones v. Blackwelder, 16 Ga. App. 345 , 85 S.E. 356 (1915) (decided under former Code 1910, § 3366).

Construction with O.C.G.A. § 15-19-15 . - Plaintiffs asserted an attorneys' fee lien and came into possession of several checks made jointly payable to plaintiffs and defendants. The defendants made written demand for those checks but plaintiffs retained possession without instituting foreclosure proceedings within ten days of holding personal property belonging to the defendant and thereby failed to comply with the explicit terms of O.C.G.A. § 15-19-15 ; thus, forfeiture and cancellation of the lien was proper. Ellis, Funk, Goldberg, Labovitz & Dockson v. Kleinberger, 235 Ga. App. 360 , 509 S.E.2d 660 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the provisions, opinions under former Code 1933, § 67-2401, are included in the annotations for this Code section.

Sales agreement allowing car repossessor to claim contents void. - A clause in a conditional sales financing agreement which provides that the repossessing party may take not only the car but also whatever personal effects are in it subject to their being held for return on demand, is legally unconscionable; the taking of such personal belongings would be entirely beyond the scope of any law. 1967 Op. Att'y Gen. No. 67-363.

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Liens, § 79 et seq.

C.J.S. - 53 C.J.S., Liens, § 29 et seq.

ALR. - Right of buyer of chattels to lien upon the property where he rescinds the contract, 7 A.L.R. 993 .

Liability of purchaser of personal property for taxes assessed against former owner, 41 A.L.R. 187 .

Right of conditional seller of chattels attached to realty to claim lien on the realty, 58 A.L.R. 1121 .

Attachment as affected by release or modification of lien to which property was subject when attachment was levied, 128 A.L.R. 1392 .

Recovery of damages in replevin for usable value of property detained, by successful party having only security interest as conditional vendor, chattel mortgagee, or the like, 33 A.L.R.2d 774.

Bankruptcy court's injunction against mortgage or lien enforcement proceedings commenced, before bankruptcy, in another court, 40 A.L.R.2d 663.

Demand for or submission to arbitration as affecting enforcement of mechanic's lien, 73 A.L.R.3d 1042.

44-14-551. Judgment on replevy bonds.

In all foreclosure of liens on personalty in which the property levied on is replevied and in which verdicts are found for the plaintiffs, the plaintiffs shall be granted judgments against the defendants and their securities in the same manner and with the same effect as in cases of appeal.

(Ga. L. 1880-81, p. 110, § 1; Code 1882, § 1991; Civil Code 1895, § 2817; Civil Code 1910, § 3367; Code 1933, § 67-2402.)

JUDICIAL DECISIONS

Where no counteraffidavit is filed and a replevy bond is given, the effect is the same as if a verdict were found for the plaintiff, and judgment may be entered against the defendant. Peppers v. Coil, 113 Ga. 234 , 38 S.E. 823 (1901); Giddens v. Gaskins, 7 Ga. App. 221 , 66 S.E. 560 (1910); Tipton v. Conrad & Lee, 21 Ga. App. 593 , 94 S.E. 815 , cert. denied, 21 Ga. App. 825 (1918).

PART 13 R EGISTRATION OF LIENS FOR FEDERAL TAXES

Law reviews. - For article, "Real Property and the Federal Tax Lien Act of 1966," see 3 Ga. St. B.J. 459 (1967).

RESEARCH REFERENCES

ALR. - Constitutionality of statute impairing or postponing lien for taxes, 136 A.L.R. 328 .

Interest and penalties on federal tax covered in part by prebankruptcy liens as allowable or as surviving discharge in bankruptcy, 77 A.L.R.2d 1125.

Validity, construction, and effect of statutory provision for tax lien on property not belonging to taxpayer but used in his business, 84 A.L.R.2d 1090.

Waiver of restrictions on assessment and collection of deficiency in federal tax, 115 A.L.R. Fed. 257.

44-14-570. Purpose.

It is the purpose of this part to conform to Section 6323 of the United States Internal Revenue Code as amended by Public Law 89-719, entitled the Federal Tax Lien Act of 1966.

(Ga. L. 1968, p. 561, § 2; Ga. L. 1987, p. 191, § 9.)

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provided that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

U.S. Code. - Section 6323 of the U.S. Internal Revenue Code, as referred to in this Code section, is codified as 26 U.S.C.S. 6323.

44-14-571. Filing of federal tax liens on realty and personalty.

  1. Notices of liens upon real property for taxes payable to the United States and certificates and all notices affecting such liens, including certificates of redemption, shall be filed in the office of the clerk of the superior court of the county in which the real property subject to a federal tax lien is located.
  2. Notices of liens upon personal property, whether tangible or intangible, for taxes payable to the United States and certificates and all notices affecting such liens, including certificates of redemption, shall be filed as follows:
    1. If the person against whose interest the tax lien applies is a corporation or partnership whose principal executive office is in this state, as these entities are defined in the internal revenue laws of the United States, in the office of the clerk of the superior court of the county in which the principal executive office is located; and
    2. In all other cases, in the office of the clerk of the superior court of the county where the taxpayer resides at the time of the filing of the notice of lien.

      (Ga. L. 1924, p. 124, § 1; Code 1933, § 67-2601; Ga. L. 1967, p. 549, § 1; Ga. L. 1968, p. 561, § 1.)

Cross references. - Liens for state, county, or municipal taxes generally, § 48-2-56 .

JUDICIAL DECISIONS

Cited in Little River Farms, Inc. v. United States, 328 F. Supp. 476 (N.D. Ga. 1971); Brown v. United States, 512 F. Supp. 24 (N.D. Ga. 1980); United States v. Specialty Contracting & Supply, Inc., 140 Bankr. 922 (Bankr. N.D. Ga. 1992).

RESEARCH REFERENCES

Am. Jur. 2d. - 35 Am. Jur. 2d, Federal Tax Enforcement, §§ 250, 252.

C.J.S. - 47 C.J.S., Internal Revenue, §§ 759, 760, 761.

U.L.A. - Uniform Federal Tax Lien Registration Act (U.L.A.) § 1.

ALR. - Sufficiency of designation of taxpayer in recorded notice of federal tax lien, 3 A.L.R.3d 633.

44-14-572. When notices and certificates affecting tax liens entitled to be filed; certification by secretary of treasury.

Certification by the secretary of the treasury of the United States or his delegate of notices of liens, certificates, or other notices affecting tax liens entitles them to be filed; and no other attestation, certification, or acknowledgment is necessary.

(Code 1933, § 67-2602, enacted by Ga. L. 1967, p. 549, § 1; Ga. L. 1968, p. 561, § 1; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

No standing to sue under O.C.G.A. § 9-6-24 to enforce a public duty. - Appellant's petition for a writ of mandamus did not meet the necessary prerequisites for appellant to exercise standing under O.C.G.A. § 9-6-24 where the petition did not seek to procure the enforcement of a public duty, rather it sought to compel an action to correct what appellant believed to be the wrongful filing of uncertified tax liens under O.C.G.A. § 44-14-572 . Brissey v. Ellison, 272 Ga. 38 , 526 S.E.2d 851 (2000).

Certification requirement in O.C.G.A. § 44-14-572 is invalid, as the Georgia General Assembly cannot dictate the requirements of federal tax lien notices. Johnson v. IRS, F. Supp. 2d (S.D. Ga. Sept. 30, 2005).

RESEARCH REFERENCES

Am. Jur. 2d. - 35 Am. Jur. 2d, Federal Tax Enforcement, §§ 250, 252.

C.J.S. - 47B C.J.S., Internal Revenue, § 1128 et seq.

U.L.A. - Uniform Federal Tax Lien Registration Act (U.L.A.) § 2.

44-14-573. Filing of federal tax lien, notice or revocation of certificate, or certificate of discharge.

The clerk of superior court shall file, index, and record in the general execution docket or lien book of his or her office a notice of a federal tax lien, refiling of a federal tax lien, notice or revocation of a certificate described in subsections (a) and (b) of Code Section 44-14-571, or certificate of discharge of a federal tax lien in the same manner as provided for in Code Section 9-12-86 for liens upon land.

(Ga. L. 1924, p. 124, §§ 2, 3; Code 1933, §§ 67-2602, 67-2603; Ga. L. 1967, p. 549, § 1; Ga. L. 1968, p. 561, § 1; Ga. L. 1993, p. 361, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 35 Am. Jur. 2d, Federal Tax Enforcement, §§ 250, 252.

C.J.S. - 47 C.J.S., Internal Revenue, §§ 759, 760, 761.

U.L.A. - Uniform Federal Tax Lien Registration Act (U.L.A.) § 3.

44-14-574. Fees; billing procedure.

The fee for filing and indexing each notice of a lien or certificate or notice affecting a tax lien shall be as provided in subsection (f) of Code Section 15-6-77.

(Code 1933, § 67-2604, enacted by Ga. L. 1967, p. 549, § 1; Ga. L. 1968, p. 561, § 1; Ga. L. 1981, p. 1396, § 6; Ga. L. 1991, p. 1324, § 9.)

RESEARCH REFERENCES

Am. Jur. 2d. - 66 Am. Jur. 2d, Records and Recording Laws, § 64.

C.J.S. - 76 C.J.S., Records, § 19 et seq.

U.L.A. - Uniform Federal Tax Lien Registration Act (U.L.A.) § 4.

PART 14 B ANKRUPTCY PROCEEDINGS

RESEARCH REFERENCES

ALR. - Bankruptcy court's injunction against mortgage or lien enforcement proceedings commenced, before bankruptcy, in another court, 40 A.L.R.2d 663.

Action for malicious prosecution based on institution of involuntary bankruptcy, insolvency, or receivership proceedings, 40 A.L.R.3d 296.

Warranty Deed Intended as Mortgage, 4 POF2d 567.

Bankruptcy Action to Recover Preferential Pre-Petition Transfer of Property of Debtor under 11 U.S.C.A. § 547, 48 POF3d 159.

44-14-590. Recording of bankruptcy petition, decree, or order; fees.

A certified copy of a petition, with schedules omitted, commencing a proceeding under the Bankruptcy Reform Act of 1978, P.L. 95-598, codified at 11 U.S.C. Section 101, et seq., or of the decree of adjudication in the proceeding, or of the order approving the bond of the trustee appointed in the proceeding may be filed and recorded in the office of the clerk of the superior court of any county in the same manner as deeds are filed and recorded. It shall be the duty of the clerk to docket and index, under the name of the bankrupt, and record the certified copies of the petition, decree, or order filed for record in the same manner as deeds. Clerks shall be entitled to the same fees for docketing, indexing, and recording the copies of such petitions, decrees, or orders as for docketing, indexing, and recording deeds.

(Ga. L. 1939, p. 242, § 1; Ga. L. 2002, p. 415, § 44.)

The 2002 amendment, effective April 18, 2002, part of an Act to revise, modernize, and correct the Code, substituted "U.S.C. Section 101," for "U.S.C. 101" in the first sentence.

RESEARCH REFERENCES

Am. Jur. 2d. - 9 Am. Jur. 2d, Bankruptcy, §§ 31,32, 105, 379, 1840.

C.J.S. - 8A C.J.S., Bankruptcy, §§ 2 et seq., 69, 291 et seq.

ALR. - Allowance or rejection of claim in bankruptcy proceedings as res judicata in independent action or proceeding between the claimant and another creditor, 135 A.L.R. 695 .

Distinction between "proceedings in bankruptcy" and "controversies arising in proceedings in bankruptcy" for purposes of interlocutory appeal, 5 A.L.R.3d 1130.

44-14-591. Effect of failure to record petition, decree, or order as to bona fide purchaser or lienor of real property.

Unless a certified copy of the petition, with schedules omitted, decree, or order has been recorded in any county wherein the bankrupt owns or has an interest in real property, the commencement of a proceeding under the Bankruptcy Reform Act of 1978, P.L. 95-598, codified at 11 U.S.C. Section 101, et seq., shall not be constructive notice to nor shall it affect the title of any subsequent bona fide purchaser or lienor of real property in the county for a present fair equivalent value without actual notice of the pendency of the proceeding; provided, however, that where the purchaser or lienor has given less than fair equivalent value, he or she shall nevertheless have a lien upon the property but only to the extent of the consideration actually given by him or her. The exercise by any court of the United States or of this state of jurisdiction to authorize or effect a judicial sale of real property of the bankrupt within any county in this state shall not be impaired by the pendency of the proceeding unless the copy is recorded in the county, as provided in this Code section, prior to the consummation of the judicial sale.

(Ga. L. 1939, p. 242, § 2; Ga. L. 1960, p. 197, § 1; Ga. L. 1982, p. 3, § 44; Ga. L. 2002, p. 415, § 44.)

The 2002 amendment, effective April 18, 2002, part of an Act to revise, modernize, and correct the Code, in the first sentence, substituted "U.S.C. Section 101, et seq.," for "U.S.C. 101 et seq." and inserted "or she" and "or her".

RESEARCH REFERENCES

C.J.S. - 8A C.J.S., Bankruptcy, § 2 et seq.

ALR. - Distinction between "proceedings in bankruptcy" and "controversies arising in proceedings in bankruptcy" for purposes of interlocutory appeal, 5 A.L.R.3d 1130.

PART 15 C OMMERCIAL REAL ESTATE BROKER LIENS

Law reviews. - For note on 1993 enactment of this part, see 10 Ga. St. U.L. Rev. 201 (1993).

RESEARCH REFERENCES

Am. Jur. 2d. - 12 Am. Jur. 2d, Brokers, § 297 et seq.

44-14-600. Short title.

This part shall be known and may be cited as the "Commercial Real Estate Broker Lien Act."

(Code 1981, § 44-14-600 , enacted by Ga. L. 1993, p. 1490, § 1.)

Law reviews. - For annual survey article on real property law, see 50 Mercer L. Rev. 307 (1998).

44-14-601. Definitions.

As used in this part, the term:

  1. "Broker" means a broker as defined in paragraph (2) of Code Section 43-40-1.
  2. "Client" means a person or entity having an interest in real property that has entered into a written brokerage agreement with a real estate broker relative to such property.
  3. "Commercial real estate" means any real estate other than real estate containing one to four residential units; real estate on which no buildings or structures are located and which is not zoned for nor available for commercial, multifamily, or retail use; or real estate classified as agricultural for tax assessment purposes.  Commercial real estate shall not include single-family residential units such as condominiums, townhomes, mobile homes, or homes in a subdivision when sold, leased, or otherwise conveyed on a unit by unit basis even though these units may be part of a larger building or parcel of real estate containing more than four residential units.
  4. "Conveyance" means a sale, lease, or other transfer of commercial real estate.
  5. "Real estate" means real estate as defined in paragraph (9) of Code Section 43-40-1 . (Code 1981, § 44-14-601 , enacted by Ga. L. 1993, p. 1490, § 1; Ga. L. 1995, p. 1216, § 11.)

44-14-602. Lien on commercial real estate for broker's compensation.

  1. Any real estate broker who is not an employee or independent contractor of another real estate broker shall have a lien, in the amount of the compensation agreed upon by and between the broker and the landlord or seller or other client or customer, upon commercial real estate or any interest in commercial real estate:
    1. Arising out of a listing agreement or any other agreement for the management, sale, or lease of or otherwise conveying any interest in the commercial real estate as evidenced by a writing signed by the owner or its expressly authorized agent and with written notice to the party whose property may be liened, if different from the parties to the agreement;
    2. As to which the broker or broker's employees or independent contractors have provided licensed services that result in the procuring of a person or entity ready, willing, and able to enter and who actually enters into a purchase or lease or otherwise accepts a conveyance of the commercial real estate or any interest in the commercial real estate upon terms acceptable to the owner as evidenced by an agreement or conveyance signed by the owner or its expressly authorized agent and with written notice to the party whose property may be liened, if different from the parties to the agreement; or
    3. When a broker having a written agreement with a prospective buyer or tenant to represent the buyer or tenant as to the purchase, lease, or other conveyance of commercial real estate becomes entitled to compensation and with written notice to the party whose property may be liened, if different from the parties to the agreement.
  2. A lien shall attach to the commercial real estate, or any interest in commercial real estate as described in subsection (a) of this Code section, upon the broker's recording a notice of lien in the county land records in the office of the clerk of the superior court in the county in which the real property or interest in the real property is located.
  3. When payment to a broker is due in one lump sum and not paid, the claim for lien must be recorded within 90 days after the tenant takes possession of the leased premises or the transaction procured by the broker is closed.
  4. When payment to a broker is due in installments, all or a portion of which is due only after a conveyance of the commercial real estate, any claim for lien for those payments due after conveyance may be recorded at any time subsequent to the conveyance so long as the claim for lien is recorded within 90 days of the date the payment was due and not paid.
  5. If a broker has a written agreement with a client as provided for in paragraph (3) of subsection (a) of this Code section, then the lien shall attach to the client's interest upon the client's purchasing, leasing, or otherwise accepting a conveyance of the commercial real estate and the recording of a notice of lien by the broker in the county land records, in the office of the clerk of the superior court of the county in which the real property or interest in the real property is located, within 90 days after the later of purchase, lease, or other conveyance or transfer to the buyer or tenant or the failure of the buyer or tenant to compensate the broker or to cause the broker to be compensated pursuant to its agreement.
  6. If a broker has a written management agreement for an improved property, then the claim for lien must be recorded within 90 days of the termination of the agreement.
  7. If a broker claims a lien based upon an option to purchase or lease, the lien must be filed within 90 days of the date the transaction for which a commission or other fee is due or within 90 days of the date the transaction for sale, lease, or other conveyance is closed, whichever is later.
  8. The lien notice shall state the name of the claimant, the name of the owner, a description of the property upon which the lien is being claimed, the amount for which the lien is claimed, and the real estate license number of the broker. The notice of lien shall recite that the information contained in the notice is true and accurate to the knowledge of the signatory.  The lien notice shall recite that the broker has disclosed to all parties that a lien might be claimed under this part.  The notice of lien shall be signed by the broker or by a person expressly authorized to sign on behalf of the broker and shall be verified.
  9. The broker shall mail a copy of the notice of lien to the owner of the commercial real estate by certified mail or statutory overnight delivery.  The broker's lien shall be void and unenforceable if recording does not occur within the time and in the manner required by this Code section.
    1. A broker may bring suit to enforce a lien in the superior court in the county where the property is located by filing a verified complaint and sworn affidavit that the lien has been recorded.  Within one year after recording the lien, the broker claiming a lien shall commence proceedings by filing a complaint.  Failure to commence proceedings within one year after recording the lien shall extinguish the lien. A broker claiming a lien based upon an option to purchase or lease shall, within six months after the transfer or conveyance of the commercial real estate under the exercise of the option, commence proceedings by filing a complaint. Failure to commence proceedings within this time shall extinguish the lien.
    2. No subsequent notice of lien may be given for the same claim nor may that notice be asserted in any proceedings under this part.
    3. A complaint under this subsection shall contain a brief statement of the contract or agreement on which the lien is founded, the date when the contract or agreement was made, a description of the services performed, the amount due and unpaid, a description of the property that is subject to the lien, and other facts necessary to state a claim for the payment of a commission, fee, or other compensation due the broker.  The plaintiff shall make all interested parties, whose interest in the real estate is affected by the action, and of whom the plaintiff is notified or has knowledge, defendants to the action, and shall issue summons and provide service as in other civil actions.  Complaint, answer, summons, service, and all other particulars of suit shall be made in accordance with Chapter 11 of Title 9, the "Georgia Civil Practice Act."  All liens claimed under this part shall be foreclosed as provided for in Code Section 44-14-530.
  11. The costs and expenses of all proceedings brought under this part, including reasonable attorney's fees actually incurred, costs, and prejudgment interests due  to the prevailing party, shall be borne by the nonprevailing party or parties.  When more than one party is responsible for costs, fees, and prejudgment interests, the costs, fees, and prejudgment interests shall be equitably apportioned by the court among those responsible parties. (Code 1981, § 44-14-602 , enacted by Ga. L. 1993, p. 1490, § 1; Ga. L. 2000, p. 1589, § 3.)

The 2000 amendment, effective July 1, 2000, substituted "certified mail or statutory overnight delivery" for "certified mail" in the first sentence of subsection (i).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Written listing agreement required. - An advertising brochure entitled, PROPERTY INFORMATION, bearing the vendors' signatures and including the language -- "I want 15,000 net to me per [acre] base 83 approx" did not constitute a written listing agreement as required by O.C.G.A. § 44-14-602 . Eva Pendley Realty, Inc. v. Bagley, 219 Ga. App. 203 , 464 S.E.2d 850 (1995).

Lien is not limited to licensed services. - A commercial real estate broker's lien under O.C.G.A. § 44-14-602 is not limited to licensed services as defined under O.C.G.A. § 43-40-1 , so long as it otherwise complies with the requirements of the lien statute. Padgett v. City of Moultrie, 229 Ga. App. 500 , 494 S.E.2d 299 (1997).

44-14-603. Priority of liens.

Prior recorded liens and liens for ad valorem taxes shall have priority over a broker's lien.

(Code 1981, § 44-14-603 , enacted by Ga. L. 1993, p. 1490, § 1.)

JUDICIAL DECISIONS

A commercial real estate broker's lien had priority over a subsequently recorded deed to secure debt and also over the lien of a prior encumbrancer that had agreed to subordinate part of its debt to the subsequently recorded deed. Padgett v. City of Moultrie, 229 Ga. App. 500 , 494 S.E.2d 299 (1997).

44-14-604. Escrow to release claim for lien that would prevent closing of transaction or conveyance.

Except as otherwise provided in this Code section, whenever a claim for lien has been filed with the clerk of a superior court that would prevent the closing of a transaction or conveyance, an escrow account shall be established from the proceeds from the transaction or conveyance in an amount sufficient to release the claim for lien. The requirement to establish an escrow account, as provided for in this Code section, shall not be cause for any party to refuse to close the transaction. These moneys shall be held in escrow until the parties' rights to the escrowed moneys have been determined by written agreement of the parties, by a court of law, or by any other process which may be agreed to by the parties for resolution of their dispute. Upon the escrow of funds in the amount of the claimed lien, the lien or claim of lien shall be automatically dissolved. Upon the release of the commercial real estate lien by the broker, the broker shall be deemed to have an equitable lien on the escrow funds pending a resolution of the broker's claim and the escrow shall not be released until a resolution is reached and agreed to by all necessary parties or ordered by a court. The parties are not required to follow this escrow procedure if alternative procedures which would allow the transaction to close are available and are acceptable to the transferee in the transaction. If the proceeds from the transaction are insufficient to release all liens claimed against the commercial real estate, including the broker's lien, then the parties are not required to follow the escrow procedure in this Code section.

(Code 1981, § 44-14-604 , enacted by Ga. L. 1993, p. 1490, § 1.)

44-14-605. Release or satisfaction of lien on occurrence of condition precluding broker from receiving compensation; suit to enforce lien; when lien invalid; when right to file and record lien dissolved.

  1. Whenever a claim for lien has been filed with the superior court and a condition occurs that would preclude the broker from receiving compensation under the terms of the broker's written agreement, the broker shall provide to the owner of record a written release or satisfaction of the lien.
  2. Upon written demand of the owner, lienee, or other authorized agent served on the broker claiming the lien requiring that suit be commenced to enforce the lien or answer be filed in a pending suit, a suit shall be commenced or answer filed in a pending suit, within 90 days thereafter, or the lien shall be extinguished. Service of such demand shall be in the manner required by Chapter 11 of Title 9, the "Georgia Civil Practice Act," for the service of a summons and complaint.
  3. Whenever a claim for lien has been timely filed with the clerk of the superior court and is paid, or where there is failure to institute a suit to enforce the lien within the time provided by this part, the lien shall be invalid and the broker shall acknowledge satisfaction or release of the lien, in writing, on written demand of the owner within 30 days after payment or expiration of the time in which to perfect the lien.  This release of the broker shall not be required to invalidate the lien.
  4. The broker's right to file and record a lien provided for in this part shall be dissolved if the owner, purchaser from owner, lender providing a loan secured by commercial real estate, or other holder of lienable interest in commercial real estate shows that:
    1. The lien has been waived in writing by the lien claimant or its expressly authorized agent; or
    2. The owner or a person at whose instance the brokerage or management services were provided has given a sworn written statement that all such compensation due or to become due has been paid or has been waived in writing by the potential lien claimant; and
    3. At the time the sworn written statement was obtained or given as part of a bona fide sale or a loan secured by the commercial real estate, the lien of record had not been previously canceled, dissolved, or expired. (Code 1981, § 44-14-605 , enacted by Ga. L. 1993, p. 1490, § 1.)

ARTICLE 9 LIS PENDENS

Law reviews. - For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For note, "Georgia's Lis Pendens Statutes: Suggested Legislative Changes to Comply with Due Process," see 4 Ga. St. U.L. Rev. 79 (1988).

JUDICIAL DECISIONS

Purpose of lis pendens. - Lis pendens, whether it be from the common law as provided in O.C.G.A. § 23-1-18 , or by statute (O.C.G.A. Ch. 14, T. 44), has for its purpose the protection of innocent purchasers of real property involved in pending litigation. Patent Scaffolding Co. v. Byers, 220 Ga. 426 , 139 S.E.2d 332 (1964).

Lis pendens does not apply in suit for money damages. - At common law and under statutory provisions lis pendens may not be predicated upon an action which seeks merely to recover a money judgment. Watson v. Whatley, 218 Ga. 86 , 126 S.E.2d 621 (1962).

Effect of lis pendens. - A lis pendens simply gives notice to prospective purchasers that lawsuit involving realty has been filed. It does not prevent sale of property, nor is it a lien on property. Aiken v. Citizens & S. Bank, 249 Ga. 481 , 291 S.E.2d 717 , cert. denied, 459 U.S. 973, 103 S. Ct. 307 , 74 L. Ed. 2 d 287 (1982).

Lis pendens appropriate remedy for improper sale of estate. - Insofar as a resale of property alleged to be sold improperly by the administratrix to an insolvent grantee is concerned, the parties interested in the estate would have an adequate remedy by filing a proper notice of lis pendens. Conner v. Yawn, 200 Ga. 500 , 37 S.E.2d 541 (1946).

Due process does not require advance notice of filing of lis pendens. Aiken v. Citizens & S. Bank, 249 Ga. 481 , 291 S.E.2d 717 , cert. denied, 459 U.S. 973, 103 S. Ct. 307 , 74 L. Ed. 2 d 287 (1982).

RESEARCH REFERENCES

ALR. - Doctrine of lis pendens as applied against one who takes deed pending action pursuant to executory contract entered into before action commenced, 93 A.L.R. 404 .

Necessity of filing notice of lis pendens in suit to contest a will, 159 A.L.R. 386 .

Propriety of filing of lis pendens in action affecting leasehold interest, 67 A.L.R.3d 747.

Lis pendens in suit to compel stock transfer, 48 A.L.R.4th 731.

Lis pendens: grounds for cancellation prior to termination of underlying action, absent claim of delay, 49 A.L.R.4th 242.

Lis pendens as applicable to suit for separation or dissolution of marriage, 65 A.L.R.4th 522.

44-14-610. Necessity of recordation for operation of lis pendens as to real property.

No action, whether seeking legal or equitable relief or both, as to real property in this state shall operate as a lis pendens as to any such real property involved therein until there shall have been filed in the office of the clerk of the superior court of the county where the real property is located and shall have been recorded by the clerk in a book to be kept by him for the purpose a notice of the institution of the action containing the names of the parties, the time of the institution of the action, the name of the court in which it is pending, a description of the real property involved, and a statement of the relief sought regarding the property.

(Ga. L. 1939, p. 345, § 1; Ga. L. 1982, p. 3, § 44.)

Law reviews. - For annual survey of zoning and land use law, see 58 Mercer L. Rev. 477 (2006). For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010). For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010).

JUDICIAL DECISIONS

Lis pendens may not be predicated upon action which seeks merely to recover money judgment. Rather, its purpose is to notify prospective purchasers that the property in question is directly "involved" in a pending suit, in the sense that the suit seeks some relief respecting that particular property. Evans v. Fulton Nat'l Mtg. Corp., 168 Ga. App. 600 , 309 S.E.2d 884 (1983).

In an action seeking to rescind a contract or sale of a residence based on fraud, the trial court properly ordered the removal of the notice of lis pendens erroneously filed by plaintiff against other property of the defendant. Quill v. Newberry, 238 Ga. App. 184 , 518 S.E.2d 189 (1999).

A lis pendens becomes effective upon filing in the office of the superior court clerk. Kennedy v. W.M. Sheppard Lumber Co., 261 Ga. 145 , 401 S.E.2d 515 (1991).

Lis pendens not improper when filed in regular course of proceeding involving real property. - Filing of notice of lis pendens cannot be said to be improper when such notice is filed in regular course of proceeding involving real property to which notice refers. Ferguson v. Atlantic Land & Dev. Corp., 248 Ga. 69 , 281 S.E.2d 545 (1981).

Lis pendens not proper for investment right. - Right of first refusal to invest in a limited liability company's development of real estate held by an LLC member was not a sufficient interest for the filing of a lis pendens because the member's interest in the LLC was a right to invest in the development of real estate, which was an interest in personalty, not an interest in real estate. Meadow Springs, LLC v. IH Riverdale, LLC, 286 Ga. 701 , 690 S.E.2d 842 (2010).

Cancelling notice of lis pendens. - Trial court erred in granting motion to cancel lis pendens based on merits of underlying claim. Scroggins v. Edmondson, 250 Ga. 430 , 297 S.E.2d 469 (1982).

A court may order the removal of a lis pendens not entitled to be recorded, but such action is generally preceded by a motion to cancel the lis pendens. Kennedy v. W.M. Sheppard Lumber Co., 261 Ga. 145 , 401 S.E.2d 515 (1991).

Trial court did not err in failing to cancel, sua sponte, a lis pendens. Kennedy v. W.M. Sheppard Lumber Co., 261 Ga. 145 , 401 S.E.2d 515 (1991).

Because a federal lawsuit seeking to restore the owners' land to its original condition and to address changes in the flow of water underneath the land "involved" the land for purposes of a lis pendens notice under O.C.G.A. § 44-14-610 , the trial court properly denied a bank's motion to cancel the lis pendens in whole or in part. Colony Bank Southeast v. Brown, 275 Ga. App. 807 , 622 S.E.2d 7 (2005).

Although a trial court improperly considered the merits of certain out-of-state litigation in determining that a lis pendens required cancellation, the cancellation was upheld as the out-of-state court no longer had subject matter jurisdiction over the Georgia property. Boca Petroco, Inc. v. Petroleum Realty II, LLC, 292 Ga. App. 833 , 666 S.E.2d 12 (2008).

A lis pendens concerning real property in Georgia alleged to be involved in litigation in Florida should have been involuntarily cancelled. For there to be a valid lis pendens, the court before which the underlying litigation was filed had to have subject matter jurisdiction, and the Florida court lacked subject matter jurisdiction over the Georgia property. Petroleum Realty II v. Boca Petroco, Inc., 292 Ga. App. 896 , 666 S.E.2d 49 (2008), aff'd, Boca Petroco, Inc. v. Petroleum Realty II, LLC., 285 Ga. 487 , 678 S.E.2d 330 (2009).

Trial court properly removed a notice of lis pendens placed on certain real property that was the subject of a suit brought by a property investment company against various related business entities asserting claims for breach of contract, fraud, punitive damages, attorney's fees, and declaratory judgment as the related business entities obtained summary judgment, which thereby entitled the entities to cancellation of the lis pendens notice. Triple Net Props., LLC v. Burruss Dev. & Constr., Inc., 293 Ga. App. 323 , 667 S.E.2d 127 (2008).

Trial court erred in cancelling a record notice of lis pendens because it was alleged that the subject property was fraudulently transferred by a former partner to defeat the claims of the plaintiff and that the transfer should be set aside; thus, it could not be said that the subject property was not involved in the lawsuit. Meljon v. Sonsino, 325 Ga. App. 719 , 753 S.E.2d 456 (2014).

Lis pendens as notice. - With respect to an objection to the debtor's motion to sell property free and clear of liens and other interests, one objector's claimed interest in a road was resolved by a state court order because the objector had actual and constructive knowledge of the state court litigation and the claims asserted therein by virtue of two lis pendens filed, and the objector's president's actual knowledge. In re Flyboy Aviation Props., LLC, 501 Bankr. 828 (Bankr. N.D. Ga. 2013).

Definition of "involved." - The word "involved" as used in O.C.G.A. § 44-14-610 refers only to the realty actually and directly brought into litigation by the pleadings in a pending suit and as to which some relief is sought respecting that particular property. Kenner v. Fields, 217 Ga. 745 , 125 S.E.2d 44 (1962); Hill v. L/A Mgt. Corp., 234 Ga. 341 , 216 S.E.2d 97 (1975); Jay Jenkins Co. v. Financial Planning Dynamics, Inc., 256 Ga. 39 , 343 S.E.2d 487 (1986); South River Farms v. Bearden, 210 Ga. App. 156 , 435 S.E.2d 516 (1993).

An action for wrongful foreclosure against a bank by the grantors of security deeds was a classic example of a suit in which real property was "involved" within the meaning of O.C.G.A. § 44-14-610 . Moore v. Bank of Fitzgerald, 266 Ga. 190 , 465 S.E.2d 445 (1996).

Only parties to pending suit must be listed in notice. - While O.C.G.A. § 44-14-610 does not explicitly state that only parties to the pending suit must be listed in the notice, if the purpose of O.C.G.A. § 44-14-610 is to notify "persons who are not parties to a pending suit" of the binding effect of any judgment or decree rendered therein, then "parties" as used in O.C.G.A. § 44-14-610 must relate only to actual parties to the pending suit. FDIC v. McCloud, 478 F. Supp. 47 (N.D. Ga. 1979).

Failure to file notice of suit outside county does not affect second action within county. - The failure to file a lis pendens notice in one county as to an action in a second county has no effect on the right, or lack of right, of a complainant to a contractor's lien against property in the first county. Grant Atlanta Corp. v. Chenggis, 142 Ga. App. 375 , 235 S.E.2d 779 (1977).

Litigation pending outside of Georgia involving Georgia property. - Lis pendens cannot be filed in Georgia to give notice of litigation pending outside of Georgia that involves the Georgia property. Thus, notices of lis pendens were invalid because a Florida court lacked subject matter jurisdiction over the properties located in Georgia. Boca Petroco, Inc. v. Petroleum Reality II, LLC., 285 Ga. 487 , 678 S.E.2d 330 (2009).

Lis pendens notice unnecessary when lien claim notice properly filed. - A notice of a claim for lien properly and timely filed and recorded performs the function of notifying all parties of the claim of lien, and a notice of lis pendens under O.C.G.A. § 44-14-610 is neither necessary nor applicable. Grand Atlanta Corp. v. Chenggis, 142 Ga. App. 375 , 235 S.E.2d 779 (1977).

Because the lis pendens was filed when defendant did not have record title to the land, even though defendant's financing arrangement included a wrap around provision containing defendant's deed to secure debt, the lis pendens filed after defendant's warranty deed was outside the chain of title and did not constitute constructive notice to a purchaser. Marietta Recovery Group, Inc. v. Financial Properties Developers, Inc., 256 Ga. 238 , 347 S.E.2d 596 (1986).

Buyer who purchases land pending action subject to judgment if lis pendens filed. - The pending action seeking to declare plaintiff's deed null and void is general notice to all the world, provided notice of the pending suit is filed on the lis pendens docket in the office of the clerk of the superior court where the land lies, and one who purchases the property pending the suit would be affected by the decree rendered therein. Wilson v. Blake Perry Realty Co., 219 Ga. 57 , 131 S.E.2d 555 (1963).

Lis pendens is not a "seizure" for purposes of a malicious prosecution action, as lis pendens does not prevent the sale of property and does not constitute a lien. Bell v. King, Phipps & Assocs., 176 Ga. App. 702 , 337 S.E.2d 364 (1985).

Duration of valid notice. - A valid notice of lis pendens, filed pursuant to O.C.G.A. § 44-14-610 , remains effective as constructive notice of the action referred to therein only until a final judgment has been entered in the action and the time for appeal therefrom has expired. Vance v. Lomas Mtg. USA, Inc., 263 Ga. 33 , 426 S.E.2d 873 (1993).

Lis pendens invalid. - Trial court erred in granting a limited liability company and the company's members summary judgment in an owner's action for slander of title, tortious interference with contract, and tortious interference with economic opportunities because the act of sending copies of a notice of lis pendens on the owner's property and a complaint against the owner to a bank did not fall under the absolute privilege of O.C.G.A. § 51-5-8 since the lis pendens was not valid. Meadow Springs, LLC v. IH Riverdale, LLC, 307 Ga. App. 72 , 704 S.E.2d 239 (2010).

Cited in Wright v. Edmondson, 189 Ga. 310 , 5 S.E.2d 769 (1939); Godfrey v. City of Cochran, 208 Ga. 149 , 65 S.E.2d 605 (1951); Patent Scaffolding Co. v. Byers, 220 Ga. 426 , 139 S.E.2d 332 (1964); Foster v. Young, 232 Ga. 365 , 207 S.E.2d 9 (1974); Griggs v. Gwinco Dev. Corp., 240 Ga. 487 , 241 S.E.2d 244 (1978); Eavenson v. Parker, 261 Ga. 607 , 409 S.E.2d 520 (1991); Bayview Loan Servicing, LLC v. Baxter, 312 Ga. App. 826 , 720 S.E.2d 292 (2011); Navy Fed. Credit Union v. McCrea, 337 Ga. App. 103 , 786 S.E.2d 707 (2016).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Lis Pendens, §§ 46, 47.

17 Am. Jur. Pleading and Practice Forms, Lis Pendens, § 3.

C.J.S. - 54 C.J.S., Lis Pendens, §§ 14 et seq., 31.

ALR. - Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306 .

Lis pendens as affecting property in county or district other than that in which action is pending, 71 A.L.R. 1085 .

Doctrine of lis pendens as applicable to actions to avoid conveyance or transfer in fraud of creditors or to prevent such conveyance or transfer, 74 A.L.R. 690 .

Necessity of filing notice of lis pendens in suit to foreclose mortgage or deed of trust, 138 A.L.R. 1454 .

Decree on bill of review reversing prior decree as affecting purchaser or mortgagee of real property in the interval between original decree and the filing of the bill of review, 150 A.L.R. 676 .

Right of vendee under executory land contract to lien for amount paid on purchase price as against subsequent creditors of or purchasers from vendor, 82 A.L.R.3d 1040.

44-14-611. Lis pendens docket; indexing; recording fees.

The clerks of the superior courts of this state shall keep a lis pendens docket in which they shall record all notices of lis pendens on real property filed with them, such lis pendens docket to have proper indexes arranged alphabetically both as to direct and inverse; and the clerks shall be allowed a fee, as required by subparagraph (f)(1)(A) of Code Section 15-6-77, for recording the lis pendens in the lis pendens docket.

(Ga. L. 1939, p. 345, § 2; Ga. L. 1981, p. 1396, § 21; Ga. L. 1992, p. 6, § 44.)

JUDICIAL DECISIONS

Only those suits or actions which involve real property are to be docketed. Watson v. Whatley, 218 Ga. 86 , 126 S.E.2d 621 (1962).

Cited in Wright v. Edmondson, 189 Ga. 310 , 5 S.E.2d 769 (1939); Godfrey v. City of Cochran, 208 Ga. 149 , 65 S.E.2d 605 (1951); Berger v. Shea, 150 Ga. App. 812 , 258 S.E.2d 621 (1979).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Lis Pendens, §§ 46, 47. 66 Am. Jur. 2d, Records, and Recording Laws, § 64.

C.J.S. - 54 C.J.S., Lis Pendens, § 18. 76 C.J.S., Records, § 19 et seq.

ALR. - Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306 .

44-14-612. Entry of dismissal, settlement, or final judgment.

Upon the dismissal of any action by the plaintiff or plaintiffs or when a settlement or final judgment is entered therein, such dismissal, settlement, or final judgment shall be indicated on the face of the lis pendens record by the clerk of the superior court of each county where the lis pendens is recorded; and the book and page of the records where the final order or judgment is found shall also be indicated on the lis pendens record by the clerk.

(Ga. L. 1939, p. 345, § 3.)

JUDICIAL DECISIONS

Removal of nonrecordable lis pendens. - Although O.C.G.A. § 44-14-612 provides means for recording the removal of a properly filed notice of lis pendens, a lis pendens not entitled to be recorded may be removed by court order by means and for causes other than those prescribed in that section. Hill v. L/A Mgt. Corp., 234 Ga. 341 , 216 S.E.2d 97 (1975).

Cancelling notice of lis pendens. - Although a trial court improperly considered the merits of certain out-of-state litigation in determining that a lis pendens required cancellation, the cancellation was upheld as the out-of-state court no longer had subject matter jurisdiction over the Georgia property. Boca Petroco, Inc. v. Petroleum Realty II, LLC, 292 Ga. App. 833 , 666 S.E.2d 12 (2008).

Although O.C.G.A. § 44-14-612 now directs the clerk to indicate on the face of the recorded lis pendens notice a dismissal, settlement, or final judgment entered in the underlying action, no reversal was required based on the clerk's failure to do so because, following the appeal, the judgment releasing the lis pendens was final and no further appeal was possible. Therefore, any error was harmless. Arko v. Cirou, 305 Ga. App. 790 , 700 S.E.2d 604 (2010).

Slander of title. - Summary judgment was properly granted to real property buyers in an action by the sellers, alleging slander of title under O.C.G.A. § 51-9-11 , as the sellers failed to assert actionable claims where lis pendens filed against the property were proper and privileged under O.C.G.A. § 51-5-8 ; further, any failure to remove or properly mark the lis pendens pursuant to O.C.G.A. § 44-14-612 after the sellers voluntarily dismissed the claim did not form the basis of a slander of title claim against the buyers. Exec. Excellence, LLC v. Martin Bros. Invs., LLC, 309 Ga. App. 279 , 710 S.E.2d 169 (2011).

Cited in Godfrey v. City of Cochran, 208 Ga. 149 , 65 S.E.2d 605 (1951); Roan v. Cranston, 173 Ga. App. 747 , 327 S.E.2d 856 (1985); Zohoury v. Zohouri, 218 Ga. App. 748 , 463 S.E.2d 141 (1995).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Lis Pendens, §§ 46, 58.

C.J.S. - 54 C.J.S., Lis Pendens, § 24 et seq.

ALR. - Statute requiring filing of formal notice of lis pendens in certain classes of cases as affecting common-law doctrine of lis pendens in other cases, 10 A.L.R. 306 .

44-14-613. Effect of article on other laws.

  1. This article shall in no way affect or alter the laws of this state with respect to personal property.
  2. This article shall in no way affect or alter the laws of this state with respect to judgments, executions, and attachments; the liens they create; their enforceability; the recording of executions in general execution dockets; the notice given by the recording; or otherwise.

    (Ga. L. 1939, p. 345, §§ 4, 5; Ga. L. 1982, p. 3, § 44.)

JUDICIAL DECISIONS

Cited in Patent Scaffolding Co. v. Byers, 220 Ga. 426 , 139 S.E.2d 332 (1964); Hill v. L/A Mgt. Corp., 234 Ga. 341 , 216 S.E.2d 97 (1975).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Lis Pendens, §§ 5, 6, 21.

C.J.S. - 54 C.J.S., Lis Pendens, § 10.

ALR. - Necessity of filing notice of lis pendens in suit to foreclose mortgage or deed of trust, 138 A.L.R. 1454 .

CHAPTER 15 UNIFORM PRUDENT MANAGEMENT OF INSTITUTIONAL FUNDS

Sec.

Effective date. - This chapter became effective July 1, 2008.

Cross references. - Nonprofit corporations generally, Ch. 3, T. 14.

Editor's notes. - Ga. L. 2008, p. 149, § 1, effective July 1, 2008, repealed the Code sections formerly codified at this chapter and enacted the current chapter. The former chapter consisted of Code Sections 44-15-1 through 44-15-9, relating to management of institutional funds, and was based on Ga. L. 1984, p. 831, § 1; Ga. L. 1985, p. 149, § 44; Ga. L. 1990, p. 1471, § 3.

RESEARCH REFERENCES

Am. Jur. 2d. - 15 Am. Jur. 2d, Charities, § 100.

44-15-1. Short title.

This chapter shall be known and may be cited as the "Uniform Prudent Management of Institutional Funds Act."

(Code 1981, § 44-15-1 , enacted by Ga. L. 2008, p. 149, § 1/HB 972.)

Law reviews. - For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008).

44-15-2. Definitions.

As used in this chapter, the term:

  1. "Charitable purpose" means the relief of poverty, the advancement of education or religion, the promotion of health, the promotion of a governmental purpose, or any other purpose the achievement of which is beneficial to the community.
  2. "Endowment fund" means an institutional fund, or any part thereof, that, under the terms of a gift instrument, is not wholly expendable by the institution on a current basis. The term shall not include assets that an institution designates as an endowment fund for its own use.
  3. "Gift instrument" means a record or records, including an institutional solicitation, under which property is granted to, transferred to, or held by an institution as an institutional fund.
  4. "Institution" means:
    1. A person, other than an individual, organized and operated exclusively for charitable purposes;
    2. A government or governmental subdivision, agency, or instrumentality, to the extent that it holds funds exclusively for a charitable purpose; and
    3. A trust that had both charitable and noncharitable interests, after all noncharitable interests have terminated.
  5. "Institutional fund" means a fund held by an institution exclusively for charitable purposes. The term shall not include:
    1. Program related assets;
    2. A fund held for an institution by a trustee that is not an institution; or
    3. A fund in which a beneficiary who is not an institution has an interest, other than an interest that could arise upon violation or failure of the purposes of the fund.
  6. "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
  7. "Program related asset" means an asset held by an institution primarily to accomplish a charitable purpose of the institution and not primarily for investment.
  8. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (Code 1981, § 44-15-2 , enacted by Ga. L. 2008, p. 149, § 1/HB 972.)

44-15-3. Considerations and standard of conduct for institutions receiving gifts.

  1. Subject to the intent of a donor expressed in a gift instrument or any express written agreement between the donor and the institution, an institution, in managing and investing an institutional fund, shall consider the charitable purposes of the institution and the purposes of the institutional fund.
  2. In addition to complying with the duty of loyalty imposed by law other than this chapter, each person responsible for managing and investing an institutional fund shall manage and invest such fund in good faith and with the care an ordinarily prudent person in a like position would exercise under similar circumstances, considering the purposes, terms, distribution requirements, and other circumstances of the institutional fund.
  3. In managing and investing an institutional fund, an institution:
    1. May incur only costs that are appropriate and reasonable in relation to the assets, the purposes of the institution and the institutional fund, and the skills reasonably available to the institution; and
    2. Shall make a reasonable effort to verify facts relevant to the management and investment of such fund.
  4. An institution may pool two or more institutional funds for purposes of management and investment.
  5. Except as otherwise provided by a gift instrument, the following rules apply:
    1. In managing and investing an institutional fund, the following factors, if relevant, shall be considered:
      1. General economic conditions;
      2. The possible effect of inflation or deflation;
      3. The expected tax consequences, if any, of investment decisions or strategies;
      4. The role that each investment or course of action plays within the overall investment portfolio of such fund;
      5. The expected total return from income and the appreciation of investments;
      6. Other resources of the institution;
      7. The needs of the institution and such fund to make distributions and to preserve capital; and
      8. An asset's special relationship or special value, if any, to the charitable purposes of the institution or to the donor;
    2. Management and investment decisions about an individual asset shall not be made in isolation but rather in the context of the institutional fund's portfolio of investments as a whole and as a part of an overall investment strategy having risk and return objectives reasonably suited to the institutional fund and to the institution;
    3. An institution may invest in any kind of property or type of investment consistent with this Code section;
    4. An institution shall reasonably manage the risk of concentrated holdings of assets by diversifying the investments of the institutional fund or by using some other appropriate mechanism, except as provided in this paragraph, as follows:
      1. The duty imposed by this paragraph shall not apply if the institution reasonably determines that, because of special circumstances, or because of the specific purposes, terms, distribution requirements, and other circumstances of the institutional fund, the purposes of such fund are better served without complying with the duty. For purposes of this paragraph, special circumstances shall include an asset's special relationship or special value, if any, to the charitable purposes of the institution or to the donor;
      2. No person responsible for managing and investing an institutional fund shall be liable for failing to comply with the duty imposed by this paragraph to the extent that the terms of the gift instrument or express written agreement between the donor and the institution limits or waives the duty; and
      3. The governing board of an institution may retain property contributed by a donor to an institutional fund for as long as the governing board deems advisable;
    5. Within a reasonable time after receiving property, an institution shall make and carry out decisions concerning the retention or disposition of the property or to the rebalancing of a portfolio, in order to bring the institutional fund into compliance with the purposes, terms, and distribution requirements of the institution or the institutional fund as necessary to meet other circumstances of the institution or the institutional fund and the requirements of this chapter; and
    6. A person that has special skills or expertise, or is selected in reliance upon the person's representation that such person has special skills or expertise, has a duty to use those skills or expertise in managing and investing institutional funds. (Code 1981, § 44-15-3 , enacted by Ga. L. 2008, p. 149, § 1/HB 972.)

44-15-4. Management of institutional funds for endowment.

  1. Subject to the intent of a donor expressed in the gift instrument or to any express written agreement between a donor and an institution, an institution may appropriate for expenditure or accumulate assets of an endowment fund as the institution determines shall be prudent for the uses, benefits, purposes, and duration for which the endowment fund is established. Unless stated otherwise in the gift instrument, the assets in an endowment fund shall be donor restricted assets until appropriated for expenditure by the institution. In making a determination to appropriate or accumulate assets, the institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, and shall consider, if relevant, the following factors:
    1. The duration and preservation of the endowment fund;
    2. The purposes of the institution and the endowment fund;
    3. General economic conditions;
    4. The possible effect of inflation or deflation;
    5. The expected total return from income and the appreciation of investments;
    6. Other resources of the institution; and
    7. The investment policy of the institution.
  2. To limit the authority to appropriate assets for expenditure or accumulation under subsection (a) of this Code section, a gift instrument shall specifically state the limitation.
  3. Terms in a gift instrument designating a gift as an endowment, or a direction or authorization in the gift instrument to use only income, interest, dividends, or rents, issues, or profits, or to preserve the principal intact, or other words of similar meaning shall:
    1. Create an endowment fund of permanent duration, unless otherwise provided by the gift instrument for limiting the duration of such fund; and
    2. Not otherwise limit the authority to appropriate assets for expenditure or accumulation under subsection (a) of this Code section. (Code 1981, § 44-15-4 , enacted by Ga. L. 2008, p. 149, § 1/HB 972.)

44-15-5. Delegation of management of funds.

  1. Subject to any specific limitation set forth in a gift instrument or in law other than this chapter, an institution may delegate to an external agent the management and investment of an institutional fund to the extent that an institution could prudently delegate under the circumstances. An institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, in:
    1. Selecting an agent;
    2. Establishing the scope and terms of the delegation, consistent with the purposes of the institution and the institutional fund; and
    3. Periodically reviewing the agent's actions in order to monitor the agent's performance and compliance with the scope and terms of the delegation.
  2. In performing a delegated function, an agent owes a duty to the institution to exercise reasonable care to comply with the scope and terms of the delegation.
  3. An institution that complies with subsection (a) of this Code section shall not be liable for the decisions or actions of an agent for the performance of a delegated function.
  4. By accepting the delegation of a management or investment function from an institution that is subject to the laws of this state, an agent submits to the jurisdiction of the courts of this state in all proceedings arising from or related to the delegation or the performance of the delegated function.
  5. An institution may delegate management and investment functions to its committees, officers, or employees as otherwise authorized by law. (Code 1981, § 44-15-5 , enacted by Ga. L. 2008, p. 149, § 1/HB 972.)

44-15-6. Modification of restrictions.

  1. If the donor or a donor's designee consents in a record, an institution may release or modify, in whole or in part, a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund. A release or modification may not allow an institutional fund to be used for a purpose other than a charitable purpose of the institution.
  2. The court, upon application of an institution, may modify a restriction contained in a gift instrument regarding the management or investment of an institutional fund if the restriction has become impracticable or wasteful, if it impairs the management or investment of such fund, or if, because of circumstances not anticipated by the donor, a modification of a restriction will further the purposes of such fund. The institution shall notify the Attorney General of the application, and the Attorney General shall be given an opportunity to be heard. To the extent practicable, any modification shall be made in accordance with the donor's probable intention.
  3. If a particular charitable purpose or a restriction contained in a gift instrument on the use of an institutional fund becomes unlawful, impracticable, impossible to achieve, or wasteful, the court, upon application of an institution, may modify the purpose of such fund or the restriction on the use of such fund in a manner consistent with the charitable purposes expressed in the gift instrument. The institution shall notify the Attorney General of the application, and the Attorney General shall be given an opportunity to be heard.
  4. If an institution determines that a restriction contained in a gift instrument on the management, investment, or purpose of an institutional fund is unlawful, impracticable, impossible to achieve, or wasteful, the institution, 60 days after notification to the Attorney General, may release or modify the restriction, in whole or part, if:
    1. The institutional fund subject to the restriction has a total value of less than $100,000.00;
    2. More than 20 years have elapsed since the institutional fund was established; and
    3. The institution uses the property in a manner consistent with the charitable purposes expressed in the gift instrument. (Code 1981, § 44-15-6 , enacted by Ga. L. 2008, p. 149, § 1/HB 972.)

44-15-7. Compliance with provisions; effective date.

Compliance with this chapter shall be determined in light of the facts and circumstances existing at the time a decision is made or action is taken, and not by hindsight. This chapter applies to institutional funds existing on or established after July 1, 2008. As applied to institutional funds existing on July 1, 2008, this chapter governs only decisions made or actions taken on or after that date. This chapter shall not authorize electronic delivery of any legally required notice.

(Code 1981, § 44-15-7 , enacted by Ga. L. 2008, p. 149, § 1/HB 972.)

44-15-8. Uniformity with law of other states.

In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

(Code 1981, § 44-15-8 , enacted by Ga. L. 2008, p. 149, § 1/HB 972.)

CHAPTER 16 UNIFORM ENVIRONMENTAL COVENANTS

Sec.

Effective date. - This chapter became effective July 1, 2008.

44-16-1. Short title.

This chapter may be known as and may be cited as the "Uniform Environmental Covenants Act."

(Code 1981, § 44-16-1 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132.)

44-16-2. Definitions.

As used in this chapter, the term:

  1. "Activity and use limitations" means restrictions or obligations created under this chapter with respect to real property.
  2. "Agency" means the Environmental Protection Division of the Department of Natural Resources or any federal agency that determines or approves the environmental response project pursuant to which the environmental covenant is created.
  3. "Common interest community" means a condominium, cooperative, or other real property with respect to which a person, by virtue of the person's ownership of a parcel of real property, is obligated to pay property taxes or insurance premiums, or for maintenance, or improvement of other real property described in a recorded covenant that creates the common interest community.
  4. "Environmental covenant" means a servitude arising under an environmental response project that imposes activity and use limitations.
  5. "Environmental response project" means a plan or work performed for environmental remediation of real property and conducted:
    1. Under a federal or state program governing environmental remediation of real property;
    2. Incident to closure of a solid or hazardous waste management unit, if the closure is conducted with approval of an agency; or
    3. Under a state voluntary clean-up program.
  6. "Holder" means the grantee of an environmental covenant as specified in subsection (a) of Code Section 44-16-3.
  7. "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, political subdivision, agency, or instrumentality, or any other legal or commercial entity.
  8. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. (Code 1981, § 44-16-2 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132.)

44-16-3. Holders of environmental covenants; rights of agency; rules.

  1. Any person, including a person that owns an interest in the real property, the agency, or a municipality, county, consolidated government, or other unit of local government, may be a holder. An environmental covenant may identify more than one holder. The interest of a holder shall be an interest in real property.
  2. A right of an agency under this chapter or under an environmental covenant, other than a right as a holder, shall not be considered an interest in real property.
  3. An agency shall be bound by any obligation it assumes in an environmental covenant, but an agency shall not assume obligations merely by signing an environmental covenant. Any other person that signs an environmental covenant shall be bound by the obligations the person assumes in the covenant, but signing the covenant shall not change obligations, rights, or protections granted or imposed under law.
  4. The following rules apply to interests in real property in existence at the time an environmental covenant is created or amended:
    1. An interest that has priority under other law shall not be affected by an environmental covenant unless the person that owns the interest subordinates that interest to the covenant;
    2. The provisions of this chapter shall not require a person that owns a prior interest to subordinate that interest to an environmental covenant or to agree to be bound by the covenant;
    3. A subordination agreement may be contained in an environmental covenant covering real property or in a separate record. If the environmental covenant covers commonly owned property in a common interest community, the record may be signed by any person authorized by the governing board of the owners' association; and
    4. An agreement by a person to subordinate a prior interest to an environmental covenant affects the priority of that person's interest but shall not by itself impose any affirmative obligation on the person with respect to the environmental covenant. (Code 1981, § 44-16-3 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132.)

44-16-4. Requirements for environmental covenant.

  1. An environmental covenant shall:
    1. State that the instrument is an environmental covenant executed pursuant to this chapter;
    2. Contain a legally sufficient description of the real property subject to the covenant and the name of the owner of the fee simple of the real property subject to such covenant at the time such covenant is executed;
    3. Describe the activity and use limitations on the real property;
    4. Identify every holder;
    5. Be signed by the agency, every holder, and, unless waived by the agency, every owner of the fee simple of the real property subject to such covenant; and
    6. Identify the name and location of any administrative record for the environmental response project reflected in the environmental covenant.
  2. In addition to the information required by subsection (a) of this Code section, an environmental covenant may contain other information, restrictions, and requirements agreed to by the persons who signed it, including any:
    1. Requirements for notice following transfer of a specified interest in, or concerning proposed changes in use of, applications for building permits for, or proposals for any site work affecting the contamination on, the property subject to the covenant;
    2. Requirements for periodic reporting describing compliance with the covenant;
    3. Rights of access to the property granted in connection with implementation or enforcement of the covenant;
    4. A brief narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure, and the location and extent of the contamination;
    5. Limitation on amendment or termination of the covenant in addition to those contained in Code Sections 44-16-9 and 44-16-10; and
    6. Rights of the holder in addition to the right to enforce the covenant pursuant to Code Section 44-16-11.
  3. In addition to other conditions for its approval of an environmental covenant, the agency may require those persons specified by the agency who have interests in the real property to sign the covenant.
  4. The agency shall not sign the environmental covenant without confirming that the people or entities listed in paragraphs (1) through (6) of subsection (a) of Code Section 44-16-7 have been served with a copy of the proposed final text of the environmental covenant at least 30 days prior to the agency signing such covenant. (Code 1981, § 44-16-4 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132.)

44-16-5. Enforcement of environmental convenant.

  1. An environmental covenant that complies with this chapter runs with the land.
  2. An environmental covenant that is otherwise effective shall be valid and enforceable even if:
    1. It is not appurtenant to an interest in real property;
    2. It can be or has been assigned to a person other than the original holder;
    3. It is not of a character that has been recognized traditionally at common law;
    4. It imposes a negative burden;
    5. It imposes an affirmative obligation on a person having an interest in the real property or on the holder;
    6. The benefit or burden does not touch or concern real property;
    7. There is no privity of estate or contract;
    8. The holder dies, ceases to exist, resigns, or is replaced; or
    9. The owner of an interest subject to the environmental covenant and the holder are the same person.
  3. An instrument that creates restrictions or obligations with respect to real property that would qualify as activity and use limitations except for the fact that the instrument was recorded before July 1, 2008, shall not be invalid or unenforceable because of any of the limitations on enforcement of interests described in subsection (b) of this Code section or because it was identified as an easement, servitude, deed restriction, or other interest. This chapter shall not apply in any other respect to such an instrument.
  4. This chapter shall not invalidate or render unenforceable any interest, whether designated as an environmental covenant or other interest, that is otherwise enforceable under the law of this state. (Code 1981, § 44-16-5 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132; Ga. L. 2019, p. 1056, § 44/SB 52.)

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (c).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, "July 1, 2008" was substituted for "the effective date of this chapter" in the first sentence of subsection (c).

44-16-6. Environmental covenant restrictions.

This chapter shall not authorize a use of real property that is otherwise prohibited by zoning, by ordinance, by local law, by general law, or by a recorded instrument that has priority over the environmental covenant. An environmental covenant may prohibit or restrict uses of real property which are otherwise authorized by zoning, by ordinance, by local law, or by general law.

(Code 1981, § 44-16-6 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132.)

44-16-7. Validation of environmental covenant.

  1. A copy of an environmental covenant shall be provided in the manner required by the agency and shall establish proof of service to:
    1. Each person that signed the covenant;
    2. Each person holding a recorded interest in the real property subject to the covenant;
    3. Each person in possession of the real property subject to the covenant;
    4. Each municipality, county, consolidated government, or other unit of local government in which real property subject to the covenant is located;
    5. Each owner in fee simple whose property abuts the property subject to the environmental covenant; and
    6. Any other person the agency requires.
  2. The validity of an environmental covenant shall not be affected by failure to provide a copy of the covenant as required under this Code section. (Code 1981, § 44-16-7 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132.)

44-16-8. Recording of amendments or termination of environmental convenant.

  1. An environmental covenant and any amendment or termination of the covenant shall be recorded in every county in which any portion of the real property subject to the covenant is located. For purposes of indexing, a holder shall be treated as a grantee.
  2. Except as otherwise provided in subsection (c) of Code Section 44-16-9 , an environmental covenant shall be subject to the laws of this state governing recording and priority of interests in real property. (Code 1981, § 44-16-8 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132.)

44-16-9. Limitation of environmental covenant.

  1. An environmental covenant shall be perpetual, which shall be stated in such covenant, unless it is:
    1. By its terms limited to a specific duration or terminated by the occurrence of a specific event;
    2. Terminated by consent pursuant to Code Section 44-16-10;
    3. Terminated pursuant to subsection (b) of this Code section;
    4. Terminated by foreclosure of an interest that has priority over the environmental covenant; or
    5. Terminated or modified in an eminent domain proceeding, but only if:
      1. The agency that signed the covenant is a party to the proceeding;
      2. All persons identified in subsections (a) and (b) of Code Section 44-16-10 are given notice of the pendency of the proceeding; and
      3. The court determines, after hearing, that the termination or modification will not adversely affect human health or the environment.
  2. If the agency that signed an environmental covenant has determined that the intended benefits of the covenant can no longer be realized, a court, under the doctrine of changed circumstances, in an action in which all persons identified in subsections (a) and (b) of Code Section 44-16-10 have been given notice, may terminate the covenant or reduce its burden on the real property subject to the covenant. The agency's determination or its failure to make a determination upon request of the current owner of the fee simple of the real property or by any affected member of the public shall be subject to review pursuant to Article 1 of Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  3. Except as otherwise provided in subsections (a) and (b) of this Code section, an environmental covenant may not be extinguished, limited, or impaired through issuance of a tax deed, foreclosure of a tax lien, or application of the doctrine of adverse possession, prescription, abandonment, waiver, lack of enforcement, or acquiescence, or a similar doctrine.
  4. An environmental covenant may not be extinguished, limited, or impaired by application of Code Sections 44-5-60 and 44-5-168 . (Code 1981, § 44-16-9 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132; Ga. L. 2019, p. 1056, § 44/SB 52.)

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, substituted "subsections (a) and (b)" for "subsection (a) and (b)" in the first sentence of subsection (b).

44-16-10. Amendment or termination; interest in environmental covenant not affected by amendment; role of court.

  1. An environmental covenant may be amended or terminated by consent only if the amendment or termination is signed by:
    1. The agency;
    2. The current owner of the fee simple of the real property subject to the covenant;
    3. Each person that originally signed the covenant, unless the person waived in a signed record the right to consent or a court finds that the person no longer exists or cannot be located or identified with the exercise of reasonable diligence; and
    4. Except as otherwise provided in paragraph (2) of subsection (d) of this Code section, the holder.
  2. If an interest in real property is subject to an environmental covenant, the interest shall not be affected by an amendment of the covenant unless the current owner of the interest consents to the amendment or has waived in a signed record the right to consent to amendments.
  3. Except for an assignment undertaken pursuant to a governmental reorganization, assignment of an environmental covenant to a new holder shall be an amendment.
  4. Except as otherwise provided in an environmental covenant:
    1. A holder may not assign its interest without consent of the other parties; and
    2. A holder may be removed and replaced by agreement of the other parties specified in subsection (a) of this Code section.
  5. A court of competent jurisdiction may fill a vacancy in the position of holder. (Code 1981, § 44-16-10 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132.)

44-16-11. Liability for violation and enforcement of environmental covenant.

  1. A civil action for injunctive or other equitable relief for violation of an environmental covenant may be maintained by:
    1. A party to the covenant;
    2. The agency;
    3. Any person to whom the covenant expressly grants power to enforce;
    4. Any owner in fee simple whose property abuts the property subject to the environmental covenant, if harm occurs or is reasonably likely to occur;
    5. A person whose interest in the real property or whose collateral or liability may be affected by the alleged violation of the covenant; or
    6. A municipality, county, consolidated government, or other unit of local government in which the real property subject to the covenant is located.
  2. This chapter shall not limit the regulatory authority of the agency under law other than with respect to an environmental response project.
  3. A person shall not be responsible for or subject to liability for environmental remediation solely because such person has the right to enforce an environmental covenant. (Code 1981, § 44-16-11 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132.)

44-16-12. Maintenance of registry.

The agency may establish and maintain a registry that contains all environmental covenants and any amendment or termination of such covenants. The registry may also contain any other information concerning environmental covenants and the real property subject to them which the agency considers appropriate. The registry, if established, shall be a public record for purposes of Article 4 of Chapter 18 of Title 50.

(Code 1981, § 44-16-12 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132.)

44-16-13. Rules and regulations; fees.

The agency may establish rules and regulations for implementing this chapter and may provide for fees for utilizing this chapter.

(Code 1981, § 44-16-13 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132.)

44-16-14. Electronic signatures and delivery.

This chapter modifies, limits, or supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. Section 7001 et seq.) but shall not modify, limit, or supersede Section 101 of such Act (15 U.S.C. Section 7001(a)) or authorize electronic delivery of any of the notices described in Section 103 of such Act (15 U.S.C. Section 7003(b)).

(Code 1981, § 44-16-14 , enacted by Ga. L. 2008, p. 1168, § 1/HB 1132.)